Appeals from the United States District Courts for the Southern District of Illinois, East St. Louis Division and Southern District of Indiana, Evansville Division. Nos. 80-CR-30032 and EV 80-14-CR William L. Beatty and Gene E. Brooks, Judges.
Pell and Coffey, Circuit Judges, and East,*fn* Senior District Judge.
These are appeals from the judgment of the United States District Court for the Southern District of Illinois and the United States District Court for the Southern District of Indiana. Affirmed in part, reversed in part.
This case represents the consolidated appeal of several rulings by the District Court for the Southern District of Illinois and the District Court for the Southern District of Indiana. The defendants-appellants herein, Daniel Hughes, Kevin Sweeney, and Robert Ellington, were found guilty of conspiracy to manufacture and distribute methamphetamine in violation of 21 U.S.C. §§ 841(a) (1), 846. Appellant Sweeney was also found guilty of conspiracy to manufacture and distribute phencyclidine (PCP) and appeals his conviction on that count. Appellant Hughes also appeals from an order of the court denying his motion to suppress the evidence seized during a search of his home in Indiana. The United States Government cross appeals from an order of the district court granting defendant Hughes' motion for return of $7,500 seized during the search of his house and from an order of the District Court for the Southern District of Indiana suppressing the introduction of the shotgun as evidence also seized in Hughes' house during the same search. Federal law prohibits the possession of a shotgun having a barrel of less than eighteen inches in length in section 26 U.S.C. §§ 5861(d), 5871.
A Grand Jury in the Southern District of Illinois returned an indictment on August 22, 1980 against sixteen individuals for their participation in two drug conspiracies, one for the manufacture and distribution of phencyclidine (PCP)*fn1 and one for the manufacture and distribution of methamphetamine.*fn2 Except for the three appellants herein, the other individuals charged either pleaded guilty or were granted immunity for their testimony at the trial of the remaining defendants.
Evidence presented at trial revealed that defendant-appellant Sweeney was the key or central figure in the drug manufacturing conspiracies involving both PCP and methamphetamine. During the first six months of 1975, Sweeney, was the key or central figure in the drug manufacturing conspiracies involving both PCP and methamphetamine. During the first six months of 1975, Sweeney, after conducting a certain amount of research, decided to manufacture the illegal drug PCP. In early 1976, Sweeney began manufacturing an orange powder that he said was PCP both at his home and at his parents' home in the country, and shortly thereafter began selling the orange powder product. At about this time he began to involve several other individuals, either as the sellers of his manufactured PCP, or as his front people to aid in the acquisition of chemicals and apparatus needed to produce the drug.
In 1977, while continuing to manufacture PCP, Sweeney decided to expand his business enterprise, started experimenting in the making of methamphetamine, and began phasing out his PCP activities due to the adverse publicity concerning the dangers of PCP and the police interest in arresting PCP manufacturers. Several of the same persons involved in the PCP conspiracy assisted Sweeney in the manufacture and distribution of the methamphetamine. In particular, appellant Ellington aided in the conspiracy by purchasing in Indiana and Texas the chemicals and apparatus necessary to manufacture both PCP and the methamphetamine. Ellington also delivered the final product to those who eventually sold the drugs. Appellant Hughes aided Sweeney in the manufacture of the drugs in Hughes' home in southern Indiana and acted both as a seller and a distributor of the PCP and the methamphetamine.
On October 27, 1980, a trial to the jury began against five of the defendants charged with a conspiracy to manufacture and distribute PCP (Count I) and a conspiracy to manufacture and distribute methamphetamine (Count II). During trial, two of the individuals charged in the indictment pleaded guilty to the charges contained in the indictment, and later testified against the remaining defendants. Count I was dismissed against appellant Hughes. On November 19, 1980 the jury rendered a guilty verdict against appellant Sweeney as to both counts. Appellant Hughes was found quilty as to Count II and appellant Ellington was found guilty as to Count II and not guilty as to Count I.
In what can be termed a "shotgun" approach appellant Sweeney alleges a combination of twenty-six instances of error in his trial and in the Grand Jury proceedings which originally led to his indictment. Appellant Ellington alleges fifteen instances of error, many identical to the issues raised by appellant Sweeney. Appellant Hughes also raises fifteen instances of error. These issues will be addressed individually below and further facts will be developed which are necessary to the resolution of these issues.
