*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. 440 F.2d 666. invading were they a constitution Affirmed. ally privacy zone of Mar protected —the tin Not house. so. The officers had a CHOY, (dissenting): Circuit Judge right they They where to be were. did premises. They not invade the Martin I respectfully dissent. Although I they saw saw was what because it visi agree with my Brothers Duniway and they ble from where were. Martin and Smith that the police observations did may his they cohorts have believed that not amount to an illegal search and sei complete enjoyed they privacy, but did zure, I find that the sightings contribut not, not that anything because very ed little to the Government’s at agents did, but they because of did. tempt to establish cause. The neighbor The would not have violated four-hour surveillance of the house by rights seeing smelling their and what which revealed the clinking of glasses, saw officers and The offi smelled. the movement of laboratory equipment- cers more. did no boxes, and and the smell of ether and acetone, proves goes No appellants case cited so more than that the Martins may far as have Martin Rathbun would have been operating type some go In laboratory us here. the case on which in their home.1 Well, thing, very ether has a A. for one testimony expert 1. The was as follows: question pungent I would be smell and taking combining Now that list and Q. to detect acetone. able it, any particular reaction chemical is there What? Q. you to mind smell ace- that comes when you A. I don’t recall how smell both at at ether the same time? tone and time. one laboratory equipment of chemicals justi- already inference was But such acetone, the smell ether and picked mere fact that Martin by the fied only merely reasonable inference is that supplies laboratory up a quantity operation. laboratory chemical was in his house. at them unloaded According undisputed expert testimo significant by the only sighting suppression hearing, there ny at was police jug containing was the point more reason that such evidence no jug, liquid methamphetamine with a white production ed than however, more reaction, no establishes legitimate chemical such to a as cause than does mere evidence of isolation of the essence of roses.2 Thus, Martin’s chemicals absent evidence that Martin or equipment. Although liquid a colored possessed precursors or dered meth light precipitate an element is ingredients or other amphetamine crit methamphetamine labora- manufacture, common ically important to its that true tory, equally it countless used a name in ordering point processes chemical, chemical result at some appellants’ conduct liquid. in such a suspicious,3 was otherwisé probable cause to arrest.4 lacked ev- liquid considering the colored Even would, the evidence conjunction with in idence I reverse the convictions. 4. The facts available to you this case Assuming both did smell Q. incriminating far less were than ether, you those found *5 lead would that acetone conclude, probable following to establish cause in the conjecture any par- even methamphetamine cases: United States going on? reaction was chemical ticular Welebir, (4th 1974) (pur F.2d 498 346 Cir. No. A. precursors; tip of chase informer that defend 86-87) (Pre-trial Tr. n up laboratory ant drug intended set for illicit testimony expert was as follows: manufacture); Noreikis, United States v. (7th 1973), denied, 481 F.2d 1177 Cir. cert. you chemicals took that list of IfQ. 904, 1398, 415 U.S. 94 S.Ct. 39 L.Ed.2d place 461 which were at from a knew (1974) (police pos affidavit that defendants you both ether and acetone could smell precursors; hydride sessed lithium aluminum sighting of an to that added liquid house); Moore, to the traced United States v. [sic], precipitant a white (6th denied, 1971), you 452 569 Cir. 2435, cert. 407 would then draw? conclusion 910, (1972) 92 S.Ct. working U.S. (delivery 32 L.Ed.2d 684 still conclude I am A. I would precursors drop; laboratory. to mail use of chemical a names; facts, building anything activities within Is there about those Q. hours). alone, working outside normal point you standing United Cf. that would Ortiz, (10th Cir.), manufacture, 445 illegal drug op- States v. F.2d 1100 as cert. direction of posed denied, 993, 541, 404 U.S. laboratory working? 92 S.Ct. 30 L.Ed.2d chemical (1971) (presence precursors alone, 545 Standing inside a de chemical laborato- A. discovery methamphet fendant’s cabin and ry, nothing more. nearby outside 87) amine found sufficient to (Pre-trial sus Tr. manufacturing drug). for tain conviction illicit And at least one court has ruled that facts appear- 3. The Government contends that incriminating much more than those shown in on the Martin’s and NPS’s names ance of case failed to establish cause. supply to finding houses list submitted chemical DEA Failla, F.Supp. (W.D. United States v. N.Y.1972). support cause. tends to case, In that knew at However, may have sus- the fact the moment arrest that defendant had or- company illegal pected activ- Martin or hydride, dered lithium aluminum used anoth- weight. Spinelli ity no entitled to name, operated laboratory er’s in his 584, 393 U.S. 89 S.Ct. United basement. (1969). L.Ed.2d