USA v CERVANTES, 9850722
U.S. 9th Circuit Court of Appeals
USA v CERVANTES
9850722
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 98-50722
v. D.C. No.
CR 98-00012 GLT
HECTOR MORALES CERVANTES, aka
Benito C. Carillo, OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Gary L. Taylor, District Judge, Presiding
Argued and Submitted
November 4, 1999--Pasadena, California
Filed June 12, 2000
Before: James R. Browning and A. Wallace Tashima,
Circuit Judges, and Robert E. Jones,* District Judge.
Opinion by Judge Tashima
sequent discovery of a methamphetamine lab was justified by
the emergency doctrine.
Police Officer John Yergler responded to a call to contact
firefighters at an apartment building. As Officer Yergler
approached a neighboring apartment, he smelled a strong
chemical odor from approximately 20 feet away. Officer
Wasinger arrived in response to Yergler's call for backup.
From his police training, Officer Yergler identified the smell
as consistent with methamphetamine production and also
knew that chemicals used in methamphetamine labs are
explosive. Officer Yergler saw two men sitting on a couch in
the neighboring apartment, saw a large pot on the floor, and
very little furniture. Concerned about the chemical odor, and
fearing that many of the apartment building's tenants would
be injured if an explosion occurred, Officers Yergler and
Wasinger entered the apartment, and all three suspects ran
from the apartment. Officer Yergler apprehended appellant
Hector Cervantes in front of the apartment building and then
reentered the apartment to search for an unattended drug lab
or other suspects. He found a substance he believed to be
methamphetamine, then secured the premises, opened win-
dows to air out the apartment, and asked the manager to help
evacuate the tenants from the building and to turn off any
open flames. When Investigator Michael Reynolds of the Spe-
cial Investigations Unit arrived, he searched the apartment,
then applied for a search warrant, which was granted a few
hours later. Upon further searching the apartment, the officers
seized 30 pounds of methamphetamine, cutting agents, a
hydraulic press, iodine, Coleman fuel, and other items that
could be used to make methamphetamine. Upon questioning
the apartment manager, the police learned that Rufino Ver-
gara, not Cervantes, was the leaseholder of the apartment
where the methamphetamine was found, but the manager tes-
tified that Cervantes had paid the rent to her in person three
or four times.
Cervantes was convicted of manufacturing and possessing
with intent to distribute methamphetamine.
Cervantes appealed, contending that the district court erred
by admitting into evidence items seized pursuant to an invalid
search warrant and by denying his motions for acquittal and
a new trial, in which he argued that: (1) there was insufficient
evidence to support his convictions; (2) the government mis-
stated the law during its summation; and (3) the district court
erred in admitting another tenant's testimony.
[1] Generally, the Fourth Amendment prohibits searching
a residence without a warrant unless at the time of the search:
(1) there is probable cause to believe that contraband or evi-
dence of a crime will be found in the residence; and (2) exi-
gent circumstances are present. The searches of the apartment
were legal under the emergency doctrine. The emergency
doctrine provides that if a police officer, while investigating
within the scope necessary to respond to an emergency, dis-
covers evidence of illegal activity, that evidence is admissible
even if there was not probable cause to believe that such evi-
dence would be found.
[2] The Fourth Amendment does not bar police officers
from making warrantless entries and searches when they rea-
sonably believe that a person within is in need of immediate
aid. The need to protect or preserve life or avoid serious
injury is justification for what would be otherwise illegal
absent an exigency or emergency.
[3] In order for the emergency doctrine to apply, the police
must have reasonable grounds to believe that there is an emer-
gency at hand and an immediate need for their assistance for
the protection of life or property; the search must not be pri-
marily motivated by intent to arrest and seize evidence; and,
there must be some reasonable basis, approximating probable
cause, to associate the emergency with the area or place to be
searched.
[4] Absent probable cause, examining a government actor's
motivation for conducting an emergency search provides a
necessary safeguard against pretextual reliance on community
caretaking interests to serve criminal investigation and law
enforcement functions. Thus, under the emergency doctrine,
a search must not be primarily motivated by intent to arrest
and seize evidence.
[5] Under the emergency doctrine, an officer's search must
be limited to only those areas necessary to respond to the per-
ceived emergency.
[6] Given the circumstances, Officer Yergler reasonably
believed that an emergency was at hand and that his assis-
tance was immediately necessary for the protection of life.
[7] The district court's determination that Officer Yergler
was not primarily motivated by the desire to collect evidence
was not clearly erroneous. Officer Yergler's actions after the
search provided evidence that he was primarily motivated by
his concern for the safety of the apartment building's occu-
pants.
[8] Officer Yergler had a reasonable basis to believe that
the noxious chemical odor was coming from the apartment
where the methamphetamine was ultimately discovered. He
did not examine the apartment more thoroughly than was nec-
essary to search for a methamphetamine lab. The searches of
the apartment conducted by Officers Yergler and Wasinger
were legal.
[9] Investigator Reynolds' search of the apartment did not
satisfy the requirements of the emergency doctrine. By the
time Investigator Reynolds entered the apartment, the risk of
explosion had been defused.
[10] The search also was not legal under the traditional test
requiring both probable cause and exigent circumstances. At
the time of the fourth search, there were no exigent circum-
stances present. Although the risk of explosion could have
amounted to exigent circumstances, that risk had been
defused by the time the fourth search occurred. Therefore, the
fourth search was illegal.
