United States v. Robert Lee Brown , 984 F.2d 1074 ( 1993 )

PAUL KELLY, Jr., Circuit Judge.

Defendant-appellant Robert Brown appeals his conviction for conspiracy to manufacture methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C) and 18 U.S.C. § 2. Mr. Brown contends that the district court erred in denying his motion to suppress. Our jurisdiction arises under 28 U.S.C. § 1291 and we affirm.

Background

On January 29, 1991, a state search warrant was issued based on the affidavit of detective Robert Radosevich (Warrant I). The affidavit stated that the district attorney’s office had approached the detective in reference to an informant who had information concerning the theft and dismantling of motor vehicles. The informant stated that he spoke with two people at a house and was told that several vehicles on the premises were stolen, and that the two people sold the stolen vehicles by exchanging vehicle identification plates from salvaged vehicles and registering the stolen vehicles. The informant also reported that the same parties had offered to sell him carpeting for $1 per yard, a copier for $100, a computer, guns and electric motors.

The detective drove by the house described by the informant and observed an individual under a partially dismantled truck doing some type of work with a cutting torch. He also observed another truck that the informant had stated the occupants of the house had claimed was stolen. The detective then learned that the utilities to the home were in the name of R.L. Brown.

Warrant I authorized a search for:

Vehicle parts to include the following, but not limited to: Bumpers, grills, fenders, hoods, cabs, dashes, truck beds, engines, transmissions, drive shafts, frames, rear ends, springs, steering parts, seats and other interior parts, VIN plates, titles, vehicle registrations, blank registration forms, bills of sale, blank titles, drive-out stickers, broadcast sheets, EPA stickers, windows, doors, tires, rims and truck bed toolboxes. Tools or toolboxes which are stolen or contain tools that can be used to disassemble or reassemble any vehicle, welders and cutting torches, air compressors, computers, computer components, photocopy machines, firearms, protective devices, carpeting which also may be stolen. Any other item which the Officers determine or have reasonable belief is stolen while executing this search warrant.

After the execution of Warrant I, and because items not specifically described in Warrant I were observed, a second state warrant was applied for on February 7, 1991 (Warrant II). Warrant II authorized the following seizure:

The property to be seized is a Quasar Microwave, serial number AW702701085. A brown Cedar chest that is faded on the top lid and has a tray on the inside, approximately 3' wide and 4' in length and approximately 2lk' to 3' in depth, any other item which the Officers have determined or have reason to believe is stolen, while executing this search warrant.

During the execution of Warrant II, the officers detected a strong odor of methamphetamine on the individuals present. They found a methamphetamine laboratory in the garage and drug paraphernalia and a substance which the officers suspected was methamphetamine in the house. Based on this information, a federal search warrant (Warrant III) was issued and executed that same day. The evidence seized during the execution of Warrant III led to Mr. Brown’s conviction.

Defendant filed a motion to quash the three warrants and to suppress all evidence seized pursuant to the warrants. The motion was denied and defendant was tried by a jury and convicted. Mr. Brown contends that the first two warrants were overbroad and that evidence derived from Warrant II was fruit of the illegal Warrant I. He also contends that the sole basis for Warrant III was Warrants I and II, thus the evidence seized under Warrant III was fruit of the illegal first two warrants.

Discussion

I. Probable Cause

The Fourth Amendment prohibits the issuance of a warrant except upon probable cause. Under Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983), “[t]he task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, ... there is a fair probability that contraband or evidence of a crime will be found in a particular place.” On review, we must “ensure that the magistrate had a ‘substantial basis for ... concludpng]’ that probable cause existed.” Id. at 238-39, 103 S.Ct. at 2332 (quoting Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 736, 4 L.Ed.2d 697 (1960)).

The informant mentioned in the affidavit was able to provide several verifiable details. He stated that an occupant of the house had described two stolen vehicles, a 1970’s Ford pickup and a 1986 Ford pickup. The informant also saw a red Chevrolet El Camino and a motorcycle. The affiant-offi-cer drove by the residence and saw all of these items and, in addition, observed that someone was working on the partially dismantled 1970’s pickup with a cutting torch. We find that the corroboration of “ ‘seemingly innocent activity became suspicious in light of the initial tip.’ ” Gates, 462 U.S. at 243 n. 13, 103 S.Ct. at 2335 n. 13 (quoting People v. Gates, 85 Ill.2d 376, 53 Ill.Dec. 218, 227, 423 N.E.2d 887, 896 (1981) (Moran, J. dissenting), rev’d, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)).

With such corroboration, the issuing magistrate had a “ ‘substantial basis for crediting the hearsay’ ” included in the tip. Gates, 462 U.S. at 244-45, 103 S.Ct. at 2335 (quoting Jones, 362 U.S. at 269, 80 S.Ct. at 735); see also United States v. Hager, 969 F.2d 883, 886-87 (10th Cir.), cert. denied, — U.S. -, 113 S.Ct. 437, 121 L.Ed.2d 357 (1992). A male and a female who resided at the house admitted to the informant that they had stolen several vehicles, providing details regarding their scheme to reregister the vehicles. The couple offered to sell various items, including the trucks, toolboxes, rolls of carpet and a copier, for well below their market value.

