United States v. Lance Dozier
826 F.2d 866
9th Cir.
1987
Check Treatment

*1 dealing properly fair dealing. held to be a covenant of faith and fair by federal preempted law. properly The district court recharacterized appellants’ artfully pled claim as an section order is not by ap reviewable correctly action dismissed the it did not resolve a peal since matter of claim deny petition as time-barred. We law. substantive Clorox Co. v. Dis relating for a writ of mandamus Court, trict Cir. appellants’ district court’s remand of third 1985); Investors, Pelleport Inc. v. Budco through seventh of action. The dis- causes Theatres, Inc., Quality 276- action, position of the first cause of for ruling of the district wrongful discharge in violation of Califor- the appellants’ remaining court was laws, safety nia’s health and reversed. artfully state causes of action were not wrongful We hold pleaded federal claims that the claim for termi- preempted that were nation, by federal law. This ruling finally public policy based on the state’s as does not preemption, resolve the issue of may expressed safety regula- its health and be raised as still a defense in tions, state court. preempted by section 301 of Thus, if it becomes apparent the LMRA or the NLRA. We remand this causes are upon these indeed based claim to the district with instructions bargaining collective agreement, the de to remand this claim to the California state preemption fense of could sustained. be court, along with the other state claims. Therefore, issue decided the Appellants are entitled to recover their jurisdictional, district court was and review appeal petition costs on the and the for by appeal is Pelleport not available under mandamus. and Clorox. part, AFFIRMED in REVERSED in As in Systems, Survival mandamus is part, and REMANDED. proper not here because the district court’s Petition for a writ of mandamus is DE- order is correct as a matter of law. F. NIED. 2d at 1418. claims, The emotional distress pled, as fit within Supreme Court’s ruling in Farmer v. United Bhd. Car-

penters America, and Joiners 290, 305, 1056, 1066, 51 L.Ed.2d (1977), since are based on the

particularly abusive manner in which the actions, remaining

distress occurred. The assault, risk, peculiar and ultrahazard- America, UNITED STATES of activities, ous in any way are not based Plaintiff-Appellee, upon bargaining agreement the collective appellants’ discharge, but are based upon activity alleged which is to violate DOZIER, Defendant-Appellant. Lance A. The Cal/OSH district court was there- fore correct that non-preempted state No. 86-1249. alleged. claims have been It was within Appeals, Court of the district court’s discretion to then re- Ninth Circuit. mand these state claims once the federal upon claim which removal was based was Argued and Submitted June Schenk, dismissed. Swett v. Sept. Decided Therefore, there is no justification granting extraordinary

remedy of a writ of mandamus.

