Opinion
No. 91-2275.
January 21, 1993.
Charles S. Aspinwall, Albuquerque, NM, for defendant-appellant.
Tara C. Neda, Asst. U.S. Atty. (Don J. Svet, U.S. Atty. with her on the brief), Albuquerque, NM, for plaintiff-appellee.
Appeal from the United States District Court for the District of New Mexico.
Before BALDOCK, SETH and KELLY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The cause therefore is ordered submitted without oral argument.
On February 7, 1991, officers executed a search warrant for the residence of Robert Brown. A methamphetamine laboratory was discovered and Defendant-appellant Michael Hugaboom, who was present at the time, was arrested. The facts of the case are more fully set forth in United States v. Brown, 984 F.2d 1074 (10th Cir. 1992).
Mr. Hugaboom was tried along with Robert Brown and Howard Beard and convicted of conspiracy to manufacture methamphetamine in violation of 21 U.S.C. § 846, 841(a)(1), and 841(b)(1)(C). Mr. Hugaboom appeals, arguing that no probable cause existed to support his arrest and evidence seized as a result of that arrest should have been suppressed. We affirm.
Defendant argues that his arrest was predicated on "mere presence." We disagree. Officers were executing a valid warrant when they encountered the very strong odor associated with a methamphetamine laboratory. United States v. Brown, 984 F.2d 1074. During the execution of a previous search warrant at this residence, Mr. Hugaboom attempted to escape the scene, but was apprehended. Officers testified that all those present, including Defendant, had the same smell of a methamphetamine laboratory. Drug paraphernalia as well as several packets of a substance suspected to be methamphetamine were found at the residence.
Probable cause exists "where the facts and circumstances known to the police are sufficient in themselves to warrant a prudent officer in the belief that an offense has been or is being committed." United States v. Borrelli, 621 F.2d 1092, 1095 (10th Cir.), cert. denied, 449 U.S. 956, 101 S.Ct. 365, 66 L.Ed.2d 222 (1980) (citing McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967)). We hold that the circumstances described here are sufficient to establish probable cause to arrest. See United States v. Lillard, 929 F.2d 500, 502 (9th Cir. 1991) (distinctive smell of methamphetamine together with other suspicious factors gave probable cause to arrest).
AFFIRMED.
I cannot agree with the majority opinion in this appeal. Thus, as I discussed in my dissent in United States v. Brown, 984 F.2d 1074 (10th Cir.), the officers were not executing a valid warrant when they detected the methamphetamine laboratory. The warrant was based on a prior warrant which contained language and was executed in a manner that converted it to a general warrant. Further, the warrant at issue here contained similar language. Both warrants were overbroad and thus did not conform to the Fourth Amendment's particularity requirement. For the reasons stated in my dissent in Brown, I would suppress the evidence and reverse the conviction. Accordingly, I dissent.