# Petition for Writ of Certiorari — Brock v. Pierce County

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1986
- **Citation:** 476 U.S. 253

## Text

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4) Supreme Court, U.
to FILED

Case No. 85-835 | NOV 12 1986

JOSEPH F. SPANIOL,
CLERK

SUPREME COURT OF THE
UNITED STATES

_ TERM, 1985

CHESTER LINDEN MORTON.
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RTI = REPORTERS TRANSCRIPT ON APPEAL,
VOLUME ONE

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REPORTERS TRANSCRIPT ON APPEAL.
VOLUME TWO

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REPORTERS TRANSCRIPT ON APPEAL, FEB-
RUARY 23, 1983 (TESTIMONY OF DR. JAMES
SIMS, UNIVERSITY OF CALIFORNIA AT RIVER-
SIDE). .

O.B. = APPELLANTS OPENING BRIEF ON APPEAL
FILED WITH THE STATE OF CALIFORNIA.
FOURTH APPELLATE DISTRICT, DIVISION
Two.

* THE PARTIES TO THE PROCEEDING IN THE COURT WHOSE JUDG-
MENT IS SOUGHT TO BE REVIEWED BY WAY OF THIS PETITION WERE
CHESTER LINDEN MORTON, PETITIONER, AND THERESA MARIE
QUESADA. WHO IS NOT A PARTY HEREIN.

TABLE OF AUTHORITIES*

CASES

Aguilar v. Texas, 378 U.S. 101 (1964)

Beck v. Ohio, 379 U.S. 89 (1964)

Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971)
Franks v. Delaware, 438 U.S. 154 (1978)
Johnson v. United States, 333 U.S. 10, 13 (1948)
Mapp v. Ohio, 376 US. 643 (1961)

Miranda v. Arizona, 384 U.S. 436 (1966)
Olmstead v. United States, 277 U.S. 438 (1928)
People v. Defore, 242 NY 13, 21 (1926)

Sgro v. United States, 287 U.S. 207, 210 (1932)
Spinelli v. United States, 393 U.S. 410 (1969)
Warden v. Hayden, 387 U.S. 294 (1967)
Weeks v. United States, 232 U.S. 383 (1914)
Wong Sun v. United States, 371 U.S. 471 (1963)

STATUTES
Rules of the Supreme Court, Rule 17.1. (c)

CONSTITUTIONAL PROVISIONS

U.S. Constitution, amend. [V
U.S. Constitution, amend. V
U.S. Constitution, amend. XIV

* THERE IS NO OFFICIAL OR UNOFFICIAL REPORTER'S CITATION
GIVEN TO THE OPINION FROM WHICH A WRIT OF CERTIORARI IS
SOUGHT BY THIS PETITIONER.

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GROUNDS FOR JURISDICTION

The judgment sought to be reviewed by way of this Petition was
issued by the Court of Appeal, Fourth Appellate District. Division Two,
State of California. Said Opinion was filed on May 16, 1985. (Please see
Appendix A for a copy of said Opinion.) A Petition for Review was
filed on July 1, 1985 with the Clerk of the Supreme Court of the State of
California. Said review was denied on August 28, 1985. The judgment
of the Court of Appeal was. therefore, entered on August 30, 1985.

An Order Granting an Extension of Time was issued by the Honor-
able Justice Stevens on October 25, 1985, granting Petitioner unul
November 12, 1985 to file this Petition for a Writ of Certiorari.

Your Petitioner relies upon the provisions of Rudes of the Supreme
Court, Rule 17.1.(c) conferring on this Court jurisdiction to review, by
Writ of Certiorari, the judgment entered by the Court of Appeai. Fourth
Petitioner submits that a State Court has decided Federal questions in
ways which are in conflict with applicable decisions of this Court.

This case involves issues of search and seizure and this Honorable
Court's decisions related thereto, and based upon the Fourth Aimend-
ment to the United States Consutution, which provides:

“The right of the people to be secure in their persons, houses,

papers, and effects, against unreasonable searches and seizures.

shall not be violated, and no Warrants shail issue but upon
probable cause, supported by oath or affirmation, and particulariy
describing the place to be searched, and the persons or things to be

seized.” U.S. Const. amend. IV.

STATEMENT OF THE CASE

Chester Linden Morton, hereby petitions this Honorable Couri for a
Writ of Certiorari from that judgment of the Court of Appeal, Fourth
Appellate District. Division Two, State of California, entered on August
30, 1985, affirming the convictions of vour Petitioner for having com-
mitted criminal acts, prohibited by the California Penal Code, and the
California Health and Safety Code. (Please see Appendix B for a
recitation of “Proceedings Below”).

At Trial Court, and upon appeal, by wavy of written and oral argu-
ment, Petitioner challenged the validity of three (3) search warrants,
arguing both state and federal grounds. All argument presented herein
has been litigated at Trial Court and upon appeal, in the manner
above-stated.

The within criminal prosecutions have their beginnings with the

search of the residence located at 24601 Lake Gregory Drive, in
Crestiine, County of Sax Ber: rdino, State of California, on August 3,
1981. Said search was con *ected pursuant to a Search Warrant issued
by the HONORABLE DAVID PRESS, Judge of the Crest Forest
Judicial District. Said warrant was issued based upon the Affidavit of
DETECTIVE RAYMOND RUCKER of the San Bernardino County

Upon serving the subject Search Warrant, the Affiant, along with
other San Bernardino County Sheriff's Office personnel, found what has
been alleged to be a clandestine laboratory established for the purpose of
manufacturing (sic) methamphetamine.

On August 4, 1981, DETECTIVE DONALD G. HANKERSON of
the San Bernardino County Sheriff's Office, Select Investigations Div-
ision, executed an Affidavit in Suppor: of the Search Warrant request-
ing authorization to search the resi“*aze located at 1799 West 28th
Street, in the City of San Bernardino, C »unty of San Bernardino, State
of California. Relying primarily on evidence seized pursuant to the
August 3, 1981 Search, DETECTIVE HANKERSON submitted his
Affidavit to the HONORABLE CARL DAVIS, Judge of the Munici-
pai Court, East Valley Division, County of San Bernardino, who issued
the requested Search Warrant, which was served by the Affiant on the
same date.

On December 14, 1981, DETECTIVE LOUIS F. PERRY of the
executed an Affidavit in Support of the Search Warrant requesting
authorization to search the 28th Street residence, a second ume.

The Affiant submitted his Affidavit to the HONORABLE DAN L.
RANKINS, Judge of the Municipal Court, Central Division, County of
San Bernardino, who issued the warrant the same day. The Affiant.
along with other San Bernardino County Sheriff's Office personnel,
served the subject warrant on said date.

On or about September 24, 1981, DETECTIVE LOUIS F. PERRY
(as above-described) conducted an interview with Petitioner at the
offices of the San Bernardino County Sheriff. Detective Perry tele-
phoned Petitioner and requested that Petitioner submit to such inter-

In his Affidavit in Support of the Search Warrant for the December
14, 1981, search of the 28th Street residence, the Affiant alleged, that
ment in a conspiracy to manufacture and distribute methamphetamine.
synopsis of the proceedings in the trial court respecting Petitioner’s
Motions to Suppress Evidence, and litigation of the same upon appeal.

eS ee Se ee ee

By wav of this Petition. it is contended that each of the chailenged
Search Warrants should have been quashed upon the grounds more
suppressed.

Upon this Honorable Court’s concurrence. the convictions of Peu-
uoner must be reversed.

ARGUMENT

SECTION ONE:
THE CRESTLINE WARRANT

I

DID THE TRIAL COURT PROPERLY DECIDE ISSUES F
FACTUAL INACCURACIES?

ip his Affidavit,' the Affiant alleged that he had received, by telephone,
informanon from a Deputy Sheriff who reported that the owner of the
lab at the owner's rental property (the property to be searched). The
Affiant alleged that he later spoke with the owner and received informa-

ion from him regarding a possible illegal drug lab operating in the subject
residence.-

from the owner of the residence, but, on the contrary, that the owner
reported that he believed that the renters ai the subject property may have
been manufacturing some sort of piastic material.’

Respondent argued that Petitioner’s claim was inaccurate because the
Affiant, in his Incident Report stated that the ow ver informed the Affiant
that he “was told to contact the Sheriff's Office by his relatives who
suspected a drug laboratory may be in operation. So the informant may
very weil have said that when he called in”.* Respondent reasoned that
the Affiant was qualified to interpret information provided him by the
owner, because the Affiant had confirmed his suspicions when he made
Certain observations at the premises prior to the search. Respondent
reasoned that “this interpretation” was harmless and not significant to the
question of probable cause.‘

' CT. IL 377-382. inclusive (see Appendices).

> dd at 377 and 378.

> See FN. 1, supra at 380: and FN. 69. infra at 79.

* Repondent submitted, “even if the phrase (involving a possible ciandesune labora-
tory operation) was the Affiant's interpretation. so what?” C.T.. IL 414, 1-15 (see
Appendices).

lod.

The evidence introduced at the time of the hearing consisted of: the
Affidavit in Support of the Search Warrant; the Affiant’s Incident
Report®; expert testimony’; and the transcript of the Prejiminary
Examination.®

The trial court made no specific findings with respect to this allegation
of the Affiant and the Petitioner’s argument of facts. However, as wiil be
more fully described, infra, this Petitioner relied upon the court’s
“implied findings” . . . that . . . “would go along with the ruling of the
court.”?

The Affiant also alleged that upon exiting his vehicle on the highway
above the subject residence he “immediately noted a strong odor of ether
coming from” the subject residence.'°

Petitioner argued that the Affiant’s allegation was an intentional
misstatement included within the subject Affidavit for the purpose of
deceiving the magistrate .'!

The Respondent argued that “open ether. or at least its smell, was
found in a pan on the porch .. . ,” and that the “. . . smell may also have
been coming (evaporating) from the two buckets found within the house
...”!2 In addition, the prosecution argued that this was a summer day, and
the warmer the day, “the farther the smell will spread because the ether is
vaporizing faster.”"5

The evidence introduced throughout the course of the proceedings
established the following facts:

That Dr. James Sims, Professor of Chemistry at the University of
California, Riverside, for the past eighteen (18) years, was acknowledged
as an expert by the court with regard to chemical structures and com-
pounds, and general chemistry.'*

Dr. Sims testified that he was aware that law enforcement experts
trained narcotics officers to look for an odor of ether for the purpose of
detecting illicit synthesis of narcotics, but that there were many lawful
uses of ether which greatly out numbered the unlawful uses, and that the
detection of an odor of ether is ambiguous, at best.'* Furthermore, the

* FN. 1, at 377. (see Appendices)

7 Portions of this testimony are cited hereinafter.

* RT., (Prelim. April 14, 1981), 77, 20-23. (see Appendices)
% RT., 2, 282, 3-8; 285, 11-15. (see Appendices)

0 FN. 1, supra, at 379. (see Appeuices)

i CT., IL, 245, 16-28; 246, 247, 1-9. (see Appendices)
2 C.T.. I, 414, 21-24. (see Appendices)

3 CT. IL 415, 1-2. (see Appendices)

\* Said cases were consolidated on appeal. Appendix B.
'S R.T., Feb.. 46, 24-26; 47, 45. (see Appendices)

6 RT. Feb., 48; 49, 1-10. (see Appendices)

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expert testified that were he to have detected the odor of ether as the
Affiant alleged, it would not indicate to him that some specific com-
pound was being synthesized. Further, that he would find it unusual to be
in a laboratory where ether was not being used.'” The expert offered
numerous examples of the legal uses of ether.'* Also, that absent exper-
ience, via lengthy periods of exposure to various chemicals, it would be
difficult for an individual to distinguish the difference between varicus
chemical smells.' Further, that the synthesis of methamphetamixe
would not, by way of smell, emit any odor unique to its synthesis.”

Dr. Sims testified that the vapor of ether travels downhill, because it is
heavier than air, and fails to the bottom of a room.” Also, that if someone
smelled an odor of ether ouzside a building, he would not be concerned
with the hazard of fire, because ether is not dangerous in that situation.7

Dr. Sims proposed that it would be unlikely for someone to be able to
smeil a strong odor of ether upor the highway at the location where the
Affiant claimed to have first detected the odor. On the contrary, it would
be a person below the highway, and underneath the ether, who would
smell the same, were there any at the location.~

The expert submitted that if the wind blew, one might be able to smell
ether up on the highway,** but when ether changes from a liquid to a
vapor, it is difficult to detect its odor more than fifty (50) feet from its
source;* and while ether is dispersing into the atmosphere, a residual
smell remains only while ti sre is still liquid ether in the area.

Upon being informed by the owner of the “sweet smell” he had
detected two days prior,”’ the Affiant inquired of the owner whether the
smell was ether. The owner was unable to identify the smeil.*

No evidence that ether was seized at the premises was introduced; the
Return to the Search Warrant listed none; and the Affiant testified that
there was no ether discovered at the subject residence when the Search

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R.T., Feb., 31, 9-18. (see Appendices)

R.T., Feb., 33, 17-26; 34; 35; 61, 1-19. (see Appendices)

R.T., Feb., 36, 1-22. (see Appendices)

R.T., Feb.. 65, 16-26. (see Appendices)

R.T., Feb., 37. 2-14. (see Appendices)

R.T., Feb., 37, 17-26; 38, 1-4. (see Appendices)

R.T., Feb., 38, 10-21. (see Appendices)

R.T., Feb.. 38, 22-26. (see Appendices)

R.T., Feb.. 39. 1-17. (see Appendices)

R.T.. Feb., 39, 11-23; 40, 18-26; 41; 42, 1-14; 43, 1-16. (see Appendices)
The record is devoid of any evidence indicating that the residence was in a different
state of repair on August |, 1981, than it was on August 3, 1981.

