Petition — United States v. Tate

“0%

Office Supreme Cour, US|

83-24 Y FILED

JUL 8 (1983

3n the Supreme Court of the

OCTOBER TERM, 1983

UNITED STATES OF AMERICA, PETITIONER

Vv.

CHARLES TATE, ET AL.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

Department of

Washington, D.C. 20530

(202) 633-2217

QUESTIONS PRESENTED

1. Whether the Fourth Amendment exclusionary

rule should be modified so as not to bar the admission of

evidence seized in reasonable, good-faith reliance on a

search warrant that is subsequently held to be

defective.

2. Whether the Fourth Amendment exclusionary

rule should be modified so as not to bar the admission of

evidence seized in the reasonable belief that the war-

rantless stop of a vehicle did not violate the Fourth

Amendment.

PARTIES TO THE PROCEEDING

In addition to the parties shown by the caption of this

case, Ezeal Real, Roosevelt Montgomery, Johnny V.

Williams, and Norman Sweeney were appellants below

and are respondents here.

(1)

TABLE OF CONTENTS

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TABLE OF AUTHORITIES

Cases:

Colorado v. Quintero, cert. granted, No.

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Illinois v. Gates, No. 81-430 (June 8,

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Massachusetts v. Sheppard, cert. granted, No.

I ESO vce vsadeipenscaweden 7, 8

United States v. Leon, cert. granted, No.

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(m1)

In the Supreme Court of the Giited States

OCTOBER TERM, 1983

No.

UNITED STATES OF AMERICA, PETITIONER

Vv.

CHARLES TATE, ET AL.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

The Solicitor General, on behalf of the United States,

petitions for a writ of certiorari to review the decision

of the United States Court of Appeals for the Ninth

Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App. A, infra,

la-16a) is reported at 694 F.2d 1217. The ruling of the

district court denying respondents’ motion to suppress

is unreported.

JURISDICTION

The judgment of the court of appeals was entered on

December 21, 1982 (App. B, infra, 17a), and a petition

for rehearing was denied on April 15, 1983 (App. C,

infra, 18a). On June 2, 1983, Justice Rehnquist ex-

tended the time for filing a petition for a writ of certio-

rari to and including July 14, 1983. The jurisdiction of

this Court is invoked under 28 U.S.C. 1254(1).

(1)

2

STATEMENT

On July 17, 1980, a six-count indictment was re-

turned in the United States District Court for the East-

ern District of California charging all five respondents

with conspiracy to manufacture phencyclidine (“PCP”)

(Count I) and with various substantive offenses relating

to the possession and manufacture of controlled sub-

stances (Counts II-V), in violation of 21 U.S.C.

841(a)(1) and 846. In addition, all respondents were

charged with unlawfully carrying a firearm during the

commission of a felony (Count VI), in violation of 18

U.S.C. 924(c)(2). Following the denial of their motions

to suppress evidence and a bench trial on stipulated

facts, respondents were convicted of possessing PCP

with intent to distribute (Count II) and attempting to

manufacture PCP (Count III). A divided panel of the

court of appeals reversed respondents’ convictions,

holding that the contraband and other evidence ad-

mitted at trial had been unlawfully seized (App. A,

infra, la-16a).

1. The pertinent facts, derived from the affidavits in

support of the search warrants and others submitted in

connection with the pretrial suppression hearings, are

as follows: ; be

On the evening of July 12, 1980, Officer Larry

McLaughlin of the Tulare County (California) Sheriff's

Department received an anonymous telephone call ad-

vising him (1) that the caller had observed three or four

black males “utilizing” a white Dodge van at a resi-

dence at 5580 Avenue 320 in Visalia; (2) that the caller

could smell “a very strong odor such as ether coming

from said residence and/or premises”; and (3) that the

caller was familiar with the smell of ether, having used

it on numerous occasions for the purpose of starting en-

gines (App. A, infra, 2a). The caller also gave direc-

tions to the Avenue 320 residence (ibid.). After

receiving this information, Officer McLaughlin and an-

3

other officer drove to the vicinity of the described resi-

dence and smelled a very strong odor of ether

emanating from the residence (ibid.). Based on this in-

formation, the officers applied for a search warrant that

same night. In addition to the facts stated above, the

affidavit in support of the warrant also stated that Offi-

cer McLaughlin knew from his experience as a narcotics

officer that the process of manufacturing PCP emits a

very strong odor of ether (id. at 4a n.2). The affidavit

concluded by stating that Officer McLaughlin believed

that unidentified individuals were in the process of ille-

gally manufacturing PCP (ibid. ).}

While awaiting the issuance of the requested war-

rant, officers kept the premises under surveillance.

