*2 stops, turns and several brief but with- Before DUNIWAY CHOY, Circuit car, leaving just out the before he Judges, SMITH,* District Judge. Cupertino. in reached his home When home, Martin arrived at his he and his OPINION wife carried the contents of the van into DUNIWAY, Circuit Judge. after, Shortly the house. a red Toronado Martin was convicted under separate at the car arrived house. counts charging manufacturing and pos- P.M., agents, 5:00 who From about sessing a (metham- controlled substance permission from the owner had obtained phetamine) with intent it, distribute adjoining premises yard, to enter his in violation of 21 U.S.C. 841(a)(1). § themselves behind a fence im- stationed Rathbun was convicted possession of mediately adjacent proper- to the Martin heroin, in violation of 21 U.S.C. § 844. acetone, ty. They smelled ether and We affirm. running clinking heard of water and saw glassware, pouring liquids 1. Statement of Facts. another, from one container to and saw 25, 1973, September employee On cans, five-gallon several boxes on a ta- (“CSC”), of Central Scientific a sci Co. ble, jug containing and later a Clara, supply company entific in Santa liquid with a white California, about 40 from miles San n Francisco, P.M., notified the Francisco of At about 7:45 San Mrs. Martin left Drug house, car, of the Adminis fice Enforcement drove off in a and was (“DEA”) that a person identify by agents. tration two agent followed Another ing himself as Kenneth approached Martin and as a the Martin house representative of San Francisco-based knocked on the door. A man answered Specialties (“NPS”), Nevada Pacific us at a agent window and the asked the order, personally ing an NPS person. whereabouts of agent fictitous placed rejoined an order for various articles of left and agents in the chemicals.1 glassware neighbor’s yard. Items ordered The two watch- by glassware ing Martin included chemical Mrs. Martin also returned. Martin quantities house, and substantial then left of activated up and walked down acetone, charcoal, alcohol, isopropyl street, and the and met Mrs. Martin in the oil. driveway vacuum when she returned. The two then day, The next drove to a parking parked, lot and watched facing the sign CSC and saw Martin traffic and lights his own with the car pay name and cash for turned off. When purchases, house, Martin left which had been added a odors of acetone quantity stopped and ether being anhydrous. noticeable agents. ether Martin had arrived * Smith, Judge, fact, however, Honorable panies Russell E. Chief such as This CSC. we disregard. District Court for the District of There in the record as Montana, sitting by designation. why the names were on the list. were on a and NPS’ names 1. Both Martin’s supply supplied by DEA to scientific corn- list ers v. United Cir., 1959, 267 Later, returned to the the Martins question 85. The is one fact, noticeable,
house, again odors were each case necessarily turns on its running water and clink- and sounds peculiar own facts. were again heard. ing glassware had arrived at the house Rathbun dur- Rathbun, briefs, Martin and in their P.M., evening. About 11:00 analyze each bit of information that the *3 ,to Martin Rathbun agents saw and remov- had, officers demonstrate their satis- the seen in the ing some of items house face, faction that each is innoceht on its them the back seat placing on and that, and they and conclude whether be con- Toronado, the which was in the trunk together, singly sidered these bits of parked driveway. in the These included information do not amount to jug with two agree, although cause. We cannot we do away. car got into the and drove With- agree is a that case one. close minutes, in a few case, this is a like Unit- We think car arrested them stopped the and both. Patterson, Cir., 1974, 492 9 v. ed States A of the car’s back seat search revealed 995, 997, in which succession F.2d “[t]he jug found to contain 146 the —later pro- had superficially innocent events grams pure methamphetamine —and point prudent to where a man ceeded found a small amount her- say that an innocent to himself could paraphernalia narcotics on oin and Rath- substantially less was of conduct course person. bun’s one.” likely than a criminal indictment, appellants After moved to all the suppress evidence seized. This what the knew: Consider officers challenges appeal the district court’s de- First, purported Martin to of their motion. nial supplies for NPS of San chemicals and belong He arrived in a car Francisco. 