See FN. 1, supra, at 378.

Se. US BKRBBRBESE SE

Warrant was served.” There appears no “break in the chain of evidence”
between the Affiant’s initial detection of the smell of ether and the service
of the Search Warrant.”

The expert testified that it is easy to confuse chemical smeils,*' when
the court suggested to the expert that it had detected an odor of ether
emanating from this witness.22

Respondent offered no expert testimony and submitted that Respon-
dent was limited to the testimony of the Affiant curing the Preliminary
Examination and his incident reports.*? “

Respondent did, however, offer testimony of a seasonal firefighter
who was employed by the California Department of Forestry on the day
of the search. The witness testified that on the day in question she was
stationed in the Crestline area and “We responded to a possible fire and
explosion”™ at the subject residence.

The witness testified that after parking the fire truck on the highway
and on the opposiie side of the road above the residence, she noticed a
chemical smell which was familiar to her, but she was not certain what
she was smeiling.*5 The witness testified that a few minutes later she made
a determination that what she had smelled was an odor of ether. She
residence and stated “they had found some sort of lab, and probable
ether.””6

Upon cross-examination, the witness testified that she had been con-
tacted by a Detective with the San Bernardino County Sheriff's Office
approximately two (2) months prior to her appearance in court’’ and had
been asked to provide “corroborating evidence. . .” by way of her
testimony.**

The witness testified that when first contacted by the Detective, she
thought the incident occurred between July and December, 1981. She

* RT., Feb., 57, 16-26; C.T., L 117, 20-25. (see Appendices)

% See FN. 1. at 379. (see Appendices)

® RT, Feb., 58, 11-16. (see Appendices)

32 When Judge Hyde first thought he had detected an odor of ether, he inquired
whether it could have been emanating from Dr. Sims. Then he suggested that the
Court Reporter had not put ink in her machine, but later indicated that the Reporter
had in fact “inked up her machine.” Counsel for Petitioner urged that people often
have sensory impressions according to their desires. R.T.. Feb., 54, }9-26; 55, 1-11;
58, 16-26; 71, 6-9; R.T., 1, 203, 4-16; R.T., 2, 258, 1-4.

R.T., Feb., 72, 14-22. (see Appendices)

R.T., 1, 18, 7-24. (see Appendices)

R.T., 1, 19, 3-25. (see Appendices)

R.T., 1, 19, 25-26; 20, 1; 21, 4-9. (see Appendices)

R.T., 1, 31, 13-25. (see Appendices)

R.T., 1, 34, 20. (see Appendices)

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then contacted her former ...servisor at the California Division of
Forestry about the date of the incident.*®

The witness testified that she had based her opinion about the smell
upon her supervisor stating that there had been “some sort of lab, and
probable ether™ and upon her training.*!

Subsequently, the wimess testified that she was not certain what she
had smelled that dav but that her experience with ether was “very
limited”? and also, that her supervisor hadn’t actually used the word
ether in reporting what had been discovered.“ Also, that she had con-
cluded she smelled ether because she thought the residence might contain
a lab which was making PCP,“ because ether was used “just for drugs
and things like thar”. Further, that she had been instructed that if she
smelled ether, drugs were probably somewhere nearby.*

The witness conceded that she did not know whether ether was
common solvent used in organic chemistry, nor whether there were anv
lawful uses of ether.‘? The witness stressed that she was not an expert in
this area,“* and repeated that she really wasn’t sure of what she had
smelled on the day in question. Finally, the witness testified that if she
had not seen the front door open, she would not have surmised that the
oder she detected was emanating froin the subject residence.”

Subsequently, Respondent offered testimony from Deputy Charies
Wyatt, a San Bernardino County Sheriff's Deputy, who was assigned to
the identification division on August 3, 1981, and was summoned to the
Crestline residence tht day.*!

Deputy Wyatt testified that when standing across the street from the
subject residence it is not possible to see the front door of the house.**

% The witness testified: “I was vague on it and maybe it was important that | be — you
know, fook at the log, and know the time and date again.” R.T.. 1, 22, 15-26; 25: 26;
27, 1-9.

@ RT,, 1, 21, 49.

“t The witness’ training consisted of a college class covering fundamentals of fire
behavior and control wherein she was exposed to certain chemicais and explosives.
including ether. R.T.. 1, 20, 24-26; 21, 1.

“ RT. 1, 49, 13-14. (see Appendices)

© RT. !, 73, 2426: 74, 1-13. (see Appendices)

“ The witness confided that her supervisor had a sinus cold and could not smell

anything that day. R.T., 1, 29, 12-15.

RT., i, 29, 16-19. (see Appendices)

R.T., 1, 30, 1-8. (see Appendices)

RT.. 1, 26, 29: 30, 1-19. (see Appendices)

R.T., 1, 28, 11; 75, 7-8. (see Appendices)

R.T., l, 74, 1-13 & 18-26; 75. 1-8. (see Appendices)

R.T., 1, 53, 19-25. (see Appendices)

R.T., 1, 94, 25-26; 95, 1. (see Appendices)

R.T., 1. 145, 2-15; 147, 4-26; 148, 1-3. (see Appendices)

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The witness offered his opinion that the residence was designed for
privacy, and it would be difficult to see into the residence from outside, or
at ground level.*

The witness testified that the decking, upon which the Affiant traveled
to reach the rear of the residence, had a railing which was covered with
some sort of trim preventing persons at ground level from seeing up on
the deck.
photographs of the interior of the residence taken by the witness during
the course of the search.*5

Respondent made an offer of proof as to the relevancy of the photo-
graphs, suggesting that the photographs depicted what the officers saw,
and that it was important in making a probable cause determination to
see what the officer saw.

The trial court overruled the objection of Petitioner and permitted
Respondent to introduce said photographs as evidence.*’ By way of the
photographs, Respondent attempted to show that a dish depicted in a
photograph may have contained ether, which was smelled by the Affiant,
but not analyzed by laboratory personnel.

Respondent moved to introduce ull photographs on the grounds
“simply that they bore on the motion.”” ,

Upon Preliminary Examination, the Affiant testified that he may
have smelled ether or something else that he thought was ether.

The court found that the “statement regarding the danger of fire or
explosion was in actuality there at the time”.®' In response to Peti-
tioner’s request, the court held that it was not required to, and would
not make, findings of fact, but the “implied findings” should support the

R.T., 1, 150, 6-12; 151, 11-18; 155, 10-15. (see Appendices)

R.T., 1, 155, 2-19. (see Appendices)

R.T., 1, 5-16; 17, 1-10. (see Appendices)

Respondent stated that if having seen the subject photographs, the court would

somehow be influenced in its decision, Respondent would not offer the photo-

graphs. R.T., 1, 14, 1-6.

7 RT. 1, 96, 1-12: 102, 5-26. (see Appendices)

% Respondent subsequently offered photographs two establish that certain buckets, not
seized by the officers during the search of Petitioner’s residence on August 4, 1981,
contained methamphetamine. R.T., 1, 20, 3-19; R.T., 2, 518, 18-26.

* Prior to admitting the photographs, the trial court acknowledged that it understood
the concern of Petitioner “with the court looking at the pictures to determine angies
of admissibility, because then the court sees what is in the pictures and therebv he
becomes tainted”. R.T., 1, 166, 14-21; R.T., 2, 287, 9-12.

® No analysis of chemicals seized was admitted showing ether as one such chemica..
C.T., L 45, 4-14; 139, 20-26.

® RT. 2, 281, 13-14.

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general ruling of the court.

Had the trial court found that the Affiant in\ationally misstated
these facts, the same should have been excised from the Affidavit.®

The Affiant alleged, that after smelling ether upon the highway after
exiting his vehicle, he was aware of the extreme volatile nature of ether,
and the “danger to persons in or around the residence,” and, therefore,
walked down the stairs to the front door of the residence and attempted
to contact someone within by knocking. The Affiant alleged that after
receiving no reply he walked around to the rear of the residence on an
enclosed or fenced deck. Once at the rear of the residence he observed
numerous articles of laburatory equipment, and smelled a very strong
odor of ether. Based upon these findings, he secured the premises with a
Sheriffs Patrol Unit and “called for . . . Fire Department Officials to
assist in the investigation.”

Petitioner argued that the Affiant did not have any doubt as to the
source of the odor but was certain as to its point of origin: Also, that the
Affiant had no concern for anyone in or around the residence, nor did
he understand the volatile nature of ether, Le., whether there was danger
to persons in or around ether. Petitioner submitted that these allegations
were intentional misstatements which were employed by the Affiant to
jusufy a confirmatory search.‘

Petitioner argued that these intentional misstatements, when viewed
as a whole, clearly had to have a significant effect upon the magistrate’s
reasoning regarding danger of fire or explosion.“

Finally, Petitioner argued that the Affiant’s allegation that he con-
tacted Fire Department Officials “to assist in the investigation” (which
appears fom the Affidavit to have taken place immediately subsequent
to contacting a Sheriff's Patrol Unit to secure the premises) was an
intentional misstatement.®

Respondent argued that although a motive for the Affiant to have
alleged, as per his Affidavit, that he contacted Fire Department Officials
was unknown, it was not intended “to stampede the magistrate into
issuing a Search Warrant before the house blew up and a conflagration

@ RT. 2, 285, 9-26; 286. 1-2. (see Appendices)

& Franks v. Delaware, 438 U.S. 154 (1978). Petitioner acknowledges this decision
permuts a finding of probable cause if the remaining statements. when re-examined,
constitute a sufficient factual basis for the same.

* See FN. 1, supra, at 379-380.

® R.T., Feb., 37, 17-26 38, 1-4; 66, 14-25; 67, 1-11 (see Appendices)

* CT., I, 245-254; R.T., 1, 180-224.

ensued.”” Respondent claimed that “exigent circumstances” was not
the reason for issuance of the subject warrant. but was the reason the
Affiant went around the house to determine whether anyone was
inside;’' and seeing “evidence of a drug laboratory and no evidence of
anvone inside” he then sought a Search Warrant.” Respondent sug-
gested that if this allegation was a misstatement, it was “innocent
because not offered on the question of probable cause and immaterial to
in”

Upon Preliminary Examination, the Affiant testified that he did not
believe that there wouid in fact be an explosion, because it would have
already occurred. Furthermore, that rather than entering the residence to
make a determination of whether there was some pilot light, etc., which
might ignite the alleged ether, and, presumably whether any person
within was in need of assistance.”* he felt that that it was a situation
which did not require contact with fire officials, and he did not enter the
residence because he intended to acquire a Search Warrant. The Affiant
admitted that he did not request fire units nor alert the forest service untl
subsequent to issuance of the subject Search Warrant. which was approx-
imately five (5) to six (6) hours later.” This testimony was corrobo-
rated, in part, by Respondent’s firefighter witness.”*

The trial court found that “according to the testimony of experts, what
appeared to be at the time both to the citizen and law enforcement, it
would seem that the conclusion and that statement regarding the danger
of fire or explosion was in actuality there at the time.””

Petitioner submits that the Court of Appeal committed reversible error
when it determined that Peunoner had not met his “threshhold burdens

C.T., I, 413, 10-13. (see Appendices)

C.T., IL, 413, 20-23. (see Appendices)

Id at 23-24. (see Appeadices)

Id. at 25-27. (see Appendices)

™ CT. L 118, 17-26; 119, 1-20. (see Appendices)

> CT. L120, 2-22; 121, 5-26; 122; 123, 1-3; 124; 125, 4-10. (see Appendices)

6 The firefighter, called as a witness by Respondent, testified that upon arriving at the
scene, she observed that law enforcement personne! had made entry without the
benefit of assistance from fire personnel. R.T., 1, 37, 23-26; 76, 1-18.

~ In determining whether these allegations were misstatements, the trial court found

that “the constitutional safeguards that we all have” are built upon a “corner stone of

reasonableness” and that when considering all of the proceedings involved “in light

of reasonableness. and the reasonableness of the situation . . . , you reach essentially

an opposite conclusion . ..” to that of Petitioner herein. Further, the court suggested

that “we all tend to get a little bit fragmented” when we “do a sort of post mortem on

the whole structure of this obtaining of Search Warrant procedures.” The court

further suggested that the situation must be viewed in light of the touality of the

situation as confronts law enforcement at the time.” R.T.. 2. 279. 17-26; 280, 2-8,

12-13; 281, 5-14.

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of proof” requiring that “he must prove the existence of such misstate-
ments, as well as prove the Affiant’s knowledge of their falsity” (citation
omitted).”

Your Petitioner respectfully inquires: “what more must be shown?”*?
What the Affiant stated as fact in his Affidavit, was shown to be fallacy
through his subsequent testimony. No extrinsic or collateral evidence was
necessary to establish the validity of this conclusion.

Poni

WERE THE AFFIANT’S OBSERVATIONS FROM THE

REAR DECK OF THE RESIDENCE THE FRUITS OF A

CONFIRMATORY (WARRANTLESS) SEARCH?

Petitioner argued that the Affiant had initially driven to the Crestline
residence for the purpose of conjirming his suspicions that there was an
illegal drug lab operating therein.*'! Respondent agreed.*? Petiuoner
argued that observation of Affiant thereupon should have been excised.

The trial court found that the Affiant did not conduct a confirmatory
(warrantless) search, and that there were “exigent circumstances” at the
that this was simply a furtherance of his invesugation and not in violation
of any reasonable expectation of privacy.™

The Court of Appeal upheid the Trial Court, referring only to Affi-
davit. The Court of Appeal misstated when fire officials were contacted,"
and did not discuss the seif-impeaching testimony of the Affiant. Further.
the Court of Appeal made no reference to the expert testimony of
Petitioner’s witness, nor to the fact that ether was not found at the
residence.