During this time, Agent William Miller of the California

Bureau of Narcotics walked by the residence at about

3:30 a.m. on the morning of July 13, 1980, and smelled

cyclohexanone, a necessary precursor chemical for the

manufacture of PCP (App. A, infra, 2a). About an hour

and a half later, a station wagon arrived at the prem-

ises and stopped near a shed located at the rear of the

residence (ibid.). Thereafter, Agent Miller observed

three to five black males in the area around the shed

and the station wagon carrying “buckets and containers

of various description[s]” (Sept. 29, 1980 Tr. 71). Some

of them were wearing rubber gloves (ibid. ).

At 5:45 a.m., tiie suspects closed and locked the shed,

entered the station wagon, and drove off (App. A,

infra, 3a). As the surveilling officers followed, they re-

ceived a radio transmission advising them that the

applied-for search warrant had just been issued by a

state court judge (ibid.). The officers continued to fol-

low the station wagon and stopped it a short time later

(ibid.). As respondents emerged from the vehicle,

1 Because the warrant was applied for late at night and on a

weekend, the officers had no ready means of ascertaining who

owned or resided in the premises (Sept. 29, 1980 Tr. 135).

4

Agent Miller detected a strong odor of ether and ob-

served a “whitish powder” on each of them (ibid.); two

handguns were also seen in plain view in the station

wagon (Sept. 29, 1980 Tr. 73-74). Respondents were

then arrested (App. A, infra, 3a). An incidental search

of their persons disclosed two motel keys for rooms at a

nearby Holiday Inn (ibid. ).

After arresting respondents, the officers returned to

the Avenue 320 premises and executed the search war-

rant (App. A, infra, 3a). Inside the shed,? they found

38 pounds of PCP drying on a table as well as numerous

partially filled or empty chemical containers.

The officers then went to the Holiday Inn and

searched the parking lot for the white Dodge van men-

tioned in the initial anonymous phone call (App. A,

infra, 3a). They discovered a white Ford van in which

they observed in plain view a triple beam scale, a num-

ber of containers similar to those found at the resi-

dence, and a package containing rubber gloves (ibid. ).

The officers then obtained a search warrant for the van.

Execution of that warrant disclosed clothing owned by

respondents, chemical precursors to PCP, and two

pounds of PCP (ibid. ).

2. The district court denied respondents’ motions to

suppress the seized contraband, holding that both

search warrants were supported by probable cause

(Sept. 29, 1980 Tr. 49, 54-55, 62-63; Dec. 8, 1980 Tr.

130). Moreover, the court held that the warrantless

2 In addition to a complete search of the residence itself, the

warrant authorized the search of “the surrounding grounds

[and] any garages, storage rooms or outbuildings of any kind

see”

3 Specifically, the district court stated (Sept. 29, 1980

Tr. 49):

I think from the circumstances here with a shed in the back

of a building out in the country and the emission of ether

odors, that when the officer knows [there] are ether odors

5

stop of the station wagon was valid and that respon-

dents’ subsequent arrests were supported by probable

cause (Sept. 29, 1980 Tr. 161). Finally, in response to

the prosecutor’s request for a finding that the search

warrants were applied for and executed in good faith,

the district court stated: “I certainly have no reason to

challenge the good faith of [the affiant]. * * * I know

him to be a competent officer that’s doing his duty as he

sees it” (id. at 160-161).

3. On appeal, a divided panel of the Ninth Circuit re-

versed. Although finding that the information supplied

by the anonymous informant and corroborated by Offi-

cer McLaughlin was sufficiently reliable (App. A,

infra, 5a-6a), the panel majority held that it was insuf-

ficient to establish probable cause for the search of the

Avenue 320 premises (id. at 6a-8a). Noting that the in-

formant’s tip did not state that any illicit activity was

taking place (id. at 6a), the majority concluded that the

smell of ether, a noncontraband substance having a

number of legitimate uses, cannot, without more, sup-

ply probable cause for the issuance of a search warrant

(id. at 7a).

The court next held that the officers lacked reason-

able suspicion to stop the station wagon. Although

acknowledging that by the time of the stop, another

agent had smelled yet another PCP precursor chemical,

the court observed that “there is no indication that de-

fendants or the station wagon were at the premises

when these events [the smelling of ether and, later,

cyclohexanone] took place * * *.” App. A, infra, 9a.

The court further observed (id. at 9a-10a):

The unknown informer described a white Dodge

van being utilized on the premises. However, de-

fendants apparently arrived at the Avenue 320 res-

idence shortly after 5:00 a.m. in a station wagon.

that are given off when P.C.P. is being manufactured, I

think that’s sufficient.

6

Several black men, some wearing gloves, were

seen carrying containers about near the shed and

the station wagon. Miller could not state that con-

tainers were either taken from or brought to the

station wagon. He also testified that he had on

earlier occasions noted farmers in the area wearing

gloves and carrying containers in the predawn

hours. There is no evidence of record that indicates

that gloves are relevant in any way to the manufac-

turing process of PCP.

x * * * x

The identification of ether and cyclohexanone

odors at the residence occurred some time before

either the defendants or the station wagon arrived

on the scene. There are no “specific and articulable

facts” linking either the defendants or the vehicle

to the manufacture of PCP up to the time the sta-

tion wagon was stopped * * *.

