United States v. Perry

• Decision Date: 16 March 1972
• Docket Number: Crim. No. 12175.
• Citation: 339 F. Supp. 209
• Court: U.S. District Court — Southern District of California
• Parties: UNITED STATES of America, Plaintiff, v. Eugene Rayford PERRY et al., Defendants.

339 F. Supp. 209

UNITED STATES of America, Plaintiff, v. Eugene Rayford PERRY et al., Defendants.

Crim. No. 12175.

United States District Court, S. D. California.

March 16, 1972.

COPYRIGHT MATERIAL OMITTED

Harry D. Steward, U. S. Atty., Thomas M. Coffin, Asst. U. S. Atty., San Diego, Cal., for plaintiff.

Wesley C. Blake, G. Archie Boster, Carmine J. Bua, Edward V. Brennan, Robert F. Bourne, Philip A. DeMassa, C. J. Carlson, San Diego, Cal., for defendants.

MEMORANDUM DECISION AND ORDER

GORDON THOMPSON, Jr., District Judge.

The defendant, Ivan L. Glasscock, moves to suppress statements made and evidence obtained resulting from vehicle stops, conversations overheard in a motel room, and vehicle searches after his arrest. The defendants, Eugene Rayford Perry, Carl Phillip Green, and Donald Ralph Rice, move to suppress statements made and evidence obtained resulting from their arrest. The defendant, Edward James Fisch, moves to suppress conversations overheard in a motel room or, in the alternative, to dismiss the indictment. An evidentiary hearing was held on February 17 and 18, 1972, at the conclusion of which the matter was taken under submission by the Court.

FACTS

On September 23, 1971, at approximately 6:40 P. M., before dusk, Arthur M. Tobin, a retired forestry ranger, noticed two flares burning in an open field about 100 feet from a highway. The field was private property and located about one mile south of Maritas Junction on Highway 79, and in the vicinity of Vulcan Mountain. There were two males present who identified themselves as Ivan Glasscock and Donald Thopy. They stated that they were having car trouble, specifically mentioning a flat tire. Two vehicles were parked nearby, a white Ford Van, California license number CUY-444, and a tan Volkswagen Sedan, Indiana license number 49X-5826. Neither vehicle appeared to Tobin to have a flat tire. This information was transmitted to Deputy Gene Cowley of the San Diego County Sheriff's office at about 9:30 A. M. the following morning.

On the same evening, just before dusk, Wayne and Larry King, independently witnessed a red and white airplane circling in the area of Vulcan Mountain. Two objects were seen to drop from the plane. The Kings informed Anthony Taylor of the drop, who in turn informed Deputy Cowley at approximately 9:00 A.M. the following morning (September 24, 1971).

On September 24, 1971, at 10:00 A. M., Deputy Cowley saw the Ford Van traveling slowly on a highway in the vicinity of the aircraft drop. The rear license plate was dirty and difficult to read and a tail light was defective. Cowley stopped the vehicle and verified the plate number as California license number CUY-444. The driver, Ivan Glasscock, had an Indiana driver's license and stated that the vehicle had been borrowed from a friend in Sacramento named James Knauss. The vehicle was detained approximately 20 minutes while a name check was performed by the sheriff's department. While awaiting the result of the name check, the driver consented to a search of the van. Under the right front seat was discovered an aerial navigation map. It was opened to display the Julian Vortac or Omni Station. A line was drawn in a westerly direction towards Highway 79 and intersecting the area of the suspected drop.

On September 24, 1971, the Kings reported their observations to immigration officers. A search of the area of the drop at about 9:30 A. M. resulted in the discovery of a duffle bag containing kilo bricks of marijuana. This information was passed to Deputy Cowley on the same day, but after he had stopped and released the Ford Van.

On September 26, 1971, Taylor found a second duffle bag containing kilo bricks of marijuana on Vulcan Mountain. During his search Taylor had met three unidentified males, who stated they were in the area fishing. He informed them they were trespassing on Indian land. The marijuana was delivered to Deputy Cowley who was also informed of the three strangers.

