*1 This unwelcome scheme. statutory the con- upon byme result is forced
ironic the First Amendment between
flict That the drafting of the statute.
Congress’ does not majority
result is distasteful declining to reason for
constitute a valid Were the First Amendment.
enforce reasoning to be deemed my
consequences
unfortunate, Congress up would be fair and statute which is both
to draft a First Amendment.
harmony with the ANDERSON, Judge, Circuit
J. BLAINE opinion.
concurs in Part I of
CHOY, ANDERSON J. BLAINE II and
HUG, in Parts Judges, concur
III. HUG, Cir-
J. BLAINE ANDERSON Part IV. Judges,
cuit concur in America,
UNITED STATES
Plaintiff-Appellee, JOHNSON,
Douglas Ellis
Defendant-Appellant.
No. 79-1358. Appeals, Court
Ninth Circuit. 14, 1980.
July Rehearing and
As Amended on Denial Jan.
Rehearing En Banc *2 Cal., for Stein, Diego,
Michael D. San defendant-appellant. Castetter, Atty., U. S. R. Asst.
Bruce Walsh, Diego, Atty., U. S. San Michael H. Cal., plaintiff-appellee. for CHOY, and PRE- ANDERSON Before GERSON, Judges. Circuit ANDERSON, Judge: BLAINE J. on one appeals his conviction a controlled possess conspiracy count of 846, substance, of 21 U.S.C. § in violation a con- possession and on one count distribute, with intent trolled substance 841(a)(1). The 21 U.S.C. in violation of § appeal which Johnson raises sole error motion to denial of his the trial court’s his home. seized at suppress certain items We affirm.
I. BACKGROUND Special On Lucchesi, Diego police officer Terry San Narcot- Diego assigned who was San Force, Agent Lucehesi recited the facts which he contacted Assistant United ic Task Stephen Peterson Attorney gave felt rise to cause to search search permission asked to obtain a federal residence, immediately and was sworn a residence located at giving after the oral affidavit. Luc- Road, Vista, 2405 Old California. duplicate original out the war- chesi filled Mr. Peterson then contacted United States name, signed Magistrate rant Infante’s *3 request to a Magistrate Edward A. Infante as The house described in the instructed. telephonic Magistrate search warrant. In- was the residence of Johnson. fante where he could asked Mr. Peterson We out Lucchesi’s oral affida- set Lucehesi, in touch with and then get telephone. margin.1 Lucehesi at vit in in the The public entirety called a its affidavit, residence, 1. The transcribed verbatim from discussed the transaction Agent trate, magis- buyer; Lucchesi’s conversation with the with the she then left the residence surveillance; Big reads as follows: under Boy she went to a Bob’s “MR. I informant which is on Encinitas Blvd. in Encini- LUCCHESI: have a [sic] communicating Spiking. is with a female tas. She met with After a short Candy arrived, period named couple Bates who used to reside in of time another Bellflower, they California. This informant met Spiking Af- also met with and Bates. evening with her on the at her 9/2/78 Spiking ter a short got up Bates and conversation Bellflower, residence in and the address is purses; out of the booth with their Bellflower, Hayford, 10431A East Califor- they restroom; they went to the women’s During meeting Candy nia. in- Bates returned; a short time later Bates and this formed the informant that she could deliver couple left unidentified the restaurant in pounds through two of cocaine her connec- couple’s They the unidentified car. went a tion Sue. This Sue was later as identified away street, short distance on a residential Spiking, S-p-i-k-i-n-g. Linda Sue Bates fur- parked. light The dome of the vehicle ther told the informant that she has seen appeared, came on. It or we surmised that (referring Bates) approximately to has seen exchange there was a of narcotics. [sic] pounds five of cocaine at one time in the back, vehicle, got Bates then went into her Spiking recently safe of at the residence of buyer. and went to the summated; The sale con- Spiking, and that residence was some- buyer bought one ounce of Capistrano. where in the area of San Juan It wasn’t $1900.00. cocaine for There was conversa- locale, specific just as to the future, tion about another in sale Capistrano. projected area San Juan Bates Spiking then Bates drove to the location of delivery early perhaps that the would be as waiting Big Boy’s who was at the Restau- September as 1978 and Bates told the again rant and we assumed that there was informant to call her when ey together had the mon- he money Spiking transfer. Then was fol- buy. for the There was anoth- lowed from the restaurant almost to her meeting night, September er the next Vista, however, just prior residence to 1978, again at the residence Bates. being her arrested the units terminated the Bates, C.I., Spiking. Present were During try- perhaps surveillance because she was meeting the informant saw ing being to see if she was surveilled. O.K. thought pack- what he to be two one ounce up today, that leads us to 9/13/78. ages of cocaine on the dresser the bed- confidential informant and Bates were at room. There was a lot of conversation the residence of the informant and unan- availability by about the of the cocaine Sue buyer nounced the undercover went in. capability delivering and her the two This was done because Bates said she did pounds gave of cocaine. She the informant buyer not want to meet or talk to the gram sample a one half so that the infor- again. He did communicate with her. sample buyer mant could