™ Ct App. at &

* Ct App. at 7.

® Petitioner registered the same inquiry with the trial court and the Court of Appeal. as
the foregoing clearly displays.

" CT., 1252; R.T,, 1, 190, 23-26; 198, 11-15; 203, 2-3; 206, 15-22; 219, 4-13; 221,
24-26. (see Appendices)

© Respondent submitted, however, that the smell of ether “was in plain view and
involved no search at all,” and “because the occupant broadcasted the use of ether.
there is no right of privacy involved. ..”. R.T., June, 137, 7-17; C.T. IL 417, 1415,
23-27; 418, 2-3; 419, 19-21; C.T., L 126, 627; 127, 16-18; R.T., 2, 219, 413.

© RT. 2, 222, 13-21. (see Appendices)

“ The court specifically found that the officer always has a duty to invesngate. and that
even though the premises were cleariy designed for privacy, “the expectanion of
privacy does not automatically lock the door to reasonable intrusions for the
purpose of proper investigation of criminal activity.” R.T.. 2, 282, 9-18; 283, 1-3,
6-121 R.T., 1, 156, 5-10.

© Ct App. at 8,

WERE THE AFFIANT’S OBSERVATIONS FROM THE
REAR DECK MADE IN IN VIOLATION OF PETITION-
ER’S REASONABLE EXPECTATION OF PRIVACY?

Petitioner argued that absent exigent circumstances, the Affiant had
no lawful right to be on the subject premises prior to possession of a
duly executed Search Warrant. That absent the same, his presence at
the subject premuses was in violation of Petitioner’s reasonable expecta-
uon of privacy.” Petitioner submitted that these observations should
have been excised.”

Respondent argued that the Affiant went to the subject residence to
confirm his suspicions about an illegal drug lab. and upon his arrival
smeiied ether and knew that it must have been strong inside the residence.
Based upon the same, and the Affiant’s concern for individuals conscious
or otherwise, within the subject residence, the Affiant was more involved
in safety precautions than investigation of criminal conduct. Respondent
reasoned the Affiant was, therefore, entitled to take all reasonable steps to
contact someone within the subject residence.™

Respondent submitted that no right of privacy exists “in connection
with what has been publicly exposed," and the good faith belief of the
Affiant in the propriety of what he was doing would legitimate his
bservations.”

Respondent argued that even if the Affiant’s observations at the
sufficient probable cause for issuance of the subject warrant.°' Such test
was never performed.

The evidence established the Affiant went to the residence for the
purpose of confirming his suspicions about an illegal drug lab in opera-
tion therein: that it would be «xtremely unlikely for the smell of ether to
be detected upon the highw=7 above the subject residence (as alleged by
the Affiant); that the smell of ether is not an indication of exigent
circumstances; and that the Affiant was not concerned sho fire or
explosion; and the residence was very private in its design and
location.”

The Affiant knew that Petitioner was the lessee. See FN. |, supra; at 379.

* Petitioner relied primarily upon California law, but discussed Johnson v. United
States, 333 U.S. 10, 13 (1948) and the odor of “forbidden substances.”

C.T., IL, 418, 2-12; 419, 1. (see Appendices)

Id at 419. 2-23. (see Appendices)

fa. at 419, 25-27; 420, 1-3. (see Appendices)

id at 420, +-16.

R.T., 2, 283, 6-9; R.T., 1, 155, 10-22; 156, 5-10. (see Appendices)

e2:s&6es

12
a ee ee ee

Petitioner argued that Police Officers may not obtain facts ts support
probable cause for the issuance of a Search Warrant from constitution-
ally protected areas wherein a reasonable expectation of privacy
exists.%3

The Court of Appeal affirmed the Trial Court when finding that
“exigent circumstances” existed upon the Affiant detecting an odor of
ether, and, therefore, “enabled (the Affiant) to walk onto the reer deck
without violating Fourth Amendment proscriptions.*

Petitioner contends that the findings of the Court of Appeal consti-
tute reversible error. The weight of the evidence overwhe!minglv estab-
lished that the Affiant entered into this constitutionally protected area
(wherein a reasonable expectation of privacy existed) solely for the
purpose of making observations which he couid use as evidence of
probable cause for the issuance of a Search Warrant. Further, that said
observations could not have been made from any location where the
Affiant was lawfully entitled to be located.

IV

DID THE AFFIDAVIT SATISFY PROBABLE CAUSE RE-

QUIREMENTS?

Petitioner argued that the Affidavit in support of the Search
Warrant did not contain facts sufficient to constitute probable
cause.

Petitioner analyzed the facts contained within the Affidavit in Support
of the Search Warrant, placing them into two (2) categories, to wit: The
informant’s observations, and the Affiant’s observations.”

Specifically, Petitioner argued that nothing in the information pro-
vided by the citizen informant (the owner) would be indicative of
criminal conduct. In fact, the owner related that upon making his
observations at the subject residence on August 1, 1981, he came to the
conclusion that the renters were possibly manufacturing some plastics.
The owner waited for two (2) days before he contacted law enforcement
personnel. Apparently, the owner made contact with the Sheriffs
Office only at the suggestion of his son and daughter-in-law, who

* CT, 1 260-266; RT. 2, 248-260; 261, 1-21. (see Appendices)

* Ct App. at 9 (Appendix A)

* Petitioner submits that implicit within the finding of the Court of Appeal is a
determination that absent exigent circumstances. the Affiant would have been in
violanon of “Fourth Amendment Proscriptions.”

* CT., IL 266, 22-28; 267; 268, 1-21: R.T.. 2, 261. 9-26; 262. 1- 14; 263, 2 2-14; 265,
10-26; 266; 267, 1-2: 270, 9-23. (see Appendices)

" See. eg. C.T.. IL 269-271. (see Appendices)

* See FN. 1, supra, at 378.

informed him that they thought his findings might be indicative of an
illegal drug lab.”

The Affiant alleged that upon arriving at the premises he smeiled ether;
that the smell of ether became stronger as he approached the residence
going to the rear of the premises; that he observed packing crates, stirring
rods and rubber glaves. and saw chemicals and various items of labora-
tory equipment from his position on the decking at the rear of the subject
residence. '

The Affiant also alleged that he had certain concerns regarding the
volatile nature of ether, and, therefore, secured the area by contacting
Sheriff's Office personne! and Fire Officials to assist in the investiga-
tion. '0!

In addition, the Affiant alleged his expertise with regard to his training
in vice and narcotics, and clandestine laboratory operations. '@

Under a section entitled “Affiant’s Expertise,” the Affiant alleged that
it had been his experience that persons involved in the manufacture
and/ or possession of narcotics often hid the substances in their homes, on
their persons, or in vehicles away from the actual laboratory operation.'”
Petitioner submitted that this language was irrelevant for the purpose of
determining probable cause.'*

The Affiant further alleged that he had reviewed with three (3) other
narcotics Officers his reasons for believing that there was a clandestin.
laboratory operation located at the subject residence — without any
specificity regarding these discussions. '

From the above, it appears that the owner provided the Affiant with
no facts which would be indicative of criminal conduct. The Affiant then
drove to the residence to determine whether some criminal conduct was
taking place.'°*

The observations of the Affiant regarding chemicals and laboratory
equipment certainly do not warrant a man of reasonable caution in
believeing that a crime had been or was being committed. Petitioner
proposes the magistrate could not have made a finding of probable
cause with these observations alone. Therefore, it appears as though

* Id at 378-379.
Ibid
Jd at 379-380.
™ Ibid.
1 [did
1 Did
' Did
' Did

14

both the Affiant and the magistrate assumed that the finding of a
laboratory operation in rental property was clearly an indication of
some illegal acuvity. However. the expert testumony established that the
detection of an odor of ether wouid likely be an indication of some /ega!
activity. Also, that a laboratory operation fitting the description given by

the Affiant, and the owner, would not necessarily be an indication of
illegal activity, but appears to be common in the scienufic community
for the purpose of conducting legitimate and lawful experimentation. '”’

In this light, it seems the Affiant should have specified what ie had
seen with some detail, and how the various items described were most
likely present for an illegal purpose, and not some other legitimate
purpose. Petitioner submits that an assumption cf illegal activity is not
evidence; such an assumption does not make it more likely than not that
criminal conduct was Cocurring at the residence.

In support of argument, Petitioner offered this Honorable Court's
defin*tion of probable cause from Beck v. Ohio.’

Upon Preliminary Examination , the Affiant testified that he believed
that he had found a laboratory that was in the process of manufacturing
something, but he had no idea what stage of processing, and that from his
point of observation, he could not determine the process that was
involved.‘

Respondent argued that when the Affiant was on the rear deck of the
residence he, “through the glass of the door saw evidence of a drug
laboratory ...”.'#@

Respondent submitted that the Affiant’s allegation that he had
reviewed his reasons with other officers for believing that there was an
illegal drug lab within the subject residence was sufficient!'' because the
Affiant had stated his training and experience which qualified him to give
such an opinion, “especially within the context of probable cause, which
is all that is required™.'"

Respondent further submitted that even though the Affiant could not
specify what was being n:anufactured (sic) and was unable to deter-
mine the stage of processing, and though unabie to see the entire process
involved, did not “mean that he doubted that it was a laboratory”.'”

© See FN. 16, supra. and FN. 119, yr

* 379 U.S. 89 (1964). In Beck, this Honorable Court asked whether the magistrate.
upon reading the Affidavit, could reasonably infer the probability that specific things
needed as evidence were located at the particular place to be searched. 379 U.S. at
ne

® CT. L 118, 2426 119, 1-15. (see Appendices)

@ CT. IL 413, 23-25. (see Appendices)

'" CT, 0 415, 1823. (see Appendices)

"2 Id at 415, 26: 416, 1. (see Appendices)

" CT. IL 416, 2-7. (see Appendices)

Respondent reasoned that it was through the sliding glass door ist the
Affiant “saw what was obviously a drug laboratory”.'*

Respondent stressed that the smell of ether was indicative not only of
danger of fire or explosion, but was clearly an indication of a drug
laboratory.'"

As to the requirement of specificity as to the items sought to be seized
at the premises sought to be searched, Respondent reasoned that “from
the fact that affiant listed and asked to search for the chemicals used in the
making of both methamphetamine and PCP,” it may be that from the.
porch he could not see the chemicals and/or labels he was observing weil
enough to determine whether they were appropniate to one drug or the
other. Yet he could know from his experience that it was one or the
other”.'"* This argument, of course, was not supported (but was contra-
dicted) by the Affiant’s testimony.

Respondent suggested that a place apparently housing a laboratory
was a conclusion that even an “untrained person could reach from what
he saw, or what was described in this affidavit even though he could
neither describe nor fully understand the descripuon of the vanous
chemicals and apparatus seen.”""’ Petitioner countered with a query
whether a laboratory is evidence of illegal activity.'"*

The evidence introduced established that the Affiant was not sure
what he had seen with respect to the alleged laboratory operation at the
Affidavit did not indicate to him that any specific synthesis had been, or
was, in progress.""* Further, the expert testified that ether need not be
used in the illicit synthesis of narcotics, because ether is a solvent, not an
ingredient, and it is not necessary to use ether in the synthesis of
metharaphetamine of PCP.’ The expert submitted that there are a
number of solvents commonly used in the laboratory setting, only one of
which is ether.'2!

The expert submitted that there was nothing in the Return to the
Search Warrant that would indicate that someone was synthesizing

‘@ Jd at 20-22. (see Appendices)

us CT. IL 419, 11-15; 420, +9. (see Appendices)

‘@ CT. IL 421, 8-13. (see Appendices)

“? Jd at 24-26: 422. 1. (see Appendices)

‘8 Respondent concluded argument with the reasoning that “even without the benefit
of a trained opinion, it would be reasonable to conclude that a vacation rental
suddenly turned into a laboratory is probably manufacturing some illegal drug.”
C.T., 1 422, 3-4.

“? RT. Feb.. 28. 11-26 29, 1-18; 57, 21-26. (see Appendices)

® RT. Feb. 18, 19, 20. (see Appendices)

1) RT. Feb. 24, 18-19. (see Appendices)

something illegal, as the equipment described could be used for many
kinds of experiments or synthesizing.'=

The expert testified that he had studied a Chemical Abstract,' and
found that there were at least one hundred (100) to one hundred fifty
(150) uses of ether referenced in the literature. All references were to
lawful uses of ether, primarily in its solvent capacity.'*

The Court of Appeal affirmed the Trial Court when finding substantial
evidence existed which made “it substanuailly probable that there is
specific property lawfully subject to seizure presently located in the
particular place for whicl. —e warrant is sought”™* (citation omitted).
The Court of Appeal found that both the Affiant and the owner “had
observed tools, gloves. surring rods, and boxes of white powder in the
Crestline residence” (emphasis added). The law enforcement officer had
smelled ether on or about the premises” which “made it ‘substantial!’
probable’ that items used in the manufacture of controlled substances
were present at the residence . . ."%*”

SECTION TWO:
THE 28TH STREET WARRANT
(August 4, 1981)
v

DID THE AFFIDAVIT CONTAIN SUFFICIENT FACTUAL

ALLEGATIONS TO SUPPORT A FINDING OF PROBABLE

CAUSE?

