United States v. Douglas Ellis Johnson

641 F.2d 652 UNITED STATES of America, Plaintiff-Appellee, v. Douglas Ellis JOHNSON, Defendant-Appellant. No. 79-1358. United States Court of Appeals, Ninth Circuit. July 14, 1980. As Amended on Denial of Rehearing and Rehearing En Banc Jan. 7, 1981. Michael D. Stein, San Diego, Cal., for defendant-appellant. Bruce R. Castetter, Asst. U. S. Atty., Michael H. Walsh, U. S. Atty., San Diego, Cal., for plaintiff-appellee. Appeal from the United States District Court for the Southern District of California. Before CHOY, ANDERSON and PREGERSON, Circuit Judges. J. BLAINE ANDERSON, Circuit Judge: 1 Johnson appeals his conviction on one count of conspiracy to possess a controlled substance, in violation of 21 U.S.C. § 846 , and on one count of possession of a controlled substance with intent to distribute, in violation of 21 U.S.C. § 841 (a)(1). The sole error which Johnson raises on appeal is the trial court's denial of his motion to suppress certain items seized at his home. We affirm. I. BACKGROUND 2 On September 13, 1978, Special Agent Terry Lucchesi, a San Diego police officer who was assigned to the San Diego Narcotic Task Force, contacted Assistant United States Attorney…

dissenting.

I dissent for the same reasons expressed in my dissent in United States v. Vasser, 648 F.2d 507 (9th Cir. 1980). See also United States v. Shorter, 600 F.2d 585 (6th Cir. 1979).

Johnson appeals his conviction on one count of conspiracy to possess a controlled substance, in violation of 21 U.S.C. § 846 , and on one count of possession of a controlled substance with intent to distribute, in violation of 21 U.S.C. § 841 (a)(1). The sole error which Johnson raises on appeal is the trial court’s denial of his motion to suppress certain items seized at his home. We affirm.

I. BACKGROUND

On September 13, 1978, Special Agent Terry Lucchesi, a San Diego police officer who was assigned to the San Diego Narcot *654 ic Task Force, contacted Assistant United States Attorney Stephen Peterson and asked permission to obtain a federal search warrant to search a residence located at 2405 Old Colony Road, Vista, California. Mr. Peterson then contacted United States Magistrate Edward A. Infante to request a telephonic search warrant. Magistrate Infante asked Mr. Peterson where he could get in touch with Agent Lucehesi, and then called Agent Lucehesi at a public telephone. Agent Lucehesi recited the facts which he felt gave rise to probable cause to search the residence, and was sworn immediately after giving the oral affidavit. Agent Lucchesi filled out the duplicate…