Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
2d 15
I. The Warrant
2
the second affidavit repeats the facts of the first one for the purpose of
justifying a night-time search, we focus on the first affidavit1 which is included
as an appendix.
3
Based on the personal observations of Agent Crowe and another DEA agent
and the opinions of a DEA forensic chemist, the affidavit contains the
following recitations. Appellant is identified as president of the Wyvern Co.,
Inc., a company incorporated in Massachusetts in 1975. S.G.A. Scientific, Inc.,
of Bloomfield, New Jersey, received an order through its Boston office on
January 31, 1978, for two kilograms of phenyl 2-propanone (P2P), six
kilograms of methylamine, $2800-worth of additional chemicals, laboratory
equipment and cutting materials "which can be used in the clandestine
manufacture of methamphetamine." The purchase order had been placed by
W.C.I. Laboratories-The Wyvern Co., located at 639 Massachusetts Ave.,
Room 301, Cambridge, Massachusetts. On March 8, 1978, and April 12, 1978,
Agent Crowe observed appellant accept delivery of the S.G.A. order in two
installments at the building at 639 Massachusetts Ave. Also, on April 12,
appellant was seen opening the boxes that had just arrived and washing
glassware inside his office. In the middle of the afternoon on the same day, he
was seen leaving the lab and driving around Cambridge in a suspicious manner:
circling the same block three times, watching in the rear view mirror, making
an abrupt U-turn, and moving at five miles per hour. Although periodic
surveillance was continued for the next week, no activity at all was observed at
the Wyvern Co. laboratory.
Our inquiry into whether or not the affidavit is sufficient for a finding of
probable cause to issue a search warrant is guided by certain well-settled
principles. The standard for probable cause is only the probability of criminal
activity, not a prima facie showing of such. Spinelli v. United States, 393 U.S.
410, 419, 89 S.Ct. 584, 590, 21 L.Ed.2d 637 (1969); United States v. Ellsworth,
647 F.2d 957, 964 (9th Cir. 1981); United States v. Melvin, 596 F.2d 492, 495
(1st Cir.), cert. denied, 444 U.S. 837, 100 S.Ct. 73, 62 L.Ed.2d 48 (1979). The
evidence need only be sufficient to persuade a person of reasonable caution to
believe that a crime is being or has been committed. Rosencranz v. United
States, 356 F.2d 310, 314 (1st Cir. 1966). See Carroll v. United States, 267 U.S.
132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543 (1925). Although the evidence
sufficient for probable cause must be more than what amounts to a mere
suspicion, it is considerably less than what is required for a conviction of guilt.
United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 745, 13 L.Ed.2d
684 (1965); United States v. Howe, 591 F.2d 454, 457 (8th Cir.), cert. denied,
441 U.S. 963, 99 S.Ct. 2411, 60 L.Ed.2d 1069 (1979); United States v. Welebir,
498 F.2d 346, 349 (4th Cir. 1974). The issuing magistrate is entitled to draw
reasonable inferences from the facts in the affidavit, United States v. Jackstadt,
617 F.2d 12, 14 (2d Cir.), cert. denied, 445 U.S. 966, 100 S.Ct. 1656, 64
L.Ed.2d 242 (1980), 449 U.S. 1084, 101 S.Ct. 870, 66 L.Ed.2d 808 (1981);
Rosencranz v. United States, supra, and once he has done so and found
probable cause, "the courts should not invalidate the warrant by interpreting the
affidavit in a hypertechnical, rather than a commonsense, manner." United
States v. Ventresca, 380 U.S. at 109, 85 S.Ct. at 746.
We believe that, from the facts and circumstances appearing in the affidavit and
the reasonable inferences therefrom, the magistrate reasonably concluded that
the crime of illicit manufacture of a controlled substance was probably being
committed at the Wyvern Co. lab. The first fact contributing to such a
conclusion was the order placed to S.G.A. Scientific, Inc., for numerous
chemicals known to be ingredients of methamphetamine, including two, P2P
and methylamine, which in combination can only produce methamphetamine.