At trial court, Peusioner prefaced argument by recitation of the facts
alleged by the Affiant in his Affidavit and submitted the same were
insufficient to support a finding of probable cause.'*

Petinoner suggested that the allegations regarding the Affiant’s expe-
nence with persons making illegal narcotics was “canned language,”
found within each of the affidavits challenged herein, and was not
supported by current relevant facts regarding Petitioner. Petitioner
argued that the facts so recited by the Affiant in his Affidavit did not
establish, with any certainty, that Petitioner resided at the address of the
property to be searched. Petitioner reasoned that a drivers license shown
upon signing a rental agreement, and subsequent inguiry to the
Department of Motor Vehicles which confirmed Petitioner’s drivers
‘ RT. Feb., 26, 20-26; 27, 1-2, 15-24; 28, 11-26 29; 30. 1-6, 21-26 31, 1-18.

(see Appendices)

‘3 A source of original literature in the field of chemustry.

* RT. Feb. 31. 1926: 32-35. (see Appendices)

33 RT. 2,282, 14-21. (see Appendices)

%® Ct. App. at 1 (Appendix A)

Cu App. at | and 6 (Appendix A)

CT., IL 274, 15-28; 275; 276: 1-16 and O.B., 43, 10-28. (see Appendices)

17

license address, without more, was insufficient. Petitioner reasoned that
absent some surveillance. informant information. or other information,
the Affidavit did not establish that any particular individual connected
with the findings of the August 3rd, 1981 (Crestline) search resided at
the premuses to be searched. Petitioner submitted that the Affiant failed
to establish that Petitioner was likely to be residing at the subject
property on the day in question, or any period or day contemporaneous
allege tacts which wouid jusufy a magist.ate’s inference that a crime had
been or was being committed at the subject property, nor that evidence
needed would be located at the premises to be searched.'>

Petitioner also argued that some of the facts alleged in the Affidavit
were stale, and should have deen excised.

Respondent argued that an experienced narcotics officer’s opinion on
the modus operandi respecting the location of drugs and/or records at
various places was competent evidence for a magistrate to consider.'3!

Respondent submitted that “numerous cases have upheld Search
Warrants on the theory that one who sells narcotics may have more at
his residence or place of operations”.'52 Respondent resolved that this
theory was applicable in the instant matter, because when there is an
allegation of the manufacture of narcotics “the purpose is obviously to
sell the finished product”.'33

Regarding staleness, Respondent argued that the Affiant’s allegations
about two people who rented another residence (Desert Hot Springs),
some six weeks prior, which allegedly contained an illegal drug lab, was
not stale information. Respondent reasoned the same was evidence of
continuing illegal activity by those (two) peopile.35

There was no evidence introduced at any time ‘ending to establish
that there was any surveillance of the residence to be searchd prior to the
issuance of the warrant, other than a cursory examination of the exterior
of the residence for the purpose of describing the same with

' R.T., 2, 292-301; 302, 1-20 O.B., 39-43; 44, 1-7 (see Appendices)

3° CT., I 278. 3-26, O.B., 40, 24-27 (see Appendices)

‘31 Respondent also argued. “. . . it is canned language because it is a predictable fact
from the officer's experience”. R.T.. 2, 320. 7-19; 424. 27; 425, t-3. (see Appendices)

‘2 CT. IL, 425, 46 (see Appendices)

‘3 CT., IL 425, 6-8 (see Appendices)

'% Not parties herein.

‘33 Respondent suggested that the inference to be drawn from that information was if
Petitioner’s “associates are dopers, he is probably one himself. That is a reasonabie
inference, out hardly a probable basis for issuance of the search warrant”. R.T., 2.
426, 6-15.

18

The trial court, in denving Petitioner’s Motion to Suppress respecting
the August 4, 1981 Search Warrant, made no specific findings.

The Court of Appeal affirmed the trial court. The court reasoned that
(a) the Affiant’s allegations regarding the August 3, 1981 search, (b) the
information about a Desert Hot Springs lab, and (c) Department of
Motor Vehicle information confirming Petitioner’s drivers license
address made “it ‘substantially probable’ that Petitioner resided at” the
subject residence, and “that this residence contained items used in the
manufacture of methamphetamme”. (citation omitted)!**

VI

DID THE AFFIDAVIT CONTAIN ALLEGATIONS OF
FACT WHICH WERE “FRUIT OF THE POISONOUS
TREE™?7

Reliving upon a favorabie ruling respecting the August 3, 1981 Search
Warrant, Petitioner argued that the “fruit of the poisonous tree” doc-
trine!3* applied as to all allegations of fact within the Affidavit derived
from the August 3, 1981 search, and the same. therefore, should have
been excised.!%9

Respondent offered no response, either by way of written memo-
randa or oral argument.

The court referred to its decision to uphold the August 5, 1981,
(Crestline) Search Warrant, and ruled that the same, therefore, vali-
dated the August 4, 1981, search of the 28th Street residence.'*° The
Court of Appeal did not address the issue.'*!

SECTICN THREE:
THE 28TH STREET WARRANT
(December 14, 1981)

vil

DID THE AFFIDAVIT CONTAIN SUFFICIENT FACTUAL
ALLEGATIONS TO SUPPORT A FINDING OF PROBABLE
CAUSE?

3¢ Ct App. at 13.

57 Wong Sun v. United States, 371 U.S. 471 (1963).

138 Tbid

% C.T., IL 285, 7-17; 288. 3-22; 289, 3-28; 290. 1-5; R.T., 2, 308. 16-23: 309, 1-11
(see Appendices)

®@ RT., 2, 471, 2-6 (see Appendices)

‘#t It is reasonable to assume that the Court of Appeal found this argument moot.

having decided to affirm the trial court regarding the validity of the August 3, 1981

Search Warrant.

19

At trial court, Petitioner offered an outline of the facts alleged by the
Affiant in his Affidavit in Support of the Search Warrant,’ and
categorized those facts into three categories, (a) stale information. (b)
informant information. and (c) the conclusionary language of the
Affiant.'

A. DID THE AFFIDAVIT CONTAIN ALLEGATIONS OF

FACT WHICH WERE “STALE”

Petitioner argued that the allegation of the Affiant regarding the
August 3, 1981, search at the Crestline residence and August 4, 1981,
search of Petitioner’s residence was stale information, being over four
months old, and had no bearing on whether any particular activity
might be taking place at Petitioner’s residence on December 14, 1981.

Petitioner argued that the allegation ab~ut information provided by
an “unproven informant,” with no date specified, except that the infor-
mation came subsequent to the August 4 search, was stale.

Petitioner also argued that the allegation regarding Petitioner’s in-
criminatory admission was also stale information (as it was approxi-
mately ten weeks prior to issuance of the search warrant), '“ and
therefore, should have been excised from the Affidavit. Petitioner sub-
recent information. '*5

Respondent countered that the allegations of fact contained within
the Affidavit in Support of the Search Warrant showed a continuing
activity, and that continuing activity negates staleness.'

The Affiant testified that he did not include current information in the
Affidavit with respect to any activities allegedly taking place at the
subject residence; that .acre was no testimony given before the magis-
trate for the purpose of providing additional information to the magis-
trate in order to make a detemination as to the staleness issue;'*’ that the
information he received from the “unproven informant” was subse-
quent to the service ci the August 4, 1981 Search Warrant,'* and that
the language in the Affidavit was vague and the magistrate could have
assumed thai the information was received the day after the August 4th
search, or August 5, 1981.'*

42 CT., IL 301, 15-28; 302-305; 306, 1-13 (see Appendices)

3 C.T., IL, 306, 24-28; 307-320; 321, 1-19 (see Appendices) :

4 CT. IL 308, 24-28; 309, 1-3; R.T., 2, 503, 4-5, 19-21 (see Appendices)

“3 C.T., IL, 278, 9-27, and relying upon Sgro v. Unised States, 287 U.S. 207, 210
(1932). (see Appendices)

“6 CT. IL 429, 14-27; 430: 431, 1-5. (see Appendices)

7 RT., 2,454, 1-14 (see Appendices)

8 R_T., 2, 456, 14-20. (see Appendices)

1 RT. 2, 457, 1-16. (see Appendices) |

The trial court denied the motion of Petitioner.'™

The trial court agreed that the Affidavit probably should have had
more detail as to the times and places of the information relayed by
informants. '*!

The Court of Appeal affirmed the findings of the trial court, agreeing
that the “allegedly stale facts provided the magistrate with background
information and indicated the presence of a continuous course of
criminal conduct.”'5?

B. DID INFORMANT INFORMATION WITHIN THE
AFFIDAVIT SATISFY THE AGUILAR-SPINELLi “TWO-
PRONGED TEST”?

Petitioner argued that the Affiant’s reference to “an unproven infor-
mant,” with no date specified when this information was acquired
clearly failed to satisfy the “two-pronged” test established by Aguilar v.
Texas, 378 US 101 (1964), and Spinelli v. United States, 393 US 410
(1969).'%3

Petitioner argued that the information from the “reliable confidenual
informant” should have been excised from the Affidavit. Reasoning
that, even though said informant provided some specificity, this infor-
mant, without more, did not meet the requirements of A guilar-Spinelli

‘9 The court stated:
This in effect was an on-going situation. It was represented in the sense to be that
by the Affiant. and that although it is characterized as four and a half months —
four and a half months, I guess, is somewhat relative, and four and a haif months
can be extremeiy a long ume. I guess in the life span of a chicken — ranch fly thar
live and die and their whole life span or the space probe. which will go five
million years and still be carrying on long after we are gone.

So, relative time spans are important when you consider them within the — in
what we are going and that taken into context with the on-going investigation
and conduct, if you want to call it that, of both of the defendant and the law
enforcement peopie, and with regard to this case that is not an overly extensive
period of time with regard to the fact that it is not set forth with any particulanty,
and any particularity or specificity that MORTON (Petitioner) is a resident of
that property are detailed in the bases or facts upon which it is contended that he.
at that property, has some connection with him. P.T., 2, 471, 7-26; 472, 1-2.

‘St The court stated: That there were “lots of areas which .. . I suppose even a
magistrate issuing a warrant might well require that an Affiant coming before him
— I suppose I would or wouldn't depending on the time. day or night. of when it
was, how busy I-was — to put the Affiant under oath and say: ‘How abort this?
When was this search? What is going on here? Make more inquirv.’ But. I fee! that
with regard to these facts. they would be sufficient to sustain the warrant. It is on
those beses the court would deny the motions.” R.T.. 2, 472, 9-26.

‘2 Ct. App. at 19.

'3 C.T., IL 310 (see Appendices)

regarding reliability, nor personal knowledge as to the location of any
contraband.

Petitioner submitted that the confidential reliable informant did not
provide any information with respect to the place of residence of
Petitioner, and that the Affiant himself did not include any information
within the subject Affidavit to indicate to the magistrate why the Affiant
believed Petitioner still resided at the subject residence, nor why the
Affiant believed the things needed as evidence would be located at the
property. :

The Affiant testined that he had never used the informant as a source
of information prior to the occasion in question, and that the Affiant was
aware of the case law requirements for the purpose of establishing the
credibility of an informant.'**

Respondent argued that the “unproven informant” corroborates the
“he is another source of the same kind of information,” and that “the
date of his information is unimportant. It is sometime between the two
Search Warrants. and that is sufficient.”'*¢

See
established as such.'*’

Pechioner subeniteed that withia the Afiidavit there wes no allegntioa
that the informant was making a declaration against his penal interest
and that it was not reasonable to assume the same, due to his alleged
informant status with the Sheriffs Office.'™

The trial court refused to excise the informant information.'

The Court of Appeal, in affirming the trial court, held that “credibility

i CT. IL 312 6-28; 313, 1-11 (see Appendices)

‘8 C.T., I, 313, 12-17; R.T., 2. 453, 8-19 (see Appendices)

'% CT. IL 431, 8-17 (see Appendices)

‘7 Mr. Morrissey: “. . . che Affiant’s description of the informant as reliable is insuffi-
cient proof of that fact, but that if, in addition, his observations were sufficiently
detailed to make it clear that he is describing personally known events rather than
repeating rumors. and his information is against his penal interest, he is sufficiently
reliable to support the Search Warrant.” “. . . what he (the reliabie confidential
informant) had to say makes clear that the informant is describing events at which he
was present and which are incriminating to him.” C.T., @, 432, 6-11.

‘8 R.T., 2, 468, 8-26; 469, 1-6. (see Appendices)

18° The court stated that the “test of reasonableness is the main test,” and that “the
information supplied in the Affidavit wouid be sufficient in that regard having deait
with actual facts, times and places. and the closeness of the meeting at Sambo’s
restaurant. With regard to the dealing of the — amounted to an attempt to deal with
methamphetamine at that point with all of that information wouid be sufficient with
regard to the establishment of the reliablity elements; although it would indicate
some spareness as far as detailed information.” R.T., 2, 470, 9-10, 16-26; 471, 1.

and reliability may be established by corroboration,” and “Corrobora-
tion may . . . be established when two informants make independent,
but consistent, reports” (citations omitted).’

C. WERE ALLEGATIONS REGARDING BEHAVIOR OR

PERSONS INVOLVED WITH ILLEGAL DRUG TRADE

SUPPORTED BY CURRENT RELEVANT FACTS RE-

GARDING PETITIONER?

Within the Affidavit were allegations regarding the Affiant’s experi-
ence with individuals involved in illegal narcotics possession and sales
who hid the same in their homes, on their persons and in their ve-
hicles.'*!

In addition, the Affiant included language regarding his experience
with the use of false names and addresses, and false idennfications, bv
such individuals. '*

Petitioner argued that these allegations amounted to “canned lan-
guage” not supported by any current relevant facts regarding your
petitioner. 'S

Respondent argued that Petitioner was confusing probable cause
with reasonable doubt,'® and that an expert opinion is appropriately
considered when determining probable cause.'** Respondent reasoned
that a prior search of Petitioner’s residence ( August 4, 1981) along with
“subsequent evidence of continuing activity, . . . hardly takes an expert
opinion to conclude that another search may be productive also.”'©

No narcotics were in fact se’zed. However, the officers conducting the
search did seize approximately fourteen (14) guns and/or rifles. with a
subsequent allegation that one such handgun was stolen.'*’

Petitioner argued that an essential element missing from the Affidavit
was any facts tending to show that any of the evidence sought to be
seized would be located at the residence on »r about December 14,
1981.'* Other than stated herein, Respondent offered no response to
this argument.