[11] After excising Investigator Reynolds' observations,
the warrant application showed that Officers Yergler and
Wasinger: (1) smelled a strong chemical odor outside of
Apartment 3 consistent with methamphetamine production;
(2) were trained to know the smell of methamphetamine pro-
duction; (3) had been present with the police narcotics unit in
previous investigations of operational methamphetamine labs;
(4) saw a large hydraulic press in the apartment; (5) saw a
stainless steel pot on the apartment's kitchen floor, containing
a brown chunky substance they believed was methamphet-
amine; and (6) witnessed the suspects flee the apartment.
[12] Given those facts, the magistrate had a substantial
basis for concluding that there was probable cause to believe
that contraband or evidence of a crime would be found in the
apartment where the methamphetamine was ultimately dis-
covered. Accordingly, the district court did not err in denying
Cervantes' motion to suppress evidence.
[13] A conviction for possession with intent to distribute
methamphetamine requires that the defendant (1) knowingly
(2) possessed methamphetamine (3) with intent to distribute
it. A jury can infer both knowledge and intent from posses-
sion of a large quantity of drugs. Possession may be joint or
individual, and either actual or constructive.
[14] A defendant's mere proximity to a drug, his or her
presence on the property where it is located, and his or her
association with the person who controls it are insufficient to
support a conviction for possession. Evidence of a defen-
dant's dominion over a residence, however, may support an
inference that the defendant controlled contraband found
within that residence.
[15] Given the lack of furniture, large amount of metham-
phetamine, and drug producing equipment, the apartment
where the methamphetamine was ultimately discovered
appeared to have been used exclusively for making and stor-
ing methamphetamine. Cervantes was more than merely pres-
ent at that apartment, he paid the rent, pretended to be the
leaseholder, and opened the door when the police arrived.
These facts could allow a rational jury to have inferred that
Cervantes exercised control over that apartment and the
objects within it.
[16] Viewing the evidence in the light most favorable to the
government, a rational jury could also have convicted Cervan-
tes for manufacturing methamphetamine.
[17] First, there was sufficient evidence from which the
jury could have found that methamphetamine was manufac-
tured in that apartment The police found 30 pounds of
methamphetamine, cutting agents, a hydraulic press, and
packaging materials within the apartment. Also, the govern-
ment offered expert testimony that, at the time of Cervantes'
arrest, that apartment was being used to manufacture metham-
phetamine.
[18] Second, there was sufficient evidence for a rational
jury to have found beyond a reasonable doubt that Cervantes
had knowingly or intentionally manufactured the metham-
phetamine found in the apartment. Cervantes was present dur-
ing the manufacturing process and offered no legitimate
reason for being there. Cervantes' presence in that one-room
apartment reeking with tell-tale indicia of an ongoing drug-
distributing enterprise could rationally have been viewed as a
privilege reserved exclusively for participants. Furthermore,
the evidence showed that Cervantes was the renter of the
apartment, which could have reasonably suggested that he
controlled the activities occurring there, including the
methamphetamine manufacturing. Lastly, he fled the apart-
ment upon the officers' arrival, which the jury could reason-
ably have taken as a sign that he was engaged in the illegal
manufacturing occurring therein. Those facts were sufficient
for a rational jury to convict Cervantes of manufacturing
methamphetamine.
[19] The district court did not abuse its discretion in deny-
ing Cervantes' motion for a new trial, based on the govern-
ment's statements during its closing argument. The
government did not state the jury must infer that Cervantes
possessed the methamphetamine found in the apartment.
Because a defendant's rental payments can reasonably sug-
gest that the defendant possessed drugs found within that
rental property, the government did not misstate the law dur-
ing its closing argument.
[20] Finally, the district court did not abuse its discretion
in admitting the tenant's testimony. Her testimony about a
recurring odor was consistent with the government's theory
that the apartment was being used as a drug lab. That apart-
ment's earlier use as a drug lab was relevant because it
showed a continuing use and made it more probable that that
apartment was being used to manufacture methamphetamine
on the date that Cervantes was arrested. Thus, the tenant's tes-
timony was relevant to the manufacturing charge.
_________________________________________________________________
COUNSEL
Michael Ian Garey, Santa Ana, California, for the defendant-
appellant.
Carmen R. Luege, Assistant United States Attorney, Santa
Ana, California, for the plaintiff-appellee.
_________________________________________________________________
OPINION
TASHIMA, Circuit Judge:
Hector Morales Cervantes appeals from his conviction for
manufacturing and possessing with intent to distribute
methamphetamine, in violation of 21 U.S.C. S 841(a)(1). He
contends that the district court erred by admitting into evi-
dence items seized pursuant to an invalid search warrant and
by denying his motions for acquittal and a new trial. We have
jurisdiction under 28 U.S.C. S 1291, and we affirm.
I. FACTUAL BACKGROUND
On January 7, 1998, Police Officer John Yergler responded
to a call to contact firefighters at an apartment building in
Garden Grove, California. Upon Officer Yergler's arrival at
the scene, a firefighter told him that a tenant in Apartment 6
had complained of a strong chemical odor. The firefighter
said that the fire department had called the police because it
believed there might be a drug lab operating in the building.