2. Probable Cause for Arrest. placed who man had also another than NPS. But rather such orders for heading Appellants argue that the evi Francisco, in San he for NPS have suppressed should been dence be direction, toward opposite headed in was cause it obtained incident to un wonder Cupertino. The officers could arrest. Wong lawful Sun United why. 1963, 471, 407, 371 83 U.S. S.Ct. 9 L.Ed.2d 441. Whether a warrantless ar to his got near Second, Martin when constitutionally depends rest valid several and U-turns home, two he made whether, at upon arrest, the moment of wheth- could wonder officers stops. The the officers had cause to make being followed. he was feared er he McDowell, Cir., it. United States v. 9 most be Martin would time when 1973, 1037, 475 1039. Arresting of when be “tail” would about concerned if, probable cause at the ficers have mo he was when nearly home—not was he arrest, ment “the facts and circum thoroughfares. major route on en knowledge within stances their and of home, Third, the chemicals Martin’s at they had reasonably trustworthy which used supplies, which could be were information sufficient to warrant a many well as methamphetamine as make prudent man in believing that the [ar inside. things, were taken innocuous person] committed or rested committing had was P.M., Fourth, at 5:00 about beginning Ohio, Beck v. offense.” P.M., Mar- U.S, continuing to about 11:00 1964, 89, 91, 223, 225, 379 85 S.Ct. which doing were work 142; and others tin Mc 13 L.Ed.2d but methamphetamine, produce could Dowell, these stand supra. applying In prod- legal perfectly ards, produce also we must all could consider facts why could wonder officers ucts. The known to the officers and consider all home did at doing they they were the reasonable inferences could be evening. the late during them the arrest. Rodg- drawn before 1214 heavily rely, watching agents most inquiry, Martin Fifth, after unlawfully the defendants’ wife, had invaded outside, waited for his went property private peered through his they proceeded arrived when she Gonzales, Cir., Texas v. windows. the scene. survey could
place where
1968, 388 F.2d
does
145. Nor
Katz v.
could take
show a
The officers
States, 1967,
U.S.
United
being watched and a conscious-
fear of
576, help
appel-
19 L.Ed.2d
S.Ct.
wrongdoing.
ness of
There, agents
lants.
overheard Katz’s
Sixth,
of 11:00
tlí'é rather late hour
at
telephone
public
conversation in a
booth
P.M.,
juga
and Rathbun loaded
by means of an electronic device at-
well have contained meth-
which could
tached to
outside of
booth.
In
together
other
amphetamine,
effect,
them
the device took
inside. We
things,
the Toronado and took off.
into
opinion
in the
find
Katz
indicat-
Why?
*4
merely
if an officer had
that
stood
behavior, coupled
that
We think
outside
booth and heard what Katz
before,
gone
give
with
had
could
what
saying,
rights
was
Katz’s
would have
watching agents,
prudent men fa-
as
Eavesdropping
been invaded.
from a
making
the unlawful
of the
miliar with
drug,
place
right
where the
has a
officer
to be
to believe that Martin and
cause
long-accepted technique
ais
of crime de-
committed or were commit-
Rathbun had
tection,
by
not outlawed
the Fourth
Ohio, supra.
ting
Beck v.
an offense.
had
Amendment.
If Katz
talked loud
arrest,
were
stop,
The
and search
valid
overheard,
enough
expectation
to be
his
they
probable
upon
were based
because
privacy
gone.
of
would be
So here the
cause.
activities in the Martin house were con-
in such a
as to
ducted
manner
be seen
Privacy.
Invasion of
adjoining property.
and smelled from the
Martin and Rathbun mount one
expectation'
privacy
Whatever
of
Martin
upon
other attack
the arrest and search.
his
and
cohorts had was defeated by
They argue that when the officers
own
their
activities.
Ponce v.
Cra-
through
fence,
looked
and over the
and
Cir., 1969,
ven,
624-625;
409 F.2d
used their noses
tone,
smell ether and ace
Beto, Cir., 1971,
Gil v.