A strong inference that they are being combined arises from the fact that they
were obtained at the same time. United States v. Anton, 633 F.2d 1252, 1254
(7th Cir. 1980), cert. denied, 449 U.S. 1084, 101 S.Ct. 870, 66 L.Ed.2d 808
(1981). "When the possible combinations of these chemicals includes an end
product which is an illegal substance, it is reasonable to infer that manufacture
of such a substance is taking place." Id. at 1254.
Appellant singles out some of these observed events and asserts possible
innocent explanations for them. We do not deny that individual facts averred in
the affidavit may be capable of noncriminal explanation. But, as stated in
United States v. Patterson, 492 F.2d 995 (9th Cir.), cert. denied, 419 U.S. 846,
95 S.Ct. 82, 42 L.Ed.2d 75 (1974), where the court found probable cause to
support a warrantless search, "(t)he succession of superficially innocent events
had proceeded to the point where a prudent man could say to himself that an
innocent course of conduct was substantially less likely than a criminal one."
Id. at 997. See United States v. Martin, 509 F.2d 1211, 1213 (9th Cir.), cert.
denied, 421 U.S. 967, 95 S.Ct. 1958, 44 L.Ed.2d 455 (1975). In Patterson the
"prudent man" whose conclusion regarding probable cause was upheld was "an
experienced border agent familiar with the methods employed by smugglers."
Id. at 997. In our case the observations and opinions of experienced DEA
personnel familiar with the methods of operators of clandestine laboratories
were evaluated by a neutral magistrate, whose probable cause determination is
itself a substantial factor in our review and entitled to great deference by us.
Spinelli v. United States, 393 U.S. at 419, 89 S.Ct. at 590; United States v.
Jackstadt, 617 F.2d at 13; United States v. Fried, 576 F.2d 787, 791 (9th Cir.),
cert. denied, 439 U.S. 895, 99 S.Ct. 255, 58 L.Ed.2d 241 (1978); Rosencranz v.
United States, 356 F.2d at 314.
Appellant next claims that, even if there was probable cause to believe that
methamphetamine was being manufactured at the Wyvern laboratory, the
affidavit does not support probable cause to believe that such manufacture was
illegal. Specifically, his argument is that the affidavit's failure to state that the
lab was not licensed to manufacture the drug is fatal. This particular ground was
not raised in appellant's motion to suppress in the district court. Issues not
addressed to the district court will not be considered by this court in the first
instance except in extraordinary circumstances not present here. Needleman v.
Bohlen, 602 F.2d 1, 4 (1st Cir. 1979); Johnston v. Holiday Inns, Inc., 595 F.2d
890, 894 (1st Cir. 1979). Since this ground was not pursued in his motion to
suppress below, appellant may not raise it on appeal. United States v. One
Clipper Bow Ketch NISKU, 548 F.2d 8, 10 n.3 (1st Cir. 1977).3 II. The Charge
11
In the second line of attack on his conviction appellant argues that the trial
court's charge to the jury on reasonable doubt constituted reversible error. He
challenges the following instructions:
14
15
1980).4 Ever since the Supreme Court indicated its displeasure with this
language in Holland v. United States, 348 U.S. 121, 140, 75 S.Ct. 127, 139, 99
L.Ed. 150 (1954), there has been consistent criticism of the "willing to act"
instruction; the courts have indicated a preference for the phrase "hesitate to
act." See United States v. Gordon, supra; United States v. Robinson, 546 F.2d
309, 313-14 (9th Cir. 1976), cert. denied, 430 U.S. 918, 97 S.Ct. 1333, 51
L.Ed.2d 596 (1977); United States v. Leaphart, 513 F.2d 747, 750 (10th Cir.
1975); United States v. Richardson, 504 F.2d 357, 361 (5th Cir. 1974), cert.
denied, 420 U.S. 978, 95 S.Ct. 1406, 43 L.Ed.2d 659 (1975); United States v.
Emalfarb, 484 F.2d 787, 790-91 (6th Cir.), cert. denied, 414 U.S. 1064, 94 S.Ct.