As Officer Yergler approached Apartment 6, he smelled a
strong chemical odor from approximately 20 feet away.
Although he could not identify the chemical, Officer Yergler
testified that the odor was similar to a strong solvent, cleaning
agent, or an acetone-based chemical. He also believed the
odor was consistent with methamphetamine production,
which he had been trained to recognize. From his police train-
ing, Officer Yergler also knew that chemicals used in
methamphetamine labs are explosive.
Officer Yergler then went to Apartment 3, which is directly
below Apartment 6, because the chemical odor seemed
stronger outside of Apartment 3 than any other apartment.
Looking through a space below the blinds of a living room
window, he saw two men sitting on a couch. The couch was
the only item of furniture in the room. Officer Yergler also
looked under the kitchen window blinds and saw a man stand-
ing by the kitchen counter and a large pot on the floor. He
then looked through a bedroom window and noticed that there
was no furniture in that room.
Officer Yergler returned to Apartment 6 and entered it with
the permission of the tenant. The tenant had left the apartment
with her infant child because she was afraid of harm from the
fumes. Unable to find the odor's origin within Apartment 6,
Officer Yergler determined that the odor was coming from
Apartment 3 because that was where the odor was the strong-
est. Officer Yergler called for backup and waited until Officer
Wasinger arrived.
Concerned about the chemical odor, and fearing that many
of the apartment building's tenants would be injured if an
explosion occurred, Officer Yergler decided to make contact
with the men in Apartment 3. He pounded on the front door
and identified himself as a police officer. Getting no response,
he looked under the window blinds and saw that the three
men had not moved; they remained seated in the living room.
Officer Yergler pounded on the door a second time and identi-
fied himself. This time, Cervantes came to the window and
looked out. Officer Yergler shined his flashlight on himself to
show that he was a police officer and ordered Cervantes to
"come to the door."1
When Cervantes opened the door, the chemical odor com-
ing from the apartment smelled much stronger to Officer Yer-
gler. Officer Yergler told Cervantes in English that he was
investigating the odor coming from the apartment and asked
Cervantes if he was aware of the odor. Cervantes did not
respond. Instead, he stepped outside and attempted to shut the
door behind him, but Officer Yergler pushed the door open.
Officer Yergler asked Cervantes in English if he lived in the
apartment, but received no response. He then asked the same
question in Spanish of all three men; all three responded no.2
Officer Yergler asked Cervantes if he could enter to deter-
mine the odor's cause, but Cervantes did not respond.3
Officer Yergler, still concerned about the noxious fumes,
entered Apartment 3 with Officer Wasinger following behind
him. Once the police officers entered, all three suspects ran
from the apartment. Officer Yergler chased Cervantes while
Officer Wasinger chased the other two suspects.
Officer Yergler apprehended Cervantes in front of the
apartment building and then reentered Apartment 3 to search
for an unattended drug lab or other suspects. On the kitchen
counter and in a large pot on the kitchen floor, he found a sub-
stance he believed to be methamphetamine. He then secured
the premises, opened windows to air-out the apartment, and
contacted the Garden Grove Police Department's Special
Investigations Unit (SIU). While waiting for an investigator to
arrive, he asked the apartment manager and assistant manager
to help evacuate the tenants from the building and to turn off
any open flames.
When Investigator Michael Reynolds of the SIU arrived, he
searched the apartment, including the kitchen containing the
suspected drugs. Investigator Reynolds then applied for a
search warrant, which was granted a few hours later. Upon
further searching the apartment, the officers seized 30 pounds
of methamphetamine in its final stages of production, cutting
agents, a hydraulic press, iodine, Coleman fuel, and other
items that could be used to make methamphetamine.
Upon questioning the apartment manager, the police
learned that Rufino Vergara, not Cervantes, was the lease-
holder of Apartment 3. Neither the manager nor the assistant
manager had seen Vergara since he signed the lease in March,
1997. The manager testified at trial, however, that Cervantes
had paid the rent to her in person three or four times since the
lease commenced. The assistant manager testified that Cer-
vantes told her on at least one occasion that he was Vergara.
Cervantes was convicted by a jury of possessing with intent
to distribute and manufacturing methamphetamine. On
appeal, Cervantes contends that the district court erred in
denying his motion to suppress evidence seized pursuant to
the warrant. He also contends that the district court erred in
denying his motions for judgment of acquittal and a new trial,
in which he argued that: (1) there was insufficient evidence to
support his convictions; (2) the government misstated the law
during its summation; and (3) the district court erred in admit-
ting another tenant's testimony.
II. DISCUSSION
A. Motion to Suppress Evidence
Cervantes argues that the government improperly included
information obtained from illegal, warrantless searches in the
affidavit filed in support of the search warrant application.
Without the illegally obtained evidence, Cervantes contends,
the affidavit does not support a finding of probable cause,
which is required to obtain a search warrant. See United
States v. Bertrand, 926 F.2d 838, 841 (9th Cir. 1991) (quoting
United States v. Stanert, 762 F.2d 775, 778-79 (9th Cir.),
amended on other grounds, 769 F.2d 1410 (9th Cir. 1985)).
1. Legality of the Searches
We review de novo whether a search is legal under the
Fourth Amendment. See Ornelas v. United States , 517 U.S.