VI. affirm

We the district court’s treatment

of the second cause of action for breach of *2 and based

cuted November on from Ser- information obtained largely on County Joaquin of the San geant Barr gath- had Office. Barr Sheriff’s Sacramento, Cal, Bender, Richard J. May 13 and information between ered the plaintiff-appellee. initi- during investigation June Sacramento, Cal., Drozd, for de- Dale A. anonymous tip about a ated of an *3 fendant-appellant. marijuana siting. affidavit, Barr According to Offield’s marijua- told Offield that Barr first saw 60 plants May na the site on 13 and that on at June he and another officer arrested TANG, MERRILL and Circuit Before clearing in next to Giacchero and a STEPHENS,* Judges, District and The of- marijuana equipment. the Judge. marijuana the plants ficers at seized Barr that time of the arrests. told TANG, Judge: Circuit Lance and Paul Fuhrman were “re- Dozier upon his conviction appeals Lance Dozier marijuana garden the and sponsible” for plea to one count of guilty his conditional Dozier, hired lived at by that he had been with to dis- possession marijuana of intent residence, in paid the Dozier and had been 841(a)(1). in of U.S.C. tribute violation § plants. cultivating marijuana cash the hear- He contends the Franks Delaware affidavit, Mejia also According to Offield’s inad- ing by the district court was afforded brought marijuana told Barr that Dozier permitted call he was not to equate because Dodge in plants yellow the site Dozier’s county sup- sheriff who as a witness the irrigation equipment that the pickup and agent. the DEA He plied information to went to belonged Barr site Dozier. suppression his motion also contends that Me- day he arrested Dozier’s residence (1) because: improperly denied was questions. jia, refused answer but Dozier in and material omissions false statements resi- Barr at Dozier’s saw two automobiles the warrant were supporting the affidavit were to Giacchero dence which con- the result of intentional reckless Mejia. and duct; (2) sup- affidavit did not redacted inquiries Agent made additional Offield port finding a cause because following to his and information added were unrelia- the informant’s statements that Dozier owned a late model affidavit: ble; (3) a support the affidavit did not Dodge detailing and had pickup a record cause the facts violations; drug Fuhr- convictions for old; (4) five months and the warrant man two men were unidentified in so defective its overbreadth was marijuana stopped near site in the sum- agents not have on could relied after trespassing mer of 1984 for faith. We affirm. contain- burlap were released sack hoe, saw, plastic ing a shears and black BACKGROUND nearby; pipe found Dozier at his on was arrested residence keep op- their growers tend to records for by A November search federal cultivating mar- equipment erations pursuant to a agents enforcement ijuana at their residences. produc- warrant issued November gave a On 1985 Offield November led to con- ed evidence which Dozier’s his affidavit draft a search warrant and viction. The warrant was based on Offield, Attorney, approved who them for to a agent affidavit of Daniel exe- DEA * fornia, Jr., sitting by designation. Stephens, Unit- Honorable Albert Lee Senior Judge, Cali- ed States District Central District of magistrate. magis- submission to a attack on search warrant includes evi- ignorant dence that affiant was trate directed Offield to add a sentence true facts and insulated therefrom detailing his recent of Dozier other offi- observations cers. 438 U.S. at 98 S.Ct. at 2680. approved at his residence then the warrant authorizing a of Dozier’s residence search hearing investigate Franks is held to for: veracity of the affiant. United States records, statements, financial ad- written Kiser, books, Currency, dress testimony Offield’s established that he bills; telephone controlled sub- books made several untruthful statements and stances, including marijuana and residue omitted certain relevant facts. marijuana; equipment used the cul- stipulated Government two saws, marijuana, including

tivation of planned facts Dozier through to establish hoes, shears, black, plastic pipe; Barr, questioning namely that documents, papers, and indicia Sergeant Barr did not tell Offield that a *4 residency/ownership premises. of of registered car was at Dozier’s residence and had several times unsuc- requested evidentiary hearing Dozier cessfully sought search warrants from the insufficiency to establish the of the war- state attorney. district Delaware, rant under Franks v. Agent Offield admitted to false state- hearing The district court held a at which hearing ments and omissions. The to test Agent sufficiency testified Offield about numerous of the warrant would not brought any errors and omissions in his have other affidavit. The relevant facts to light Sergeant if ques- court refused to Dozier to call Barr had also allow Ser- been geant tioned. The district court Barr as a witness and denied Dozi- believed there material omissions and false state- suppress er’s motion to the evidence. Dozi- ments but did not think timely appeals. Offield made them er

intentionally or disregard with a reckless Questioning the truth. Barr would not ANALYSIS have added in analysis evidence to aid Hearing I. Franks Thus, of Offield’s mental state. the dis- Whether a defendant is entitled to a refusing trict court did not err in to allow hearing question Franks is a mixed of law examination Barr. subject and fact to de novo review. United Dicesare, (9th States II. False Statements and Omissions Cir.), amended, (9th Cir.1985); 777 F.2d 543 Whether false statements or omis Ritter, United States v. 752 F.2d 435 sions are intentional or reckless is a factual Cir.1985). finding reviewed under the errone scope evidentiary hearing pro- of the McQuis ous standard. United States v. vided is de novo as reviewed well because ten, (9th Cir.1986); Rit hearing the decision to limit the to investi- ter, 752 F.2d at 439. Whether misstate gation portions of certain of the affidavit ments and omissions are material to a find testimony particular or to the officers ing probable cause is to de novo involves a determination of which chal- McQuisten, review. 795 F.2d at 863. lenged portions of an affidavit are material suppress district court must evidence probable determination of cause. seized under a warrant when an affiant has Ritter, 752 F.2d at See knowingly recklessly or in- included false argues Dozier that the limitation of formation in the affidavit. United States hearing Leon, to Offield had the effect of v. S.Ct. insulating knowledge Offield from the of L.Ed.2d 677 The Ninth Circuit has officer, investigating may Barr. likewise held that a defendant chal- lenge Dozier contends this was erroneous be valid warrant when con- cause in Franks Court said that an tains or reckless omissions of deliberate