On September 28, 1971, Deputy Cowley stopped the Ford Van a second time in the area of the airplane drop. The license plate was still dirty and the tail light still defective. In response to Cowley's questions, the occupants of the vehicle, Glasscock and Thopy, stated they were staying at the Holiday Inn Motel in La Jolla. The suspects were released upon their promise to correct the vehicular deficiencies.

It was subsequently learned that Ivan Glasscock and Donald Thopy were staying at the Holiday Inn in the Mission Valley area of San Diego. A surveillance was conducted on September 28, 29 and 30, 1971. The defendants were occupying room 514. Sheriff's department detectives requested a room adjoining 514, but none was available. Rooms 506 and 508 were vacant. Therefore, a scheme was devised whereby the defendants were requested to change rooms from 514 to 506. They readily consented to a request by the manager that they change rooms. Officers stationed themselves in room 508 and were able to hear, without the aid of artificial devices¹ incriminating conversations by Glasscock, Thopy and one Edward J. Fisch, who arrived after the surveillance was set up. The conversations contained many references to the "weed," the "stuff," "aircraft operations," "drug usage," etc., and may be summarized as a full admission of participation in a criminal smuggling venture. There was a telephone call by Glasscock to a "Don." The call indicated that three persons would arrive at the motel room early in the morning of September 30, 1971. Customs Agent Jerrold M. Kelly, present in room 508 during portions of the surveillance, knew that a "Don Rice" had been arrested along with Glasscock by U. S. Customs about a month earlier.

At approximately 9:20 P. M. on September 29, 1971, Glasscock, Thopy, and Fisch were arrested. At about 5:20 A. M. the following morning Donald R. Rice, Eugene R. Perry, and Carl P. Green arrived at room 506 and were also arrested. Vehicles belonging to the defendants and located in the motel parking lot were searched. Evidence was also seized from room 506. No evidence was presented that the evidence was not in plain view.

ISSUES

The issues raised are determined by the lawfulness of the following events: (1) the two stops of the Ford Van by Deputy Cowley, (2) the eavesdropping conducted from room 508, (3) the arrest of the defendants.

Before considering the detentions, a general statement of the law is appropriate. Absent a federal statute, the validity of an arrest is determined by state law. United States v. Di Re, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210 (1948). Brief, informal detentions for a limited inquiry by peace officers are also governed by state law. Wartson v. United States, 400 F.2d 25 (9th Cir. 1968), cert. denied, 396 U.S. 892, 90 S. Ct. 184, 24 L.Ed.2d 166 (1969). The test for such a detention is would the facts available to the officer at the moment of seizure warrant a man of reasonable caution in the belief that the action taken was appropriate. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L. Ed.2d 889 (1968). In determining the validity of an arrest or detention by state officers, i. e., in determining whether or not there has been a compliance with state law and the federal constitution, courts may look to both state and federal cases. Compare Call v. United States, 417 F.2d 462 (9th Cir. 1969) with United States v. Blum, 432 F.2d 250 (9th Cir. 1970).

THE FIRST STOP OF THE FORD VAN

The Court finds that the first stop and search of the Ford Van, license number CUY-444, was lawful and that all statements and evidence resulting from the detention are admissible. Deputy Cowley had the right to detain the vehicle and its occupants, Glasscock and Thopy, for at least two reasons. First, there was defective equipment on the van, namely an unreadable license plate, plus an inoperative stop light. Secondly, there was reason to believe that criminal activity was underway and that Glasscock and Thopy were connected with it. Cornforth v. Dept. of Motor Vehicles, 3 Cal.App.3d 550, 83 Cal.Rptr. 762 (1970). A limited detention and vehicular search for the purpose of investigation was reasonable under these circumstances. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). People v. Flores, 23 Cal.App.3d 23, 99 Cal.Rptr. 858 (1972). Furthermore, the driver voluntarily consented to the search.

THE SECOND STOP OF THE FORD VAN

The Court finds that the second stop of the Ford Van...