571, 38 L.Ed.2d 469 (1973).5 In none of these cases, however, did the court
reverse the conviction because, notwithstanding the improper "willing to act"
portion, the charge as a whole was found to adequately convey the meaning of
reasonable doubt. See Holland v. United States, 348 U.S. at 140, 75 S.Ct. at
139.
16
We have also noted that there has been criticism of comparing the reasonable
doubt standard with the process employed by a juror in making important
decisions in his or her own life. See Dunn v. Perrin, 570 F.2d 21, 24 (1st Cir.),
cert. denied, 437 U.S. 910, 98 S.Ct. 3102, 57 L.Ed.2d 1141 (1978); Scurry v.
United States, 347 F.2d 468, 470 (D.C. Cir. 1965), cert. denied, 389 U.S. 883,
88 S.Ct. 139, 19 L.Ed.2d 179 (1967). Although we are mindful of the potential
this portion of the instruction has for impermissibly reducing the government's
burden of proof, Dunn v. Perrin, supra, this language must also be read in the
context of the charge as a whole. 570 F.2d at 25. See Scurry v. United States,
supra.
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18
19
20
The charge at issue here is not like the one we condemned in Dunn v. Perrin
where reasonable doubt was improperly explained to the jury three times. 570
F.2d at 25. The trial judge here instructed, "When we talk about a reasonable
doubt, we mean a doubt based upon reason and common sense, the kind of
doubt that would make a reasonable person hesitate to act." Furthermore, after
the "moral certainty" phraseology, he advised the jury, "A defendant is never to
be convicted upon mere suspicion or conjecture. If the evidence in the case
permits two conclusions, one of guilt and one of innocence, then the jury
should, of course, come to the conclusion of innocence(.)" Under the
circumstances, we believe that the reasonable doubt charge as a whole was not
infirm. We emphasize, however, in light of DeVincent, Indorato, and ArizaIbarra, that in the future district courts should eschew "moral certainty"
phraseology.
21
Affirmed.
APPENDIX
AFFIDAVIT
22
23
1. On May 13, 1975 the Wyvern Co. was incorporated in the district of
Massachusetts pursuant to Massachusetts law.
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25
27
5. On April 12, 1978, I observed Daniel Isaac Drake accept the six kilograms
of methylamine as well as other assorted chemicals and laboratory equipment
listed on Invoice No. 4902, at the front entrance of 639 Massachusetts Avenue,
Cambridge, Massachusetts.
28
6. On April 12, 1978, Daniel Drake was observed inside the office of W. C. I.
Laboratories, the Wyvern Co. washing glassware, and opening the boxes
delivered from S. G. A. Scientific Inc., 735 Broad Street, Bloomfield, New
Jersey.
29
7. Drake was observed leaving the laboratory at approximately 2:25 P.M. after
entering a brown 1978 Chrysler New Yorker license no. 150 B.B.W. he drove
in a northerly direction to Bishop-Allen drive and turned east where he then
turned right on Columbia Street heading south to Massachusetts Avenue. He
turned right on to Massachusetts Avenue and proceeded to circle the same City
block two additional times.
30
8. After entering Massachusetts Avenue, Drake turned right and headed West
toward Harvard Square then abruptly made a U turn on Massachusetts Avenue
heading East toward Boston traveling at approximately 5 m.p.h. and was
observed watching through his rear view mirror. Surveillance was then
stopped.
31
9. From April 12, 1978 through April 19, 1978 periodic surveillance was
conducted of W. C. I. Laboratories, the Wyvern Co. by DEA agents and no
activity at the laboratory was observed.
32
10. On April 28, 1978 at 12:30 a. m. Drake was observed by me to enter 639
Massachusetts Avenue, the commercial building where W. C. I. Laboratories,
the Wyvern Co. is located. At 8:30 a. m., I then entered 639 Massachusetts
Avenue and observed glassware on the chemistry work bench which is situated
inside the W. C. I. Laboratories, the Wyvern Co., Room 301.
33
11. At approximately 9:30 a. m., Special Agent Albert Duffy saw the door to
Room 301 open and took several photographs of the interior to Room 301
which displayed the chemistry bench and assorted glassware, tubing and what
appeared to be chemicals which were located on the bench.
