393 F.Supp. 763 (D.Mass. 1975), Crim. 73-239, United States v. Chadwick

Docket Nº:Crim. 73-239
Citation:393 F.Supp. 763
Party Name:United States v. Chadwick
Case Date:January 13, 1975
Court:United States District Courts, 1st Circuit, District of Massachusetts
 
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393 F.Supp. 763 (D.Mass. 1975)

The UNITED STATES

v.

Joseph A. CHADWICK et al.

Crim. No. 73-239-T.

United States District Court, D. Massachusetts.

Jan. 13, 1975

Supplemental Opinion April 10, 1975

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Larry Cohen, Asst. U.S. Atty., for the United States.

Philip S. Nyman, Lowell, Mass., for Machado.

Robert L. Steadman, Boston, Mass., for Leary.

Kevin M. Keating, Anthony M. Arena, Martin Weinberg, Boston, Mass., for Chadwick.

OPINION AND ORDER

TAURO, District Judge.

Defendant Joseph Chadwick and his two co-defendants, Bridget Leary and Gregory Machado, are charged in a two count indictment with possessing marijuana with intent to distribute, and with conspiring to possess with intent to distribute.

Before the court is Chadwick's motion to suppress the fruits of warrantless searches of a footlocker, two suitcases, and of his person. The searches were conducted by government agents some time after his arrest outside the South Station railroad terminal on May 10, 1973. He has also moved to suppress statements made by him after his arrest.

In support of his motion, Chadwick asserts 1) that his warrantless arrest was without probable cause; 2) that there was no justification for a search of his person; 3) that although he was in a custodial situation when he made statements to federal agents, he was not warned of his rights; and 4) that the warrantless search of the footlocker and luggage cannot be justified by any exception to the requirements of the Fourth Amendment.

Following the hearing on Chadwick's motion to suppress, defendant Leary filed a motion to suppress all evidence obtained by the warrantless searches of the footlocker and suitcases that were seized by the federal agents. She also moved to suppress any statements made by her following her arrest on the grounds that the arrest was made without probable cause. Both Leary and Chadwick rely on the same grounds for suppressing the evidence obtained as a result of the warrantless search of the footlocker. 1 The Government has chosen

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to rely on the same argument in opposition to both motions. Accordingly, the motions to suppress are consolidated in this opinion.

The circumstances surrounding the defendants' arrest and the subsequent search are as follows.

On May 8, 1973, federal agents in Boston received reliable information from their San Diego counterparts that a footlocker suspected of containing marijuana was being shipped by train to Boston. This information indicated that the trunk in question was leaking talcum powder, a substance used to mask the odor of marijuana, and that the shipper, the defendant Machado, fit a profile used by Amtrak officials to spot drug traffickers. The destination address of the footlocker was Machado's Massachusetts residence. Machado obtained passage for two to Boston on the same train in the name of Mr. and Mrs. Machado. His traveling companion was subsequently identified as the defendant Leary. This information together with a description of Machado, was furnished by Amtrak officials to the San Diego agents and was relayed to agents in Boston.

The Boston agents determined that Machado's train was due at approximately 7:50 p.m. on May 10, 1973. While some preliminary investigation was done on May 8, 9 and 10, the agents made no attempt to secure search or arrest warrants. When the train stopped at New Haven on May 10, Amtrak officials verified that the footlocker was still aboard. This information was conveyed to the Boston agents who placed South Station under surveillance.

The train arrived in Boston approximately one hour late. The agents identified Machado from the description that had been provided them. They observed Machado an Leary take possession of an old brown footlocker and two suitcases. A trained detector dog was brought into the station rotunda near where Machado and Leary were waiting. The dog 'alerted' to the presence of marijuana in the footlocker which Machado and Leary had claimed.

After claiming the footlocker, Machado was observed making a telephone call. The agents were unable to see the number that was dialed, nor did they overhear any portion of the conversation.