Accordingly, the court invalidated the stop. Because it

was the stop of the station wagon that led to the discov-

ery of the van at the Holiday Inn, the court also sup-

pressed the evidence taken from the van pursuant to

the second search warrant (App. A, infra, 11a-13a).

In dissent, Judge Enright opined that the totality of

the circumstances—particularly the time and place in

which the officers encountered the strong smell of

ether—supported a finding of probable cause (App. A,

infra, 14a). Moreover, even if probable cause was

lacking for the search of the residence, Judge Enright

stated that the officers had sufficient reasonable suspi-

cion to conduct an investigatory stop of the station

wagon (id. at 15a). Once respondents emerged from the

vehicle, “(t]he odor of ether, the weapons in plain view,

and the appearance of [respondents] provided probable

« Judge Enright observed that the situation might be differ-

ent “if the odor of ether had been detected near a hospital, rath-

er than near a farm shed on a country road” (App. A, infra,

14a).

7

cause for their arrest” (ibid.) and, in Judge Enright’s

view, validated the later warranted search of the white

van (id. at 15a-16a). Finally, since the search of the res-

idence was infirm, if at all, only because of the officers’

failure to apply for reissuance of the same search war-

rant after acquiring additional information during their

surveillance and from the stop of respondents’ vehicle,

Judge Enright concluded that the deterrent purposes of

the exclusionary rule would not be furthered by its in-

vocation in this case (id. at 16a).

4. The government petitioned the panel for rehear-

ing, suggesting that the case be held pending this

Court’s decision in Jllinois v. Gates, No. 81-430 (June

8, 1983). The petition was denied, again over Judge

Enright’s dissent (App. C, infra, 18a).

REASONS FOR GRANTING THE PETITION

This case raises precisely the same issues that are

now pending before the Court in United States v.

Leon, cert. granted, No. 82-1771 (June 27, 1983);

Massachusetts v. Sheppard, cert. granted, No. 82-963

(June 27, 1983); and Colorado v. Quintero, cert.

granted, No. 82-1711 (June 27, 1983).5 We have set

forth at some length our arguments in support of a

“reasonable mistake” exception to the exclusionary rule

in Illinois v. Gates, supra, and no purpose would be

served by repeating them here.® It should be noted

only that this case raises the question of a “reasonable

mistake” modification in two separate contexts—the

* This case also presented the issues whether the first search

warrant was supported by probable cause and whether the au-

tomobile stop was supported by reasonable suspicion. Although

we believe that the court of appeals’ decision was clearly in er-

ror on both of these issues, we do not seek this Court's review

on these essentially fact-bound questions.

* We are furnishing respondents’ counsel with copies of our

a SAT Sh SUED, Sh ND CneD GaN FO ae

8

warrantless stop of respondents’ station wagon and the

judicially-authorized search of the Avenue 320 prem-

ises. It is our submission that some form of the “reason-

able mistake” exception is appropriate for each situa-

tion, although, as explained in our supplemental brief in

Gates, the reasons supporting modification of the exclu-

sionary rule have slightly different analytic foundations

depending on the context.

Leon and Sheppard both present the question as ap-

plied to search warrants, while Quintero involves a

warrantless arrest and subsequent search. Thus, the

present case may not necessarily be controlled by the

outcome in any one of the pending cases, but is instead

likely to merit disposition in light of the decisions in all

three cases. And if for any reason the questions are not

decided in the pending cases, this case offers a suitable

independent vehicle for the resolution of both the broad

question of the appropriateness of adopting some form

of general “reasonable mistake” exception to the exclu-

sionary rule and the narrower question of the applica-

bility of the exclusionary rule to evidence seized during

searches authorized by judicial warrants.

CONCLUSION

The petition for a writ of certiorari should be held

and disposed of as appropriate in light of the Court’s

decisions in Leon, Sheppard and Quintero.

Respectfully submitted.

Rex E. Lee

Solicitor General

JULY 1983

la

APPENDIX A

UNITED STATES OF AMERICA, PLAINTIFF/APPELLEE,

VU.

CHARLES TATE, DEFENDANT/APPELLANT.

UNITED STATES OF AMERICA, PLAINTIFF/APPELLEE,

v.

EZEAL REAL, DEFENDANT/APPELLANT.

UNITED STATES OF AMERICA, PLAINTIFF/APPELLEE,

Vv.

ROOSEVELT MONTGOMERY, DEFENDANT/APPELLANT.

UNITED STATES OF AMERICA, PLAINTIFF/APPELLEE,

Vv.

JOHNNY V. WILLIAMS, DEFENDANT/APPELLANT.

UNITED STATES OF AMERICA, PLAINTIFF/APPELLEE,

Vv.

NORMAN SWEENEY, DEFENDANT/APPELLANT.

Nos. 81-1206 to 81-1208, 81-1223 and 81-1233.

United States Court of Appeals, Ninth Circuit

Argued and Submitted Nov. 12, 1982

Decided Dec. 21, 1982.

