Unpublished Disposition, 917 F.2d 567 (9th Cir. 1990)

MEMORANDUM^** 

Defendants Krech and Parshall conditionally pleaded guilty to charges of manufacturing marijuana in violation of 18 U.S.C. § 841(a) (1). Pursuant to Federal Rule Criminal Procedure 11, they specifically reserved their rights to appeal the district court's partial denial of their motions to suppress. On appeal, Krech and Parshall¹  claim that (1) there was no probable cause to support the warrant; (2) the warrant was overbroad; (3) the affidavit in support of the warrant omitted a relevant fact; and (4) the search was unlawful as executed. We affirm.

DISCUSSION

Defendants claim that Agent Damitio's affidavit in support of the warrant did not provide probable cause to search the residence because the affidavit did not recite any facts to establish that either defendant was responsible for growing the plants that they harvested. We reject that argument. The affidavit indicated that growers tend to harvest their crops in late September. It was October 1st when defendants were caught harvesting the marijuana. Moreover, the affidavit indicated that the plants were well secluded, suggesting that defendants did not simply happen upon the plants in a fortuitous manner.

Krech and Parshall nevertheless contend that even if they grew the plants, there is nothing to implicate Krech's residence. However, a judge issuing a search warrant "may rely on the conclusions of experienced law enforcement officers regarding where evidence of a crime is likely to be found." United States v. Fannin, 817 F.2d 1379, 1382 (9th Cir. 1987). Damitio is an experienced law enforcement officer, and he reasonably concluded that Krech's residence would be a likely place to find evidence that Krech and Parshall were responsible for growing the plants they harvested. The determination to issue the warrant was not clearly erroneous. See United States v. Espinosa, 827 F.2d 604, 610 (9th Cir. 1987) (great deference is accorded to a determination of probable cause to issue a search warrant and will be reversed only if clearly erroneous), cert. denied, 485 U.S. 968 (1988).

Defendants argue that portions of the warrant were overbroad. At the motion to suppress, the government produced a list of items seized under each portion of the warrant. There were no items seized under three of the five portions that defendants contend are overbroad.

Contested items were taken under that portion of the warrant authorizing seizure of "other documents relating to a controlled substance operation." Defendants claim that the phrase did not sufficiently limit the executing officers' discretion. That phrase, however, follows a list of specified documents that could contain evidence of a controlled substance operation. The officers' discretion was thus limited to seizing only those documents indicating the existence of a controlled substance operation, a single criminal activity. See United States v. Washington, 797 F.2d 1461, 1472 (9th Cir. 1986) (warrant was not overbroad, even though it authorized seizure of unspecified documents, because scope of warrant was confined to documents relating to the specified activity of prostitution). See also Hernandez-Escarsega, 886 F.2d 1560, 1568 (9th Cir. 1989) (warrant not overbroad when it authorizes seizure of records reflecting possession or distribution of controlled substances), cert. denied, 110 S. Ct. 3237 (1990); Fannin, 817 F.2d at 1383 (warrant not overbroad when it authorizes seizure of items providing evidence of illegal drug trafficking).

Defendants also challenge as overbroad that portion of the warrant authorizing the seizure of "other fruits, instrumentalities, and evidence of violations of 21 U.S.C. [Sec. ] 841(a) (1)." They rely on United States v. Crozier, 777 F.2d 1376, 1381 (9th Cir. 1985), where we concluded that the warrant was overbroad because it did not describe any particular property to be seized. The warrant in this case, however, described particular items commonly used to grow marijuana. Moreover, the general reference to the statute comes after the descriptions of items typically found in drug cases. The "catch-all" phrase at the end thus relates only to a controlled substance operation and, therefore, sufficiently narrows the warrant. See United States v. Perdomo, 800 F.2d 916, 920 (9th Cir. 1986) (warrant containing general catch-all language is not overbroad when viewed as relating only to the specific offense named in the preceding portions of the warrant).

Defendants claim that Damitio intentionally or recklessly omitted from his affidavit Krech's exculpatory statement, in which Krech admitted only to harvesting the marijuana rather than growing it. We agree with the district court, however, that the omission was not an attempt to deceive, but was the result of Damitio's proper delegation of duties to other officers. The trial court's finding is not clearly erroneous. See United States v. Dozier, 844 F.2d 701, 705 (9th Cir.) (district court's finding on whether an omission is intentional or reckless will not be reversed unless it is clearly erroneous), cert. denied, 488 U.S. 927 (1988).

Defendants' final contention is that the warrant was unlawful as executed. They contend that the warrant was overbroad and that, therefore, the officers necessarily executed the warrant in a "wholesale" fashion and engaged in "rummaging." Even assuming that the warrant is overbroad, the search was not unlawfully executed. Damitio was present during the search and supervised the officers, who had at least looked at the warrant prior to the search. See United States v. Holzman, 871 F.2d 1496, 1510 (9th Cir. 1989) (Although executing officers may not have been aware of the contents of the warrant, the search was not unlawful because the affiant was present during search, and the officers knew the nature of the criminal activity being investigated.).

AFFIRMED.