United States v. Lee S. Leichtling

Eighth Circuit

United States v. Lee S. Leichtling

684 F.2d 553

CourtCourt of Appeals for the Eighth Circuit

DecidedAugust 10, 1982

Docket81-2252

StatusPublished

Cited by31 cases

This text of 684 F.2d 553 (United States v. Lee S. Leichtling) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

United States v. Lee S. Leichtling, 684 F.2d 553 (8th Cir. 1982).

Pincite

Opinion

HENLEY, Senior Circuit Judge.

Lee S. Leichtling has appealed his conviction in the district court 1 on six counts of obtaining a controlled substance by fraud, in violation of 21 U.S.C. § 843(a)(3), and one count of possession of a Schedule II controlled substance with intent to distribute, in violation of 21 U.S.C. § 843(a)(1). The gravamen of Leichtling’s contentions on appeal is that twenty-nine of the government’s exhibits (described in the Appendix hereto) were improperly admitted into evidence in violation of his fourth amendment rights. For reasons to be stated, we affirm.

In early July, 1981 federal Drug Enforcement Administration (DEA) agents applied to a federal magistrate for a warrant to search the residence of appellant, a thirty-seven year old dentist. This application was accompanied by an affidavit; however, none of the agents applying for the warrant testified before the magistrate. The affidavit stated that DEA agents had received information regarding a series of purchases of pharmaceutical cocaine by the Rock Road Pharmacy in DeSoto, Missouri, and that further investigation had revealed that a shipment of two bottles of cocaine-hydrochloride was to be delivered to that pharmacy on May 22, 1981. According to the affidavit, surveillance initiated by the officers revealed an individual, subsequently identified as Dr. Leichtling, leaving the pharmacy with two similar bottles, which had been placed in a brown plastic case. This individual entered a blue Mercedes convertible and drove “in the direction of the residence which is the subject of this search warrant.” The affidavit also recited that appellant was observed on July 10, 1981 exiting the pharmacy with two one-ounce bottles, which had apparently been placed in the same plastic case, 2 and that he entered his automobile and “proceeded to drive to the above-described residence.” The affidavit further recited that Leicht-ling had never been authorized or registered to possess, distribute or dispense Schedule II substances.

The warrant was issued, and at approximately 8:15 a. m. on July 17, 1981 law enforcement officers arrived at Dr. Leicht-ling’s home. They were greeted at the door by the appellant. The officers introduced themselves and asked if they could discuss with him the cocaine purchases. The doctor admitted them to his house, and he was immediately thereafter advised of his Miranda rights. 3 Appellant was asked *555 if he used cocaine in his practice, and he stated that he mixed a 4-6% solution in tap water at home, to be administered during root canal work. He also stated that he mixed the solution at home for fear that someone would break into his office and take the cocaine. When asked if he would surrender the cocaine, he assented and allowed an agent to accompany him to his bedroom, where he opened a dresser drawer and removed two bottles of cocaine. One of these bottles had been opened, and about one-quarter of the contents of that bottle was missing.

Appellant was subsequently placed under arrest and advised that the officers had a search warrant. A search of the house was made, and other evidence was seized. The officers also seized appellant’s automobile, which was parked outside his house. After seizure, but before impoundment, the vehicle was searched and a scale and a bottle labeled “cocaine hydrochloride” were taken from the trunk of the car.

Evidence was also obtained from appellant’s office on the same day. The DEA agents who went to that office had in their possession an administrative search warrant for the doctor’s records. However, they also requested samples of his mouthwash solutions, and these samples were given to them by appellant’s dental assistant.1 ** 4

Leichtling’s primary contention on appeal is that the warrant for the search of his residence was defective and that all fruits of that search should therefore have been suppressed. He bases this contention on the fact that the affidavit fails to establish that the DEA agents saw him enter his house.

The district court found that at the time the warrant was applied for, the issuing magistrate relied solely on the affidavit which was presented to him, and that no evidence was adduced before the magistrate. In these circumstances, only that information which is found within the four corners of the affidavit may be considered in determining the existence of probable cause. See United States v. Anderson, 453 F.2d 174, 175 (9th Cir. 1971); United States v. Pinkerman, 374 F.2d 988, 989 (4th Cir. 1967); Gillespie v. United States, 368 F.2d 1, 3 (8th Cir. 1966).

In reviewing the validity of the warrant, we are guided by certain well established general principles. The search of Leichtling’s house was sanctioned by a magistrate’s issuance of a search warrant based upon a finding of probable cause. “Courts evince a strong preference • for searches made pursuant to warrant, and, in some instances, may sustain them where warrantless searches based on a police officer’s evaluation of probable cause might fail.” United States v. Brown, 584 F.2d 252, 256 (8th Cir. 1978), cert. denied, 440 U.S. 910, 99 S.Ct. 1220, 59 L.Ed.2d 458 (1979); United States v. Christenson, 549 F.2d 53, 55 (8th Cir. 1977). See United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 745, 13 L.Ed.2d 684 (1965); United States v. McGlynn, 671 F.2d 1140, 1146 (8th Cir. 1982). Accordingly, reviewing courts should interpret affidavits for search warrants in a commonsense and realistic fashion, and deference is to be accorded an issuing magistrate’s determination of probable cause. Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 590, 21 L.Ed.2d 637 (1969); United States v. Brown, 584 F.2d at 256. “[I]n doubtful or marginal cases, the resolution of the Fourth Amendment question should be determined to a large extent by the preference accorded to searches based upon warrants.” United States v. Christenson, 549 F.2d at 55. See United States v. Ventresca, 380 U.S. at 109, 85 S.Ct. at 746; United States v. Brown, 584 F.2d at 256, and cases cited therein.

Free access — add to your briefcase to read the full text and ask questions with AI