Shortly thereafter, Chadwick entered South Station and went up to Machado and Leary. The three engaged in brief conversation after which they all left the station with a railroad porter who was pushing the footlocker on a baggage cart. Leary entered the passenger side of a Dodge Polara automobile parked outside South Station. Machado and Chadwick assisted the porter in placing the footlocker onto the floor of the automobile's trunk. The automobile engine was not running and the trunk lid was wide open. At this point, approximately 9:15 p.m., federal agents, who were among a number of law enforcement officials staking out the area, placed all three defendants under arrest and took possession of the automobile and the footlocker as well as the personal luggage of defendants Machado and Leary. Subsequent to their arrest, keys and documentation indicating his ownership of the footlocker were found on the defendant Machado. No such evidence was found on the defendant Chadwick.

The defendants were driven to the John F. Kennedy Federal Building (J.F.K.) in government vehicles. A government agent drove the Dodge Polara with the footlocker still in its trunk to J.F.K. Sometime between 9:30 and 11:00 p.m., federal agents opened the footlocker in their J.F.K. offices, and found a large quantity of marijuana. Marijuana was also found in the two suitcases. At no time did the federal agents secure a search warrant.

Arguably incriminating statements were made by the defendant Chadwick subsequent to his arrest, either in the vehicle on the way to J.F.K. or at the

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agents' J.F.K. offices. 2 A search of Chadwick's person following his arrival at J.F.K. revealed a small amount of marijuana.

I. PROBABLE CAUSE TO ARREST CHADWICK

Chadwick claims that his arrest was without probable cause, and this court agrees.

Probable cause to effectuate a warrantless arrest only exists 'if the facts and circumstances known to the officer warrant a prudent man in believing that the offense has been committed.' Henry v. United States, 361 U.S. 98, 102, 80 S.Ct. 168, 171, 4 L.Ed.2d 134 (1959). Accord, Brinegar v. United States, 338 U.S. 160, 175-176, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 69 L.Ed. 543 (1925). The circumstances surrounding Chadwick's arrest fall short of meeting this standard.

There is no evidence as to whom Machado called from the South Station. But even if it may be presumed that Machado called to inform Chadwick of his and Leary's arrival, a non-criminal explanation of Chadwick's conduct is at least as likely as one indicating that 'an offense has been or is being committed.' Brinegar v. United States, 338 U.S. at 176, 69 S.Ct. at 1311.

Simply stated, the non-criminal explanation is that two friends of Chadwick arrived by train from an out-of-town trip. The train was late. They called and asked him to pick them up at the station. He arrived at the station, exchanged pleasantries and assisted the porter in placing their luggage in the open trunk of a car. Then, he was arrested.

There was no evidence that agents had been alerted, during the several days they were awaiting Machado's and Leary's arrival, to the likelihood or even the possibility of a third party accomplice being involved. There was no evidence that Chadwick was recognized as a trafficker by the agents who observed him entering South Station. There was no evidence that the defendant Chadwick knew what was in the trunks, nor can such knowledge be inferred from the record. The most the government can squeeze from these operative facts is that, when arrested, Chadwick was in the presence of two people suspected of criminal activity. His presence at the railroad station and his momentary contact with the footlocker, as he assisted the porter and Machado in placing it in the trunk of the car, are fully explicable in terms of noncriminal conduct and add nothing to the government's case. 'Mere presence at the scene of a criminal offense does not support an inference of guilt of that offense.' Newsom v. United States, 335 F.2d 237, 239 (5th Cir. 1964). See, e.g., McDonnell v. United States, 472 F.2d 1153, 1156 (8th Cir.), cert. denied 412 U.S. 942, 93 S.Ct. 2785, 37 L.Ed.2d 402 (1973).

The Government concedes, at page three of its memorandum, that to a lay observer the circumstances of Chadwick's involvement might appear innocent, but argues that an experienced agent would recognize them as bing significant. According to the Government, an experienced observer could readily detect that Chadwick was being used as a 'mule'-- a courier for transporting

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drugs. This argument would appear to urge adoption of a subjective standard of probable cause which would require, as a threshold matter, and evaluation by the court of an agent's experience and ability in order to weigh what criminal significance be might have legitimately ascribed to a given set of circumstances. To adopt such a standard would set an unfortunate precedent with the distinct possibility of facially inconsistent results, depending on the impression a particular agent made on a particular judge.

Certainly, as was noted in United States v. Kancso, 252 F.2d 220, 222-223 (2d Cir. 1958), government agents, in their efforts to protect the public, must depend on a variety of resources, including their own knowledge and expertise. This is why undercover efforts are permitted, and the law with respect to entrapment...

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