Appeal from the United States District Court for the

Eastern District of California.

Before SKOPIL and POOLE, Circuit Judges, and

ENRIGHT, * District Judge.

*The Honorable William B. Enright, United States District

Judge for the Southern District of California sitting by

designation.

a0%

2a

POOLE, Circuit Judge.

Appellants appeal from their convictions for posses-

sion with intent to distribute phencyclidine (PCP), 21

U.S.C. § 841(a)(1), and attempt to manufacture PCP,

21 U.S.C. § 846. The charges resulted from an investi-

gation on July 12 and 13, 1980, by officers of the Tulare

County Sheriffs Department.

On July 12, 1980, Officer Larry McLaughlin received

an anonymous telephone call. As a result of this call, a

search warrant for the premises at 5580 Avenue 320

was applied for.! McLaughlin’s supporting affidavit

averred that the anonymous telephone caller stated (1)

he had observed three or four black males “utilizing” a

white Dodge van at a residence at 5580 Avenue 320, (2)

that he could smell “a very strong odor such as ether

coming from said residence and/or premises,” (3) that

the informant was familiar with the odor of ether hav-

ing used it “continuously on numerous occasions for the

purpose of starting engines”; the caller gave directions

to the Avenue 320 residence. The affidavit also stated

that McLaughlin and another officer went “to the im-

mediate area of said residence and smelled a very

strong odor of ether coming from said residence,” and

that the process of manufacturing PCP “emits a strong

odor of ether.”

While waiting for the magistrate to act upon the ap-

plication for search warrant, Agent Miller of the

California Bureau of Narcotics Enforcement, set up a

surveillance of the Avenue 320 residence. At 3:30 a.m.

on July 13, 1980, he walked by the residence and

smelled cyclohexanone, a necessary precursor for the

manufacture of PCP. At 5:08 a.m., a station wagon ap-

proached a shed on the premises. Agent Miller noted

three to five black males walking about the station wag-

on and the shed. Some were carrying packages and ob-

! The actual address searched was 5530 Avenue 320.

3a

jects and some were wearing rubber gloves. At 5:45

a.m. they closed and locked the door of the shed, en-

tered the station wagon and departed the area. Agent

Miller followed the station wagon. He learned that the

applied-for search warrant had been signed, continued

to follow the station wagon, and ultimately stopped it

about five miles from the Avenue 320 residence. The

passengers were ordered out of the vehicle, at which

time Miller noted a strong odor of ether and observed a

whitish powder on each of the defendants. Defendants

were then arrested. A search of their persons disclosed

two keys to rooms at the Holiday Inn in Visalia.

The premises at Avenue 320 were searched and in-

vestigators found PCP and evidence that the substance

was being manufactured there.

Investigators went to the Visalia Holiday Inn and

searched the parking lot for the white van described by

the unknown informant. They discovered a white Ford

van in which they observed a triple beam scale, a num-

ber of containers similar to containers found at the resi-

dence, and a package apparently containing rubber

gloves. A search warrant for the van was obtained. The

search of the van disclosed clothing owned by some of

the defendants, chemical precursors to PCP, and a

quantity of finished PCP.

Appellants’ motions to suppress the evidence found

at each search was denied, and t ey were convicted on

stipulated facts. This appeal followed.

I. The search of the Avenue 320 residence

The fourth amendment proscribes unreasonable

searches and seizures, and items seized in searches ille-

gal under the fourth amendment may not be used as ev-

idence against the victims of the search. See Mincey v.

Arizona, 437 U.S. 385, 390, 98 S.Ct. 2408, 2412, 57

L.Ed.2d 290 (1978); Wong Sun v. United States, 371

U.S. 471, 484, 83 S.Ct. 407, 415, 9 L.Ed.2d 441 (1963).

4a

It is a cardinal principle that warrantless searches “are

per se unreasonable under the Fourth Amend-

ment—subject only to a few specifically established and

well-delineated exceptions.” Mincey v. Arizona, 437

U.S. at 390, 98 S.Ct. at 2412. To comply with constitu-

tional standards, a search warrant must be supported

by an affidavit establishing probable cause to search.

See United States v. Traylor, 656 F.2d 1326, 1329-30

(9th Cir. 1981); United States v. Armstrong, 654 F.2d

1328, 1335 (9th Cir.1981), cert. denied, _. U.S. ___.,

102 S.Ct. 1032, 71 L.Ed.2d 315 and ____ U.S. ___., 102

S.Ct. 1289, 71 L.Ed.2d 470 (1982).

The substance of McLaughlin’s affidavit in support of

the search warrant for the Avenue 320 residence is set

forth in the margin.? Appellants argue that the evi-

? Your Affiant was advised by an anonymous informant with-

in the past one day that said informant observed three to four

black male individuals at the residence located at 5580 Avenue

320, Visalia, County of Tulare, who were utilizing a white

Dodge van in and upon said premises. . . . Said informant fur-

ther advised he could smell a very strong odor such as ether

coming from said residence and/or premises. Said informant fur-

ther stated that he was familiar with the smell of ether from the

informant using it continuously on numerous occasions for the

purpose of starting engines. Said informant further supplied

your Affiant directions to locating said residence.