The Court of Appeal affirmed the trial court in rejecting Petitioner’s
contention that the “canned language” of the Affiant should have been

@ Ct. App. at 20.

‘st CLT, IL, 398 (see Appendices)

'@ C.T., IL 399 (see Appendices)

18 C.T., IL, 316; R.T., 2, 465, 2-14. (see Appendices)

* C.T., IL 433. 13-20. (see Appendices)

'S CT. IL 433, 20-22. (see Appendices)

6 C.T., 1 434, 3-5. (see Appendices)

‘6? Count [IL Information. (See Appendix B . re: Procedural Background)
8 C.T.. IL, 318, 3-26 and 319, +15. (see Appendices)

23

excised. The Court found the “statements were based on Perry's per-
sonal knowledge and experience acquired during the assignment with
the . . . narcotics division”.'®

Vill

DID THE OFFICERS CONDUCTING THE SEARCH

EXCEED THE PERMISSIBLE SCOPE OF THE SEARCH

WHEN SEIZING PROPERTY THAT WAS NOT SPECIFIED

IN THE SEARCH WARRANT?

Petitioner argued that the officers searching his residence on De-
cember 14, 1981 seized property not listed in the Search Warrant, and.
therefore, exceeded the permissible scope of the search.'”°

During the course of this search, the Affiant seized a handgun which
he “determined was stolen before ... he ... left the premises on
December 14”,'7" by way of verbal report from a City police officer that
teletype information reflected the gun to be stoien.!”

Petitioner argued that the officers were not aware of some specific
and articulabie facts from which a rational link between the handgun
seized and criminal behavior could be inferred at the time he seized the
subject handgun, and that checking serial numbers to determine
whether the same was stolen constituted a search outside the permissible
scope of the Search Warrant, which must be narrowly drawn —
requiring 2 “pasticular description” of the things to be seized. The
se*zure of said gun was, therefore, the “fruit” of an unlawful search, and
should have been suppressed.'7

Petitioner recalled tesumony of the Affiant, that at the time the
Affiant prepared his Affidavit he had every intention of searching for
stolen property as well as items specified within the Warrant.'*

Respondent reasoned that the location of the gun, “secreted behind
the stereo along with several other handguns,” was reason for suspi-
cion'’S and the “warrant authorized an intensive search”.'”* The of-
ficers, therefore, were entitled to look anywhere, and were entitled to

‘® Ct App. at 21.

'% C.T., IL, 283-284: R.T., 2, 302, 21-26; 303-307: 308, 1-11. (see Appendices)

i” RT. 2, 475. 16-19. (see Appendices)

'2 RLT., Prelim.. June 1982, 103, 20-26; 104, 1-17.

‘3 Petitioner argued that Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971), and
Warden v. Havden, 387 U.S. 294 (1967) (in addition to California authorities) were
controlling. (C.T., 1, 321-323; R.T., 2, 422, 8-26 423-427).

1% C.T., L 126, 18-26; 127, 1-6. (see Appendices)

'%S RT. 2, 475, 24-26: 476, 1. (see Appendices)

1% CT. IL, 434, 26-28. (see Appendices)

seize “whatever stolen property they discovered and verified prior to
leaving the premises”.'”’

Respondent noted that Petitioner was being prosecuted for posses-
sion of only one gun which was verified as stolen prior to seizure and
removal from the residence.'7*

The evidence before the trial court established that: (a) A search for
guns or stolen property “was not the intended search”;'”® (b) The Affiant
believed that the location of the gun in question was certainly an
indication of its stolen nature;'*° (c) The gun did have serial numbers'*!
and that they were not altered:'*? (d) Neither the Affiant nor any of the
officers conducting the search had read any reports regarding the
specific gun in question;'*? (e) When the Affiant seized the gun. “it was
just another gun.” and he was not aware of anv facts that would link that
gun to some criminal conduct prior to a stolen property inquirv.'™

The trial court found that the officers acted properiv, and denied this
aspect of Petitioner’s Motion to Suppress Evidence.'**

The Court of Appeal affirmed the trial court.'**

Petitioner submits that the opinion of the Court of Appeal flies in the
face of this Honcrable Court’s decision in Coolidge v. New Hamp-
shire," supra, requiring that searches “be as limited as possible”'®* and
not encourage or permit a “general exploratory . . . rummaging in 2
person’s belongings™.'*®

7 CT. IL 434, 27-28; 435. 1. (see Appendices)

™ CT. IL 435, 1-3. (see Appendices)

'% RT. 2, 477, 15-17. (see Appendices)

‘® RT. 2, 477, 3-9. (see Appendices)

! RT. 2, 476, 19. (see Appendices)

CT. L 103, 20-22. (see Appendices)

® RT. 2, 476, 23-26. (see Appendices)

™ RT. 2, 481, 17-26. (see Appendices)

‘8S The court stated: “.. . that under the circumstances of this case would be total
background and investigation of the conduct that had been in both a considerabie
period of time and with regard to the prior searches, in which the wimess indicated a
substantial number of firearms had been picked up and not vet returned: that it was
unusuc( and surprising to him to find this weapon in that parucular locanion. That
would give him reasonable cause for suspicion and belief that it was in fact
contraband material, and would then being the bases for this confirmanon thereafter
in picking the item up.” R.T., 2, 484, 1-13.

"® Appendix A, at 44-45,

‘s? 403 U.S. 443 (1971).

‘8 fd at 467.

of Tbad

IX

WERE REFERENCES IN THE AFFIDAVIT TO EVIDENCE

SEIZED PURSUANT TO THE AUGUST 3, 1981 AND

AUGUST 4, 1981. SEARCHES “FRUIT OF THE POISON-

OUS TREE™

Petinoner relied upon this Honorable Court’s decision in Wong Sun
v. United States’, arguing that if the August 3, 1981 (Crestline) Search
Warrant was found to be invalid, then the August 4, 1981 (28th Street)
Search Warrant must also be invalid. Petitioner reasoned, therefore.
that any reference to the same in the Affidavit supporting the December
14, 1981 search. was “fruit of the poisonous tree,”"*' and should have
deen excised from the Affidavit.

Respondent offered no argument in this regard.

Petitioner contended that if the same had been excised, the Affidavit
would not have contained facts sufficient to constitute probable cause:
particularly in light of the trial court’s finding “that this in effect was an
on-going situation”.'%?

X

WAS THE ALLEGED ADMISSION OF PETITIONER,

RECITED WITHIN THE AFFIDAVIT, TAKEN IN VIOLA-

TION OF PETITIONER'S “ MIRANDA RIGHTS™
Affiant, wherein Petitioner allegedly admitted his involvement in a
conspiracy to produce and sell drugs, was conducted in violation of
Petitioner’s Fifth Amendment Privilege Against Self-Incrimination.
Petitioner submitted that this Honorable Court’s holding in Miranda y.
Arizona,'™ clearly delineated that no amount of circumstantial evidence
indicating .hat a suspect may have been aware of his “Miranda rights”
wouid be sufficient to stand in place of adequate warnings respecting the
same, and a waiver thereof.'%*

Petitioner also argued that whether a person was “in custody” at the
time of the interview depended upon whether the subject reasonably

i 371 US. 471 (1963).

* id a

2 See FN. 150, supra.

‘3 Said interview took place on September 24, 1981 (six weeks after Petitioner's arrest
on August 4, 1981) at the Affiant’s office.

‘i 384 US. 436 (1966), wherein this Honorable Court delineated specific nghts a
suspect may invoke pursuant to the Privilege Against Seif-Incnmination. US.
Const.. amend. V.

8 CT. IL 325, 18-28; 326-327; 328, 1-23. (see Appendices)

believed that his freedom of movement was restricted by pressure of
authority. '%*

Respondent argued that the Miranda decision applied only when a
suspect was “in custody”'*’ and that Petitioner was clearly not in
custody."

Respondent did concede, however, that the “off-hand and quick
remarks” of Petitioner'®? wouid lend itself to “obviously stronger evi-
dence of waiver,” but that “a remark like that is certainly indicative of
the fact that he knows his rights and is willing to talk”.

The evidence introduced at the time of hearing upon this aspec: of
Petitioner’s Motion to Suppress Evidence included tesumony from each
of the Affiants in the Search Warrants challenged in Section One,
Section Two, and within this Section Three, respectively. The first said
Affiant to testify was the Affiant in the Affidavit in Support of the
August 3, 1981 (Crestline) Search Warrant, who testified that on
ie 1981, at Petitioner's residence, he advised Petitioner of his

Viranda rights” >"

" Next, Respondent offered the testimony of the Affiant in the Affidavit
in Support of the August 4, 1981 (28th Street) Search Warrant,”? who
testified that he conducted an interview with Petitioner which was not
tape recorded, he did not write an Incident Report regarding said
interview, he did not recall the date of the meeting, he did not make
notes about that interview, and he did not read to Petitioner the required
Miranda warnings.™

The Affiant in the Affidavit in Support of the December 14, 1981
(28th Street) Search Warrant. testified that shortly before interviewing
Petitioner on September 24, 1981, he contacted Petitioner by telephone
and asked Petitioner to come to his office to talk about “the charges
against him and about the case in general”.*™* This Affiant turther
testified that upon commencing the interview he asked Petitioner “if
he recalled being advised of his Rights and if he fully understood those
Rights, and he said that he did, there was no problem”. The Affiant

* CT. IL 328, 2428; 329, 1-4. (see Appendices)

‘” RT. 2, 522, 17-26. (see Appendices)

™ RT. 2, 521, 2-4. (see Appendices)

'* When asked if ie was advised of his Miranda rights on September 24, 1981
Petitioner purportedly responded with “yeah. no problem with that”. C.T.. 11, 520,
17-19; see FN. 200, infra

™® R.T., 2, 520, 17-23. (see Appendices)

™ R.T., 2, 490, 13-26. (see Appendices)

= RT. 2, 498, 1-23. (see Appendices)

™ RT., 2, 500, 12-26; 501, 1-24.

™ RT. 2, 502. 7-26, 503, +11. (see Appendices)

™ R.T., 2, 503, 24-26; 504, 1-2. (see Appendices)

also testified that Petitioner “understood that he was free to leave at
any ume”.

Upon cross-examination, the Affiant testified that he was familiar
with the decision of Miranda v. Arizona,*” and that he “contacted him
(Petitioner) on the phone probably a total of about four times”.** The
Affiant further testified that he was “completely unaware” of v. hether
the Petitioner might have been coerced by anyone else from his office,
but that it was possible. He ackno wiedged that he was aware of the fact
that he was not the oniy Detective contacting Petitioner, and that
Petitioner had in fact been to the office on prior occasions.” The
witness also testified that he was aware that criminal charges had been
filed charging Petitioner with criminal conduct prior to the interview,*"°
and that he knew that Petitioner would not have come to his office but
for his status as defendant in pending criminal proceedings.*'

The court found that the September 24, 1981, interview “was not in
fact a custody situation and there was not representation of record, as far
as Petitioner was concerned,”*"' and refused to excise the allegation of
Peunoner’s admussion.*

The Court of Appeal affirmed the trial court, finciing that Petitioner’s
alleged admission “was not elicited in a custodial setting, and was,
therefore, properly included in the supporting affidavit” **

CONCLUSION

In Weeks v. United States,*"* this Honorable Court determined that
evidence seized in violation of the Fourth Amendment must be imad-
missible in court. Through Weeks.*"* this Court created the Exclusion-
ary Rule whereby the sanction of exclusion of illegally obtained evi-
dence was determined to be the method of enforcing Fourth

% RT. 2, 504, 8-16, (see Appendices)
* RT. 2, 507, 911. (see Appendices)
™® RT. 2, 5807-21-26; 508, 1-2. (see Appendices)
™ RT. 2, 508, 10-18. (see Appendices)
© RT. 2, 508. 19-26. (see Appendices)
=! RT. 2, 509, 1-16. (see Appendices)
2 R.T., 2, 528, 17-21. (see Appendices)
™3 RT. 2, S30, 22-26. (see Appendices)
= Ct App. at 21. (see Appendices)

3 232 U.S. 383 (1914).

™ Ibid

Amendment*"’ rights. This concept was later extended to the States by
way of the Fourteerth Amendment*"* in Mapp v. Ohio.*

The Exclusionary Rule was designed to prevent and deter violaters
of the Fourth Amendment." Said Rule is also premised upon the
theory that, as the late Justice (then Judge) Cardozo coined. “the
criminal must go free because the constable blundered”.*~ The opera-
tion of the rule then serves to educate the police so that they will not only
be more sensitive to the rights of individual citizens, but also more
thorough in their fact gathering prior to making application for a search |
warrant.

In the instant case, none of the affidavits in support of the three
respective search warrants contained detailed information derived by
way of surveillance. or otherwise — except informant information —
which would show that any of the affiants expended the necessary ume,
required by thoroughness, so that their affidavits might contain suffi-
cient relevant and current factual allegations to support probable cause.
Your Petitioner alleges that the three within affidavits are classic exam-
ples of the reason for the Exclusionary Rule.

{n his dissenting opinion in Olmstead v. United States, the Honora-
ble Justice Brandeis described the Exclusionary Rule as being based
upon the notion that a government should be as law-abiding as ‘ts
citizenry. Justice Brandeis suggested that if the agents of the state do not
follow laws, then it is unreasonable to expect the population to do so.

