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United States v. Comstock

filed: November 2, 1992.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
ALBERT LEROY COMSTOCK, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the District of Oregon. D.C. No. CR 90-60082-3 REJ. Robert E. Jones, District Judge, Presiding

Before: Beezer, Noonan and Trott, Circuit Judges.

MEMORANDUM

Following the district court's denial of his motion to suppress, Albert Comstock conditionally entered a guilty plea to the indictment which charged conspiracy to manufacture and possess marijuana with intent to distribute. On appeal, he argues that the affidavit filed in support of the search warrant did not supply probable cause and that the good faith exception is inapplicable. Because we hold the magistrate had a substantial basis for concluding the affidavit established probable cause, we affirm.

I

In September 1990, the government applied for warrants to search four locations, including 784 Covered Bridge Road, Rogue River, Oregon. The address is Albert L. Comstock's residence. In support of its application, the government filed a 29-page affidavit.

The affidavit states that federal officers had obtained information that a marijuana growing operation was operating near Rogue River. The affidavit also states that the warehouse on Comstock's property had been using an extremely high amount of electricity over an eleven-month period. Although the affidavit does not state when Comstock occupied the property, it does note that he acquired the electricity meter for the warehouse.

The affidavit further reports that "the driveway to the residence was secured with a locked metal stock gate, with 'No Trespassing' and 'No Hunting' signs showing the names of BERT and PENNY COMSTOCK on a sign along with a telephone number." Agents saw no indication on the property of a commercial business which would account for the high power usage. Additionally, as reported in the affidavit, Comstock's utility records indicate that he is retired.

Finally, the affidavit reports that Comstock had been seen frequenting the premises of a suspected marijuana grower, and describes a brief meeting between several suspected marijuana growers and a man who matched Comstock's general description and drove Comstock's car.

The magistrate Judge issued the requested search warrants. Upon searching the premises at 784 Covered Bridge Road, law enforcement officers found evidence of a marijuana growing operation. Following his indictment for conspiracy to manufacture and possess marijuana with intent to distribute, Comstock moved to suppress the evidence seized during the warrant-authorized search.

Ruling from the bench, the district court denied Comstock's motion to suppress. The court held the affidavit supplied sufficient probable cause to support issuance of the warrant. Alternatively, the district court held that even if the affidavit did not supply sufficient probable cause, "any officer issuing the warrant would have a good faith basis to rely on the validity of the warrant." Comstock subsequently entered a conditional guilty plea and was sentenced to 60 months in prison.

II

We review de novo the district court's decision to deny Comstock's motion to suppress. United States v. Ramos, 923 F.2d 1346, 1350 (9th Cir. 1991).

The Warrant Clause of the Fourth Amendment provides:

No Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, ...


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