We conclude that there was a substantial basis for the judge to determine that ample probable cause supported Warrant I.

II. Particularity

The Fourth Amendment requires that warrants describe both the place to be searched and the things to be seized with particularity. Stanford v. Texas, 379 U.S. 476, 485, 85 S.Ct. 506, 511, 13 L.Ed.2d 431 (1965). The search should be “confined in scope to particularly described evidence relating to a specific crime for which there is demonstrated probable cause.” Foss v. Bergsgaard, 774 F.2d 402, 404 (10th Cir.1985). The issue of whether a warrant is overbroad is subject to de novo review by this court. United States v. Leary, 846 F.2d 592, 600 (10th Cir.1988).

At issue in this case is the effect of the language in each of the two warrants quoted in part above (Warrants I and II). Each of these warrants described, with specificity, some items to be searched or seized, but added an authorization to search or seize other items which the officers determined or reasonably believed to be stolen. Mr. Brown argues that this language renders the warrant unconstitutionally broad.

We find United States v. LeBron, 729 F.2d 533 (8th Cir.1984) instructive. There, a warrant authorized a search for a list of specific items as well as for “other proper-’ ty, description unknown, for which there exists probable cause to believe it to be stolen.” Id. at 536. That language, the court found, was not descriptive and did not adequately limit the discretion of the officers. Id. at 536. The instant warrant contained language very similar to the Le-Bron warrant.¹

However, as in LeBron, the questionable portion of the warrant may be severed. “ ‘[T]he infirmity of part of a warrant requires the suppression of evidence seized pursuant to that part of the warrant ..., but does not require the suppression of anything described in the valid portions of the warrant (or lawfully seized—on plain view grounds, for example—during their execution).’ ” LeBron, 729 F.2d at 537 n. 2 (quoting United States v. Fitzgerald, 724 F.2d 633, 637 (8th Cir.1983) (en banc), cert. denied, 466 U.S. 950, 104 S.Ct. 2151, 80 L.Ed.2d 538 (1984)).

At least eight circuits have held that where a warrant contains both specific as well as unconstitutionally broad language, the broad portion may be redacted and the balance of the warrant considered valid. See United States v. George, 975 F.2d 72, 79 (2d Cir.1992); United States v. Blakeney, 942 F.2d 1001, 1027 (6th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 881, 116 L.Ed.2d 785 (1992); United States v. Holzman, 871 F.2d 1496, 1510 (9th Cir.1989); Fitzgerald, 724 F.2d at 636-37; United States v. Riggs, 690 F.2d 298, 300 (1st Cir.1982); United States v. Christine, 687 F.2d 749, 759-60 (3d Cir.1982); In re Search Warrant Dated July 4, 1977, 667 F.2d 117, 130-33 (D.C.Cir.1981), cert. denied, 456 U.S. 926, 102 S.Ct. 1971, 72 L.Ed.2d 441 (1982); United States v. Cook, 657 F.2d 730, 734-35 (5th Cir.1981).² See also 1 Wayne R. LaFave & Jerold H. Israel, Criminal Procedure, § 3.4(f) at 229 (1984). In such cases, only those items confiscated under the overbroad portion of the warrant are suppressed. George, 975 F.2d at 79.

In both Holzman and George, the courts recognized that the seizure of articles found in plain view could be upheld if part of the warrant was valid. They reasoned that if the officers were legally upon the premises under any set of circumstances, items in plain view could be legitimately seized. See Holzman, 871 F.2d at 1512; George, 975 F.2d at 78-80. See also Horton v. California, 496 U.S. 128, 138-39, 110 S.Ct. 2301, 2309, 110 L.Ed.2d 112 (1990) (if officer has lawful right of access, discovery of other incriminating evidence need not be inadvertent).

In this case, although one sentence in the warrant may have been overbroad, the infirm portion may be isolated and severed from the constitutionally adequate part. Because the state officers were legally on the premises and smelled the odor of methamphetamine, their call to the DEA agent is not tainted, George, 975 F.2d at 80, and the warrant obtained with that information is not invalid. While we had not directly addressed this issue until now, we recognized it in United States v. Leary, 846 F.2d 592, 606 n. 25 (10th Cir.1988) (citing cases where severance was appropriate, but concluding severance was not possible because no portion of the warrant in that case adequately described the items to be seized).

Because the officers executing Warrant II were legitimately on the premises when they discovered or smelled the methamphetamine laboratory, the third warrant issued at the instance of federal agents is valid.

AFFIRMED.

1 . Because we agree for purposes of this opinion that the contested language was overbroad, much of the dissent’s discussion is superfluous. The dissent also contends that the cases we rely upon are distinguishable because the overbroad portion in this case "describes the legal status” of items which may be encountered during the search. Dissent at 1081. The cases cited in this opinion do not consider the overbroad language beyond the determination that it is impermissible and should be stricken or redacted.

2 . The dissent argues that these cases are distinguishable because they involve "vague broad, and general descriptions of property which can be placed in some general category to permit severance.” Dissent at 1081. To the contrary, the overbroad nature of the search warrant in LeBron is indistinguishable from the warrant before us.