From its inception, the Exclusionary Rule has been subjected to
much criticism. However, none of the critics have suggested a more
viable method of enforcing Fourth Amendment rights for ail of the
citizens of these United States, without first making a determination as
to the innocence or guilt of the person complaining.

Your Petitioner suggests that rather than its critics suggesting that
Fourth Amendment rights are simply “technicalities” employed by
smart defense attorneys to “get their clients off", perhaps those same
individuals should take a closer look at not only the history of this
country preceding the drafting of this amendment, but also. the hollow-

* US. Cons. amend. IV.

™* US. Const. amend. XTV.

*% 376 U.S. 643 (1961).

3 Weeks v. United States, 232 U.S. 383 (1914).
= US. Const. amend. [V.

= Peopie v. Defore, 242 NY 13, 21 (1926).

= 277 US. 438 (1928).

™ US. Const. amend. [V.

ness of that euphemism “a man’s home is his castle” were the Fourth
Amendment not a part of our United States Constitution. For, absent
the Exciusionary Rule,* the Fourth Amendment’ would be nothing
more than a bark without a bite.

The criminal codes of our federal system and the states ai! provide for
punishment upon conviction of crime. That punishment serves as a
means of enforcing the penal codes. The Exciusionary Rule, likewise, is
a means of enforcing the rights guaranteed to all citizens of these United
States by way of the Fourth Amendment.* Absent the Exclusionary
Rule, your Petitioner submits, the courts would find themselves in the
nebulous position of having to determine the innocence or guilt of the
complaining party before deciding whether to exclude unlawfully seized
evidence.

Your Petitioner submits that the judgment of the Court of Appeal,
Fourth Appellate District, Division Two, State of California, in affirm-
ing the trial court, has upheld, as to each issue litigated herein-below,
arguments from Respondent that so contrast with this Honorabie
Court’s decisions cited herein and regarding the Fourth Amendment. as
to be outrageous. Whether your Petitioner is guilty of the crimes
charged was never at issue during the course of Motions to Suppress.
below. On the contrary, your Petitioner submits that he is entitled to
all the protection afforded to each and every citizen of these United
States by way of the Fourth Amendment” prior to any devermination
of innocence or guilt. Respondent, however, has clearly ignored this
concept.

For the foregoing reasons, it is respectfully requested that this Honor-
able Court grant the Writ of Certiorari petitioned for herein.

= bid

28 Weeks v. United Stases. 232 U.S. 383 (1914)
=” US Const amend, IV.

23 bid.

» Did

APPENDICES

COURT OF APPEAL, FOURTH DISTRICT
DIVISION TWO
STATE OF CALIFORNIA

PEOPLE OF THE STATE
OF CALIFORNIA,

Plaintiff and Respondent,

E000208, E000217, E000292,
(Consolidated Cases)

v. (Super. Ct. No. 38968)
(Super. Ct. No. 39203)
CHESTER MORTON, et ai.,
OPINION
Defendants and Appeilants.

ee a ee

APPEALS from the Superior Court of San Bernardino County.
William Pitt Hyde and Ben T. Kayashima, Judges. Affirmed.

Gary W. Smith for Defendants and Appellants.

John K. Van de Kamp, Attorney General, Frederick R. Millar, Jr.
and Janelle B. Davis, Deputy Attorneys General, for Plaintiff and
Respondent.

Based on evidence seized during the execution of three search war-
rants, defendant Morton was charged with conspiring to manufacture,
transport, and sell methamphetamine (Pen. Code, Section 182/Health
& Saf. Code, Section 11379, subd. (a)), possessing an opiate for sale
(Health & Saf. Code, Section 11351, subd. (a)), and possessing
methamphetamine (Health & Saf. Code, Section 11377, subd. (a)). Ina
separate action, defendants Morton and Quesada were jointly charged
with possessing methamphetamine for sale (Health & Saf. Code, Sec-
tion 11378, subd. (a)), and concealing stolen property recovered in
August of 1981 (Pen. Code, Section 496). Morton was individually
charged in that separate action with concealing stolen property reco-
vered in December of 1981 (Pen. Code, Section 496). Following a
denial of their motions to suppress and quash, Morton pleaded guilty to
one count of conspiring to manufacture methamphetamine and one
count of concealing stolen property.! Quesada pleaded guilty to possess-
ing methamphetamine, a lesser included offense of possessing metham-

‘Whether Morton pleaded guilty to the August or December concealing count is
unclear. As a result, the circumstances underlying each count are the subject of
challenge.

32

phetamine for sale. Bot defendants appeai from the denial of their
motions, alleging that the trial court committed several errors with
respect to each search warrant. We apply California law in evaluating
these allegations becuase the crimes herein charged occurred before the
effective date of Proposition 8. (See People v. Smith (1983) 34 Cai.3d
251, 258.)

AUGUST 3rd SEARCH WARRANT
FACTS

% In early August of 1981, Detective Raymond Rucker of the San

\ Bernardino County Sheriff's Office requested a warrant authorizing the

* search of a Crestline residence. Ir, support of that request, Rucker

p drafted an affidavit which provided in pertinent part:

: “Deputy (Rick) Roper advised your affiant on August 3, 1981,
that a citizen informant had (made observations at 24601 Lake
Gregory Drive indicating the possible operation of a clandestine
laboratory.)

“(Y)our affiant contacted (the informant) ... and asked him to
describe what he had observed ... . (The informant) said that on
Saturday August Ist, 1981, (he) had driven to the Crestline area
from his Whittier home to visit with his son and daughter-in-law,
and also at the same time check on the cabin that he owned as a
rental in the Crestline area.

“Upon arrival at approx. 1300 hours August Ist, 1981, he noted
the outside lights of the cabin to be on. (The informant) states he is
personally paying the utilities for this cabin and he wanted to talk
to the renter about turning them off. (The informant) said that he
smelled a strong sweet odor as he approached the residence, and
also felt that there was possibly a burglary, as his front screen door
had been removed from the residence. He said he knocked on the
front door, received no answer, and started around the rear of the
residence, via a catwalk, or sun deck that surrounds the residence.

“As he went around the residence, he noted that on the chaise
lounges and furniture sitting on the sun deck were toois and gloves
and several packing cases and some long rods that he described as
either plastic, or glass, possibly used as some kind of stirring rods.
_ (The informant) said once he arrived at the rear of the residence,
the sliding patio door was open; however, the screen door was

33

closed. He said he yelled to see if anyone was there and noted the
strong sweet smell to be even stronger there.

“He said the inside of the residence was in a severe state of
disarray, with many more boxes, he described as packing cases,
many large crocks, made out of different types of material, and
some containers containing white powder.

“Your affiant asked (the informant) for the name of the realtor
that had rented the residence and he related the following informa-
tion. It was through Red Carpet Realty in Crestline with a Jan
Stowe Realtor, Phone 338-1766.

“Your affiant subsequently contacted Jan Stowe at approx. 1130
hours August 3rd, 1981 at her office and asked her who she had
rented the residence to. She stated it was a subject by the name of
Chester Lyndon Morton, who gives a residence address of 1799
West 28th Street, San Bernardino, and a residence phone of
887-4600. She described Morton as in his thirties, approx. 6-0” in

height and slender, with long grey and brown hair that is curly and

he is a white male adult, clean-cut.

“After receiving all of the aforementioned information from in-
formants, your affiant, Detective Holloway and Special Deputy
Centner, drove to the area of 24601 Lake Gregory Drive, in
Crestline. Upon arrival, your affiant and Detective Holloway
stepped from the Sheriff's vehicle into the roadway in front of the
residence and immediately noted a strong odor of ether coming
from the residence at 24601 Lake Gregory Drive, in Crestline.
Your affiant and Detective Holloway, being aware of the extreme
volatile nature of ether and the danger to persons in or around
ether, and to remove any doubt as to where the odor was coming
from, and to insure the safety of anyone in or around the residence,
your affiant and Detective Holloway walked down the brown
colored wood stairs to the front door of the residence at 24601
Lake Gregory Drive, in Crestline. Detective Holloway and your
affiant then knocked at the front door of the residence and upon
getting no reply to the knock, walked on the deck, running to the
rear of the residence. Once at the rear of the residence, vour affiant
and Detective Holloway observed several cardboard boxes,
stacked on the deck and a brown bottle containing a liquid
substance, dark rubber gloves and glass tubes.

i il eh oe

ee ee ”

iis ae,

“We then walked to the rear sliding patio door of the residence
and through the undraped sliding glass patio door, Detective
Holloway and your affiant observed numerous containers of
liquid, chemicals, white powder substance and a very strong odor
of ether and numerous articles of laboratory equipment. Detective
Holloway and your affiant then returned to the Sheriff's vehicle
and called for a Sheriff's Patrol unit to remain at the scene of the
residence to secure it and prevent anyone from entering the
residence. .

“Your affiant and Detective Holloway then called for officers
from the Sheriff's Crime Laboratory, Sheriff's Identification De-
tail, and Fire Department Offici(a)ls to assist in the investigation.”

Based on this affidavit, a search warrant was issued on August 3,
1981. During its subsequent execution, officers discovered items utilized
in the manufacture of methamphetamine. With respect to the August
3rd warrant, Morton contends: (1) the trial court erred in determining
that the supporting affidavit established probable cause; (2) the trial
court erred in failing to properly determine whether the supporting
affidavit contained intentional misstatements and omissions; and (3) the
trial court erred in failing to excise from the supporting affidavit affiant’s
rear deck observations.

DISCUSSION
I

Alleging that Rucker’s affidavit did not establish the existence of
criminal conduct, Morton first contends the trial court erred in deter-
mining that this affidavit furnished probable cause to search the Cres-
tline residence. Recognizing that such determinations must be upheld if
supported by substantial evidence (People v. Edwards (1981) 126
Cal.App.3d 447, 452; Peopie v. Manning (1973) 33 Cal. App.3d 586,
598-599), we consider Morton’s contention in light of this standard.

An affidavit establishes probable cause to search when it contains
facts making “it substantially probable that there is specific property
lawfuily subject to seizure presently located in the particular place for
which the warrant is sought.” (People v. Cook (1978) 22 Cal.3d67, 84,
fn. 6.) In this instance. the affidavit at issue related that a citizen
informant and an experienced law enforcement officer had observed
tools, gloves, stirring rods, and boxes of white powder in the Crestline

residence. The affidavit also related that the law enforcement officer had
smelled ether on or about the premises. Because these facts made it

“substantially probable” that items used in the manufacture of con-
trolled substances were present at the residence, th> trial court's finding
of probable cause is supported by “substantial” evidence.*

I

In support of his motions to suppress and quash, Morton asserted that
Rucker had intentionally misstated the following in his affidavit: (a) that
the citizen informant had observed a clandestine laboratory at the
Crestline residence; (b) that he had smelled ether in or about the
residence upon investigating the informant’s report; (c) that he had
knowledge of the danger to persons in or about the residence occasioned
by the presence of ether; and (d) that he had contacted Fire Department

Officials to assist. Morton also asserted that because Rucker was not
actually concerned about public safety he had intentionally omitted
material facts from his affidavit. After hearing argument on these points,

the trial court found that Rucker’s affidavit did not contain material
misstatements or omissions. Morton appeals from that finding, contend-
ing that the trial court failed to properly apply governing law. -

When a defendant believes that a search warrant affidavit contains
intentional misstatements, he must prove the existence of such mis-
statements, as well as prove the affiant’s knowledge of their falsity.
(People v. Cook, supra, 22 Cal.3d at 89.) Similarly, when a defendant
believes that an affiant has intentionally ositted facts, he must prove the
materiality of those omissions. Once such materiality has been estab-
lished, the trial court must then determine whether the omissions were
reasonable, negligent, or intentionally misleading. If reasonable or neg-
ligent, the prosecution bears the burden of establishing that they were
proper; if intentionally misleading, the defendant bears the burden of
establishing the affiant’s intent to mislead. (People v. Kurland (1980) 28
Cal.3d 376, 387-390.)

Having examined Morton’s contention in light of these principles, we
find it untenable. In determining that Rucker’s affidavit did not contain
material misstatements or omissions, the trial court effectively con-
cluded that Morton had not met his threshold burdens of proof. Despite
defendant’s assertions to the contrary, the court was not thereafter
required to make any additional findings.

iil

Tee OM Es eee Seley ee.

- Se

The odor of ether alone may have justified this finding. (See People v. Osuna (1985)
85 D.A.R. 1123, 1124; People v. Messina (1985) 85 D.A.R. 968, 968-969: Peopie v.
Stegman (1985) 164 Cal.App.3d 936, 942-945; People v. Paterson (1979) 94

Cal. App.3d 456, 462-464.)

It

Morton finally contends that the trial court erred in failing to excise
from the supporting affidavit Rucker’s rear deck observations. He
specifically asserts that these observations were made: (a) during an
unlawful confirmatory search, and (b) in violation of his reasonabie
expectation of privacy. We do not agree.

Upon exiting his vehicle, Rucker immediately smelled a strong odor
of ether eminating from the Crestline residence. Recognizing the danger
occasioned by the presence of ether, he knocked on the front door of the
residence “to remove any doubt as to where the odor was coming from,
and to insure the safety of anyone in or around the residence.” When no
one answered, he walked along a deck to the rear of the residence, noted
a very strong odor of ether from that location, and observed both inside
and outside the residence items indicating the operation of a clandestine
laboratory. He, thereafter calied the fire department to assist and secure
the residence to prevent anyone from entering it.