take that They previous had a discussion about the buyer quality to show the of the co- ounce, poor quality. awas leaving Spik- caine. Before ing the residence buyer indicated that he would like a lower going told the informant that she was price, buy pounds. then he would the two go Springs to Palm for the weekend and Candy, There was a lot of discussion. go through that the informant should Bates Bates made several calls from the tele- and that she would be able facilitate the phone delivery within the residence of the infor- of the cocaine. Then we have agent 11, 1978, meeting September mant. The undercover overheard another at these calls and at one call Bates said: Doug, the informant’s residence which is located Encinitas, at 21 F is Sue there? And then East Street in other times California. informant heard the word Sue used undercover met with the infor- mant, telephone. anticipating purchase Bates on the It seemed like one ounce getting of cocaine from Bates. Bates was all her from Bates arrived at directions negotiate further for two ounces. as fol- ed to be summarized facts pertinent calls, includ- telephone been in contact several had Bates made lows: asked, “Doug, informant confidential Sue with an unnamed in which she ing one Can- named with a spoken agent- who had between the Negotiations there?” 2, the informant Bates. On Inde- dy off. finally and Bates broke buyer California, Bellflower, to Bates’ gone had residence Spiking’s surveillance pendent informant residence, she had told the where in Vista estab- Colony Road at 2405 Old could be obtain- of cocaine pounds that two parked had been Spiking’s lished that car According to Spiking. ed from Linda Sue Bates was the time that driveway at near San Bates, lived somewhere Spiking car telephone calls. Johnson’s making the kept many as as and had Capistrano, Juan at Vista residence parked was also at the at her cocaine in a safe pounds five apparently Johnson was the same time. informant evening, The next residence. time. Spiking at the residing with again at Bates’ Spiking met with Bates *4 Vista the resi- search of subsequent residence, the informant where Bellflower pieces and various dence uncovered cocaine to be two one- appeared what observed Johnson and Both drug paraphernalia. of her dresser. cocaine on packages ounce of following a bench convicted Spiking were gave the in- meeting, Spiking During that facts. stipulated trial on cocaine, told him and of sample formant a immediate Bates for go through to 11, the infor- ON APPEAL September
purchases. On ISSUES II. agent mant, by an undercover accompanied the war- appeal on that argues Johnson at with Bates the buyer, as a met posing 2405 Old authorizing the search rant pro- and discussed the informant’s residence in two was defective Colony Road residence the in- then left posed transaction. Bates respects: under surveillance formant’s residence of of the issuance (1) The circumstances cou- with and an unidentified Spiking met 41; Fed.R.Crim.P. violated the warrant conversa- restaurant. After a short ple at a purses their tion, Spiking Bates and took proba- establish (2) did not The affidavit After restroom. and went to the women’s the residence. cause to search ble booth, and the they they returned restaurant and left the couple unidentified RULE 41 VIOLATIONS III. dis- a short entered a car. The car drove procedure the 41 outlines Fed.R.Crim.P. surveilling agents saw tance, parked, execution issuance and in the to be followed agents on. The “sur- light the dome come argues warrants. Johnson of federal search place. took drug that a transaction mised” violated 41 was twice that Rule in essence informant’s residence Bates returned to the error arose alleged first this case. The cocaine, the under- which with one ounce officer, Lucchesi, was a state Agent when was fol- Spiking agent purchased. cover for the warrant. apply in Vista. allowed her residence by agents lowed did magistrate when the met second occurred again the informant On Agent Lucchesi an oath to residence. not administer at the informant’s with Bates affidavit. oral arrived, given he had the attempt- until after The undercover phone of the informant Spiking at the residence how the transaction. to conduct Finally Candy the undercover which was overheard it was communicated to that Also, buyer. way they infor- the informant obtained there was no could do the deal Spik- Doug boyfriend buyer money that was a unless the fronted his for the mation cocaine, ing. Col- of it. on the house on Old and that’s the summation Surveillance Road, Road, ony Cadillac The address at 2405 Old we observed a black driveway. registration Spiking’s parked driver’s license information indi- in the Douglas just cates that that’s her residence as of That’s was to a Johnson. it, Spiking’s resi- 6/21/78. car was at the I about believe.” talking dence when Bates was to her on the warrant, verbatim, to the Federal original a search that 41(a) specifies Rule case, Agent In this it was magistrate.” of a request “upon be issued dupli- and read the prepared Lucchesi who or an attor officer law enforcement federal Rule not Mr. Peterson. original, cate con ney government.” for the that, determining 41(c)(2)(C) provides upon a person was not Lucchesi tends exist, the to issue the warrant grounds under a warrant “request” authorized per- then direct the magistrate federal shall not contend does government Rule 