690, 699 (1996). We review for clear error the trial judge's
findings of fact. See id.
a. The Emergency Doctrine
[1] Generally, the Fourth Amendment prohibits searching
a residence without a warrant unless at the time of the search:
(1) there is probable cause to believe that contraband or evi-
dence of a crime will be found in the residence; and (2) exi-
gent circumstances are present. See United States v. Lai, 944
F.2d 1434, 1441 (9th Cir. 1991). It is a close question whether
probable cause existed when Officers Yergler and Wasinger
searched Apartment 3.4 We need not decide this issue, how-
ever, because we conclude that the searches were legal under
another theory -- the emergency doctrine. Cf. Murdock v.
Stout, 54 F.3d 1437, 1441 n.3 (9th Cir. 1995) ( declining to
address the emergency doctrine because probable cause and
exigent circumstances were present). The emergency doctrine
provides that if a police officer, while investigating within the
scope necessary to respond to an emergency, discovers evi-
dence of illegal activity, that evidence is admissible even if
there was not probable cause to believe that such evidence
would be found. See, e.g., People v. Davis, 497 N.W.2d 910,
918 (Mich. 1993); Perez v. State, 514 S.W.2d 748, 749 (Tex.
Ct. Crim. App. 1974).
[2] In Mincey v. Arizona, 437 U.S. 385 (1978), the Court
noted that "the Fourth Amendment does not bar police offi-
cers from making warrantless entries and searches when they
reasonable believe that a person within is in need of immedi-
ate aid." Id. at 392. The Court recognized that " `[t]he need
to protect or preserve life or avoid serious injury is justifica-
tion for what would be otherwise illegal absent an exigency
or emergency.' " Id. (quoting Wayne v. United States, 318
F.2d 205, 212 (D.C. Cir. 1963)). The Court, however, found
that a four-day search of an apartment where a homicide had
occurred was not reasonable because there was no "emer-
gency threatening life or limb." Id. at 393.
Other circuits have adopted the emergency doctrine. In
United States v. Dunavan, 485 F.2d 201 (6th Cir. 1973), offi-
cers searched two locked briefcases found in the defendant's
car for information regarding his identity or physical condi-
tion after finding the defendant having a seizure and foaming
at the mouth. Inside one of the briefcases the officers found
money from a recent bank robbery. Finding that the search
was done "as a matter of rendering emergency aid to a person
in a seizure," the Sixth Circuit held that the search was rea-
sonable and the money was admissible. Id. at 203-05; cf.
United States v. Miller, 589 F.2d 1117, 1126 (1st Cir. 1978)
("[I]f exigent circumstances justify warrantless entry and
seizure of evidence of arson,5 which evidence is inevitably
criminal, then an emergency certainly justifies entry [into a
yacht6] and seizure of a navigational chart, relevant to a possi-
ble drowning, which by happenstance later proves to be
incriminating.") (footnote and citation omitted).
[3] The emergency doctrine's requirements are clearly
articulated in People v. Mitchell, 347 N.E.2d 607 (N.Y. 1976),
which we quoted in Murdock, 54 F.3d at 1441 n.3:
(1) The police must have reasonable grounds to
believe that there is an emergency at hand and an
immediate need for their assistance for the protection
of life or property. (2) The search must not be pri-
marily motivated by intent to arrest and seize evi-
dence. (3) There must be some reasonable basis,
approximating probable cause, to associate the emer-
gency with the area or place to be searched.
Mitchell, 347 N.E.2d at 609.
This court has "yet to consider whether [the Mitchell test],
or something comparable, should be adopted in a case such as
this one where police officers are investigating a possible
crime at the same time they might be rendering aid to a person
in danger." Murdock, 54 F.3d at 1441 n.3 (recognizing the
emergency doctrine's existence, but not applying it because
the court found that probable cause and exigent circumstances
justified the warrantless search). We find justification for
adopting the emergency doctrine, not under police officers'
function as criminal investigators, but in their community car-
etaking function to respond to emergency situations. See
Mincey, 437 U.S. at 392 ("We do not question the right of the
police to respond to emergency situations.").
The question remains, however, whether we should adopt
the Mitchell test or some other formulation of the emergency
doctrine. The Mitchell test's first prong requires that police
officers have "reasonable grounds to believe that there is an
emergency at hand and an immediate need for their assistance
for the protection of life or property." Mitchell, 347 N.E.2d at
609. We find that preservation of life or protection against
serious bodily injury are sufficient justifications for intruding
upon a person's privacy interests.7 See Mincey, 437 U.S. at
392.
The Mitchell test's second prong -- that the search was not
"primarily motivated by intent to arrest and seize evidence"
-- deserves close attention. Mitchell, 347 N.E.2d at 609. The
Supreme Court has, in the criminal investigation context,
declined to inquire into an individual officer's motivations in
determining whether a search or seizure is reasonable under
the Fourth Amendment. See Whren v. United States , 517 U.S.
