United States v. Tate

ENRIGHT, District Judge,

dissenting:

I respectfully dissent. Based on the totality of the circumstances, I would find probable cause to support the warrant issued for the search of the Avenue 320 residence. Even if there were insufficient probable cause to support issuance of that warrant, the automobile stop and the search of the Ford van were proper. The district court’s failure to suppress evidence seized in the search of the residence was harmless error. Accordingly, the convictions should be affirmed.

In determining whether there is probable cause to support a search warrant, “[i]t is only necessary that the affidavit enable the magistrate to conclude that it would be reasonable to seek the evidence in the place indicated by the affidavit.” United States v. Flores, 679 F.2d 173, 175 (9th Cir.1982) (quoting, United States v. Hendershot, 614 F.2d 648, 654 (9th Cir.1980)). The magistrate’s decision is accorded great deference. United States v. Traylor, 656 F.2d 1326, 1330 (9th Cir.1981).

Neither side has cited, nor has this court found, a case which holds that the smell of a non-contraband substance, having legitimate uses, is not sufficient to establish probable cause. Moreover, the smell of ether does not “stand alone” as a basis for establishing probable cause in this case. Other relevant factors include: 1) the anonymous call identifying the location, giving directions, describing persons observed on the premises, noting the strong odor of ether, and indicating personal familiarity with the smell of ether; 2) the investigating officer’s corroboration of the location and strong smell of ether; 3) the officer’s past experience investigating illicit manufacture of PCP and knowledge that the smell of ether is associated with PCP manufacture; and 4) the time of the officer’s observations. Based on the totality of these circumstances, the magistrate could conclude that it was reasonable to seek the evidence at the Avenue 320 residence. Such a conclusion would be less reasonable if the odor of ether had been detected near a hospital, rather than near a farm shed on a country road.

The reviewing court must also consider the fact that the officers obtained a warrant. Doubtful or marginal cases should be largely determined by the preference to be accorded to warrants. United States v. Ventresca, 380 U.S. 102, 106, 109, 85 S.Ct. 741, 744, 746, 13 L.Ed.2d 684 (1965); United States v. Flores, supra, 679 F.2d, at 176. *1225“A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting.” Ventresca, supra, 380 U.S. at 108, 85 S.Ct. at 745.

I would affirm even if the search warrant for the Avenue 320 residence were insufficient. The subsequent stop of the station wagon and the search of the Ford van were proper.

The investigative stop of a vehicle requires less than probable cause. “Based on [the] whole picture the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.” United States v. Cortez, 449 U.S. 411, 417-418, 101 S.Ct. 690, 694-695, 66 L.Ed.2d 621 (1981); Brown v. Texas, 443 U.S. 47, 51, 99 S.Ct. 2637, 2640, 61 L.Ed.2d 357 (1979); Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 1401, 59 L.Ed.2d 660 (1979). Officer Miller had been conducting surveillance at the Avenue 320 residence prior to his stopping the vehicle. In addition to the information presented to the magistrate in Officer McLaughlin’s affidavit in support of the search warrant, Officer Miller had himself detected the odor of cyclohexanone at the residence, and had observed the activity at the shed after the arrival of the station wagon. These facts were sufficient to establish founded suspicion to justify stopping the defendants’ vehicle. Once the car was stopped, it was proper for the officer to ask the occupants to get out of the car. Pennsylvania v. Mimms, 434 U.S. 106, 109-110, 98 S.Ct. 330, 332-333, 54 L.Ed.2d 331 (1977). The odor of ether, the weapons in plain view, and the appearance of the occupants provided probable cause for their arrest. The items seized led the officers to the Visalia Holiday Inn and the white Ford van. Items in plain view in the van, and the smell of ether coming from the van, provided probable cause to support the warrant for a search of the van. None of the evidence seized in the station wagon or in the Ford van was “tainted” by insufficiencies in the warrant for the search of the Avenue 320 residence. Given the weight of the evidence, any error in not suppressing the evidence from the search of the residence was harmless. Lockett v. United States, 390 F.2d 168, 174 (9th Cir.), cert. denied, 393 U.S. 877, 89 S.Ct. 175, 21 L.Ed.2d 149 (1968).

Furthermore, the evidence obtained from the stop of the station wagon would have remedied any insufficiency in the original warrant for the search of the residence. The officers’ error, if any, was in not securing a second search warrant on the basis of newly obtained evidence. Assuming that the first warrant was valid, the officers executed the search of the residence. The purposes behind the exclusionary rule would not be served in suppressing the evidence seized in the Avenue 320 search.