497 F.2d 147 (5th Cir. 1974), 72-1520, United States v. Soriano

Docket Nº:72-1520.
Citation:497 F.2d 147
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. Rafael SORIANO, Angel Aviles, Domingo Colon, Alfredo Aviles, Edward Arroyo, Alfredo Jose Mazza, Marta Sierra, Ana Rose Betancourt and Jack Marsh, Defendants-Appellees.
Case Date:July 15, 1974
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 147

497 F.2d 147 (5th Cir. 1974)

UNITED STATES of America, Plaintiff-Appellant,

v.

Rafael SORIANO, Angel Aviles, Domingo Colon, Alfredo Aviles, Edward Arroyo, Alfredo Jose Mazza, Marta Sierra, Ana Rose Betancourt and Jack Marsh, Defendants-Appellees.

No. 72-1520.

United States Court of Appeals, Fifth Circuit.

July 15, 1974

Page 148

Robert W. Rust, U.S. Atty., Michael P. Sullivan, Asst. U.S. Atty., Miami, Fla., Mervyn Hamburg, Dept. of Justice, Washington, D.C., for plaintiff-appellant.

Arthur Massey, Miami, Fla., for Rafael Soriano and Edward Arroyo.

James J. Hogan, Alan E. Weinstein, Miami Beach, Fla., for Angel Aviles.

Albert Krieger, New York City, for Alfredo Aviles and Edward Arroyo.

Julia Ferrer, Miami, Fla., for Alfredo Jose Mazza.

Philip Vitello, Coral Gables, Fla., for Jack Marsh.

Gino Negretti, Miami, Fla., for Domingo Colon.

Gross & Krause, Maynard A. Gross, Miami, Fla., for Marta Sierra and Ana Rose Betancourt.

Before BROWN, Chief Judge, and WISDOM, GEWIN, BELL, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, RONEY and GEE, Circuit Judges.

GEE, Circuit Judge:

The United States appeals 1 from suppression of evidence obtained in searches of a house and of three suitcases. We adopt the panel opinion insofar as it reverses the trial court's suppression of the fruits of the house search. 2 Further consideration persuades us, however, to a somewhat different view than that of the panel and the court below toward suppression of the fruits of the suitcase search. Both aspects of the trial court's suppression order are therefore set aside. The issue before us is narrow, and we restate only such of the facts detailed in the panel opinion as are pertinent to our decision of it.

On the afternoon of January 4, 1972, federal narcotics agents had a Florida residence under surveillance pursuant to information from a reliable informant that a large shipment of illegal drugs had arrived there for distribution. At about 4:00 p.m., Alfredo Aviles and Sierra, who had been reported in the house by the informant, were seen to leave with a brown bag which they discarded several blocks away. Inspection revealed its contents to be clear plastic bags and torn Christmas wrapping paper, each of which bore traces of what field tests showed was an opium derivative. Later that evening, the informant was seen to leave the residence. She told confederates of the watching agents that inside she had seen suitcases and Christmas packages, and observed Alfredo Aviles, Angel Aviles, Sierra, Betancourt, Soriano and Arroyo conferring in whispers. Later still, Angel Aviles and

Page 149

Colon got out of a cab, walked about a block to the house and entered. At 10:00 p.m., these two, plus Soriano, left the house carrying three suitcases which appeared heavy and took a cab to Miami International Airport. Agents who followed stopped the cab as it drew up to an airline entrance, arrested the passengers, removed the suitcases from its trunk, and peeked into one of them. 3 Clothing and plastic bags of a white powder later identified as heroin were revealed, which the court below suppressed as evidence.

That the agents had probable cause to believe the suitcases contained contraband is plain from the facts stated above, and that the seizure of the baggage was proper also. 4 At the warrantless suitcase search, however, the panel, with one judge dissenting, and the court below balked; we go on.

As a matter of pattern and logic, much can be said for the panel's view that, however they begin, whenever matters come to so stable a stand that a warrant can be obtained, one should be. The view is buttressed...

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