41. The mag- sign warrant to requesting son a member as Lucchesi’s status original duplicate on the istrate’s name Force, a Task Narcotics Diego of the San Lucchesi Again, warrant. Drug Enforcement joint composed force original, and not duplicate signed who and members San agents Administration requestor, Mr. Peterson. conferred department, police local Diego’s when a caller in- 41(c)(2)(D) requires that en “federal law upon him the status of a magistrate purpose forms the Therefore, we find if forcement officer.” telephone request the call is to was, a matter of as “ warrant, . . . shall war law, “requested” who person person oath such immediately place under 41 was rant, that Rule then we must find appli- basis of the testimony whose forms a violated. for the applying person cation and each placed was not warrant.” Mr. Peterson however, persuaded, We are not request called to under oath when he in this “requestor” was the Agent Lucchesi However, he was not a warrant. As- affidavit of According to the instance. *5 the warrant. support in of giving testimony Peterson, it Attorney sistant United States under Mr. Peterson place The failure to call telephone the initial was he who made have been a no one and would oath harmed request the war- to Magistrate to Infante further 41(c)(2)(D) gesture. useless Rule to allow Infante declined Magistrate rant. all of record requires magistrate that the with in the conversation participate him to magis- informs the the call after the caller proce- a 41 sanctions Lucchesi. Rule requested. that a warrant is trate search than the witness other dure under which a not record- Peterson was The call from Mr. necessary to the facts requestor may supply ed, record discloses. at least insofar as this requirement. cause satisfy probable the therefore, used here all, procedure In the Rules, Advisory Committee Notes of See viola- four technical entailed no less than case, we find In this 1977 Amendment.2 pro- warrant telephonic tions the search of supplied Lucchesi though Agent that even 41(c)(2). Rule We are cedure described affidavit, the war- cause probable the oral convinced, however, these viola- that not Peterson. by Mr. requested rant was of A violation required suppression. tions agree. and we judge trial so found also unless it Rule 41 is not “fundamental” See a constitutional violation. involves (9th request Vasser, Peterson that Mr. finding A v. States however, our warrant, not end noncompli- does 1980). ed the “Non-fundamental” Cir. out, points to rightly suppression only requires As Johnson inquiry. Rule 41 ance with the war “requested” that Mr. Peterson in the sense (1) “prejudice” find was there if other number of rant is to find that a have occurred or might not the search that the Rule if so abrasive not have been would Rule Rule 41 occurred. violations of followed, (2) is evidence there been who had person 41(c)(2)(B) provides “[t]he disregard of and deliberate intentional a prepare warrant shall requesting the v. Vasser, supra; United Rule. duplicate origi the as a document to be known (9th Cir. Radlick, 228 F.2d 581 duplicate read such nal warrant and shall applicant from federal law en- “(2) orally come either the applicant facts suf- must state 2. attorney require- the for the satisfy probable forcement officer or cause ficient to the willing government make an witness to warrant. or a ment for the issuance of the search (See (c)(1)). oral statement.” subdivision This information THE OATH case, violation ADMINISTRATION OF no IV. In this constitutional we test Consequently, warrant. tainted the earlier, 41(c)(2)(D) we noted Rule re- As the procedure of the under validity the magistrate quires “immediately” the noncom- standards for “non-fundamental” whose testi- placed under oath each was pliance. suppression We conclude that application forms a basis the the mony required. not for request telephonic event of a a placed not warrant. was Lucchesi 41 met spirit of Rule every step, At completed oath until after he had under original compliance. duplicate A with full cause.3 giving probable the oral affidavit of by proxy properly prepared, signed was noncompliance with argues that A of the requires. as account the Rule full suppres- of the provision requires probable cause affidavit recorded and sion. later examination. preserved for witness, was sworn as albeit Shorter, F.2d 585 United States In infra. See giving after the affidavit. 1979), adopted a the Sixth war- nothing There is to indicate position. supports which Johnson’s principle not have had rant would been issued Shorter Congress court reasoned procedure fully insisted that bring requirement intended oath Rule 41. could comply with Mr. Peterson with modern the fourth amendment in line duplicate origi- out have filled certainly 41 that day technology by requiring in Rule signed nal and it. The differences only given oaths be advance of oral proce- between Rule 41 any substance rea- affidavits. The further cause court that followed be that dure and here would require- purpose that the the oath soned have testimony Lucchesi’s should ment, upon the so- impress the affiant separately been taken that of a witness as need to tell lemnity of the occasion and the and the warrant have been only, should truth, rule required it read Mr. Peterson. issued to We find 41(c)(2)(D) speak substance “more of ” would have been issued procedure. . . 600 F.2d at than .
