United States v. Kenneth Martin, United States of America v. James E. Rathbun

(dissenting):

I respectfully dissent. Although I agree with my Brothers Duniway and Smith that the police observations did not amount to an illegal search and seizure, I find that the sightings contributed very little to the Government’s attempt to establish probable cause. The four-hour surveillance of the house which revealed the clinking of glasses, the movement of laboratory equipment- and boxes, and the smell of ether and acetone, proves nothing more than that the Martins may have been operating some type of laboratory in their home. 1 *1215 But such an inference was already justified by the mere fact that Martin picked up a quantity of laboratory supplies and unloaded them at his house.

The only significant sighting by the police was the jug containing an orange liquid with a white precipitate. The jug, however, no more establishes probable cause than does the mere evidence of Martin’s purchase of chemicals and equipment. Although a colored liquid with a light precipitate is an element common to a methamphetamine laboratory, it is equally true that countless chemical processes result at some point in such a liquid.

Even considering the colored liquid evidence in…

Martin was convicted under separate counts charging manufacturing and possessing a controlled substance (methamphetamine) with intent to distribute it, in violation of 21 U.S.C. § 841 (a)(1). Rathbun was convicted of possession of heroin, in violation of 21 U.S.C. § 844 . We affirm.

1. Statement of Facts.

On September 25, 1973, an employee of Central Scientific Co. (“CSC”), a scientific supply company in Santa Clara, California, about 40 miles from San Francisco, notified the San Francisco office of the Drug Enforcement Administration (“DEA”) that a person identifying himself as Kenneth Martin and as a representative of San Francisco-based Nevada Pacific Specialties (“NPS”), using an NPS purchase order, personally placed an order for various articles of glassware and chemicals. 1 Items ordered by Martin included chemical glassware and substantial quantities of activated charcoal, acetone, isopropyl alcohol, and vacuum oil.

The next day, DEA agents watched CSC and saw Martin sign in his own name and pay cash for the purchases, to which had been added a quantity of ether anhydrous. Martin had arrived driving a panel truck. The agents learned that the truck was registered…

509 F.2d 1211 UNITED STATES of America, Plaintiff-Appellee, v. Kenneth MARTIN, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. James E. RATHBUN, Defendant-Appellant. Nos. 74--1712, 74--1713. United States Court of Appeals, Ninth Circuit. Jan. 20, 1975. Certiorari Denied May 12, 1975. See 95 S.Ct. 1958 . John W. Keker (argued), San Francisco, Cal., for defendants-appellants. Chester G. Moore, Asst. U.S. Atty. (argued), San Francisco, Cal., for plaintiff-appellee. Before DUNIWAY and CHOY, Circuit Judges, and SMITH, * District Judge. OPINION DUNIWAY, Circuit Judge. 1 Martin was convicted under separate counts charging manufacturing and possessing a controlled substance (metham-phetamine) with intent to distribute it, in violation of 21 U.S.C. § 841 (a)(1). Rathbun was convicted of possession of heroin, in violation of 21 U.S.C. § 844 . We affirm. 2 1. Statement of Facts. 3 On September 25, 1973, an employee of Central Scientific Co. ('CSC'), a scientific supply company in Santa Clara, California, about 40 miles from San Francisco, notified the San Francisco office of the Drug Enforcement Administration ('DEA') that a person identifying himself as…