Your Affiant further has personally observed the aforemen-

tioned residence and found that the residence is located and ap-

pears as described by the informant.... Your Affiant further

states that within the past day your Affiant together with Det.

Richard Holguin, went to the immediate area of said residence

and smelled a very strong odor of ether coming from said resi-

dence. Your Affiant further states that it has been your Affi-

ant’s experience in the investigation of illicit manufacture of

phencyclidine (P.C.P.) that the process emits a very strong odor |

of ether.

That based upon the above facts and information, your Affi-

ant has reasonable and probable cause to believe, that an un-

identified individual(s) is now illegally manufacturing a con-

5a

dence seized at the residence must be suppressed

because the search warrant was not supported by prob-

able cause. They first argue that the warrant is insuffi-

cient because it fails to state the underlying circum-

stances demonstrating the anonymous informant’s

reliability. Appellants also contend that the odor of an

non-contraband substance in the vicinity of a residence,

absent other corroborating evidence of criminal activi-

ty, does not establish probable cause to search. Finally,

appellants argue that the affidavit contained material

misstatements and that under California law further

proceedings are required.

A. Reliability of the informant’s evidence

An affidavit based at least in part on the tip of an

unnamed informer must satisfy two requirements.

First, it must disclose some underlying circumstances

on which the informant relied. Aguilar v. Texas, 378

U.S. 108, 114, 84 S.Ct. 1509, 1513, 12 L.Ed.2d 723

(1964); see United States v. Davis, 663 F.2d 824, 828

(9th Cir.1981); United States v. Lefkowitz, 618 F.2d

1313 (9th Cir)., cert. denied, 449 U.S. 824, 101 S.Ct.

86, 66 L.Ed.2d 27 (1980); United States v. Garrett, 565

F.2d 1065, 1070 (9th Cir. 1977), cert. denied, 435 U.S.

974, 98 S.Ct. 1620, 56 L.Ed.2d 67 (1978). Second, the

affidavit must present facts enabling the magistrate to

conclude that the informant is credible and his informa-

tion reliable. Aguilar v. Texas, 378 U.S. at 114, 84

S.Ct. at 1513; United States v. Traylor, 665 F.2d at

1330. See United States v. Davis, 663 F.2d at 828.

We find both requirements to be satisfied here. The

informer’s statement, as reported in the affidavit, that

he smelled an odor “such as ether,” and that he was fa-

miliar with the smell of ether, demonstrates that the

caller was relating his own observations, thus satisfying

trolled substance, to-wit: Phencyclidine (P.C.P.) at the

residence and premises... .

6a

the first prong of the test. See United States v.

Garrett, 565 F.2d at 1070. Because the informant was

unknown to the investigators, no direct evidence of his

credibility and reliability was possible. However, under

Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584,

21 L.Ed.2d 637 (1969), independent cerroboration of

the tip may satisfy this requirement. The unknown

informer’s statement that a strong odor of ether

emanated from the premises was corroborated by

McLaughlin’s averment that he and ancther officer also

smelled a strong odor of ether coming from the Avenue

320 residence. See United States v. Garrett, 565 F.2d

at 1070.

B. Existence of probable cause

The more difficult question is whether the facts pre-

sented in the affidavit are sufficient to establish proba-

ble cause. In order to find that an affidavit is sufficient

to support a search warrant, a magistrate must only

conclude that criminal activity is probably shown.

United States v. Traylor, 665 F.2d at 1330; United

States v. Armstrong, 654 F.2d at 1335. In reviewing

the validity of a search warrant, a court is limited to

the information and circumstances available to the mag-

istrate at the time the warrant is issued. J.R. Simplot

Co. v. Occupational Safety & Health Administration,

640 F.2d 1134, 1138 (9th Cir. 1981), cert. denied, ____

U.S. ____, 102 S.Ct. 1430, 71 L.Ed.2d 649 (1982);

United Siates v. Brown, 455 F.2d 1201, 1204 (9th Cir.),

cert. denied, 406 U.S. 960, 92 S.Ct. 2069, 32 L.Ed.2d

347 (1972). The magistrate’s decision is to be accorded

great deference. United States v. Traylor, 656 F.2d at

1330; United States v. Armstrong, 654 F.2d at 1335.

The unknown informant did not state that the illegal

manufacture of PCP, or any other illicit activity, was

taking place at the Avenue 320 residence. The sole facts

presented in the affidavit suggesting criminal activity

7a

at the residence were (1) the premises emitted a strong

odor of ether, and (2) the process of manufacturing PCP

emits a strong odor of ether.* Appellants contend that

the smell of a noncontraband substance having a num-

ber of legitimate uses, standing alone does not establish

probable cause to search a residence. We agree. Ether

has many innocuous uses. It is a very common solvent,

and is also used to start engines. While the strong smell

of ether may be a factor in establishing probable cause,

the government cites no case, and we have found none,

holding that the smell of ether, without more, estab-

lishes probable cause to search.

