U.S. v. Maslanka

• Decision Date: 20 September 1974
• Docket Number: No. 73-3416,73-3416
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James G. MASLANKA, Walter Richard Ercius, Steven Garrett Lamb, Barry WesleyKorn, Floyd Farrell Capo, Michael John Knight, and David Strongosky, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 208

501 F.2d 208

UNITED STATES of America, Plaintiff-Appellee, v. James G. MASLANKA, Walter Richard Ercius, Steven Garrett

Lamb, Barry WesleyKorn, Floyd Farrell Capo,

Michael John Knight, and David

Strongosky, Defendants-Appellants.

No. 73-3416.

United States Court of Appeals, Fifth Circuit.

Sept. 20, 1974, Rehearings and Rehearing En Banc Denied Dec. 4, 1974.

Hugh M. Davenport, Jacksonville, Fla., Oscar B. Goodman, Las Vegas, Nev., for Maslanka.

Michael Knight, pro se.

Robert A. Douglass, St. Petersburg, Fla., for Ercius.

Martin G. Weinberg, Joseph S. Oteri, Boston, Mass., for Lamb and Korn.

Percy Foreman, Dick DeGuerin, Houston, Tex., for Capo, Knight, strongosky.

William Stafford, Jr., U.S. Atty., Robert L. Crongeyer, Jr., Asst. U.S. Atty., Pensacola, Fla., Stewart J. Carrouth, Melvin R. Horne, Asst. U.S. Attys., Tallahassee, Fla., for plaintiff-appellee.

Before MOORE, ^* AINSWORTH and RONEY, Circuit Judges.

MOORE, Circuit Judge:

This appeal is from judgments of conviction entered against appellants in the United States District Court for the Northern District of Florida after a jury trial. Each appellant was accused and convicted of conspiring to import marijuana into the United States, 21 U.S.C. 963 (1970) ¹ (Count 1); actual importation of the marijuana, 21 U.S.C. 952(a) (1970) ² (Count 2); conspiring to possess the marijuana with intent to distribute, 21 U.S.C. 846 (1970) ³ (Count 3); and actual possession of the marijuana with intent to distribute, 21 U.S.C. 841(a) (1970) ⁴ (Count 4).

Appellants were each sentenced to five years' imprisonment on each count-- to be served consecutively in eacy case with the exception of Ercius who was sentenced to serve his sentences on counts 3 and 4 concurrently with those on counts 1 and 2. We reverse the convictions on counts 1 and 2, the importation counts, and order that the indictments on these counts be dismissed. We affirm the convictions on counts 3 and 4, the possession counts.

The Facts

On March 5, 1973, Florida State Narcotics Agents were informed by two fishermen that there was a large pile of a substance believed by them to be marijuana at a spot along Rocky Creek, a navigable inlet of the Gulf of Mexico, across from Buckeye Landing. ⁵ Agents Mortonson, Herring, and Kinsey along with Deputy Dyals, were sent to investigate this discovery and, upon crossing Rocky Creek, they located 18,000 pounds of what a field test proved to be marijuana. Shortly after this determination, Agent Kinsey noticed a blue Cadillac across Rocky Creek on the dirt road approaching the landing. He watched the progress of the Cadillac which, when it reached a spot on the road where the driver could see the unmarked police car at the landing, immediately turned back toward Florida State Route 361. Agent Kinsey shouted to one of their number, Agent Mortonson, who had remained with the police car, to follow 'the blue car.' Mortonson started off in pursuit.

When Mortonson reached the intersection of the dirt road with Route 361, he saw a blue car, the only vehicle in sight, about half a mile north on Route 361, accelerating rapidly. Mortonson, after placing a blue revolving light on his dashboard, pursued the blue car, flashing his headlights and blowing his horn. The pursuit lasted approximately five miles, with Agent Mortonson reaching speeds of 105 miles per hour. After the Cadillac had pulled over, Agent Mortonson stopped his car behind it and, pulling his gun, approached the vehicle. ⁶ Mortonson ordered the driver, appellant Maslanka, out of the car and arrested him for 'attempting to elude a police officer and speeding.' While he was 'patting down' Maslanka, Mortonson noticed a strong odor of marijuana about Maslanka's person. ⁷ He then ordered the other two occupants-- appellants Knight and Ercius-- out of the car, and discovered the odor of marijuana around them as well. These three appellants were then arrested for the possession of the marijuana at Rocky Creek.

