United States v. Resnick

• Decision Date: 02 June 1972
• Docket Number: No. 29706.,29706.
• Citation: 455 F.2d 1127
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Errol B. RESNICK et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

455 F.2d 1127 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. Errol B. RESNICK et al., Defendants-Appellants.

No. 29706.

United States Court of Appeals, Fifth Circuit.

February 3, 1972.

Rehearing and Rehearing Denied June 2, 1972.

James M. Russ, Michael F. Cycmanick, Orlando, Fla., Law Offices of James M. Russ, for Errol B. Resnick & Robert Jay Carlton, court-appointed for John Thomas Simpson.

Robert W. Duckworth, Orlando, Fla., for John Phillip Davis, court-appointed.

John L. Briggs, U. S. Atty., Kendell W. Wherry, Asst. U. S. Atty., Orlando, Fla., for plaintiff-appellee.

Before GODBOLD, SIMPSON and CLARK, Circuit Judges.

Rehearing and Rehearing En Banc Denied June 2, 1972.

GODBOLD, Circuit Judge:

Appellants were charged with melting silver currency of the United States in violation of 18 U.S.C. § 2, 31 U.S.C. § 395, 31 C.F.R. § 82, and 18 U.S.C. § 371, and conspiracy to commit that substantive offense. On January 31, 1970, Resnick was found guilty of both charges, Carlton of only the conspiracy charge, and Davis and Simpson of only the melting charge. All appeal.

The major questions before us concern searches and seizures near Orlando, Florida, at Teterboro, New Jersey airport, and at Kennedy Airport in New York City. Pretrial motions to suppress were denied, and fruits of the searches and seizures were used at trial. The convictions of Resnick, Davis and Simpson must be reversed because of invalidity of searches and seizures occurring in Florida.

I. The Florida Searches and Seizures

We set out the facts as revealed by the hearing on motions to suppress. In late February 1969, after learning that an unusually large number of coins were being air-shipped to Orlando, federal officers began an investigation, with Secret Service Agent William Williamson in charge. At the Orlando airport they examined airbills and learned that Resnick was the consignee on numerous large incoming shipments of coins from all over the United States. They commenced surveillance over such incoming shipments. They observed a pickup truck and an ambulance picking up various coin shipments at the airport, and at times they followed those vehicles to Resnick's home in Orlando.

On March 11, 1969, about two weeks after the investigation commenced, agents saw the truck pick up a shipment of coins at the airport and proceed, heavily loaded, to Resnick's home, and from there to a fenced tract of densely wooded land, located on a public road 10 to 12 miles from Orlando. The tract was approximately 1,000 yards from the Orlando Sports Stadium and in a sparsely populated area where there were only scattered houses and some citrus groves and farms. This was the first time the location had come to the attention of the agents. They could see that along the road and the two sides running back from the road the tract was fenced with a six-foot chain link fence surmounted by barbed wire one foot high and extending outward from the fence. They observed locked gates in the fence and saw the pickup enter through these gates, after which the gates were relocked. The truck disappeared from view in the dense woods. No structure was visible from outside the fence.

On the same day Agent Williamson arranged to view the area from a Florida Highway Patrol airplane. He observed that the tract was rectangular in shape, approximately 20 acres, all densely wooded, and fenced on all sides with what appeared to be a solid fence, except that at one corner a lake cut into two sides of the property in an arc 300 to 400 yards long, which was unfenced. Near the center of the tract he could see the roof of a building similar to a two-car garage, and the pickup parked next to this structure.

The next day, March 12, there began a series of searches of the fenced tract, terminating in the arrest of two men in the building and a massive seizure, all without warrants. The first entry occurred the afternoon of March 12. Williamson and two other agents entered the fenced tract at a point where the fence joined the lake, by separating and crawling through barbed wire strands that extended from the termination of the fence toward or into the water's edge, and then wading through marshy area. They positioned themselves in the woods about 75 to 100 feet from the building. They observed that along most of one side there was a garage-type overhead door, and in the rear one normal door, and that the building was windowless. The large door was open, and they were able to see inside the building. They saw what appeared to be a reflection of fire on the inside walls of the building and were able to hear voices, loud banging, and a roar which they identified as that of a blast furnace. They were unable to see anyone or distinguish any conversation. After maintaining surveillance for 45 minutes to an hour, the agents departed the same way they had entered.