facts that tend to mislead. United a car was seen at the Stanert, (9th Cir.), property. Doziers’ amended, 769 F.2d 1410 things Those are hard to reconcile. But by my findings I’ll stand that there is prove by prepon- The defendant must findings insufficient to find that lied he derance of the evidence there was a intentionally disregard or with a reckless knowing and intentional falsehood or a for the truth when he that infor- included truth, disregard reckless for the mation in the search warrant. challenged statement was essential to significant The first false statement Franks, cause. that Offield stated Dozier had a record 171-72, 438 U.S. at detailing convictions violations. The determination of whether misstate- In fact Dozier had one conviction for ments knowing or omissions are or reckless forged prescription. the use of a The affi- merely negligent inquiry is a factual but davit also omitted the information that the guided by it is cases in which this court has years earlier, conviction occurred 15 when disregard by found reckless an affiant. Dozier was and had been set aside and See, e.g., Davis, United States v. pursuant dismissed to California law. The (9th Cir.1983)(affiant signed statement district court was concerned that the false person knowing written in the first that it plural may use of the have contributed to magistrate believing would mislead the into magistrate’s finding cause. knowledge affiant had first-hand explained Because Offield simply that he therein); Stanert, (reck- facts 762 F.2d 775 did not know how to read the rap California *5 suspect less false statement that had been sheets the district court determined the mentioning arrested without there had product negligence. misstatement awas been no conviction and reckless omission in regard The district court did not the omis- stating investigated the affiant a lab blow- sion of the time and exact nature of the up suspect's at the year residence a before earlier conviction as material because without mentioning suspect the pur- had was a offense probative and therefore chased and moved into the residence after likely involvement the explosion); Chesher, the United v. investigation. States crime under This (9th Cir.1982) (reckless clearly 1353 dis- erroneous. regard in saying suspect was a current significant The other misstatement is Of- Angels member Hell’s when affiant field’s assertion that Barr had told him he conducting investigation had been an property had seen two vehicles on Dozier's some time which apprised should have him registered which were Mejia untrue). that was (the suspects Giacchero arrested near the June). marijuana garden in Barr did not The district court decided that Of- registered tell Offield the cars were negligent field was in preparing the affida Giacchero, Mejia or and Offield had done a vit but there was no evidence that his Department of Motor Vehicles check and conduct was intentional or reckless. The knew that no cars on property Dozier’s at court added: the Mejia’s time of arrest were that, spite In there are is, two areas that Mejia. said, It as the district court

give me cause explanation, even with this hard to reconcile Offield’s actual knowl- is, rap edge statement, fact the sheet informa- with his false but tion—the fact that he misread it court’s determination that his conduct re- maybe knowing flects neither even the fact that he nor reckless dis- bring didn’t regard of the is Magistrate’s truth not errone- attention the fact ous. that the one conviction shown there was years piece

about fifteen old. other III. Probable Cause gives of information in the warrant that me registration, putting cause is the magistrate’s determination of that he probable affidavit had information that cause is not reversed unless it is

871 S., McQuisten, 749, nard 754 795 F.2d at clearly erroneous. Supreme recently de- The decided that probable court’s cause Court A district admissibility coconspirator statements with a redacted affi- in a case

termination de novo. independent not to a test of indicia is reviewed davit States, reliability. Bourjaily v. United 1355 Grandstaff, - -, 2775, 2783, U.S. 107 S.Ct. 97 L.Ed.2d 144 “totality of the apply must This court developed in Illinois v. we evaluate the statements made Thus test

