Appeal from the United States District Court for the Eastern District of California. D.C. No. CR-89-00032-REC. Robert E. Coyle, Chief District Judge, Presiding
Before: Schroeder, Pregerson and T.g. Nelson, Circuit Judges.
This case arises from the arrest and prosecution of a member of a methamphetamine production and distribution ring. Appellant Jerome Sherman Stanley was convicted of conspiracy to manufacture and distribute methamphetamine, 21 U.S.C. §§ 846, 841(a)(1); manufacturing and aiding and abetting the manufacture of methamphetamine, 21 U.S.C. § 841(a)(1); possession of methamphetamine with intent to distribute, 21 U.S.C. § 841(a)(1); use of a firearm in the commission of a felony, 18 U.S.C. § 924(c)(1); possession of an unregistered firearm, 26 U.S.C. § 5861(d); and being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1). The district court sentenced Stanley to an aggregate term of 420 months in prison. Stanley appeals the conviction and sentences.*fn1 We affirm the convictions and remand the case for findings of fact with regard to the presentence report.
Stanley argues that the district court erred in denying his motion to suppress evidence seized at the 1401 North "C" Street premises because the warrant did not adequately describe the place to be searched with particularity. He claims that a warrant which describes an entire building is invalid when cause was shown for searching only one section of the building.
Stanley's challenge is more properly characterized as one of probable cause. See United States v. Whitney, 633 F.2d 902, 907 (9th Cir. 1980) ("the command to search can never include more than is covered by the showing of probable cause to search"), cert. denied, 450 U.S. 1004 (1981). A magistrate's determination that there is probable cause to issue a search warrant may not be reversed unless clearly erroneous. United States v. McQuisten, 795 F.2d 858, 861 (9th Cir. 1986). The warrant is valid where the officers are unaware of the multi-unit character of the premises. United States v. Whitney, 633 F.2d at 907 n.3; United States v. Gilman, 684 F.2d 616, 618 (9th Cir. 1982).
Here, the district court found that the officers executing the warrant were unaware of the multi-unit character of the premises, and that finding is not clearly erroneous. Therefore, the magistrate properly issued the search warrant.
2. Exigent Circumstances for Entry
Stanley next argues that the district court erred in concluding that the failure of police to await refusal of admittance before entering the premises was excused by exigent circumstances.
A district court's finding of exigent circumstances is reviewed de novo. United States v. McConney, 728 F.2d 1195, 1205 (9th Cir.) (en banc), cert. denied, 469 U.S. 824 (1984).
Federal law provides that an officer may enter a house to execute a search warrant without permission of the occupants if he gives notice of his authority and purpose and is refused admission. 18 U.S.C. § 3109. In the present case, the entries were preceded by announcements of the officers' authority and purpose. Stanley's claimed violation, therefore, arises from the officers' failure to wait for refusal of admittance.
The police need not wait to be refused admission if exigent circumstances exist. Whitney, 633 F.2d at 908. Exigent circumstances exist if there is likelihood that occupants will attempt to destroy evidence if given adequate opportunity. Id. at 909.
Here there was a likelihood that Stanley would destroy the evidence because the officers seeking entry were visible in advance to the occupants of the building. Accordingly, there was a sufficient showing of exigency to justify the officers' failure to wait for refusal of admittance. Additionally, the exigency which authorized entry to the business portion of the premises also authorized entry to the residential portion of the premises. United States v. Bustamante-Gamez, 488 F.2d 4 (9th Cir. 1973), cert. denied, 416 U.S. 970 (1974).
3. Motion For Continuance
Stanley contends that the trial court erred in denying his motion for a continuance. When Stanley's defense counsel was appointed a month earlier, he assured the court he would be ready for trial and that he would make no request for a continuance. However, one day before the trial was to commence, defense counsel moved for a continuance claiming the case was more complex than he had anticipated, and that he needed time to interview witnesses and obtain the services of expert witnesses.
A district court's decision to grant or deny a motion for a continuance is reviewed for an abuse of discretion. United States v. Cuveas, 847 F.2d 1417, 1428 (9th Cir. 1988), cert. denied, 489 U.S. 1012 (1989). Fairness and due process concerns require that the accused be granted a continuance in order to prepare an adequate defense. United States v. Bogard, 846 F.2d 563, 566 (9th Cir. 1988). Abuse of discretion is established if a defendant can show that the denial of ...