532 F.2d 773 (1st Cir. 1976), 75-1165, United States v. Chadwick

Docket Nº:75-1165.
Citation:532 F.2d 773
Party Name:UNITED STATES of America, Appellant, v. Joseph A. CHADWICK et al., Defendants-Appellees.
Case Date:March 29, 1976
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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Page 773

532 F.2d 773 (1st Cir. 1976)

UNITED STATES of America, Appellant,

v.

Joseph A. CHADWICK et al., Defendants-Appellees.

No. 75-1165.

United States Court of Appeals, First Circuit

March 29, 1976

Page 774

[Copyrighted Material Omitted]

        Argued Sept. 9, 1975.

Page 775

        Lawrence P. Cohen, Asst. U. S. Atty., Deputy Chief, Crim. Div., Boston, Mass., with whom James N. Gabriel, U. S. Atty., Boston, Mass., was on brief, for appellant.

        Jeanne Baker, Cambridge, Mass., with whom Rosenberg & Baker, Cambridge, Mass., Martin G. Weinberg and Oteri & Weinberg, Boston, Mass., were on brief, for Joseph A. Chadwick, appellee; Robert L. Steadman, Boston, Mass., on brief for Bridget Ann Leary, appellee.

        Before COFFIN, Chief Judge, CAMPBELL, Circuit Judge, THOMSEN, [*] Senior District Judge.

        LEVIN H. CAMPBELL, Circuit Judge.

        The United States has appealed under 18 U.S.C. § 3731 from the district court's allowance of motions to suppress evidence.

        Chadwick, Machado, and Leary, following their arrest on May 10, 1973, were indicted for possession of marijuana with intent to distribute and for conspiracy. 21 U.S.C. §§ 841(a)(1) and 846. Prior to their trial, they moved to suppress evidence of marijuana seized from a footlocker, two suitcases and Chadwick's person, and Chadwick's remarks while in custody. After an evidentiary hearing, the district court ruled in the defendants' favor, 393 F.Supp. 763, and it reaffirmed and amplified its rulings after hearing the Government's motion for reconsideration. Id. at 773. This appeal followed.

Page 776

        The circumstances of defendants' arrests and the subsequent searches were described by federal agents Richard G. Christopher and Paul L. LaVoie, both assigned to the Office for Drug Abuse Law Enforcement (ODALE), and by Robert Walsh, police officer for Penn Central Railroad. On May 8, 1973, information was relayed to LaVoie in Boston from the ODALE office in San Diego, California, that an old brown trunk or footlocker, suspected to contain marijuana, was en route from California to Boston by Amtrak train. The San Diego office had been tipped off by an Amtrak official, who suspected that the footlocker contained marijuana because it was leaking talcum powder, a material used to cover up the odor of controlled substances, and because of its unusual weight for its size, almost two hundred pounds. The appearance of the person shipping the footlocker, identified as Machado, fit a profile used by Amtrak officials to spot drug traffickers. The tag bore Machado's address in Scituate, Massachusetts. According to ticketing information, he was accompanied by another person later identified as Leary.

        Descriptions of both Machado and the footlocker were transmitted to the Boston agents who learned that the train would arrive in Boston the evening of May 10. Between the eighth and the tenth, the agents sought no search or arrest warrants, but continued investigating. When the train passed through New Haven, Connecticut, prior to its arrival in Boston, Amtrak officials checked the baggage compartment and verified that the footlocker was still on board. Agent Christopher testified that "the suspicion was sufficient to justify an expenditure of men and energy at South Station," and so six law enforcement officials were gathered at South Station at 6:50 p. m. on May 10 to await the train. It finally arrived at 8:50 p. m., approximately one hour behind schedule. A few minutes later, Agent Christopher spotted a suspect fitting Machado's description inside the terminal. Christopher saw Machado make a telephone call but was unable to see the number which was dialed or overhear the conversation. Agent Christopher also saw the footlocker as it was removed from the baggage car, placed on a baggage cart, and taken in to the station area, where it was claimed by Machado and a female companion, later identified as Leary. They placed it on the floor near an abandoned magazine stand and sat down on it. Agent Christopher never saw the trunk open. The couple also had with them two suitcases.

        The agents had brought with them Duke, a detector dog, trained to sniff out controlled substances. Duke's handler walked him on his leash by Machado and Leary several times. Agent Christopher then told the handler to release Duke near the footlocker, whereupon Duke went to the locker and gave an "alert response" by scratching on it, indicating that he detected a controlled substance inside. The handler had not been instructed, however, to have Duke also smell the suitcases, and so immediately after the alert to the footlocker, he picked up Duke's leash and walked Duke out of the building.

