488 F.2d 374 (5th Cir. 1973), 72-3574, United States v. Horton

Docket Nº:72-3574.
Citation:488 F.2d 374
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Joseph HORTON and Willie F. Jordan, Defendants-Appellants.
Case Date:November 28, 1973
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 374

488 F.2d 374 (5th Cir. 1973)

UNITED STATES of America, Plaintiff-Appellee,

v.

Joseph HORTON and Willie F. Jordan, Defendants-Appellants.

No. 72-3574.

United States Court of Appeals, Fifth Circuit.

November 28, 1973

Rehearing and Rehearing En Banc Denied Jan. 3, 1974.

Page 375

[Copyrighted Material Omitted] Page 376

William C. Starke, Chicago, Ill., Albert Armendariz, El Paso, Tex., Gerald M. Werksman, Chicago, Ill., for defendants-appellants.

William S. Sessions, Edward S. Marquez, Asst. U. S. Atty., San Antonio, Tex., for plaintiff-appellee.

Before AINSWORTH, GODBOLD and INGRAHAM, Circuit Judges.

INGRAHAM, Circuit Judge:

Defendants Horton and Jordan appeal from their convictions under 21 U.S.C.§ 841(a)(1) 1 for possessing with intent to distribute three pounds and two ounces of heroin, a Schedule I controlled substance. In a trial before the court, Horton and Jordan were found guilty and each sentenced to ten years imprisonment with a special parole of ten years. There are three principal issues on this appeal: (1) whether the defendants were properly arrested on the basis of probable cause; (2) whether Horton validly consented to the search that revealed the heroin; and (3) whether there was sufficient evidence to convict Jordan. We hold that probable cause existed for their arrest, that Horton consented to the search, but that there was insufficient evidence to convict Jordan. We therefore affirm Horton's conviction, but reverse as to Jordan.

The events that led to the arrest of the defendants commenced on September 1, 1972, when a customs agent in Chicago, Diogenes Galanos, received a telephone call from an anonymous informer. The caller gave Galanos the following information: (1) that Willis Minnieweather, a black male approximately thirty years of age and weighing 180 to 190 pounds, was en route from Chicago to El Paso, Texas, to procure a substantial quantity of heroin; (2) that Minnieweather was driving a 1966 Oldsmobile with a black vinyl top and a brown bottom and bearing the license number BM 1390; and (3) that Minnieweather was to be accompanied by another black male approximately twenty-five to thirty years of age. Galanos attempted to verify the ownership of the vehicle bearing this license, and an investigation revealed that the license was issued to a 1967 Buick registered in the name of Willis Minnieweather. Galanos relayed the information he had obtained to Agent A. L. Fears in the El Paso Customs Office. On receiving this information, Agent Fears began checking at the hotels and motels in the El Paso locality and located the 1966 Oldsmobile at the Travelodge-Central Motel. Fears learned from the manager of the motel that a man named Jordan was registered

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in rooms 408, 409 and 412, and that a person named Minnieweather had made several telephone calls from the hotel to numbers located in the west side of Chicago, an area where problems with narcotics are prevalent. The automobile was placed under intermittent surveillance and was last seen on September 3, 1972, when it left the Travelodge occupied by two males, a female and a child, all unidentified, and proceeded east on Interstate Highway 10.

On September 11, 1972, Agent Galanos received a second call from a person identifying himself as the one who had called previously about Minnieweather. The caller informed Agent Galanos that the persons discussed in their previous conversation were returning to El Paso to procure a quantity of heroin to bring back to Chicago. Galanos immediately related this latest information to Agent Fears in El Paso. Fears conducted an investigation and found that two men, Joseph Horton and Willie Jordan, were registered in the Downtowner Motor Inn in El Paso and were accompanied by two females.

Fears initiated surveillance of Horton and Jordan's activities. At approximately 6 P.M. Horton left the Downtowner Motel in a taxi and went to the Knights Club, a bar in the El Paso Rodeway Inn. After waiting there for a short period of time, he returned to the waiting taxi and went back to the Downtowner. At 8 P.M. both Horton and Jordan returned, via taxi, to the Rodeway bar, but remained there for only five to ten minutes. They then went back to the Downtowner. Later that evening Horton, traveling alone and by taxi, left the Downtowner carrying a grey attache case and went to yet another hotel, the Airways Holiday Inn. Although he never entered this hotel, Horton stood near the entrance with the grey attache case for approximately thirty minutes. The surveillance team reported that he appeared to be waiting for someone, but no one appeared.

