U.S. v. Ivey

• Citation: 546 F.2d 139
• Decision Date: 28 January 1977
• Docket Number: No. 76-1205,76-1205
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Johnnie William IVEY and Joseph Taglione, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 139

546 F.2d 139

UNITED STATES of America, Plaintiff-Appellee, v. Johnnie William IVEY and Joseph Taglione, Defendants-Appellants.

No. 76-1205.

United States Court of Appeals,

Fifth Circuit.

Jan. 28, 1977.

Rehearing Denied April 8, 1977.

See 550 F.2d 243.

Lester J. Quartel, Fort Lauderdale, Fla. (Court-appointed), for Ivey.

Fred Haddad, Fort Lauderdale, Fla. (Court-appointed), for Taglione.

John L. Briggs, U. S. Atty., Jacksonville, Fla., Terrance Smiljanich, Asst. U. S. Atty., Tampa, Fla., for plaintiff-appellee.

Appeals from the United States District Court for the Middle District of Florida.

Before TUTTLE, CLARK and RONEY, Circuit Judges.

CLARK, Circuit Judge:

Johnnie William Ivey and Joseph Taglione, along with a nonappealing codefendant, were each convicted by a jury on one count of importation and possession of marijuana with intent to distribute. On this appeal Ivey raises two issues: that the district court erred in denying his motion to suppress the marijuana found in a search of the aircraft involved, and that the assistant United States attorney engaged in prohibited conduct when he alluded in final argument to failure by the defense to call a witness. Taglione raises the same failure-to-suppress issue and, additionally, that there was insufficient evidence to convict him and that errors in rulings by the trial judge entitle him to a new trial. None of these issues have merit.

The operative facts are as follows. A twin-motored Lockheed Lodestar aircraft bearing United States civil registry N700L landed on South Caicos, a small island in the British West Indies, on August 3, 1975. The three defendants were the only occupants aboard N700L at that stop. All three completed local immigration forms. As the craft contained no cargo, there was nothing to declare and a British customs inspection at South Caicos confirmed this. N700L was cleared to depart South Caicos the following day. However, on August 5, N700L was still on South Caicos where it was observed by a local official and an over-flying United States Customs pilot. The Customs pilot placed a notification to "be on the lookout for" this aircraft with his Miami office. Also on August 5, the plane took on 277 gallons of fuel and 42 quarts of oil.

At approximately 3:00 p. m. local time on August 5, N700L departed South Caicos with a stated destination of Martinique, but without filing a flight plan. To the knowledge of the local officials, the aircraft contained no cargo when it departed the island.

The next official contact with N700L occurred when it was seen circling the Zephyrhills, Florida, airport by a local police officer, Russell Kirk, at about 4:00 a. m. on August 6. Zephyrhills is a small community approximately 40 miles northeast of Tampa which maintains an airport for light aircraft. The aircraft landed at the Zephyrhills field, taxied to the fuel pumps and stopped. Officer Kirk observed the plane for a few more minutes, but no one alighted therefrom. He returned to his local police station to have the dispatcher contact United States Customs officials concerning the plane, but a call from the Customs office in Tampa to the Zephyrhills police station occurred first. The Customs Service had been informed by an anonymous call that N700L was at Zephyrhills.

After a Customs officer questioned Officer Kirk, he was asked to return to the airport and detain the occupants of the airplane until Customs agents arrived. Officer Kirk complied with the request made to him by returning to the airfield and announcing to the defendants that Customs officers would be arriving from Tampa and they wished for the defendants to remain at the airport until after their arrival. Kirk testified that the defendants consented to the request, were asked for and gave identification, and then continued refueling their aircraft. At 5:05 a. m., a Customs communications officer in Tampa contacted Customs Patrol Officer Alexander Murphy and his partner by radio and told them to proceed to Zephyrhills. A few minutes after this call, a computer check on whether N700L had previously landed within the country was completed and a second radio call was placed to Officer Murphy, informing him that the Customs Service had no record of the aircraft's clearing a United States Customs inspection point.