34
12. At 12:00 p. m. on April 28, 1978 I spoke with D.E.A. forensic chemist J.
Fasanello who reviewed the above-mentioned facts and circumstances
including the purchases of the chemicals Phenyl 2-propanone and methylamine
and the laboratory equipment described above. The chemist has stated to me
that the necessary chemicals which have direct application in the synthesis of
amphetamine or methamphetamine are Phenyl 2-propanone, Methylamine,
Formic Acid, Benzene, Sodium Hydroxide, Sodium Sulfate, Ammonium
Hydroxide, Ether, Methanol, Sulfuric acid, Potassium Hydroxide, and carbon
decolorizing, which were purchased by Daniel I. Drake and the W. C. I.
Laboratories, the Wyvern Co. Inc. Furthermore, that Lactose and Dextrose
which was also purchased by Drake are common cutting materials in the
manufacturing of methamphetamine. D. E. A. Forensic Chemist J. Fasanello
has stated that he has been a forensic chemist for eight years. He has a B. S.
degree in chemistry. That he has been the Clandestine Laboratory Coordinator
for the Northeast Regional Laboratory of DEA for four and one half years. He
has been involved in the synthesis of drugs such as Amphetamine and
Methamphetamine. He has also trained state and federal agents in the seizure of
laboratories. He has been involved in the seizure of approximately 40-50
Clandestine Laboratories, 50 percent involving either Amphetamine or
Methamphetamine.
35
13. On Sunday, April 30, 1978 Special Agent Duffy and detective Gilliam,
Cambridge, Massachusetts Police Department observed Drake enter room 301
the W. C. I. Laboratories, the Wyvern Co. of 639 Massachusetts Avenue,
Cambridge, Massachusetts at about 6:00 a. m. Drake remained inside room 301
until 7:55 p. m. on April 30, 1978. At this time I observed Drake leaving room
301 and was also able to observe inside the laboratory. I saw a tri neck flask
with stoppers in all three necks along with other lab equipment. After
describing these observations to DEA Chemist J. Fasanello, he stated that in his
expert opinion, based on all observations related to him, Drake had only one
more step in the process to take the amphetamine free base to its crystal form.
36
14. On May 1, 1978, I spoke to J. Fasanello DEA Forensic Chemist who stated
to me that in his opinion and experience (P2P) Phenyl 2-propanone and
methylamine in combination can only be used to manufacture
methamphetamine, a controlled substance.
JOSEPH CROWE,
37
Special Agent, DEA
38
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U.S. Magistrate.
The second affidavit also states that Agent Crowe had at that time been
employed by the DEA for eight years
We do note, however, that were we to reach this issue on the merits we would
still uphold the validity of the warrant. The omission in an affidavit of an
averment as to the lack of a license will not invalidate a search warrant where
the facts set forth in the affidavit otherwise support an inference of the
reasonable probability of criminal activity. United States v. Howe, 591 F.2d
454, 457-458 (8th Cir.), cert. denied, 441 U.S. 963, 99 S.Ct. 2411, 60 L.Ed.2d
1069 (1979). Cf. Commonwealth v. Marra, --- Mass.App.Ct. ---, 426 N.E.2d
1180 (1981) (search warrant invalid where, besides no averment of lack of
license to store dynamite, no information in affidavit to indicate storage was
under such circumstances as might show probability that it was unlicensed).
Using a commonsense rather than hypertechnical approach, as required under
United States v. Ventresca, 380 U.S. 102, 109, 85 S.Ct. 741, 746, 13 L.Ed.2d
684 (1965), we think a strong inference can be drawn from the information in
the affidavit that the manufacture of methamphetamine at Wyvern was
probably illegal. Appellant's evasive driving and subsequent suspension of
activity at the laboratory, both occurring immediately after completed delivery
of the chemicals, and his unusual working hours add up to the reasonable
probability of illegal activity
4
That case was decided, however, after the charge in the case at bar was given
We note that the charge in this case is less objectionable than the one in prior
cases. It is couched in the negative as a definition of reasonable doubt rather
than as an affirmative definition of proof beyond a reasonable doubt and it
makes clear that the jury must base its decision on the evidence in the case