808, 820 (1996). In Whren, the Court held that a seizure sup-
ported by probable cause is reasonable under the Fourth
Amendment regardless of the actual motivations of the law
enforcement officers making the stop, and regardless of
whether reasonable officers faced with the same circum-
stances would have made the stop in absence of some other
law enforcement purpose. See id. at 811-20. The Whren court
distinguished cases where probable cause is present from
inventory and administrative search cases where a govern-
ment actor's pretextual motivation for a search or seizure is
a viable claim. See id. at 811-12. The Court noted:
[O]nly an undiscerning reader would regard these
[inventory and administrative search] cases as
endorsing the principle that ulterior motives can
invalidate police conduct that is justifiable on the
basis of probable cause to believe that a violation of
law has occurred. In each case we were addressing
the validity of a search conducted in the absence of
probable cause. Our quoted statements simply
explain that the exemption from the need for proba-
ble cause (and warrant), which is accorded to
searches made for the purpose of inventory or
administrative regulation, is not accorded to searches
that are not made for those purposes.
Id., (citing Colorado v. Bertine, 479 U.S. 367, 371 -72 (1987);
New York v. Burger, 482 U.S. 671, 702 -03 (1987)).
Whren, however, did not address whether an officer's moti-
vation to search is relevant to the reasonableness of searches
conducted under the emergency doctrine. Rather, by distin-
guishing between cases that require probable cause and those
that do not, Whren suggests that the officer's motivation for
conducting a search is still relevant where no probable cause
exists, as is true in emergency doctrine cases. Cf. Florida v.
Wells, 495 U.S. 1, 4, (1990) ("an inventory search must not
be a ruse for a general rummaging in order to discover incrim-
inating evidence"); Burger, 482 U.S. at 716-717, n. 27,
(observing that in upholding the constitutionality of a warrant-
less administrative inspection, the search did not appear to be
"a `pretext' for obtaining evidence of . . . violation of . . .
penal laws"). As Professor LaFave has noted:
It is important to remember that the foundation of
the Court's position in Whren is that "where the
search or seizure is based upon probable cause" there
is with rare exception no balancing to be done or rea-
sonableness determination to be made because the
probable cause itself serves as the exclusive "mea-
sure of the lawfulness of enforcement." This being
the case, it would seem that certain pretext-type
claims are still viable when, as the Court put it, the
case "involves police intrusion without the probable
cause that is its traditional justification." * * * More-
over, in light of the way in which the Court in Whren
distinguished inventory and administrative searches
when discussing the Scott principle, it apparently
remains open to defendants, whenever the chal-
lenged seizure or search is permitted without proba-
ble cause because of the special purpose being
served, to establish a Fourth Amendment violation
by showing the action was in fact undertaken for
some other purpose (i.e., mainstream law enforce-
ment).
Wayne R. LaFave, Search and Seizure: A Treatise on the
Fourth Amendment S 1.4 (3d ed. 1996) (footnote omitted).
[4] We believe that, absent probable cause, examining a
government actor's motivation for conducting an emergency
search provides a necessary safeguard against pretextual reli-
ance on community caretaking interests to serve criminal
investigation and law enforcement functions. We thus agree
with Mitchell that, under the emergency doctrine, "[a] search
must not be primarily motivated by intent to arrest and seize
evidence." 347 N.E.2d at 609.
[5] We find the third prong of the Mitchell test -- requiring
a "reasonable basis, approximating probable cause, to asso-
ciate the emergency with the area or place to be searched,"
id., -- to be well reasoned. As the Court noted in Mincey, "a
warrantless search must be strictly circumscribed by the exi-
gencies which justify its initiation." Mincey , 437 U.S. at 393
(internal quotation marks and citation omitted). Under the
emergency doctrine, then, an officer's search must be limited
to only those areas necessary to respond to the perceived
emergency.
We thus adopt the three-part Mitchell test as a clear and
soundly-crafted formulation of the emergency doctrine's
requirements.8 We now apply that test to the facts of this case.
b. The Searches by Officers Yergler and Wasinger
i. Reasonable Belief That an Emergency is at
Hand and That Aid is Immediately Necessary
[6] Officer Yergler was faced with a terrible, "sickening"
chemical odor coming from Apartment 3, which he could
smell as much as 20 feet away from the apartment. Officer
Yergler, as well as the firefighters who summoned him,
believed that the fumes might be associated with methamphet-
amine production. Officer Yergler knew from his training that
methamphetamine labs are volatile and therefore reasonably
feared that Apartment 3 could explode at any moment. See
United States v. Whitten, 706 F.2d 1000, 1014 (9th Cir. 1983)
(recognizing that methamphetamine labs create a risk of
explosion). Officer Yergler also reasonably believed that lives
were in danger if an explosion occurred. This fear was height-
ened by the fact that the odor was coming from an apartment
building, possibly containing many people. Cf. United States
v. Martin, 781 F.2d 671, 674 (9th Cir. 1985) (holding that a
potential explosion within an apartment increases the likeli-
hood of finding exigent circumstances). Moreover, Officer
Yergler testified that he witnessed several children around the
apartment building. One of the apartment building's tenants
had left her apartment fearing harm to herself or to her infant
child. Given all of these circumstances, Officer Yergler rea-
sonably believed that an emergency was at hand and that his
assistance was immediately necessary for the protection of
life.
ii. Not Primarily Motivated by the Desire to
Collect Evidence
[7] Officer Yergler testified that before the first search he
was not sure whether the substance he smelled was caused by
methamphetamine production, but he testified that given the
strong noxious chemical odor and "the fact that .. . six apart-
ments [were] there with another apartment building right
across, [he] didn't want to take the chance. " The district court
found that Officer Yergler was "very credible " and there was
no "indication . . . [that he was] trying to make up a story
afterwards to justify what he did." We review a district
court's credibility determination for clear error. See United
States v. Hanley, 190 F.3d 1017, 1031 (9th Cir. 1999) (citing
United States v. Oba, 978 F.2d 1123, 1125 (9th Cir. 1992)).