Nor does Johnson v. United States, relied upon by

both the government and appellants, authorize a con-

trary holding. 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436

(1948). In Johnson, the Supreme Court held that the

odor of opium was sufficient to establish probable cause

to search.

If the presence of odors is testified to before a

magistrate and he finds the affiant qualified to

know the odor, and it is one sufficiently distinctive

to identify a forbidden substance, this Court has

never held such a basis insufficient to justify issu-

ance of a search warrant.

Id. at 13, 68 S.Ct. at 368 (emphasis added). Because

ether has several legitimate uses, its odor is not suffi-

ciently distinctive to identify the manufacturing of

PCP. See United States v. Noreikis, 481 F.2d 1177,

1178 (7th Cir. 1973), vacated in part on other grounds,

415 U.S. 904, 94 S.Ct. 1398, 39 L.Ed.2d 461 (1974).

Although mindful of the great deference to be ac-

corded a magistrate’s determination of probable cause,

we are nonetheless constrained to hold that the affida-

vit in support of the search warrant for the Avenue 320

* That the caller was able to direct investigators to the resi-

dence, and that three or four black males were “utilizing” a van

on the premises, do not suggest criminal activity.

8a

premises does not allege facts sufficient to establish

probable cause.

C. Appellants’ other contentions

In addition to appellants’ contentions addressed

above, they argue that the affidavit did not establish

probable cause to search the outbuildings on the prem-

ises, and that the affidavit contained material misstate-

ments. Because we hold that the warrant was not sup-

ported by probable cause, these contentions need not

be addressed. Nor do we find it necessary to reach the

issue whether any remedy resulting from a finding of a

negligent or intentional mistatement in the affidavit

would be governed by federal or state law. See United

States v. Chamberlin, 644 F.2d 1262, 1265 n. 1 (9th

Cir. 1980), cert. denied, 453 U.S. 914, 101 S.Ct. 3148, 69

L.Ed. 997 (1981); United States v. Gallop, 606 F.2d

836, 840 (9th Cir.1979); United States v. Grajeda, 587

F.2d 1017, 1018-19 (9th Cir. 1978); United States v.

Valenzuela, 546 F.2d 273, 275 (9th Cir.1976).

II. The automobile stop

Our inquiry is not terminated by our holding that the

search warrant for the Avenue 320 premises was inval-

id because not supported by probable cause. The gov-

ernment argues that regardless of the validity of the

Avenue 320 residence search warrant, the stopping of

appellants’ automobile was supported by reasonable

suspicion and the search warrant for the white van was

supported by probable cause; thus the district court’s

failure to suppress evidence seized in the search of the

residence was harmless error.

An officer may stop an automobile without a warrant

if he has a reasonable or founded suspicion that the ve-

hicle or its occupants are “subject to seizure for viola-

tion of law.” Delaware v. Prouse, 440 U.S. 648, 663, 99

S.Ct. 1391, 1401, 59 L.Ed.2d 660 (1979). See United

States v. Emens, 649 F.2d 653, 656 (9th Cir.1980);

9a

United States v. Post, 607 F.2d 847, 850 (9th Cir.

1979). “[T]Jhe police officer must be able to point to spe-

cific and articulable facts which, taken together with ra-

tional inferences from those facts, reasonably warrant

the intrusion.” Terry v. Ohio, 392 U.S. 1, 21-22, 88

S.Ct. 1868, 1879-1880, 20 L.Ed.2d 889 (1968); United

States v. Emens, 649 F.2d at 656.

The evidence must be viewed in the light most favor-

able to the government, and this court’s review is limit-

ed to determining whether the district court’s findings

are clearly erroneous. United States v. Post, 607 F.2d

at 849. We find clear error in the district court’s deter-

mination that reasonable suspicion supported the auto-

mobile stop.

At the time defendants’ station wagon was pulled

over, the government was in possession of the following

facts. McLaughlin had received an anonymous tele-

phone call stating that the odor of ether was emanating

from the residence on Avenue 320, and that between

three and five black men were using a white van on the

premises. McLaughlin confirmed that the odor of ether

was present near the residence when he drove past the

house at 10:00 p.m. on July 12, the evening before the

defendants’ arrest. Miller noted the odor of cyclohexa-

none at 3:30 a.m. on July 13. Both ether and cyclohexa-

none are necessary precursors to the manufacture of

PCP. These facts appear sufficient to direct some atten-

tion to the Avenue 320 residence, but there is no indica-

tion that defendants or the station wagon were at the

premises when these events took place at 10:00 p.m. or

3:30 a.m. or at eny time between these hours. Neither

McLaughlin during his drive-by, nor Miller who had the

residence under surveillance during the early morning

hours of July 13, noted their presence or departure.

