Certiorari Denied April 26, 1982. See 102 S.Ct. 2013.
RANDALL, Circuit Judge:
In a search of a six acre rural residence under the custody of defendant-appellant Kim Edward Minis, federal agents discovered multi-pound quantities of marijuana being processed by Minis, approximately three and one-half ounces of cocaine in a safe in the kitchen, and two fields of growing marijuana. Minis was charged in a two-count indictment with possession with intent to distribute cocaine and marijuana in violation of 21 U.S.C. § 841(a)(1). The district court, however, granted Minis' motion to suppress the evidence seized in the search on the grounds that the affidavit in support of the search warrant pursuant to which the search was conducted failed to establish the necessary probable cause. The government appeals, arguing: (1) that the district court erred in overruling the magistrate's determination that probable cause existed; and (2) that assuming probable cause did not exist for the issuance of the search warrant, the good-faith exception to the exclusionary rule should have been applied. We conclude that the affidavit supporting the search warrant did establish the necessary probable cause, and we therefore VACATE the district court order granting Minis' motion to suppress and REMAND for consideration of Minis' arguments not resolved in the original proceeding.
I. Statement of Facts.
On October 18, 1980, a search warrant was issued for the search of the six acres of property, "including the personal residence located therein and all outbuildings," located at 14808 Hamilton Pool Road, Bee Cave, Texas and identified as the Crooked Oak Ranches.
The warrant pursuant to which the search took place was issued on the basis of the affidavit of United States Customs Service Special Agent Kenneth Brumfield. The affidavit set out the personal observations of Brumfield and other agents which allegedly gave them probable cause to believe that William Everett, under their surveillance as part of an investigation of a supposed international drug smuggling conspiracy, was "cultivating marijuana at the location of 14808 Hamilton Pool Road, Bee Caves, Texas, is distributing controlled substances, and secreting the profits derived therefrom in foreign corporations in the Cayman Islands, British West Indies." The warrant therefore authorized the search of the six acres of property, which the affidavit indicated was owned by Everett, located at 14808 Hamilton Pool Road and identified as the Crooked Oak Ranches, including the personal residence located therein and all outbuildings, for controlled substances, currency derived from the sale of such controlled substances and books, ledgers, correspondence and records relating to narcotics transactions and the laundering of currency through foreign corporations.
The affidavit first set out a series of intercepted telephone communications to and from telephone numbers in California, the interception of which was allegedly authorized by a court order from the district
An excerpt of the conversation was attached to and incorporated in the affidavit.
In addition to the intercepted conversations, the affidavit set out certain activities of Ashbrook and Everett during the week preceeding the search of the Hamilton Pool Road property disclosed by continuing surveillance by United States Customs special agents. The surveillance revealed that on October 11, 1980 Ashbrook left his residence in Lone Pine, California and travelled to Austin. He arrived in Austin on October 13, 1980 where he met with Everett. On October 13, 1980, at 8:00 a. m., Ashbrook and Everett departed 2611 Bee Cave Road, Apartment 102, Austin, Texas and drove to the property located at 14808 Hamilton Pool Road, Bee Cave, Texas.
Finally, the affidavit discloses that later on the morning of October 16, 1980, Ashbrook and Everett were observed departing the Bee Cave Road apartment from which they travelled to Houston, Texas and then to Houston Intercontinental Airport. They were observed checking in at the Cayman Airways ticket counter for Flight 63 to the Cayman Islands. When Ashbrook and Everett failed to fill out United States Customs currency reporting forms before taking their seats on the plane, agents executed a federal search warrant on their checked luggage and their persons. In the luggage, the agents found, among other things, $170,000 in United States currency and letters, documents and correspondence indicating an interest in a foreign corporation in the Cayman Islands, British West Indies.
II. The District Court Finding of No Probable Cause.
A preliminary hearing was held, on October 31, 1980, at which the United States Magistrate found probable cause for the search of the Hamilton Pool Road property. On January 7, 1981, a hearing was held on Minis' motion to suppress the evidence seized in this search, however, and on January 14, 1981, the district court ordered that all evidence seized in the search be suppressed in the trial of Minis.