Under these circumstances, Rucker’s actions were unquestionably
proper. Ether is a potentially volatile chemical, and its presence in or
about the Crestline residence constituted an exigent circumstance. This
exigency, in turn, enabled Rucker to walk onto the rear deck without
violating Fourth Amendment proscriptions. (People v. Osuna, supra,
85 D.A.R. at 1124; People v. Messina, supra, 85 D.A.R. at 968-969;
People v. Stegman, supra, 164 Cal.App.3d at 943-945; People v.
Patterson, supra, 94 Cal.App.3d at 462-464. See also People v. Ramey
(1976) 16 Cal.3d 263, 276.) From that vantage point, the items de-
scribed in the affidavit were in plain view.

AUGUST 4th SEARCH WAR KANT
FACTS

Immediately after execution of the first search warrant, Detective
Donaid Hankerson of the San Bernardino County Sheriffs Office
requested a warrant authorizing the search of Morton’s San Bernardino
residence. In support of that request, Hankerson drafted an affidavit
which provided in pertinent part:

“On Monday, August 3, 1981, your affiant assisted Detective
Rucker in the service of a search warrant signed by Judge David
Press from the Crest Forest Judicial Court. The search warrant
was served at 24601 (sic) Lake Gregory Drive in the Crestline
area, County of San Bernardino, State of California.

37

“During the search of the residence, your affiant found a large
Clandestine laboratory with chemicals, books, heaters, narcotic
formula notations, filters and filter papers and other items used in a
clandestine laboratory. Further investigation revealed rent
receipts for the residence with the name Chester Lyndon Morton
on it with rent paid up until August 1981. The address on the rent
receipt for Chester Morton was 1799 W. 28th Street, San Bernar-
dino with a driver’s license #M0074955.

“Detective Rucker contacted a Jan Stowe on Monday, August 3,
1981 and she stated that she was a realtor for the Red Carpet
Realtors in the Crestline area. She stated to Detective Rucker that
she had rented the residence at 24601 Lake Gregory Drive to a
subject known as Chester Lyndon Morton. And that he had given
the above listed address and driver’s license number.

“Your affiant ran a records check on a Chester L. Morton and it
revealed that his address was 1799 W. 28th Street in San Bernar-
dino, California and that his driver’s license was M0074955.

“Other papers located at the Lake Gregory Drive address
revealed the names of Steven Goode and Candace Corneil. There
was a receipt from the Radio Shack, a receipt from Leo's Stereo
and a copy ofa birth certificate with the name Steven Goode on it.
There was also a receipt from a storage unit in the Laguna Hills
area with the name Candy Cornell on it.

“A further search revealed a rent receipt for a residence located at
19330 Sagebrush Trails in the Desert Hot Springs area of Califor-
nia.

“Your affiant talked to Detective Bob Doyle from the Riverside
County Sheriff's Office, Desert Hot Springs Station on Tuesday,
8-4-81. Your affiant was inquiring about the residence on the
Sagebrush Trails in tne Desert Hot Springs area. Detective Doyle
told your affiant that on June 25, 1981 he had served a search
warrant at that residence and found a clandestine laboratory
within the residence. Detective Doyle aiso told your affiant that
during the search of the residence he found papers inside the
residence with the names Candace Cornell and Steven Goode on
them. He stated there was a rent receipt for the residence with the
name Steven Goode on it.

ee Ne ee

“A further search revealed a rent receipt for a residence located at 19330
Sagebrush Trails in the Desert Hot Springs area of California.

“Your affiant talked to Detective Bob Doyle from the Riverside County
Sheriff's Office, Desert Hot Springs Staion on Tuesday, 8-4-81. Your
affiart was inquiring about the residence on the Sagebrush Trails in the
Desert Hot Springs area. Detective Dovie told your affiant that on June
25, 1981 he had served a search warrant at that residence and found a
clandestine laboratory within the residence. Detective Doyle also toid
your affiant that during the search of the residence he found papers
inside the residence with the names Candace Corneil and Steven Goode
un them. He stated there was a rent receipt for the residence with the
name Steven (soode on it.

“It has been your affiant’s experience that subjects involved in the
illicit manufacture and/or possession of narcotics often hide the
substance and paraphernalia for manufacturing in their homes, on
their persons and in their vehicles away from the actual laboratory
operation. Further, it has been my experience that subjects
involved in the clandestine laboratories will manufacture the
drugs at one location (sic) and take it to another location. It has
also been your affiant’s experience that subjects involved in the
manufacture of illicit drugs will have narcotic formuias, business
ledgers and other documents pertaining to narcotic transactions
on their person, in their residence and in their vehicles, also other
documents which tend to identify those people involved and other
co-conspirators (sic). It has also been your affiant’s experience that
people that rent residences for the purpose of manufacturing illicit
drugs will not live in those residences, they just use them to
manufacture the drugs and then take the finished product to a
different residence. It is your affiant’s opinion that with the above
facts listed, that now located at 1799 W. 28th Street in the City of
San Bernardino, County of San Bernardino, State of California,
there is now being possessed for sale a quantity of Methamphe-
tamines, MDT, all which tend to show that a felony is being
committed in the City of San Bernardino, County of San Bernar-
dino, State of California.”

Based on this affidavit, a search warrant was issued on August 4,
1981, and executed while Morton and Quesada were present in the
subject residence. During that execution, officers discovered 122 items
not specified in the warrant that they believed were stoien. Via radio
transmission, they confirmed their suspicions with respect to certain

39

items and then seized each of the 122 items. After ascertaining that
Quesada lived in the residence, officers also searched her purse and
seized a small quantity of methamphetamine discovered therein. With
respect to the August 4th warrant, Morton and Quesada jointly con-
tend: (1) the trial court erred in determining that the supporting affidavit
established probable cause, and (2) the trial court erred in refusing to
find that officers had exceeded the scope of their authority by seizing
items not specified in the warrant. Quesada separately contends that
Officers exceeded the scope of their authority by searching her purse.>

DISCUSSION
I

Morton and Quesada first contend the trial court erred in determining
that Hankerson’s affidavit furnished probable cause to search the 28th
Street residence. According to defendants, the affidavit neither estab-
lished that Morton lived at the aforementioned residence, nor estab-
lished that this residence housed the property sought to be seized.
Recognizing again that a finding of probable cause must be upheid if
supported by substantial evidence (People v. Edwards, supra, 126
Cal.App.3d at 452; People v. Manning, supra, 33 Cal.App.3d at 598-
599), we consider

The Court stated: “... there are not «iy misstatements, or omissions
with regard to the warrant, at least to the point where it would affect the
sufficiency of the Affidavit to support the warrant, and would not affect
or mislead the magistrate who issued the warrant with regard to confir-
matory search.” (R.T., 2, 282, 3-8; 285, 11-15.)

FN ll

In the challenged affidavit, the affiant alleges that upon smelling,
ether, which he claims to have smelled immediately upon exiting his
vehicle on the highway above the subject residence, that he was “aware
of the extreme volatile nature of ether and the danger to persons in or
around ether”. The affiant further alleged that in order to “remove any
doubt as to where the odor was coming from and to insure the safety of
anyone in or around th 2 residence,” he walked down the brown-colored
wood stairs to the front door of the residence, and subsequently to the
rear of the residence whereupon he made certain observations, which
included the detection of “a very strong odor of ether”. The affiant then
alleged that he and the detective accompanying him returned to the
sheriff's vehicle and contacted a sheriff's patrol unit “to remain at the
scene of the residence to secure it and prevent anyone from entering the
residence.” The affiant further alleged that among other officers con-
tacted, he contacted “fire department officials to assist in the

investigation.”

Yet, upon giving testimony during preliminary examination, the
affiant testified that it took approximately five to six hours to obtain the
subject Search Warrant, (Reporter’s Transcript. June. 1982, p. 120,
1-18) (hereinafter R.T., June), and that other than calling for a patrol
unit to secure the scene, the affiant did not request any fire units or alert
the forest service to come into the area. (R.T.. June, 120, 12-18.)

In addition to the above, the affiant, during testimony at the prelimi-
nary examination, testified that he did not believe that there would in
fact be an explosion, and if there was going to be an explosion, it would
alreadv have occurred. Futhermore, the affiant testified that rather than
entering the residence to make a determination whether there was some
pilot light, etc., which might ignite the alleged ether, the affiant feit that it
was a situation which did not require contact with fire officials, and that
his not entering the residence was related to his intention to acquire a
Search Warrant. (R.T., June, 121-122 and 123, 1-3.)

From the above, this defendant contends that the Court can deter-
mine that the allegation of contact with fire officials contained within
the Affidavit in Support of the Warrant is clearly a misstatement. The
defendant contends that said misstatement is intentional, and was
inserted for the purpose of deceiving the magistrate into believing that
the affiant was concerned with the fire hazard, therefore bolstering facts
in support of probable cause for issuance of the warrant. If in fact the
which is further supported by the affiant’s Police Report dated August
12, 1981, a copy of which is attached hereto and marked Exhibit “A”,
and by this reference incorporated hereia, why then wouid the affiant
make such a statement in the affidavit? Clearly, one of the primary
concerns of the affiant throughout his affidavit is that of the hazard of
fire and/or an explosion.

FN 12

Open ether, or at least its smell, was found on a pan on the porch (Tr.
pp. 123-124, this case). The smell may also have been coming (evapo-
rating) from the two buckets of mixture found in the house (same
reference).

FN 15
THE COURT: Im willing to hear argument. I'm inclined to agree.

This witness is obviously the expert with regard to the chemical makeup
and chemustry aspects of the testimony.

37

MR. SMITH: Weil, particularly with reference to the court’s
acknowledgment of the Doctor as an expert, . . .

(MR. SMITH) . .

Q. And did you read this article with an eye toward what law
enforcement was looking for to assist you in providing compe-
tent testimony?

A. Yes, yes.

Q. Did you note that one of the things that appears to be stressed.
rather frequently in articles of this nature is to look for an odor of
ether?

That's one of things that’s there. It says ether and other solvents.

And other solvents?

Ether tends to be isolated on — as the thing, as the key, but other

solvents obviously would de present, other odors.

During your various experiences in testifying in court as an

expert, has that been a common experience or a common factor

focused upon as being evidence of some illicit activity?

A. That’s one of the first things that’s usually talked about, that the
smell of ether is noted, and that’s a reason for going further in an

Q. Well, considering your prior testimony and, of course, your prior

experience, do you have problems accepting that as being a

viable reason for thinking that there might be something illegal

taking place?

In my Opinion, yes.

pe ea

D POP

QP

FN 16

There are plenty of legal uses of ether.

Would it be fair to state that there are a lot more legal uses for
ether than illegal?

Obviously, yes.

I think you testified earlier there are at least 100, maybe even
thousands, of common uses for ether that do not involve an
illegal activity?

Provably too numerous to enumerate the number of uses, but
generally they have to do with being a solvent and being a good
thing to dissolve orgamic compounds in.

Dr OP

a

FN 17

Q.

A.

FN 18

&

> DBD POP

re F @ ? @

That’s the way I read it, also.

If you approached such a residence and smeiled ether, would
that indicate to you that some specific thing is being synthesized?
Not really. It would be common in any laboratory to find ether.
It’s one of the — I don’t think I would ever go into a laboratory
and not find ether of any kind. The people working with organic
compounds; you're going to use ether. It’s one of the four or five
common solvents that I mentioned before.

Actually, vou can buy ether in cans in something like Gemco for
spraying into a diesel engine, usuaily. I have a diesel car, and I've
used that a few times on cold mornings.

That’s not usually the type of bottle that vou buy it in?

Not the normal kind of package, no, but for contractors, they use
ether in cans. Sometimes they buy the same kind of cans we buv
in the laboratory.

Is that the same ether that you use in the laboratory?

Sure, it’s the same ether.

So it would essentially start the same?

Start the same. Usually starts an engine in the mornings, diesel
engines of all kinds.

Don’t some people use the ether to mix with gasoline, add to
gasoline, to increase its combustive ability?

Yes, ether is sometimes used to make gasoline — again, to start
an engine on a cold ciorning you add ether wo the gasoline.
sometumes.

Ether is also used in woodworking, isn’t it, to assist dyes in
penetrating the wood?

Yes, it’s common solvent for dyes and it can be used to help
penetrate whatever they're dying.

If I were to get something electroplated, might I use ether in that ,
also?

You could use ether in electroplating, yes, to dissolve the stuff
that you’re putting on.

How about if I wanted to make soap?

Soap is a general term for things, including detergents, and many
detergents are made with ether and if you were mixing different
kinds of detergents to make a particular kind of soap or deter-

Fo)

Or OF OP

PO POP

gent, then you might use ether, sure.

If per chance I wanted to compete with Tide and some of the
others, it wouldn’t be uncommon to hear of some guy hiding
himseif away to work on his formula?

No, that’s very common.

And most of the items listed in the return for the search warrant
are items that you could readily acquire?

Yes.

In fact, did you note anything there that you couldn’t easily

acquire?
I didn’t see anything that seemed so unusual, no.
And, again, it’s your opinion or your testimony that based upon
the reading of the affidavit in support of the search warrant, you
could not personally have made a determination of what was
being manufactured?
Not based on what I read, no.
You said something about polymers. What is a polymer?
All plastics are polymers. Plastics — and nowadays manv things
are plastic.
Would ether be used in synthesizing some plastics or polymezs?
Sure, ether is. Again, they are organic compounds. It’s a good
organic solvent, and you might find it used there.

The people who put together surfboards use ether in solvents.

They use polymers as the core of the surfboards. They would use.

ether to dissolve those organic compounds.

Q. So it Wied neko Geemmmece to small ether. coming out of «

Or

OrO P

P

surfboard manufacturing shop?

Ether, acetone, methylacetate; all three of those.