From the Airways Horton proceeded, again by taxi, to the Midtown Holiday Inn. He was still carrying the attache case when he arrived there. Shortly thereafter, Jordan arrived at the Midtown in a 1971 black Chrysler. After loitering around the vehicle for a few minutes, Jordan joined Horton at the entrance of the hotel. Horton and Jordan walked to a telephone booth adjacent to the hotel's parking lot and apparently made two telephone calls. They then traveled from the Midtown Holiday Inn back to the Airways Holiday Inn, where Jordan got out of the automobile and waited at the entrance of the Flame Room located at the Airways. Horton returned to the car, and as the automobile proceeded east on Interstate 10, surveillance was discontinued.

Horton and Jordan were next observed on the following day when they arrived at the Rodeway in the 1971 Chrysler accompanied by the two females. Horton entered the Knights Club located there and met with a Mexican male for approximately five minutes. The Mexican left the club through the rear entrance, and Horton followed within about three minutes. Meanwhile Jordan had entered the motel through the front entrance. Both Horton and Jordan were next seen returning to the Chrysler through the front entrance of the Rodeway. The defendants entered the 1971 Chrysler and went to a gasoline service station where they apparently had the automobile serviced. Surprisingly, the four occupants of the car got into a taxi and drove to the El Paso airport. While two agents remained at the service station where the 1971 Chrysler was located, other agents followed the taxi to the El Paso airport. When the cab was near the passenger entrance to the terminal, it was stopped. The agents, with weapons drawn, ordered the four occupants out of the cab. The males and the taxi were searched as were the ladies' purses, and the four suspects were placed in handcuffs.

After Agent Fears identified himself, Horton gave his name and stated that they were all flying to Chicago. Fears inquired as to who owned the 1971 black

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Chrysler that was left at the service station. Although subsequent investigation revealed that the automobile actually belonged to Jordan, Horton replied that the vehicle was his and the appropriate keys were found on Horton's person. Agent Fears testified that "[a]t this time I told Mr. Horton that we were going to search the Chrysler and wanted to know whether or not he had any objections to us taking him back to the vehicle and searching that vehicle." Horton responded that he had no objection.

The agents and the four suspects returned to the service station where the 1971 Chrysler was located. The suspects again were asked who owned the vehicle, and Horton replied that it was his. Agent Fears testified that Horton was asked for the second time "whether or not he had any objection to us searching the vehicle and again he stated he had no objection." As the car was searched a locked grey attache case was found in the trunk. Horton stated that the case was his, and he produced the key. Inside the case the agents discovered three pounds, two ounces of heroin.

Immediately after the seizure, the defendants were given their Miranda 2 warnings and taken to the customs office in El Paso. At the customs office Agent Fears asked Horton if he would like to make a statement regarding this incident. Agent Fears testified that "[a]t this time Horton stated the heroin was produced with his money, that the heroin was his, and that the two females did not know anything about the heroin." When asked whether Jordan knew of the heroin, Horton first stated "Yes" then "No," and then that "he thought that Mr. Jordan knew what was going on." Agent Fears also testified that Horton wanted to assume the blame for the incident.

In a second interview with Horton later that evening, Agent Fears advised Horton of his constitutional rights and asked for a detailed account of the events. Horton reiterated that the heroin was his, that it was purchased with his money, and that he was taking the heroin back to Chicago. He had gone to the El Paso International Airport to meet a man named Minnieweather. Horton stated that Minnieweather had been with him in El Paso the previous day, but had flown back to Chicago that same day.

Jordan also made a statement regarding the incident. After receiving his Miranda warnings, Jordan said that he and the two females had driven from Chicago and met Horton and Minnieweather at the Downtowner Motor Inn. While staying at the Downtowner, a Mexican male had called upon Horton and the two had left the presence of Jordan. The substance of the conversation with the Mexican was unknown to Jordan. Horton subsequently asked Jordan to meet him at the hotel on September 11, 1972. Jordan did not know why he was to meet Horton at this hotel, but believed that Horton was going to meet someone there. Jordan also stated that he had been cooperating with another agency in Chicago, although he did not say which agency, in an effort to provide information of illicit activities. Jordan stated that he knew Minnieweather and that Minnieweather had been in El Paso on at least two prior occasions to purchase narcotics.

I.

We turn first to the issue whether the customs officials had probable...

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