Because the decision of the district court was a determination only of the narrow question whether the information contained in the affidavit satisfied the test of probable cause, it is a ruling of law based strictly on written evidence, and our review is therefore not limited to the "clearly erroneous" standard. See, e.g., United States v. Pulvano, 629 F.2d 1151, 1156 (5th Cir. 1980). We instead make an independent review of the sufficiency of the affidavit. Id. at 1156-57 n.7. In doing so, though, we are mindful of the oft-cited opinion of this court in Bastida v. Henderson, 487 F.2d 860, 863 (5th Cir. 1973):
(Emphasis added.) Accord, United States v. Allen, 588 F.2d 1100, 1105-06 (5th Cir. 1979), cert. denied sub nom., Perkins v. United States, 441 U.S. 965, 99 S.Ct. 2415, 60 L.Ed.2d 1071 (1979), and cases cited therein. Put another way, we have said: "It is axiomatic that an affidavit for search warrant is to be interpreted in a common sense and realistic manner, and the magistrate's finding of probable cause should be sustained in doubtful or marginal cases." United States v. Maestas, 546 F.2d 1177, 1180 (5th Cir. 1977), citing United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965). We are also mindful that "probable cause is the sum total of layers of information and the synthesis of what police have heard, what they know, and what they observed as trained officers. We weigh not individual layers but the `laminated' total." United States v. Edwards, 577 F.2d 883, 895 (5th Cir.) (en banc), cert. denied, 439 U.S. 968, 99 S.Ct. 458, 58 L.Ed.2d 427 (1978), quoting Smith v. United States, 358 F.2d 833, 837 (D.C.Cir.1966), cert. denied, 386 U.S. 1008, 87 S.Ct. 1350, 18 L.Ed.2d 448 (1967). Accord, United States v. Weinrich, 586 F.2d 481, 490 (5th Cir. 1978), cert. denied, 441 U.S. 927, 99 S.Ct. 2041, 60 L.Ed.2d 402 and cert. denied sub nom., Blair v. U. S., 440 U.S. 982, 99 S.Ct. 1792, 60 L.Ed.2d 243 (1979).
United States v. Gordon, 580 F.2d 827, 832 (5th Cir. 1978), cert. denied, 439 U.S. 1051, 99 S.Ct. 731, 58 L.Ed.2d 711 (1979), and cert. denied sub nom., Garcia v. U. S., 439 U.S. 1079, 99 S.Ct. 860, 59 L.Ed.2d 49 (1978). Accord, United States v. Rasor, 599 F.2d 1330, 1332 (5th Cir. 1979). Minis argues that there is no evidence establishing that the articles sought would be found at the
(quoting United States v. Rahn, 511 F.2d 290, 293 (10th Cir.), cert. denied, 423 U.S. 825, 96 S.Ct. 41, 46 L.Ed.2d 42 (1975)). Reaffirming that test in United States v. Scott, 555 F.2d 522, 527 (5th Cir.), cert. denied sub nom., Ogletree v. United States, 434 U.S. 985, 98 S.Ct. 610, 54 L.Ed.2d 478 (1977), we observed that "this court and others, albeit without discussion, have upheld searches, although the nexus between the items to be seized and the place to be searched rested not on direct observation but on the normal inferences as to where the articles sought would be located." See also United States v. Allen, 588 F.2d 1100 (5th Cir.), cert. denied sub nom., Perkins v. United States, 441 U.S. 965, 99 S.Ct. 2415, 60 L.Ed.2d 1071 (1979); Bastida v. Henderson, 487 F.2d 860 (5th Cir. 1973); Castle v. United States, 287 F.2d 657 (5th Cir.), vacated for resentencing, 368 U.S. 13, 82 S.Ct. 123, 7 L.Ed.2d 75 (1961). Compare United States v. Green, 634 F.2d 222 (5th Cir. 1981); United States v. Rasor, 599 F.2d 1330 (5th Cir. 1979).
As noted above, "[a] bright line cannot always be drawn between `mere suspicion' and probable cause." Gordon, supra, 580 F.2d at 832. Nevertheless, we believe that "`the facts and circumstances described in the affidavit would warrant a man of reasonable caution to believe that the articles sought were located at the place where it was proposed to search.'" Maestas, supra, at 1180. In the intercepted July 20, 1980 telephone conversation, according to the affidavit, the person identified as Everett spoke of his garden, the size of the plants, and about a process of "topping." He also said that he "did a whole bunch of A's" and that they were the ones that "are along the farthest" and which he "got ... in first." It was reasonable to infer from this conversation, and the affiant's knowledge of "A's" being a slang term for the African variety of marijuana plants, that Everett was cultivating marijuana. When physical surveillance then revealed Everett going from his apartment to a large rural residence, owned by him, for a couple of hours each day, there was probable cause to believe that Everett was growing the marijuana at this location. This property was a "logical" place to find the garden of illicit plants which would grow, according to the conversation, to be five to six feet high and as big around as a man's chest. Cf. Allen, supra, at 1106 (search of apartment for gambling paraphernalia); Scott, supra, at 527-28 (search of residence for gambling paraphernalia); Maestas, supra, at 1180 (search of defendant's apartment for counterfeiting paraphernalia); Bastida, supra, at 863 (search of premises where defendants lived for pistols allegedly used in armed robbery). The fact that Everett and Ashbrook travelled to the rural property several days in a row before leaving for the Houston airport where they were arrested also gave probable cause to believe that evidence relating to their narcotics operation would be found at the rural property. Although an individual piece of information, like the placing of the tan leather case in the truck upon leaving for the property and not removing it upon returning from the property, may have been innocent enough in itself, it is an additional layer in the "laminated total" which we weigh to determine probable cause. See United States v. Weinrich, 586 F.2d 481, 490 (5th Cir. 1978), cert. denied, 441 U.S. 927, 99 S.Ct. 2041, 60 L.Ed.2d 402 and cert. denied sub nom., Blair v. United States, 440 U.S. 982, 99 S.Ct. 1792, 60 L.Ed.2d 243. Looking at all of the facts and circumstances set out in the affidavit, we cannot say that the magistrate, whose determination, based on