Upon examining the record, we conclude the district court's
credibility determination is not clearly erroneous. Officer Yer-
gler's actions after the search provide further evidence that he
was primarily motivated by his concern for the safety of the
apartment building's occupants. Once he had secured the
premises, Officer Yergler ordered the evacuation of the build-
ing and requested the tenants to turn off any open flames.
iii. Reasonable Basis for Associating the Place
Searched with the Emergency
[8] Officer Yergler testified that he had identified Apart-
ment 3 as the source of the chemical odor. He had already
investigated Apartment 6 and did not find the odor's source.
Moreover, the odor was stronger in front of Apartment 3 than
in front of any other apartment. These facts show that Officer
Yergler had a "reasonable basis, approximating probable
cause," to believe that the noxious chemical odor was coming
from Apartment 3. See Mitchell, 347 N.E.2d at 609. Further-
more, Officer Yergler did not examine Apartment 3 more
thoroughly than was necessary to search for a methamphet-
amine lab. He simply walked through the rooms and looked
at items in plain view. See Mincey, 437 U.S. at 393 ("the
police may seize any evidence that is in plain view during the
course of their legitimate emergency activities").9 Thus, we
agree with the district court that the officers' searches of
Apartment 3 were legal.
c. Investigator Reynolds' Search
[9] Unlike the searches conducted by Officers Yergler and
Wasinger, Investigator Reynolds' search of Apartment 3, does
not satisfy the requirements of the emergency doctrine. By the
time Investigator Reynolds entered the apartment, the risk of
explosion had been defused. First, the police officers knew
that there was neither lab equipment nor chemicals on the
premises. Second, the apartment had been aired-out so there
was no reasonable risk that the fumes could ignite. Third,
there was no reasonable risk that the methamphetamine in the
pot could explode because it was in its final stages of produc-
tion, well past the volatile early stages of production. Fourth,
the apartment had been secured by police presence, which
eliminated any risk that someone might enter the apartment.
The search also was not legal under the traditional test
requiring both probable cause and exigent circumstances. At
the time of the fourth search, there were no exigent circum-
stances present. Although the risk of explosion can amount to
exigent circumstances, see United States v. Echegoyen, 799
F.2d 1271, 1278-79 (9th Cir. 1986), that risk had been
defused by the time the fourth search occurred. Therefore, the
fourth search was illegal.
2. Legality of the Search Warrant
[10] A magistrate's issuance of a search warrant is
reviewed for clear error and we must uphold such a warrant
"so long as the [magistrate] had a `substantial basis' for con-
cluding probable cause existed based on the totality of the cir-
cumstances." Bertrand, 926 F.2d at 841 (citation omitted). In
analyzing the magistrate's decision, however, we must excise
the portion of the affidavit in support of the warrant applica-
tion containing information that was obtained during the ille-
gal fourth search. See United States v. Reed, 15 F.3d 928, 933
(9th Cir. 1994) ("A reviewing court should excise the tainted
evidence and determine whether the remaining untainted evi-
dence would provide a neutral magistrate with probable cause
to issue a warrant.") (internal quotation marks and citation
omitted).
[11] After excising Investigator Reynolds' observations,
the warrant application shows that Officers Yergler and Was-
inger: (1) smelled a strong chemical odor outside of Apart-
ment 3 consistent with methamphetamine production; (2)
were trained to know the smell of methamphetamine produc-
tion; (3) have been present with the police narcotics unit in
previous investigations of operational methamphetamine labs;
(4) saw a large hydraulic press in Apartment 3; (5) saw a
stainless steel pot on the apartment's kitchen floor, containing
a brown chunky substance they believed was methamphet-
amine; and (6) witnessed the suspects flee Apartment 3.
[12] Given the above facts, the magistrate had a "substan-
tial basis" for concluding that there was probable cause to
believe that contraband or evidence of a crime would be
found in Apartment 3. Accordingly, the district court did not
err in denying Cervantes' motion to suppress evidence.
B. Sufficiency of the Evidence
Cervantes contends that this court should reverse his con-
victions under 21 U.S.C. S 841(a)(1)10 because the evidence
was insufficient to establish that he manufactured and pos-
sessed with intent to distribute methamphetamine. We must
determine whether, "viewing the evidence in the light most
favorable to the government and respecting the jury's ability
to judge the credibility of the witnesses, resolve factual con-
flicts, and draw inferences, a rational jury could have found
the elements of the crime beyond a reasonable doubt. " United
States v. Feldman, 853 F.2d 648, 654 (9th Cir. 1988) (citation
omitted).