On that afternoon, March 12, Williamson considered staging a "raid" on the site, and arranged for the assistance of local law enforcement agencies for that purpose. However, as the person in charge, he decided not to conduct the raid that day.

Entry number two occurred later on March 12, around 7:00 p. m., when it was almost dark. Williamson and one or more others returned by entering through the same place where the fence joined the lake. After they reached the building they were joined by one or two more agents, whose mode of entry is unrevealed. The building was closed and unoccupied and the vehicles were gone. There was an opening in the floor of an overhanging eave, caused by a piece of the plywood floor of the eave being missing. Williamson climbed a stepladder that was standing against a wall of the building and stuck his head into the opening. With the aid of a flashlight he observed an overhead crane and the frame supporting it, a workbench, a fan, and what appeared to be the rim of a blast furnace or melting pot at the edge of a pit in the floor. Another agent climbed the ladder and made a similar visual examination of the interior of the building. This search required about an hour and a quarter. While it was going on an unidentified vehicle came, and the agents took cover in the woods until it departed.

During the day of March 12, but at a time not stated, some of the federal agents saw the ambulance leave the fenced tract, heavily loaded, and go directly to Resnick's residence.

Early in the morning of March 13, Williamson observed Resnick's DC-3 airplane depart the Orlando airport. He did not know but suspected that it was carrying silver bars. He obtained its flight plan and its destination was determined to be Teterboro Airport, New Jersey, and arrangements were made with federal officers in that area to meet the plane and determine its cargo if possible.¹

At midmorning of March 13 the third warrantless search began. Williamson and two other agents entered again where the fence joined the lake and took up their positions about 75 feet from the building, which they judged to be approximately 500 yards from the lake. They observed the pickup parked in front of the building and three men working in and about the vicinity of the building. They could see approximately three quarters of the way into the garage and observe activities carried on there. One of the men under observation, later identified as Babcock, departed, returned, and departed again.^1A Sounds of motors running were heard as well as what the agents thought to be the sound of a blast furnace. They saw eight to ten canvas coin bags lying on the apron of the building. The remaining two men, Davis and Simpson, were observed to cut pieces of copper, take the material to scales inside the building, and then to the rear of the building. Later, just inside the door of the building, they dumped coins out of bags. One of them picked up coins in a scoop and took them to the rear of the building. Davis took empty coin bags to a pit a short distance from the building. Agent Williamson then concluded that they were "in position to raid the site." They directed other law enforcement personnel that were "in position" and with whom they were in radio communication to come to the area of the building. Whether these other officers— federal and local—were positioned within the tract or outside is not shown by the testimony, and, regardless of when they entered the record is silent on how they did so. After calling these other officers to the scene, the agents at the building site came out of the bushes, entered the open door and arrested Davis and Simpson.

Davis and Simpson were taken outside the building and held in custody for approximately an hour until Babcock returned, when he too was arrested. All three were then taken by agents to Orlando and presented before a United States Commissioner. Meanwhile, commencing with the arrest of Davis and Simpson, agents entered the building, searched it, and took numerous photographs. They found three small furnaces in a pit in the floor, in operation, and coins both sacked and piled on the floor. They seized almost everything in the building, including bags of United States coins, crucibles containing metal thought to have previously been United States coins, molds, a crane, scales, and a generator. They seized various other items outside the building.

Agents found the ambulance parked nearby in the trees, and, after opening the rear door, found a number of rolls of coins in an interior compartment. After Babcock returned in the pickup it too was searched.

While the three suspects in custody were being taken to the United States Commissioner, some of the officers remained at the site, making an inventory, waiting for the hot furnaces to cool, and waiting for transportation for the fruits. The items seized were so numerous, and some of them so large, that Williamson, who accompanied the suspects to Orlando, arranged for a moving van and a three-man crew to go to the scene. When the van arrived, loading the...