By this time another agent had arrived and the appellants were searched. The search of Maslanka revealed an airline ticket for passage from Kingston, Jamaica, to Ocho Rios and several receipts from Jamaican stores for clothing purchases. The search of Knight revealed a piece of paper covered with additions-- apparently some sort of tally-- cigarette papers and a cigarette made from what was later ascertained to be marijuana. It was also noted that the Cadillac bore out-of-state plates.

Knight and Ercius were then taken to a police station. Maslanka, however, was taken by Mortonson in company with several other officers back to the landing. After they turned off Route 361 onto the dirt road and had proceeded to within 1,500-1,800 feet of the landing, they overtook a blue pick-up truck with Michigan license plates headed in the direction of Rocky Creek. Appellant Capo was driving, appellants Strongosky and Korn were with him in the cab, and appellant Lamb was in the open rear portion of the vehicle. Appellants were stopped and informed of the purpose of the agents' presence at the landing. They were then given their Miranda warnings, and asked to step out of the truck. It was noticed that three of appellants, Strongosky, Korn, and Lamb, were dressed in work clothes covered with vegetable particles and were unkempt as if they had been working in hay. It was further noticed that there was a strong smell of marijuana about these three. At this point all four, Capo, Strongosky, Korn and Lamb, were requested to accompany the officers to the landing where they were arrested.

While these appellants were taken off to jail, the agents began shifting the marijuana so that it could be removed for safekeeping. As it was eventually determined that the pile contained 18,000 pounds of the substance, the moving operation took most of the night. ⁸ The sacking containing the marijuana was marked Kingston, Jamaica, the bags apparently having been made for the Shell Chemical Company operations in that city. At the site a barge half full of marijuana was discovered and it was eventually learned by investigation that it bore the fingerprints of Knight and Korn. It also was learned that this barge belonged to Capo.

Early the next morning, after the marijuana had been safely transported, Agents Kinsey and Mortonson returned to the jail where appellants had been incarcerated, took their clothes (with the exception of Capo's) and sent them to a laboratory. ⁹ The laboratory report as introduced at trial stated that minute particles of marijuana were contained in the clothing along with bits of jute fiber similar to that used in the sacking which contained the marijuana.

Probable Cause to Arrest

Each appellant contends that the case against him should have been dismissed because it stemmed from an arrest based on insufficient cause. The trial court at the suppression hearing overruled appellants' objections stating with regard to appellants Maslanka, Knight, and Ercius, who were in the blue Cadillac:

An officer who did not stop that vehicle ought to be removed from office in circumstances such as these.

Likewise with regard to the other appellants who were apprehended in the blue pick-up truck he ruled:

The arrest of Mr. Capo and the other occupants of that vehicle is obviously not an impermissible arrest because of the circumstances and I am not going to dwell further on that.

With these conclusions we agree.

To determine the presence or absence of probable cause to arrest, one must consider the totality of the circumstances surrounding the arrest. As the Supreme Court stated in Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964):

Whether that arrest was constitutionally valid depends in turn upon whether, at the moment the arrest was made, the officers had probable cause to make it-- whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that petitioner had committed or was committing an offense.

379 U.S. at 91, 85 S.Ct. at 225. See also United States v. Bowers, 458 F.2d 1045 (5th Cir.), cert. den., 409 U.S. 868, 93 S.Ct. 167, 34 L.Ed.2d 118 (1972).

In dealing with probable cause, however, as the very name implies, we deal with probabilities. These are not technical; they are factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.

Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879 (1949).

The marijuana was hidden in a remote area of a rural county. This area was approached by a narrow deadend road. A car came down the road but, upon observing an unmarked car at the landing, turned back, apparently in flight, toward the highway. Certainly these facts provided reason for Agent Mortonson to investigate. Mortonson reached Route 361 and observed the car rapidly moving toward the north. His pursuit lasted for five miles at speeds around 100 miles per hour. First, Agent Mortonson arrested the driver for speeding, ¹⁰ and then noticed the pervading smell of marijuana about Maslanka's person as well as the passengers.

An officer need not have probable cause before investigating suspicious circumstances:

We believe that these . . . officers would have been derelict in carrying out their appointed duties had they neglected to investigate given all of the circumstances at hand, . . .. United States v. Allen, 472 F.2d 145, 147 (5th Cir. 1973).

Similarly, it is obvious that the agents, in stopping the blue pick-up truck with the out-of-state plates, were acting within their authority to make an investigatory stop. The road to Rocky Creek was not well frequented, and the last car that had come down it had held three persons who were covered with marijuana. The agents merely stopped the truck and, having given the occupants their Miranda warnings, asked them where they were going. At that...