The unknown informer described a white Dodge van

being utilized on the premises. However, defendants

apparently arrived at the Avenue 320 residence shortly

10a

after 5:00 a.m. in a station wagon. Several black men,

some wearing gloves, were seen carrying containers

about near the shed and the station wagon. Miller could

not state that containers were either taken from or

brought to the station wagon. He also testified that he

had on earlier occasions noted farmers in the area wear-

ing gloves and carrying containers in the predawn

hours. There is no evidence of record that indicates that

gloves are relevant in any way to the manufacturing

process of PCP.

Three quarters of an hour after they had been first

seen, the defendants en*ered the station wagon and

drove from the premises. Investigating officers fol-

lowed the vehicle for some five miles from the Avenue

320 residence, apparently noticing no suspicious con-

duct on the part of either car or driver. They then

stopped the automobile.

We hold that the vehicle stop constituted an unrea-

sonable seizure. The investigators lacked reasonable

suspicion that the vehicle or its occupants were subject

to seizure for violation of law. Thus the arrest of the de-

fendants and the subsequent search violated the de-

fendants’ fourth amendment rights.

The identification of ether and cyclohexanone odors

at the residence occurred some time before either the

defendants or the station wagon arrived on the scene.

There are no “specific and articulable facts” linking ei-

ther the defendants or the vehicle to the manufacture of

PCP up to the time the station wagon was stopped; de-

fendants’ behavior was entirely consistent with an inno-

cent course of conduct and did not suggest criminal ac-

tivity. A mere hunch on the part of investigators is not

sufficient to justify an automobile stop, even if that

hunch turns out to have been a good one.

Miller testified that he stopped the vehicle in order to

serve the defendants with the search warrant for the

Avenue 320 residence. We have held that warrant to be

lla

invalid. Were the warrant valid, howe’er, it could not

legitimize an otherwise unreasonable automobile stop.

The warrant did not describe the station wagon or any

other vehicle as an area to be searched. The execution

of a search warrant does not require that it be served

on the owner or occupant of the premises to be

searched. This was not a warrant of arrest and a search

warrant does not authorize the arrest of any persons

associated with the premises to be searched, when nei-

ther on nor near the premises, for the purpose of con-

veying them to the scene of the search. Cf. Michigan v.

Summers, 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d

340 (1981) (police may detain person in the act of leav-

ing premises where police have a proper warrant to

search premises for contraband).

III. The search of the white Ford van

Because the exclusionary rule bars the use of evi-

dence seized in an illegal search, the district court erred

in refusing to suppress the evidence seized in the

search of the residence and the search of the station

wagon and defendants’ persons incident to their arrest.

The further inquiry remains whether the evidence

seized from the van in the hotel parking lot must be

excluded.

After Miller stopped defendants’ station wagon, he

detected a strong odor of ether emanating from the

car’s interior and noted that the defendants were each

sprinkled with a white powder he suspected to be PCP.

He immediately arrested them, and searched the de-

fendants and the station wagon. The search revealed

two keys belonging to the Visalia Holiday Inn. The offi-

cers then looked through the parking lot of the Holiday

Inn and located a 1977 white Ford van. They detected a

strong odor of ether coming from the van and also

noted “in plain view” (apparently through the van win-

dows) a triple beam scale and box, three five gallon

12a

black cans, one five gallon water bottle, a number of

five gallon buckets and a bag appearing to contain rub-

ber gloves. The police obtained a warrant and subse-

quently searched the van.‘ The search disclosed wwo

pounds of PCP and chemicals used in its manufacture.

Under the “fruit of the poisonous tree” doctrine, evi-

dence obtained not in an illegal search but as a result

of that search is inadmissible against the victim of the

search, unless “the connection between the lawless con-

‘The affidavit incorporated the affidavit in support of the

residence search, and added the following:

[Ojn or about the 13th day of July, your Affiant executed

a search warrant supported by the attached affidavit at the

residence located at 5580 Avenue 320, Visalia, County of

Tulare, where approximately thirty-five pounds of sus-

pected phencyclidine (P.C.P.) was confiscated and six male

individuals were arrested for violation of 11379.5 of the

Health and Safety Code. Your Affiant further states that

upon arrest of said individuals two hotel keys were confis-

cated belonging to the Holiday Inn address of 9000 West

Airport Drive in Visalia indicating that the suspects ar-

rested were staying at the Holiday Inn in Visalia. As per

information received from the informant stating that the

suspects were utilizing a white van the officers involved in

this case searched the parking lot area of the Holiday Inn

for the possible white van. Officers located a possible white

van ... and upon approaching said van your Affiant de-

tected a strong odor of ether coming from within said van.

Your Affiant further states that he observed in plain sight

the following items:

1. (1) triple beam scale and box.

2. (3) 5 gallon black cans same as those located at the resi-

dence 5580 Avenue 320, Visalia.

3. (1) 5 gallon water bottle.