Minis argues that the information derived from the July 20, 1980 conversation allegedly referring to a growing crop of marijuana was so stale that it cannot be considered in determining whether the affidavit established probable cause to justify the issuance of the warrant (the warrant not having been issued until October 18, 1980). "It is a fundamental principle of search and seizure law that the information given to the magistrate in the application for a search warrant must be timely. Probable cause must be found to exist at the time the warrant issues." United States v. Hyde, 574 F.2d 856, 864 (5th Cir. 1978). See Sgro v. United States, 287 U.S. 206, 53 S.Ct. 138, 77 L.Ed. 260 (1932). Again, Bastida v. Henderson, 487 F.2d 860, 864 (5th Cir. 1973), provides the basic rule:
(Citations omitted.) "[S]taleness is an issue which must be decided on the peculiar facts of each case, and ... a mechanical count of days is of little assistance in this determination." Hyde, supra, at 865. Accord, United States v. Weinrich, 586 F.2d 481, 491 (5th Cir. 1978), cert. denied, 441 U.S. 927, 99 S.Ct. 2041, 60 L.Ed.2d 402, and cert. denied sub nom., Blair v. United States, 440 U.S. 982, 99 S.Ct. 1792, 60 L.Ed.2d 243 (1979). The telephone conversation clearly indicates that the growing of the marijuana was a continuing process. Everett spoke of plants 18" high which would grow to be five to six feet high. In addition, he spoke of growing the plants the previous year, comparing that year's crop to this year's. The nature of the activity, then, was clearly such that the July conversation combined with the observed October activities could establish probable cause to believe that marijuana was being grown at the searched location at the time the magistrate authorized the search.
III. The Good Faith Exception to the Exclusionary Rule?
The government cites our alternative opinion in United States v. Williams, 622 F.2d 830, 840 (5th Cir. 1980) (en banc), in support of an argument that because the agent had a good faith and reasonable belief in the existence of probable cause and properly presented the facts to the magistrate the evidence should not be suppressed under the exclusionary rule. We do not address that argument here for two reasons: (1) our decision above that the evidence was not properly suppressed eliminates the need to make that determination; and (2) the government did not raise the argument before the district court in the suppression hearing, see, e.g., Hudspeth v. United States, 519 F.2d 1055, 1056 (5th Cir. 1975).
Our decision here is limited to a determination that the facts and circumstances described in the affidavit were sufficient to establish probable cause. Because the district court did not address Minis' other arguments as to the validity of the warrant, we must remand the case for further proceedings relating to Minis' motion to suppress not inconsistent with this decision.
VACATED and REMANDED.
PIRRI told ASHBROOK he needed to get in touch with OLIVIT because they needed to make some major decisions about the work being done by GASBARI. PIRRI said he thought it best to talk to OLIVIT because ASHBROOK was not "in tune" with the boat. ASHBROOK agreed saying that he had never seen the boat. PIRRI then told ASHBROOK he (PIRRI) was going to meet their "friend" in Paris on Monday, September 15, 1980, and that he would call ASHBROOK back and let him know the outcome. ASHBROOK told PIRRI to say hello to "ABDUL." PIRRI told ASHBROOK they needed about $65,000 to complete the boat. ASHBROOK said he was going down to "that place" at the end of September and would take 2 for AMHAZ and would send $75,000 to GASBARI for the boat. PIRRI told ASHBROOK the money would have to go through the "company."
ASHBROOK and OLIVIT discussed the boat and PIRRI's need to talk to OLIVIT. ASHBROOK told OLIVIT that he (ASHBROOK) was going down "south" in two weeks (end of September 1980) and take a "couple" for their friend as well as $75,000 for the boat. ASHBROOK said he had to send it through the "company." OLIVIT suggested ASHBROOK take "BILL." ASHBROOK agreed because "BILL'S" name was on the deal and that ASHBROOK didn't want to show himself; he would let BILL make the transaction. ASHBROOK said that PIRRI was going to talk to their friend and get everything worked out. ASHBROOK said that PIRRI had agreed to pay for their losses out of his own pocket. ASHBROOK and OLIVIT then talked about a crew for a boat.
PIRRI told ASHBROOK that he had seen the friend and that everything was fine. PIRRI said the shipment was "packed and waiting" for them whenever they wanted to pick it up. PIRRI said the "friend" was lowering the price to compensate ASHBROOK for the loss suffered before. PIRRI said that the total payment to the "friend" for the next was to be 5 million but they had to have $400,000 out front. PIRRI said he had already paid the friend $200,000 as part of the $400,000 up front. ASHBROOK said he was going to send the other $200,000 plus $75,000 for the boat in two or three weeks.
(a) Except as provided in subsection (c) of this section, whoever, whether as principal, agent, or bailee, or by an agent or bailee, knowingly —
in an amount exceeding $5,000 on any one occasion shall file a report or reports in accordance with subsection (b) of this section.