circumstances” Gates, by Mejia totality under the of the circum 462 U.S. S.Ct. agree (1983), whether stances test. We with the district to determine L.Ed.2d 527 that there was sufficient indication of had a substantial basis court district court reliability cause existed. the information concluding 896; Stanert, Dicesare, supplied by indepen F.2d at had been corroborated Gates, See investigation. at F.2d at 779. dent 241-246 & n. 103 S.Ct. at 2334-2336 & two basic presents affidavit The redacted Further, n. 13. the statements were issues, (1) reliability probable cause against Mejia’s penal, interest thus alleged stale- Mejia’s statements sufficiently support credible to a find ness of the information. cause to search. United ing of out, pointed As the district Harris, 573, 583-84, 403 U.S. rely on in of the information to and 44/ioo% 2075, 2082, (1971); Mejia identifying the affidavit Estrada, States v. ongoing contro “ringleader in an criminal denied, (9th Cir.), cert. ongo had doubt was versy that no one 83 L.Ed.2d 103 existing time.” con ing and The second attack on the affidavit is that marijuana operation nected Dozier with the information was stale because the affi- him, had hired he had by saying Dozier prepared davit was on November house and Dozier had stayed at Dozier’s primarily gath- on information relied him in He also stated at the paid cash. during investigation ered which ended in brought that Dozier time of his arrest *6 June 1985. Dozier contends the informa- Dodge yellow pickup the site in a plants to was stale because it was five and a tion irrigation equipment at the old, sought items half months because the belonged to Dozier. Dozier contends site had never been observed at the residence inherently infor is an unreliable searched, easy mobility because caught mant he was at the scene because sought strong as of the items as well alien, crime, illegal might was an incentive, assuming the information about ingratiate anything have said himself marijuana cultivation scheme was accu- arresting officers. The district with the rate, to move those items after the raid on found, argues, and the Government garden and the arrest of Gates reliability is met test against pe Giacchero. these were statements nal interest. lapse The mere of substantial amounts of controlling question in a concerning on cases the ad- time is not

Dozier relies Foster, v. staleness. See United States missibility coconspirator confessions cert. de 871, (9th Cir.1983), hold that the confession of a cocon- 711 F.2d nied, 1602, 1103, in- 104 S.Ct. spirator presumptively is unreliable and 465 U.S. (1984). important L.Ed.2d 132 Another hearsay without sufficient inde- admissible ongoing satisfy the factor is the nature of a crime pendent reliability indicia of might lead to the maintenance of tools requirements of the confrontation clause. with Huberts, Illinois, v. 530, v. United States trade. See Lee 476 U.S. 106 S.Ct. of the Cir.1980), cert. 630, 2056, 2061-63, (1986); Unit- 637-38 90 L.Ed.2d 514 denied, 975, 2058, Andersson, 1450, 451 U.S. 101 S.Ct. v. ed States case, marijuana v. Ber- L.Ed.2d 356 (9th Cir.1987); In this United States MERRILL, long-term Judge, concurring is a crime and Circuit in cultivation part dissenting part: in experienced DEA affidavit includes an keep agent’s opinion that cultivators often Offield’s affidavit is to criticism. equipment at their residences between purged If alleged all the misstatements documentary seasons. omissions, however, provided it still sought type typi are the of records records probable cause to search Dozier’s house. long peri Mejia’s maintained statements when he cally found to be over was arrested adequately linked Dozier to the crime and Maryland, ods of time. See Andresen v. provided good cause to believe that there 9, 2737, n. 427 U.S. 478 n. 96 S.Ct. Although was evidence in his home. Me- v. (1976); United States jia’s statements were six months old when Reid, (9th Cir.1980), 472-73 issued, imper- warrant were not denied, 454 U.S. cert. missibly stale because cultiva- L.Ed.2d 105 obviously long-term tion is project. However, I dissent from the court’s ac- Good IV. Faith respecting tion the warrant. As conceded good exception Whether the faith government, the warrant is Leon, authorizing overbroad in the seizure of all (1984) applies 82 L.Ed.2d 677 is records, good written and the excep- faith United States v. Mi novo. reviewed de tion cannot save the seizure under chaelian, provision. documentary Cir. evidence 1986). suppressed. should be agreed The Government below that - warrant was overbroad its authorization to seize all “written state- financial

ments, telephone address books ... books

and bills.” The district court decided to

deny suppress the motion to because it

thought the officers relied on the warrant SMITH, Joseph Anthony faith. Petitioner-Appellant, We do not think the Leon exception needed here. The warrant YLST, Superintendent, Eddie The warrant overbroad. included as Respondent-Appellee. grounds for the search and seizure the No. 86-2048. statement, affidavit, “See attached which is *7 incorporated herein.” The affidavit con- Appeals, States Court by saying cludes there “are doc- Ninth Circuit. uments, indicia, papers, and other items Argued and Submitted June which will evidence the existence of a con- Sept. Decided spiracy marijua- to manufacture/cultivate na.” Since we have found the affidavit cause,

supports probable incorporation its warrant,

into the and attachment thereto

removes the warrant from the realm to exception ap- faith must be

plied. executing Reliance officers entirely appropriate because there was

no overbreadth. judgment of the district court

AFFIRMED.