1. Possession With Intent to Distribute
Methamphetamine
[13] A conviction for possession with intent to distribute
methamphetamine under S 841(a) requires that the defendant
(1) knowingly (2) possessed methamphetamine (3) with intent
to distribute it. See United States v. Mora, 876 F.2d 76, 77
(9th Cir. 1989). A jury can infer both knowledge and intent
from possession of a large quantity of drugs. See United
States v. Ocampo, 937 F.2d 485, 488 (9th Cir. 1991). Posses-
sion may be joint or individual, and either actual or construc-
tive.11 See United States v. Soto, 779 F.2d 558, 560 (9th Cir.),
amended on other grounds, 793 F.2d 217 (9th Cir. 1986).
[14] A "defendant's mere proximity to [a] drug, her pres-
ence on the property where it is located, and her association
with the person who controls it are insufficient to support a
conviction for possession." United States v. Vasquez-Chan,
978 F.2d 546, 550 (9th Cir. 1992) (citations omitted). Evi-
dence of a defendant's dominion over a residence, however,
may support an inference that the defendant controlled contra-
band found within that residence. See United States v. Earl,
27 F.3d 423, 425 (9th Cir. 1994) (citing United States v. Soy-
land, 3 F.3d 1312, 1315 (9th Cir. 1993)).
[15] Given the lack of furniture, large amount of metham-
phetamine, and drug producing equipment, Apartment 3
appears to have been used exclusively for making and storing
methamphetamine. Cervantes was more than merely present
at Apartment 3, he paid the rent, pretended to be the lease-
holder, and opened the door when the police arrived. These
facts could allow a rational jury to infer that Cervantes exer-
cised control over Apartment 3 and the objects within it. See
Earl, 27 F.3d at 425; see also United States v. Sitton, 968 F.2d
947, 961 (9th Cir. 1992). Moreover, a rational jury could also
infer that Cervantes' flight from Apartment 3 suggested that
he possessed the methamphetamine. See United States v.
Chambers, 918 F.2d 1455, 1458 (9th Cir. 1990) ("The nature
of an attempt to flee from law enforcement officials is proba-
tive of possession as well as knowledge."). Viewing the evi-
dence in the light most favorable to the government, a rational
jury could have found that Cervantes possessed with intent to
distribute the methamphetamine found in Apartment 3.
2. Manufacturing Methamphetamine
[16] Viewing the evidence in the light most favorable to the
government, a rational jury could also have convicted Cervan-
tes for manufacturing methamphetamine. To prove a violation
of S 841(a)(1), the government must prove that Cervantes "(1)
knowingly or intentionally (2) manufactured methamphet-
amine." United States v. Basinger, 60 F.3d 1400, 1406 (9th
Cir. 1995).
[17] First, there was sufficient evidence from which the
jury could find that methamphetamine was manufactured in
Apartment 3. The police found 30 pounds of methamphet-
amine, cutting agents, a hydraulic press, and packaging mate-
rials within Apartment 3. Also, the government offered expert
testimony that, at the time of Cervantes' arrest, Apartment 3
was being used to manufacture methamphetamine.
[18] Second, there was sufficient evidence for a rational
jury to find beyond a reasonable doubt that Cervantes had
knowingly or intentionally manufactured the methamphet-
amine found in Apartment 3. Cervantes was present during
the manufacturing process and offered no legitimate reason
for being there. Cervantes' "presence in that one-room apart-
ment reeking with tell-tale indicia of an ongoing drug-
distributing enterprise could rationally have been viewed as a
privilege reserved exclusively for participants. " United States
v. Staten, 581 F.2d 878, 885 (D.C. Cir. 1978) (footnotes omit-
ted). Furthermore, the evidence showed that Cervantes was
the renter of the apartment, which could reasonably suggest
that he controlled the activities occurring there, including the
methamphetamine manufacturing. Lastly, he fled Apartment
3 upon the officers' arrival, which the jury could reasonably
take as a sign that he was engaged in the illegal manufactur-
ing occurring therein. Cf. Chambers, 918 F.2d at 1458 ("The
nature of an attempt to flee from law enforcement officials is
probative of possession as well as knowledge."). The above
facts are sufficient for a rational jury to convict Cervantes of
manufacturing methamphetamine.
C. Misstatement of the Law During Summation
During closing argument, Cervantes objected that the gov-
ernment misstated the law on possession, but the district court
overruled Cervantes' objection. After the trial, Cervantes
moved for a new trial based, in part, on the government's pur-
ported misstatements at closing argument. The district court
denied the motion. We review for an abuse of discretion the
district court's decision to deny Cervantes' new trial motion
based on the government's misconduct during its closing
argument. See Chalmers v. City of Los Angeles , 762 F.2d 753,
761 (9th Cir. 1985).
The government made the following statements on posses-
sion during its summation:
You can infer that if the defendant is the tenant of
apartment 3, defendant has physical control over the
items that are in that dwelling . . . .
So the government establishes physical control by
the fact that the defendant is in the apartment on Jan-
uary 7th when the police get there and by the fact
that the defendant is the tenant and the user of apart-
ment 3.
The definition [of possession] is rather simple. It
says that a person has possession of something if the
person knows of its presence and has physical con-
trol of it.
So by paying the rent, by pretending to be the ten-
ant of apartment 3, you can safely make the -- reach
the inference that, yes, he was the tenant at apart-
ment 3, and as the tenant, he had physical control of
the items that were inside that apartment, just like
you have physical control over the things . . .
(Emphasis added.)