event. the failure to Accordingly, held that *6 under oath immediately the affiant place indicating There is no absolutely evidence also United See suppression. required any disregard bad faith or deliberate Turner, (2d 1977). v. 558 46 Cir. States F.2d government’s perspective, Rule. From the there was little else either Mr. Peter- Shorter, agree We not and do with son Agent Lucchesi have done could opposite an the test reach result. Under with the rule. reflects a comply The record Radlick, supra, we find that enunciated Agent conscientious effort on of part the immedi place the failure to Lucchesi comply Lucchesi to with law in obtain- the under oath non-fundamen ately constitutes the warrant. ing and does noncompliance tal with Rule 41 approve While we do not of deviations suppression. require not any procedure, from established we do and undoubtedly would his testimo given have admonish both the courts and enforcement substantially form had the ny identical with comply officers to the letter of Rule prior rendering oath been taken the 41, we are convinced of our the law resulted prejudice the oral affidavit. No circuit does not mandate on the suppression timing of the we do Again, from the oath. basis of the violations cited above. See noncompliance; merely not condone we also, 52(a), Rule F.R.Cr.Pr. is not of viola- magnitude hold that this the Immediately following you completion Very well. Do swear “MAGISTRATE: testimony supporting you just given Lucchesi’s recitation of the facts the have cause, truth, truth, probable following exchange nothing the but took the the whole place: the truth? Yes, I do.” “MR. LUCCHESI:
658
also,
600
e.g.,
Carignan,
see
United
v.
Rule
States
suppression.4
requires
which
tion
v.
(9th
1979);
States
702
United
52(a), F.R.Cr.Pr.
F.2d
Cir.
1978).
(9th Cir.
659 Colony at Road Bates’ for cocaine Old resi- clearly corroborated agents ment Spiking had been identi- dence. Linda Sue cocaine. The under- supply willingness Her driver’s a cocaine dealer. from her. fied as one ounce agent purchased cover that she resided at rea- had established also was license supplier role as the Spiking’s Road. Colony met with 2405 Old Surveillance Bates sonably corroborated. at that address had established September 11 house at the restaurant on Spiking parked during was there Spiking’s sold car with the ounce which was and returned September on telephone negotiations The also Bates’ agent. the undercover to search the entirely a 13. It was reasonable 13 make observed Bates for co- in order residence described named “Sue” phone call to someone purchase. for cocaine caine. negotiate a clearly indicated probability here Spiking
informant’s information that VI. CONCLUSION correct. All of the supplying cocaine was below is judgment of the court ei- other information in the affidavit was AFFIRMED.5 government directly by ther observed agents directly. or corroborated The affi- PREGERSON, Judge, dissenting. a basis” for provided davit “substantial expressed I for the same reasons dissent hearsay informant’s declara- crediting the Vasser, v. dissent in United States my Harris, v. tions. See United States 403 U.S. 1980). also (9th See Cir. 581, 2075, 573, L.Ed.2d 723 91 29 S.Ct. Shorter, (6th F.2d 585 v. 600 United States (1971). 1979). Cir. to a lack of points Johnson also at the placing hard information cocaine Old Road residence. Aside from Bates’
assertion, nothing there is in the affidavit actu
to indicate that other had observed contraband at the house.
ally unnecessary,
Such direct observation is affi only necessary however. It is that the America, UNITED STATES davit enable the to conclude Plaintiff/Appellee, it would be reasonable to seek v. by evidence in the the affi place indicated SAUNDERS, Phillips Lee Hendershot, v. United States davit. Defendant/Appellant. 648, F.2d nexus place between the to be searched and the No. 79-1699. items to be seized be established Appeals, United States Court of crime, items, type of the nature of the Ninth Circuit. the normal inferences where a criminal hide contraband. See United likely would 13, 1980. Aug. Argued and Submitted Dubrofsky, supra, Drug at 212. Decided 1980. Oct. frequently dealers hide contraband at their Feb. As Amended Id. residences. case, the affidavit *8 present In the [H] to con-
provided a basis for
clude that it would be reasonable to is, definition, immigration officer opinion customs 5. This not conflict with this does Soto-Soto, conducting opinion FBI “unreasonable.” court’s in United States v. Soto-Soto, authority statutory In search in Soto-Soto had no necessarily search. found that a violation occurred to make the border by a because a border search not conducted