Ethyl ether has a distinct odor unto itself or that if you put five
different ethers on the table, would — could it be very easy to
detect which one is ethylene?

It would be for me. I doubt if it would be for the normal lay
person.

Most of your students are beginners in chemistry; is that correct?
Yes.

Have you experienced that they frequently mistake one odor for
a particular chemical, or are unable to discern chemicals by their
smell?

Not with a reasonable degree of time to it. When they get used to
it, they pick it up within a few months, sure, smelling. Some
people are better than others, obviously, smelling things and

~ Q. Again, would it be your testimony that there are many, many,
more times the use of ether for legal purposes than illegal
purposes?

A. Yes.

Q. And in your own personal experience, it has not been uncom-
mon to know associates or colleagues who set up labs for their
own personal experiments?

A. It’s not uncommon.

Q. Do any of those three smeil similar?

A. It’s hard to say. To me they don’t, but I think to someone who’s
not a chemist they might smell similar.

Q. I think you’ve answered that way prior. When you say, “To me
they don’t,” you apparently have developed some sophistication
in determining by sense of smell what certain chemicals are.

A. When you work with things for a long period of time, I think you
gain a familiarity with it; and with solvents I can tell by smelling
what many of them are, the common ones.

Q. Would it be fair to state that absent that kind of familiarity and
experience and long periods of time of being around various
chemicals and becoming familiar with them, that it wouid not be
easy for you to determine the difference between —

A. I would guess it would be difficult for the normal lay person to
smell the differences between different kinds of solvents, yeah.
They would just smell — people usuaily say it just smells like a
chemical.

If you go into a hospital, for instance, people always talk about
the ether smeil in a hospital. But the major sme’ is not ether, it’s
ethyl alcohol.

FN 20

(DR. SIMS:). ..

A. Nothing particular to methamphetamine. I don’t think. I mean, it
could be anything. You don’t know what's going into — if you
walk into. a lab, you probably smell a lot of things.

Q. There’s nothing specific about methamphetamine that would
give that processing at this stage a distinct odor from any other
processing?

A. Not unless you absolutely knew what was going on; I don’t think

you could tell. somebody could be making it in my laboratory
and I wouldn’t know for sure that’s what they were doing unless I
knew that;

FN 21

(MR. SMITH)...
Q. Does the vapor of ether travel over great distances?
A. It will run downhill, yeah. It’s essentially like water. It’s heavier
than air and it tends to run around. It tends to fall to the bottom of
a room.
Q. So if we were in a three story building, the smell would probably
go down to the first floor, eventually?

FN 22

A. Depending on how the building is sealed, yeah.

Q. Ifyou— well, gain, making reference to the affidavit in support
of the search warrant, the affiant, of course, noted that he was
concerned about the volatile nature of ether because of the
detection of a strong odor immediately upon exiting his vehicle
upon the highway.

Were you to be in a similar situation and smelling ether at this
point, would you — would it be realistic to be concerned that J
this might be a fire hazard?

A. That’s hard to say. If it were outside, | wouldn’t worry about it q
too much. We can smeil e...4 around the university a lot because.
it gets blown on the — in the wind and sometimes it drifts over
and drops down in a courtyard outside the buildings; but it’s not
dangerous in that situation, but more dangerous in a closed area.

FN 23

Q. BY MR.SMITH: Exhibit 1, and I think you can determine — it

has been stipulated — this is the residence in question.
Starting with photograph number 2, highway which appar-

ently is where the affiant first smelled ether, a strong odor of
ether, would tha* be likely that it would rise to the.highway?

A. Normally, I wouldn’t expect it to. The oniy — well, normally I
wouldn’t expect it to if it’s on the side of a hill like that. I would
expect it to go downhill and people underneath it would be
smelling it more than peopie on top of it.

62

FN 24

Q. What might make it rise, if it did?

A. It will mse a little bit on its own simply on the nature of its
volatility and the ability to spread, but what happened — if there
was a wind blowing or something, you might be able to smeil it
on top. It would have to be some kind of local condition like that.

FN 25

Q. Well, is the smell of ether the residue of the chemical, the liquid,
as it is changing process and evaporating into the atmosphere?

A. It changes from the ether, a liquid, to ether, a vapor, like water
changes from water, a liquid, to steam, which is — you can’t see
steam aiways. You see steam. when it starts to coalesce, but
steam is invisible, also. It’s —the molecules are just further
spread apart and not condensed into a liquid.

Q. Asageneral rule, when ether is in its vapor state, how long does it
stay in the atmosphere in the out-of-doors?

A. .You can detect it, but not very far away and outside — [ve had
ether outside a number of times and it’s hard to detect it more
than 50 — 50 feet away from where the source of the ether is.

Q. Yes. You read the return to the search warrant?

A. Yes.

Q. This is on the cabin, the search warrant?

A. Yes.

Q. What in that return to the search warrant could have caused an

odor of ether?

A. Ididn’t see anything, personally. I was curious as to the warrants;
what they actually were looking for. What the listing was. was
exactly correct and I didn’t see any of that found, so I was
curious. There was no ether there.

(MR. McCORMICK:) . .

Q. Detective Rucker, do you recall if there was any ether found in
the cabin?

A. Not specifically, no, sir, I don’t.

Q. Would it refresh your memory if you could refer to vour report?

A. Possibly. (Complies.) Apparently not.

FN 31

Q. And the untrained nose, the non-chemist or -scientist — and
having been an untrained nose at one point in time, is it pretty
easy to confuse various chemical smeils?

A. Yes, in the beginning when I — I was starting in chemistry, it was
easy to confuse those smells, sure.

Q. Well, the judge made a point a while ago about having indicated
he thought he smelled ether. I mean, from your clothing? |

FN 34

THE WITNESS: Kathy Franklin, K A T H Y ,
FR AN Ot t SH
THE CLERK: Thank you.

DIRECT EXAMINATION
BY MR. MORRISSEY:
Q. Miss Franklin, in the summer of 1981, were you working for the
California Division of Forestry?
A. I was.
I'm a seasonal fire fighter for the California Department of
Forestry.
And stationed in the Crestline area during that summer?
Yes, that’s correct.
And on or about the 3rd of August, did vou go to a location at
24601 Lake Gregory Drive?

Or”

FN 35

A. Yes. We responded to a possible fire and explosion. The road
runs east and west. And there is a — like a stairwell that goes
down towards the house. So it’s quite a — sits quite low in
comparison to the road.
Now, when you got there, were you on a fire truck?
Yeah. We had responded in engine 25.
And upon your arrival, where did you go?
Upon arrival, Engineer Kelly advised us to put on our bunkers,
or our turnouts, and stand by. And he proceeded to go downs |
towards the house to see what the officers wanted us to do.
Q. So did you stay up on the road, then, during the time you were
there?
Yes, I did. q

;

POP

Q.
A.

Q.

FN 36
A.

Q.
A.

FN 37

Q.
A.

Q.
A.

FN 38

Q.
A.

And what if anything did you smell?
When we got there and we were standing by the truck, I noticed
a chemical smell, something out of the ordinary in the air. It
wasn’t overpowering, but it was strong enough that I could smell
it.

It seemed familiar, but at the time, I wasn’t positive of what I
was smelling. It was just a chemical odor.
Did you finally that day come to a decision as to what it was you
were smelling?

A few minutes later —

All nght. What caused you to recognize it?

Engineer Kelly came up from the home and advised us that we
could remove our jackets, that we would stand by for a few more
minutes. The sheriff was going to release us; that they had found
some sort of lab, and probable ether. And then I recognized the
smell.

When were you first contacted by the Sheriff's Office?

My last day was February 28th, but I was released February
23rd of ‘83, because I was going to attend a Firefighting |
academy.

So I was in the office between the 23rd and the 25th. I’m not
sure on which day. And it was in the early morning, before 11
o’clock. And it was early because I was getting my gear. And
they contacted headquarters, and I just happened to be there.
When you say “they” — was there more than one —

The sheriff. He contacted me.

Did Mr. Morrissey tell you why he was asking you to testify?
Just corroborating evidence, I suppose.

FN 42

A.

It was — I can’t — ’'m not — I can’t say that it was ether that I
smeiled, because I didn’t see what was in the house.

Q.
A.

FN 46

Q.
A.

Q.
A.

FN 47

Dr OF #

And vou say your prior experience with ether was a very, very
brief experience the year prior, wasn’t it?

Very limited.

And to this date, you don’t know whether you smelled ether, do
you?

I couldn’t say for sure, because I didn’t see anything to back up
my familiarity. It could have been something that smelled like
ether that maybe I'd never smelled before.

Yeah. And you’re really not sure how many things smeil like
ether?

No, sir.

And what you call your familiarity is really more probably
properly termed your vagueness, isn’t it?

My brief exposure could be considered vagueness.

And in fact you were the one that came to that conclusion,
because you thought maybe it was a PCP lab?
Right.

And you thought they used ether on a PCP lab.

Just the — just for drugs and things like that, because that was
our limited — most people in our class, when we smelled ether,
that’s whar our first thought was. But we didn’t discuss ether in
long terms.

So your teacher, or instructor, suggested to you that if you smeil
ether, there’s drugs somewhere nearby, basically?

Uh-huh.

Did your instructor tell you that ether is probably the most
commonly used solvent in organic chemistry?

No, sir.

Did he suggest to you that there are at least 200 lawful uses of
ether?

No, sir.

Did he suggest to you that it’s more likely than not if you smell

ether, its for some lawful purpose?
A. No, sir.

FN 48

A. [m not an expert, no, sir.

Q. Would your answer be that no, you really don’: know what you
smelled?

A. Icouldn’t be positive. I just thought it was ether. I smelled it, and
it — I thought it was. But I couldn’t make a -— you know, a — I
couldn’t say as an expert it was ether.

Q. (BY MR. SMITH) I guess what I’m asking, ma’am is — and !
don’t want to put words in your mouth. Can you say today in this
court that you know without a doubt that what you smelled that
day was ether?

I couldn’t say that.

. You’re really not sure, true?

It was, like I said, the smell, and everything else that was added
to, I made the conclusion that I smelled ether, a combination of
my smeil —- familiarity with it before, smelling it before, and
Kelly’s statement.

Q. Would your answer be that no, you really don’t know what you

P A. Icouldn’t be positive. I just thought it was ether. I smelled it, and
it — I thought it was. But I couldn’t make a — you know, a — I

couldn’t say as an expert it was ether.

POP

Q. If that front door hadn’t been open, would you still have pre-
sumed that the smell you were smelling was coming from that
cabin?

A. No, sir, wouldn’t have.

a Q. Because you would wonder where it was coming from, right?

3 A. Yes, sir.

" — accept the role of reviewing the challenged, or proffered evidence
prior to determination that it was rightfully seized. It’s really
inappropriate.

And I think that — I'm not suggesting it’s a bad faith tactic. 'm
suggesting we all look at the cases and we look at the purpose of the
Fourth Amendment. It’s not here just for someone who might later be
determined innocent. You don’t make that determination first. You
make the determination first whether it’s been violated upon challenge.
Then you can later look to see if someone has some evidence to submit.

This approach puts it to, “well, your Honor, let’s look at whether the
defendants are guilty first, and then let’s decide whether we can go ahead
with the warrant,” whether it was a good warrant.

That’s not what America is about and not what che Fourth Amend-
ment is about, and it’s not a technicality. It’s a very important provision.
And it’s not just related to this case. So I would suggest it’s just totally
inappropriate. I strenuously object.

And I think that also, unless Mr. Morrissey can show the Court that
there’s some good reason, these photographs are somehow re nt and

and“Mr. Wyatt (sic) testifying, yes, I took these from the inside of the
residence and so forth, that it somehow has something to do with the
issues we challenged, because we're the moving party. | can’t see why
the Court would even consider it.

THE COURT: Of course, in the motions, where we are in effect
challenging the search warrant and the activity of the police with regard
to law enforcement, with regard to the obtaining of the warrant in the
first place, we're dealing in two areas. One is the motion to quash, and
the other is a motion to traverse the warrant. |

And as I understand it, from a review of the affidavit in support of the
warrant, where there is discussion in the affidavit with regard to obser-
vations made by the affiant, both inside and outside of — from where
his location was and what he could see.

If there were photographs which, although taken inside, might illus-
trate some of the things that were put in the affidavit, I don’t know if
they’re — if photographs of those matters would be appropriate or not. |
think I would have to look at them and see, and you'll have to have a

But in an overall determinatior m motions, counsel .) 4 sg ssted to
the Court, both informally in chambers and « guess cow here in the
record, that somehow tse Court should not entertain even a view. of
these pictures when they are offered by the prosecution in support of the
prosecution's position going to the validity of the warrant.

I have to take the representations of counsel at face value, that the
evidence to be submitted does have some relevance to these issues. So ali
I can do is note your concerns for the record, Mr. Smith.

MR. SMITH: I have a couple more concerns if I may, vour Honor.

THE COURT: All right.

MR. SMITH: First of all, I haven't seen any representation, at least
for the record, that there is any relevancy.

But secondly, your Honor is stuck with the warrant as it sits. We Can't
supplement the warrant and say, gee, all these things exist, when the
issuing Magistrate reviews it. Absent taking testimony, which is pro-
vided for in the Code, which was not done here, he’s stuck with the
affidavit in support of the search warrant. That is the determination as to
whether there’s probable cause.

We're saying —

THE COURT: You're saying those representations in the affidavit
are lies and they are false.

MR. SMITH: I have never said anything was a lie; that’s No. |. I said
that many are intentional misrepresentanions.

THE COURT: Intentional misrepresentations?

MR.SMITH: Yes. And if they‘re n

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_1052%3A1. Public record. Not legal advice.