UNITED STATES OF AMERICA, PETITIONER V. CHARLES TATE, ET AL. No. 83-24 In the Supreme Court of the United States October Term, 1983 The Solicitor General, on behalf of the United States, petitions for a writ of certiorari to review the decision of the United States Court of Appeals for the Ninth Circuit in this case. Petition for a Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit PARTIES TO THE PROCEEDING In addition to the parties shown by the caption of this case, Ezeal Real, Roosevelt Montgomery, Johnny V. Williams, and Norman Sweeney were appellants below and are respondents here. TABLE OF CONTENTS Opinions below Jurisdiction Statement Reasons for granting the petition Conclusion Appendix A Appendix B Appendix C OPINIONS BELOW The opinion of the court of appeals (App. A, infra, 1a-16a) is reported at 694 F.2d 1217. The ruling of the district court denying respondents' motion to suppress is unreported. JURISDICTION The judgment of the court of appeals was entered on December 21, 1982 (App. B, infra, 17a), and a petition for rehearing was denied on April 15, 1983 (App. C, infra, 18a). On June 2, 1983, Justice Rehnquist extended the time for filing a petition for a writ of certiorari to and including July 14, 1983. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED 1. Whether the Fourth Amendment exclusionary rule should be modified so as not to bar the admission of evidence seized in reasonable, good-faith reliance on a search warrant that is subsequently held to be defective. 2. Whether the Fourth Amendment exclusionary rule should be modified so as not to bar the admission of evidence seized in the reasonable belief that the warrantless stop of a vehicle did not violate the Fourth Amendment. STATEMENT On July 17, 1980, a six-count indictment was returned in the United States District Court for the Eastern District of California charging all five respondents with conspiracy to manufacture phencyclidine ("PCP") (Count I) and with various substantive offenses relating to the possession and manufacture of controlled substances (Counts II-V), in violation of 21 U.S.C. 841(a)(1) and 846. In addition, all respondents were charged with unlawfully carrying a firearm during the commission of a felony (Count VI), in violation of 18 U.S.C. 924(c)(2). Following the denial of their motions to suppress evidence and a bench trial on stipulated facts, respondents were convicted of possessing PCP with intent to distribute (Count II) and attempting to manufacture PCP (Count III). A divided panel of the court of appeals reversed respondents' convictions, holding that the contraband and other evidence admitted at trial had been unlawfully seized (App. A, infra, 1a-16a). 1. The pertinent facts, derived from the affidavits in support of the search warrants and others submitted in connection with the pretrial suppression hearings, are as follows: On the evening of July 12, 1980, Officer Larry McLaughlin of the Tulare County (California) Sheriff's Department received an anonymous telephone call advising him (1) that the caller had observed three or four black males "utilizing" a white Dodge van at a residence at 5580 Avenue 320 in Visalia; (2) that the caller could smell "a very strong odor such as ether coming from said residence and/or premises"; and (3) that the caller was familiar with the smell of ether, having used it on numerous occasions for the purpose of starting engines (App. A, infra, 2a). The caller also gave directions to the Avenue 320 residence (ibid.). After receiving this information, Officer McLaughlin and another officer drove to the vicinity of the described residence and smelled a very strong odor of ether emanating from the residence (ibid.). Based on this information, the officers applied for a search warrant that same night. In addition to the facts stated above, the affidavit in support of the warrant also stated that Officer McLaughlin knew from his experience as a narcotics officer that the process of manufacturing PCP emits a very strong odor of ether (id. at 4a n.2). The affidavit concluded by stating that Officer McLaughlin believed that unidentified individuals were in the process of illegally manufacturing PCP (ibid.). /1/ While awaiting the issuance of the requested warrant, officers kept the premises under surveillance. During this time, Agent William Miller of the California Bureau of Narcotics walked by the residence at about 3:30 a.m. on the morning of July 13, 1980, and smelled cyclohexanone, a necessary precursor chemical for the manufacture of PCP (App. A, infra, 2a). About an hour and a half later, a station wagon arrived at the premises and stopped near a shed located at the rear of the residence (ibid.). Thereafter, Agent Miller observed three to five black males in the area around the shed and the station wagon carrying "buckets and containers of various description(s)" (Sept. 29, 1980 Tr. 71). Some of them were wearing rubber gloves (ibid.). At 5:45 a.m., the suspects closed and locked the shed, entered the station wagon, and drove off (App. A, infra, 3a). As the surveilling officers followed, they received a radio transmission advising them that the applied-for search warrant had just been issued by a state court judge (ibid.). The officers continued to follow the station wagon and stopped it a short time later (ibid.). As respondents emerged from the vehicle, Agent Miller detected a strong odor of ether and observed a "whitish powder" on each of them (ibid.); two handguns were also seen in plain view in the station wagon (Sept. 29, 1980 Tr. 73-74). Respondents were then arrested (App. A, infra, 3a). An incidental search of their persons disclosed two motel keys for rooms at a nearby Holiday Inn (ibid.). After arresting respondents, the officers returned to the Avenue 320 premises and executed the search warrant (App. A, infra, 3a). Inside the shed, /2/ they found 38 pounds of PCP drying on a table as well as numerous partially filled or empty chemical containers. The officers then went to the Holiday Inn and searched the parking lot for the white Dodge van mentioned in the initial anonymous phone call (App. A, infra, 3a). They discovered a white Ford van in which they observed in plain view a triple beam scale, a number of containers similar to those found at the residence, and a package containing rubber gloves (ibid.). The officers then obtained a search warrant for the van. Execution of that warrant disclosed clothing owned by respondents, chemical precursors to PCP, and two pounds of PCP (ibid.). 2. The district court denied respondents' motions to suppress the seized contraband, holding that both search warrants were supported by probable cause (Sept. 29, 1980 Tr. 49, 54-55, 62-63; Dec. 8, 1980 Tr. 130). /3/ Moreover, the court held that the warrantless stop of the station wagon was valid and that respondents' subsequent arrests were supported by probable cause (Sept. 29, 1980 Tr. 161). Finally, in response to the prosecutor's request for a finding that the search warrants were applied for and executed in good faith, the district court stated: "I certainly have no reason to challenge the good faith of (the affiant). * * * I know him to be a competent officer that's doing his duty as he sees it" (id. at 160-161). 3. On appeal, a divided panel of the Ninth Circuit reversed. Although finding that the information supplied by the anonymous informant and corroborated by Officer McLaughlin was sufficiently reliable (App. A, infra, 5a-6a), the panel majority held that it was insufficient to establish probable cause for the search of the Avenue 320 premises (id. at 6a-8a). Noting that the informant's tip did not state that any illicit activity was taking place (id. at 6a), the majority concluded that the smell of ether, a noncontraband substance having a number of legitimate uses, cannot, without more, supply probable cause for the issuance of a search warrant (id. at 7a). The court next held that the officers lacked reasonable suspicion to stop the station wagon. Although acknowledging that by the time of the stop, another agent had smelled yet another PCP precursor chemical, the court observed that "there is no indication that defendants or the station wagon were at the premises when these events (the smelling of ether and, later, cyclohexanone) took place * * * ." App. A, infra, 9a. The court further observed (id. at 9a-10a): The unknown informer described a white Dodge van being utilized on the premises. However, defendants apparently arrived at the Avenue 320 residence shortly after 5:00 a.m. in a station wagon. Several black men, some wearing gloves, were seen carrying containers about near the shed and the station wagon. Miller could not state that containers were either taken from or brought to the station wagon. He also testified that he had on earlier occasions noted farmers in the area wearing gloves and carrying containers in the predawn hours. There is no evidence of record that indicates that gloves are relevant in any way to the manufacturing process of PCP. * * * The identification of ether and cyclohexanone odors at the residence occurred some time before either the defendants or the station wagon arrived on the scene. There are no "specific and articulable facts" linking either the defendants or the vehicle to the manufacture of PCP up to the time the station wagon was stopped * * * . Accordingly, the court invalidated the stop. Because it was the stop of the station wagon that led to the discovery of the van at the Holiday Inn, the court also suppressed the evidence taken from the van pursuant to the second search warrant (App. A, infra, 11a-13a). In