        Chadwick was seen for the first time a few minutes later walking into the terminal. He came over to Machado and Leary and the three engaged in conversation for a moment. Chadwick then left the terminal 1 and went outside to the street where a Dodge Polara, later found to have been rented, was parked. Machado and Leary engaged a red cap who physically transported the footlocker out to the car where Chadwick was waiting. Leary climbed into the front passenger seat, putting one of the suitcases inside the passenger compartment. The red cap loaded the footlocker into the trunk of the Dodge with the help of Machado and Chadwick, the red cap doing most of the lifting. The other suitcase was placed in the trunk of the Dodge with the footlocker.

        As soon as the red cap was clear of the vehicle, before the trunk lid was closed or

Page 777

the car engine started, the federal agents closed in and arrested the trio. It was then about 9:15. Machado and Chadwick were standing at the back of the vehicle; Leary was seated in the front seat. The two males were quickly frisked and all three were handcuffed. No guns or weapons were found on any of them. Keys to the footlocker and receipts and documents of ownership were found on Machado, but no keys or documents were found on Chadwick so as to link him to the footlocker. A key was found on Chadwick's person, of which a duplicate or similar type was found in Leary's possession; it was believed to be a safe deposit box key, not a trunk key. They were all then taken in government vehicles, Chadwick and Machado in one and Leary in another, to the John F. Kennedy Building (JFK). The Dodge Polara was seized for the purpose of forfeiture because of its use to facilitate the transportation of marijuana, 21 U.S.C. § 881. One of the agents drove it to JFK at the same time, the footlocker and suitcases still inside. Subsequent to the arrest, Agent Christopher testified, the footlocker was under his control at all times. No accomplices were suspected or known to be in the area.

        En route to JFK, a five minute trip, Officer Walsh read to Chadwick and Machado their Miranda rights. Agent Christopher repeated the warnings and asked Chadwick point by point if he understood those rights and that he could waive those rights. Chadwick acknowledged that he understood that he could waive them. He was not requested to execute a waiver and there is no evidence that he did so. Machado refused to give his name or answer any questions. There was then a brief exchange between Agent Christopher and Chadwick. As Agent Christopher recounted the conversation:

"I asked the defendant Mr. Chadwick his name, and he gave it to me.

I asked the defendant Machado his name, and he refused to answer.

I then asked Mr. Chadwick how it came to be that he was where he was from? And he said, Salem, New Hampshire.

I asked him why he was all the way down here from Salem, New Hampshire? And he said that Mr. Machado had called him.

He asked me how I knew what was in the trunk. And I told him that he had it wrong; I asked the questions.

I asked him how he knew what was in the trunk, and he didn't answer. He said he didn't know what was in the trunk.

I asked him what his phone number was.

He said he didn't have a phone.

Then I asked him how he could get a call from Mr. Machado?

He said that everything that he said I was twisting, and he didn't care to answer any more questions."

        Chadwick said nothing further. After they arrived at JFK, Agent Christopher put Chadwick through routine booking information. Miranda warnings were repeated and there was further conversation:

"I took routine booking information name, address, and so on.

At that time Mr. Chadwick stated that he lived, I think it was 100 Riverway in Brookline or near Boston. I don't recall if it was Brookline or not.

I again asked him for his phone number at that address. He said he had no phone.

I asked him how he got the phone call from Mr. Machado. He said he received it on the phone of a friend who lived in the apartment above him at 100 Riverway, that would be the third floor apartment.

And I believe I asked him how he knew to be at that phone at that particular time to receive a call. I don't believe he responded to that question.

I don't think there were any other questions other than booking information asked of him."

        A small quantity of marijuana was found on Chadwick's person.

        The footlocker and suitcases were taken into the ODALE office at JFK within minutes of the prisoners' arrival. The footlocker

Page 778

was double-locked with a padlock and regular trunk latch, which the agents first noticed when they removed it from the Dodge Polara at JFK. It was opened in the ODALE office by the agents, using the keys found on Machado, sometime between 9:30 and 11:00 p. m. A large quantity of marijuana was found inside. Agent Christopher testified that the search was delayed until they reached JFK because there were too many people on the street at South Station when the arrest was made. The two suitcases were also brought into the ODALE office for inventory pursuant to Drug Enforcement...

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