[19] The government's closing argument repeatedly stated
that the jury could infer from the facts that Cervantes pos-
sessed the methamphetamine found in Apartment 3. The gov-
ernment did not state that the jury must infer that Cervantes
possessed the methamphetamine. Because a defendant's
rental payments can reasonably suggest that the defendant
possessed drugs found within that rental property, see Sitton,
968 F.2d at 961, the government did not misstate the law dur-
ing its closing argument. Thus, the district court did not abuse
its discretion in denying Cervantes' motion for a new trial,
based on the government's statements during its closing argu-
ment.
D. Tenant's Testimony
The tenant in Apartment 6, which is directly above Apart-
ment 3, testified that while in her apartment on two prior
occasions she had smelled a similar odor to the one which
came from Apartment 3 on the day of Cervantes' arrest. Cer-
vantes objected, claiming that the testimony was character
evidence, but was overruled.
[20] We review the district court's decision to admit evi-
dence for an abuse of discretion. See Paine v. City of Lompoc,
160 F.3d 562, 566 (9th Cir. 1998). Federal Rule of Evidence
404(b) does not preclude the tenant's testimony. Her testi-
mony about a recurring odor is consistent with the govern-
ment's theory that Apartment 3 was being used as a drug lab.
Apartment 3's earlier use as a drug lab is relevant because it
shows a continuing use and makes it more probable that
Apartment 3 was being used to manufacture methamphet-
amine on the date that Cervantes was arrested. Thus, the ten-
ant's testimony is relevant to the manufacturing charge.
Accordingly, the district court did not abuse its discretion in
admitting the tenant's testimony.
III. CONCLUSION
We affirm the district court's denial of Cervantes' motion
to suppress evidence, and its denial of Cervantes' motions for
acquittal and a new trial.
AFFIRMED./dcs/programs/www/cgi-prod/getfile.sh[51]: rmove: not found
/dcs/programs/www/cgi-prod/getfile.sh[52]: rmove: not found
/dcs/programs/www/cgi-prod/getfile.sh[53]: rmove: not found
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FOOTNOTES
*The Honorable Robert E. Jones, United States District Judge for the
District of Oregon, sitting by designation.
1 The record does not disclose what Officer Wasinger was doing during
this time.
2 The record reflects that Cervantes and one of the other men only speak
Spanish. The record does not indicate whether the third man speaks
English because he has not been apprehended.
3 It is unclear from the record whether Officer Yergler asked this ques-
tion in English or Spanish.
4 The officers searched Apartment 3 three times prior to obtaining a war-
rant: (1) when they gained visual access to the apartment after telling Cer-
vantes to open the door, see United States v. Winsor, 846 F.2d 1569, 1573
(9th Cir. 1988) (holding that a search occurred when police officers gained
visual entry into a room through a door that was opened at their com-
mand); (2) when Officers Yergler and Wasinger stepped inside the apart-
ment for the first time; and (3) when Officer Yergler reentered the
apartment after chasing the suspects. In addition, Investigator Reynolds
also searched the apartment before a warrant was obtained.
5 The Miller court was referring to Michigan v. Tyler, 436 U.S. 499, 511
(1978), which held that a warrantless search is reasonable if the possible
rekindling of a fire creates an exigent situation.
6 Although a person has less of a privacy interest in his or her boat than
in his or her residence, see United States v. Albers, 136 F.3d 670, 673 (9th
Cir. 1997), we still find the Miller court's reasoning persuasive.
7 Whether a search or seizure conducted for the protection of property
is reasonable under the Fourth Amendment presents a more difficult ques-
tion. We need not decide this issue, however, because, as discussed below,
we find that the police had reasonable grounds to believe that an emer-
gency was at hand and that their assistance was necessary to protect
against death or serious bodily injury.
8 We note in this case that the items seized were in "plain view." As we
have previously noted, however, "the Supreme Court has limited warrant-
less seizures under the `plain view' doctrine to situations where the officer
has a legal right to be at the location from which the object was plainly
viewed." United States v. Bulacan, 156 F.3d 963, 968 (9th Cir. 1998) (cit-
ing Horton v. California, 496 U.S. 128, 136 (1990). See also Coolidge v.
New Hampshire, 403 U.S. 443, 465 (1971) ("The problem with the `plain
view' doctrine has been to identify the circumstances in which plain view
has legal significance rather than being simply the normal concomitant of
any search, legal or illegal.").
9 On the other hand, "during the course of . . . legitimate emergency
activities" is limited by the rule that "an unlawful secondary purpose
invalidates an otherwise permissible [emergency ] search . . . ." Bulacan,
156 F.3d at 969 (citing United States v. $124,570 U.S. Currency, 873 F.2d
1240, 1247 (9th Cir. 1989)).
10 Section 841(a)(1) provides:". . . it shall be unlawful for any person
knowingly or intentionally . . . to manufacture, distribute, or dispense, or
possess with intent to manufacture, distribute, or dispense, a controlled
substance . . . ."11 "Actual possession connotes physical custody or actual personal
dominion." United States v. Batimana, 623 F.2d 1366, 1369 (9th Cir.
1980). Constructive possession requires that the defendant both knew of
the controlled substance's presence and had the power to exercise domin-
ion and control over it. See United States v. Behanna, 814 F.2d 1318,
1319-20 (9th Cir. 1987).