4. Numerous 5 gallon buckets same as those located

residence.

5. Bag indicating contents of rubber gloves.

Your Affiant prays that a search warrant be issued

enabling your t and other peace officers to search

the contents of said vehicle ... and confiscate the above

listed items number 1 through 5 and other items and para-

phernalia as listed in the attached affidavit, and the above

mentioned Ford van as an instrumentality of the crime.

13a

duct of the police and the discovery of the challenged

evidence has ‘become so attenuated as to dissipate the

taint.’” United States v. Ceccolini, 435 U.S. 268,

273-74, 98 S.Ct. 1054, 1058-59, 55 L.Ed.2d 268 (1978);

Wong Sun v. United States, 371 U.S. at 487, 883 S.Ct.

at 417. We decline to reach the difficult question wheth-

er the discovery of the van was inadmissible under this

doctrine, because absent the inadmissible evidence ob-

tained from the illegal search of the Avenue 320 resi-

dence and the automobile stop, there is no probable

cause to support the search of the van.

The only evidence that the magistrate could properly

consider in determining this issue of probable cause

linked the van neither to the defendants nor to criminal

activity at Avenue 320 or elsewhere. The anonymous

informer stated that a white Dodge van was being used

at the Avenue 320 residence. The van actually

searched, however, was a Ford. The informant’s infor-

mation, coupled with the investigators’ observations

were insufficient to give rise to probable cause to

search the residence and bore no relationship at all to a

Ford van located in a hotel parking lot. When investiga-

tors located the van they noted the odor of ether

emanating from the vehicle and observed a scale, a bag

‘ of rubber gloves and a number of containers. These cir-

cumstances simply do not approach probable cause to

search.

The judgments of conviction are reversed.

ENRIGHT, District Judge, dissenting:

I respectfully dissent. Based on the totality of the cir-

cumstances, 1 would find probable cause to support the

warrant issued for the search of the Avenue 320 resi-

dence. 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 dis-

trict court’s failure to suppress evidence seized in the

l4a

search of the residence was harmless error. According-

ly, the convictions should be affirmed.

In determining whether there is probable cause to

support a search warrant, “[iJt 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 proba-

ble cause in this case. Other relevant factors include: 1)

the anonymous call identifying the location, giving di-

rections, describing persons observed on the premises,

noting the strong odor of ether, and indicating personal

familiarity with the smeil of ether; 2) the investigating

officer’s corroboration of the location and strong smell

of ether; 3) the officer’s past experience investigating il-

licit 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 Ave-

nue 320 residence. Such a conclusion would be less rea-

sonable 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,

15a

380 U.S. 102, 106, 109, 85 S.Ct. 741, 744, 746, 13

L.Ed.2d 684 (1956); United States v. Flores, supra,

679 F.2d, at 176. “A grudging or negative attitude by

reviewing courts toward warrants will tend to discour-

age 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 Av-

enue 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 de-

taining 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 de-

tected 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 es-

tablish founded suspicion to justify stopping the defend-

ants’ 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

16a

van, and the smell of ether coming from the van, pro-

vided 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 Ave-

nue 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 insufficien-

cy in the original warrant for the search of the resi-

dence. 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 Ave-

nue 320 search.

17a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, PLAINTIFF/APPELLEE,

Vv.

CHARLES TATE, EZEAL REAL, ROOSEVELT

MONTGOMERY, JOHNNY V. WILLIAMS, NORMAN

SWEENEY, DEFENDANTS/APPELLANTS.

Nos, 81-1206, 81-1207, 81-1208, 81-1223, 81-1233

DC CR 80-0110-02, 80-0110-03, 80-0110-04, 80-0110-05,

80-0110-00 MDC

APPEAL from the United States District Court for

the Eastern District of California.

THIS CAUSE came on to be heard on the Transcript

of the Record from the United States District Court for

the Eastern District of California and was duly

submitted.

ON CONSIDERATION WHEREOF, It is now here

ordered and adjudged by this Court, that the judgment

of the said District Court in this Cause be, and hereby

is reversed.

Filed and entered December 21, 1982

18a

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Nos. 81-1206x, 81-1207x, 81-1208x, 81-1223x, 81-1233x

(Filed: April 15, 1983)

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,

Vv.

CHARLES TATE, ET AL., DEFENDANTS-APPELLANTS.

Before: SKOPIL and POOLE, Circuit Judges, and

ENRIGHT, * District Judge

Order

Judges Skopil and Poole have voted to deny the peti-

tion for rehearing and to reject appellee’s suggestion

that final decision be deferred pending resolution by the

Supreme Court in /llinois v. Gates, 85 Ill. 2d 376, 423

N.E. 2d 887, cert. granted, 102 S.Ct. 997, reargument

granted, 103 S.Ct. 436 (1983).

Judge Enright votes to grant the petition for rehear-

ing and would defer final decision.

The petition for rehearing is denied.

*The Honorable William B. Enright, United States District

Judge for the Southern District of California, sitting by desig-

nation.