1. Validity of Search Warrant.
In August of 1980, two Drug Enforcement Administration Agents, Hubert R. Coleman and Gregory McCoy, accompanied by a Gibson County Sheriff, went to appellant Hughes' residence in Gibson County, Indiana to serve a federal grand jury subpoena upon Hughes. At the time these individuals arrived to serve the appellant with the subpoena, appellant Hughes was absent from the home. However, a housekeeper answered the door, and while the housekeeper was informing the DEA Agents that the appellant was not at home, one of the agents, Agent Coleman, an agent experienced in the drug field, while standing at the front door smelled an odor which the agent later identified as the odor of methylamine being processed into methamphetamine. Methylamine is one of the compounds used in the production of methamphetamine. Several of the other Drug Enforcement Agents remained at the home of the appellant Hughes and Agent Coleman proceeded to the local state court where he swore out an affidavit in support of a search warrant.
In his affidavit, Agent Coleman recited that he was a Special Agent for the DEA and had been employed as an agent for the past ten years. Agent Coleman further recited that he was the Agent In Charge of an investigation into clandestine laboratories and that during the course of this investigation it had become apparent that Daniel Hughes was a co-conspirator in a large scale conspiracy to manufacture and distribute methamphetamine. The agent stated that he had smelled the unmistakable odor of methylamine while attempting to serve a federal subpoena on Daniel Hughes, and that due to his familiarity with the odor of chemicals used in the manufacture of methamphetamine, Agent Coleman was able to state that the unmistakable odor was known as methylamine and phenyl-two-propnone to his olfactory sense. Finally, in the affidavit Agent Coleman stated that Daniel Hughes' son was arrested in June of 1977 in possession of two bags of methamphetamine. Based upon this affidavit, a search warrant was issued by Gibson County Magistrate John C. Hicks.
Agent Coleman returned to appellant Hughes' residence and discovered that Hughes had returned in his absence. After Hughes was served with the search warrant and the subpoena the law enforcement officers began their search of his home. The search produced a number of items of glassware which were admitted at the trial, a shotgun with a barrel length of less than eighteen inches, and $7,000 in cash found in the appellant Hughes' safe. The agents also seized $500 from Hughes' wallet.*fn3 The agents further found some strainers (sifters) with traces of chemicals which were later identified as methamphetamine.
Appellant Hughes filed a motion in the District Court for the Southern District of Illinois to suppress the glassware and the sifters*fn4 containing the traces of methamphetamine. The Honorable William L. Beatty, District Judge, held an evidentiary hearing and denied appellant Hughes' motion, ruling that the glassware and the sifters containing traces of methamphetamine were admissible in Hughes' trial on the alleged conspiracy to manufacture and distribute methamphetamine. Hughes appeals from this denial of his motion to suppress.
Hughes was also indicted in the Southern District of Indiana for the unlawful possession of a shotgun with a barrel of less than eighteen inches in violation of 26 U.S.C. §§ 5861(d), 5871. Appellant Hughes also made a motion to suppress the shotgun in the Southern District of Indiana based upon the same reasoning which had been previously rejected by Judge Beatty in Illinois. The Honorable Gene E. Brooks of the District Court of the Southern District of Indiana, even though being apprised of Judge Beatty's decision in Illinois, found the government's search to be illegal and granted the motion to suppress on the grounds that Agent Coleman's smelling of the odor alone was insufficient to establish probable cause and that the other aspects of the affidavit were conclusory in nature.*fn5 The government cross-appeals from this order suppressing the shotgun.
After a careful examination of the affidavit, we hold that because the affidavit submitted by Agent Coleman when read in its entirety satisfactorily established Agent Coleman's expertise in identifying the chemicals used to manufacture methamphetamine by their distinctive odor and further recited that Agent Coleman had smelled this odor at appellant Hughes' residence, and when read together with the other information contained in the affidavit which we hold was not conclusory in nature but based upon articulated facts, the affidavit established a sufficient basis from which a detached magistrate could find probable cause for the issuance of a valid search warrant. Therefore, the decision of the District Court for the Southern District of Illinois is affirmed, and the decision of the District Court for the Southern District of Indiana suppressing the evidence obtained by Agent Coleman is reversed.
Appellant Hughes challenges the search warrant issued by the Gibson County Magistrate by challenging the affidavit which underlies the search warrant, and thereby challenges the validity of the search itself. The appellant contends that Agent Coleman's allegation of unmistakable odor could not constitute probable cause for the issuance of a search warrant because methylamine is not listed as a controlled substance. Moreover, the appellant contends that there was a misrepresentation of material fact in the affidavit in that the agent averred that he smelled methylamine but no methylamine was found in the house and therefore the evidence should have been suppressed. Finally, appellant Hughes contends that Agent Coleman made an intentional or reckless misrepresentation of fact before the Magistrate because the agent stated he had smelled methylamine when he knew or recklessly disregarded the fact that the smell he detected was not "unmistakably" methylamine and thus the evidence should have been suppressed by the trial court.
