U.S. v. Mitchell

• Citation: 525 F.2d 1275
• Decision Date: 16 January 1976
• Docket Number: No. 75--1814,75--1814
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William Chadbourne MITCHELL, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 1275

525 F.2d 1275

UNITED STATES of America, Plaintiff-Appellee, v. William Chadbourne MITCHELL, Defendant-Appellant.

No. 75--1814.

United States Court of Appeals Fifth Circuit.

Jan. 16, 1976.

Rehearing En Banc Granted

April 15, 1976.

Michael B. Standard, Eric M. Lieberman, New York City, for defendant-appellant.

John E. Clark, U.S. Atty., Joel D. Conant, W. Ray Jahn, Asst. U.S. Attys., San Antonio, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before GODBOLD, DYER and MORGAN, Circuit Judges.

DYER, Circuit Judge:

Mitchell seeks reversal of his conviction of possessing marijuana with intent to distribute, 21 U.S.C.A. § 841(a)(1). He asserts that his Fourth Amendment rights were violated in the search of a parked pick-up truck which had recently crossed into the United States at the Mexican border and in the seizure of 400 pounds of marijuana. The government argues two bases to justify the government's lack of a search warrant: first, the so-called automobile exception for the exigent circumstances; and second, border search exception. We conclude that the district court erred in denying the appellant's motion to suppress the evidence and reverse.

In June of 1973, agents of the United States Department of Justice's Drug Enforcement Agency (DEA) in New Jersey, were given information by Mancuso, a private individual, concerning a complicated series of transactions in the spring of 1973, in which he had been anonymously hired to drive a car into the United States from Mexico. The cooperating informer presented ample supporting documentation of these initial trips.

DEA agents in New Jersey conferred about these operations with DEA agents in Texas over the course of the summer of 1973. During this period DEA discovered substantial evidence indicating that the apparent travel arrangements were merely a cover for an illegal scheme to import contraband narcotics. On October of 1973, Mancuso was once again surreptitiously propositioned about this Mexican venture in New York City by a phony transportation company. Mancuso told DEA about his instructions to fly to Texas, to cross the border to Mexico, to pick up the same pick-up truck he had driven across empty in April and deliver it to the same San Antonio Holiday Inn he had taken it to on the earlier trip.

On October 13th, a meeting was held by the agents of the Texas DEA with New Jersey DEA and the United States Customs. The DEA agents discussed their belief that narcotics were going to be smuggled into the country in this truck. This trip, like the April one, aborted when Mancuso the next day was told by telephone that the truck was not yet ready, and to return to Mexico and pick up the truck on October 20. He supplied DEA with the truck's description (color, make, license plates, etc.), its designated destination and the time of border crossing. These specifics were the same as they had been in the prior runs in the spring.

On the day of the contested search, the DEA had made extensive preparations for the contemplated drug seizure, both at the border and at the designated arrival site of the truck in Texas. The truck driven by Mancuso, and a red Buick automobile driven by Mitchell which was following the truck, were kept under continuous surveillance all of the time after they crossed the border at Brownsville, Texas. Meanwhile, a DEA 'stake-out' unit had been established as the same Holiday Inn in San Antonio that had previously been designated at the truck's destination. The DEA agents had set up in advance a videotape surveillance unit, and a special 'starlight scope' for taping by moonlight.

Mancuso parked the truck in the San Antonio Inn parking lot, seven hours and approximately 300 miles after crossing the Mexican border. When Mitchell appeared, unlocked and attempted to enter the truck, he was arrested by a DEA agent. An initial search of the truck did not turn up any contraband. Dogs were brought in, and their behavior suggested the presence of contraband. A bolt securing the bottom of the truck was removed enough to disclose a sample of what appeared to be marijuana. Subsequently, at police headquarters, 400 pounds of marijuana was removed.

The government, relying on Chambers v. Maroney, 1970, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419, argues that the search is valid under the automobile search exception to the warrant requirement. Mitchell responds that the search cannot be justified because there were no exigent circumstances. Since this was a planned search, he contends there was adequate opportunity to obtain a warrant well in advance of the seizure of the truck.

We fully recognize the general principle of probable cause coupled with exigent circumstances urged by the government to justify its proceeding without a warrant. That there was probable cause to arrest Mitchell and to search the vehicle at the time he attempted to enter it cannot be disputed. But, the government has been unable to demonstrate any exigent circumstances. Its claim, that the evidence might evaporate, is unsubstantiated in the record. To the contrary the government had planned and prepared for the expected search at the designated site with unusually extensive personnel and equipment. There was literally no risk of loss of the contraband, nor loss of sight of the vehicle enroute, as it was at all times under the control of Mancuso, the cooperating informer. The only circumstances suggesting unpredictability were the facts unknown to Mancuso. He did not know the identity of the principals involved, nor that the trip in question would not be aborted as had previously occurred. In the distinctive factual context of this case we regard these uncertainties as of minimal significance. The notion of unpredictability here is simply outweighed by the extraordinary specificity of the government's advance knowledge and planning of the search over such a prolonged time period.

Essentially, the government's contention is the existence of per se exigency for a warrantless search whenever an automobile is involved, regardless of the attendant circumstances. To uphold this search under the automobile exception would entail a radical expansion of that theory's scope contrary to the underlying rationale for allowing the original deviation from the constitutional rule. Carroll v. United States, 1925, 267 U.S. 132, 153, 45 S.Ct. 280, 69 L.Ed. 543. In the absence of the compelling facts of exigency, reason for the exception fails. As the Supreme Court has reiterated, 'The rationale of Chambers is that given a justified initial intrusion, there is little difference between a search on the open highway and a later search at the station. Here, we deal with the prior question of whether the initial intrusion is justified.' Coolidge v. New Hampshire, 1971, 403 U.S. 443, 463 n. 20, 91 S.Ct. 2022, 2036, 29 L.Ed.2d 564. See also Cardwell v. Lewis, 1974, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325.

In Chambers, a warrantless search of a car securely held in government custody was nevertheless reasonable only because the initial seizure had been proper due to exigent circumstances. Chambers, supra, 399 U.S. at 51--52, 90 S.Ct. 1975. See Note, Warrantless Searches and Seizures of Automobile, 87 Harv.L.Rev. 835, 843--844 (1974); Miles and Wefing, The Automobile Search and the Fourth Amendment--A Troubled Relationship, 4 Seton Hall L.Rev. 105, 130--132 (1972). The vehicle's potential instant mobility has always been the crucial factor rendering the prior procurement of a search warrant impractical. Thus effective law enforcement requires immediate action because 'the opportunity (for the) search is fleeting.' Chambers, supra at 51, 90 S.Ct. at 1981. But there is no per se exemption...