dissent, Judge Enright opined that the totality of the circumstances -- particularly the time and place in which the officers encountered the strong smell of ether -- supported a finding of probable cause (App. A, infra, 14a). /4/ Moreover, even if probable cause was lacking for the search of the residence, Judge Enright stated that the officers had sufficient reasonable suspicion to conduct an investigatory stop of the station wagon (id. at 15a). Once respondents emerged from the vehicle, "(t)he odor of ether, the weapons in plain view, and the appearance of (respondents) provided probable cause for their arrest" (ibid.) and, in Judge Enright's view, validated the later warranted search of the white van (id. at 15a-16a). Finally, since the search of the residence was infirm, if at all, only because of the officers' failure to apply for reissuance of the same search warrant after acquiring additional information during their surveillance and from the stop of respondents' vehicle, Judge Enright concluded that the deterrent purposes of the exclusionary rule would not be furthered by its invocation in this case (id. at 16a). 4. The government petitioned the panel for rehearing, suggesting that the case be held pending this Court's decision in Illinois v. Gates, No. 81-430 (June 8, 1983). The petition was denied, again over Judge Enright's dissent (App. C, infra, 18a). Leon and Sheppard both present the question as applied to search warrants, while Quintero involves a warrantless arrest and subsequent search. Thus, the present case may not necessarily be controlled by the outcome in any one of the pending cases, but is instead likely to merit disposition in light of the decisions in all three cases. And if for any reason the questions are not decided in the pending cases, this case offers a suitable independent vehicle for the resolution of both the broad question of the appropriateness of adopting some form of general "reasonable mistake" exception to the exclusionary rule and the narrower question of the applicability of the exclusionary rule to evidence seized during searches authorized by judicial warrants. REASONS FOR GRANTING THE PETITION This case raises precisely the same issues that are now pending before the Court in United States v. Leon, cert. granted, No. 82-1771 (June 27, 1983); Massachusetts v. Sheppard, cert. granted, No. 82-963 (June 27, 1983); and Colorado v. Quintero, cert. granted, No. 82-1711 (June 27, 1983). /5/ We have set forth at some length our arguments in support of a "reasonable mistake" exception to the exclusionary rule in Illinois v. Gates, supra, and no purpose would be served by repeating them here. /6/ It should be noted only that this case raises the question of a "reasonable mistake" modification in two separate contexts -- the warrantless stop of respondents' station wagon and the judicially-authorized search of the Avenue 320 premises. It is our submission that some form of the "reasonable mistake" exception is appropriate for each situation, although, as explained in our supplemental brief in Gates, the reasons supporting modification of the exclusionary rule have slightly different analytic foundations depending on the context. CONCLUSION The petition for a writ of certiorari should be held and disposed of as appropriate in light of the Court's decisions in Leon, Sheppard and Quintero. Respectfully submitted REX E. LEE Solicitor General JULY 1983 /1/ Because the warrant was applied for late at night and on a weekend, the officers had no ready means of ascertaining who owned or resided in the premises (Sept. 29, 1980 Tr. 135). /2/ In addition to a complete search of the residence itself, the warrant authorized the search of "the surrounding grounds (and) any garages, storage rooms or outbuildings of any kind * * * ." /3/ Specifically, the district court stated (Sept. 29, 1980 Tr. 49): I think from the circumstances here with a shed in the back of a building out in the country and the emission of ether odors, that when the officer knows (there) are ether odors that are given off when P.C.P. is being manufactured, I think that's sufficient. /4/ Judge Enright observed that the situation might be different "if the odor of ether had been detected near a hospital, rather than near a farm shed on a country road" (App. A, infra, 14a). /5/ This case also presented the issues whether the first search warrant was supported by probable cause and whether the automobile stop was supported by reasonable suspicion. Although we believe that the court of appeals' decision was clearly in error on both of these issues, we do not seek this Court's review on these essentially fact-bound questions. /6/ We are furnishing respondents' counsel with copies of our supplemental brief in Gates, in which those arguments are set forth. Appendix Omitted