# Petition — United States v. Tate

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1984
- **Citation:** 468 U.S. 1206

## Text

“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.
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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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0027%3A1. Public record. Not legal advice.