The essential test for determining whether the detection of an odor establishes sufficient probable cause for a search warrant was set forth by the Supreme Court in Johnson v. United States, 333 U.S. 10, 92 L. Ed. 436, 68 S. Ct. 367 (1948). While the detection of odors alone does not authorize a search without a warrant, "if the presence of odors is testified to before a Magistrate and he finds the affiant qualified to know the odor and [the odor] is one sufficiently distinctive to identify a forbidden substance, this Court has never held such a basis insufficient to justify issuance of a search warrant. Indeed it might well be found to be evidence of most persuasive character." Id. at 13. Thus, Johnson establishes a two-prong test to be applied when determining whether the detection of an odor can give rise to sufficient probable cause to issue a search warrant: (1) the affiant must be qualified to know, recognize and be able to identify the odor; and (2) the odor must be sufficiently distinctive to identify a forbidden substance. In view of the fact that the instant affidavit identified Agent Coleman as qualified to identify the substance and because the odor Agent Coleman detected was sufficiently distinctive to identify the forbidden activity of the manufacture of methamphetamine, we hold that the affidavit in the instant case was sufficient to meet the Johnson test.
As a general rule, probable cause exists when within the knowledge of the agents, certain facts and circumstances would lead a man of reasonable caution to believe that a crime is being committed or is about to be committed or that seizable property can be located at the premises in question. See generally United States v. Ventresca, 380 U.S. 102, 108, 13 L. Ed. 2d 684, 85 S. Ct. 741 (1965); Carol v. United States, 267 U.S. 132, 162, 69 L. Ed. 543, 45 S. Ct. 280 (1925). This court has recently had the opportunity to review the standards of probable cause as they relate to drug laboratory searches. In United States v. Ellery, 678 F.2d 674 (7th Cir. 1982), Judge Bauer, citing United States v. Anton, 633 F.2d 1252 (7th Cir. 1980), cert. denied, 449 U.S. 1084, 66 L. Ed. 2d 808, 101 S. Ct. 870 (1981), noted that:
Probable cause exists when it is reasonably believed that the evidence sought will aid in a particular apprehension or conviction for a particular offense and that the evidence is located in the place to be searched. Probable cause denotes more than mere suspicion, but does not require certainty. It might be said to exist if it is more likely than not that evidence of the illegal activity will be found on the premises to be searched. The agents believed probable cause existed and they submitted the facts supporting their belief to the required neutral magistrate. The magistrate agreed with the agents and issued the warrant. The magistrate's determination is entitled to some deference from a reviewing court.
Applying the above test of reasonableness, Agent Coleman detected and recognized an odor, peculiar and identifiable to the manufacture of methamphetamine, at the residence of Hughes which he, through his prior vast experience, reasonably associated with the manufacture of methamphetamine. Moreover, because we hold that Agent Coleman was qualified because of extensive prior experience to recognize odors associated with the manufacture of methamphetamine and, as stated in the affidavit, had been a Special Agent for the DEA for ten years and had been in charge of a clandestine laboratory investigation, the statements, observations, and knowledge and experience of Coleman clearly meet the requirements of the Johnson test. He recited in the affidavit that he had executed numerous search warrants involving clandestine operations and was intimately familiar with the odor of chemicals used in manufacturing methamphetamine. Moreover, he recited that he had attended a twelve week narcotic school and had lectured on clandestine operations to othe law enforcement personnel. Therefore, we hold that Agent Coleman's experience in the investigation and detection of clandestine laboratory operations and the recitation of his familiarity with the detection of the odors associated with the production of methamphetamine was sufficient to form the basis of probable cause for the search warrant to issue.
We also disagree with the Southern District of Indiana trial court's suppression of the shotgun on the grounds that the smell of methylamine is not distinctive enough to distinguish between methylamine and other similar household products. The appellants contended and Judge Brooks found that methylamine does not have an unmistakable odor and that therefore there was a misrepresentation by Agent Coleman. However, according to Agent Coleman's testimony at the suppression hearing, the agent stated that it was not necessarily the smell of the methylamine alone which gave rise to his suspicion that defendant Hughes was engaged in the manufacture of methamphetamine, but rather it was the odor which occurs with the mixing and combination of methylamine and P2P, which when having reacted together create what is known as methamphetamine. In response to questioning, Agent Coleman testified:
I was very sure about it and I was under oath at the time of the affidavit and I am under oath now and I was sure of it as I am sitting here, I smelled it many times and it is unmistakable. If I walk into a room where they were cooking speed [methamphetamine] I could tell you what was going on . . . . I smelled an odor that I had smelled on numerous occasions when I dealt with ...