The Customs officers arrived at 5:35 a. m., which, according to Officer Kirk, was 10 to 20 minutes after he requested the defendants not to leave. After determining from Officer Kirk the location of the aircraft he had reported, Officer Murphy walked directly to the plane and opened the door. He immediately noticed a very strong odor of marijuana. Inside the aircraft were 24 burlap-wrapped bales. All were subsequently found to contain marijuana. The total weight of the contraband was 2,100 pounds. The three men who had been on the aircraft were arrested by the Customs officers and advised of their rights. Taglione admitted that he was the pilot of the aircraft and stated the name of the owner.

The motions that defendants filed to suppress the marijuana discovered by the search of N700L had a twofold crux. First, the search which produced the marijuana was incident to and resulted from an illegal arrest by a municipal officer acting outside the scope of his authority. Second, the search by Customs Officer Murphy lacked a constitutional basis. If we were to focus on the actions of Officer Kirk only to decide whether his efforts constituted an arrest, we would bypass the central question in the suppression issue: At the time Officer Kirk detained the defendants, was United States Customs Service possessed of sufficient information to authorize this action? If the Customs Service possessed an adequate basis for such action, Kirk's request to the defendants to remain at the airport, whether it resulted in custody or something less, was a permissible act of assistance to a lawful activity. Since we decide that Kirk acted at the direction of Customs officials who did have the right, within the constitutional bounds of reasonableness, to stop the departure of defendants and N700L from Zephyrhills on this occasion, we do not need to decide whether Officer Kirk's actions amounted to an "arrest" of the defendants prior to the Customs agents' arrival.

The lawfulness of the initial detention of defendants and the aircraft in their possession is directly related to the ultimate right of the Customs Service to conduct a search of an aircraft situated as was N700L. In this regard, the Secretary of the Treasury has authority to promulgate regulations dealing with the arrival and inspection of aircraft from foreign lands. 19 U.S.C. § 1642 (1965). The applicable regulations, 19 C.F.R. §§ 6.2, 6.3 & 6.14 (1975), require that all incoming aircraft land at an international airport, prearrange another landing site with the Federal Aviation Agency, or secure prior Customs clearance for crossing an international border. None of these legitimate methods of landing in this country was utilized by those operating N700L. The Customs Service maintains a computerized information system to assist in its processing of all aircraft arrivals from foreign countries. The evidence revealed that the computer operation had certain shortcomings, including time-lags in the receipt of information as to Customs clearance which varied according to the method used by airports to transmit information to be entered in the computer. However, it was also established that the computer did give reasonably accurate information as to aircraft arrivals from foreign ports and was the best source of such information on this particular occasion.

Before Customs agents may legitimately conduct a border-type search of an aircraft, there must be a "high degree of probability that a border crossing took place." United States v. Brennan, 538 F.2d 711, 715 (5th Cir. 1976); but see United States v. Lonabaugh, 494 F.2d 1257 (5th Cir. 1973). Other courts have phrased the test as being one of enabling Customs officers to be "reasonably certain" that the object of the search has just entered from a foreign country. United States v. Tilton, 534 F.2d 1363 (9th Cir. 1976); United States v. Vigil, 448 F.2d 1250 (9th Cir. 1971). To reach the required degree of certitude, it is not necessary that the vehicle, aircraft, or vessel have been under "actual observation" from outside United States territory until its arrival and search. United States v. Ingham, 502 F.2d 1287 (5th Cir. 1974); United States v. Petersen, 473 F.2d 874 (9th Cir. 1973). As the Ingham court stated, Customs agents are entitled to draw reasonable inferences from circumstances and base their actions on common sense judgments.

In United States v. Brennan, supra, the airplane which was the subject of the search had never been seen, or known to be, outside the United States. Though it had last been seen flying in a direction that could have led it out of the country, it was not tracked past the Miami, Florida, airport area. It is true that the aircraft was not seen again until sufficient time had elapsed to permit an international flight, and that the Customs Service had a tip indicating this aircraft would be involved in smuggling drugs, but these factors were held to be insufficient to establish that the plane had been to a foreign country. Before the border search rationale is applicable, a nexus must be established between a border and the object searched United States v. Soria, 519 F.2d 1060, 1063 (5th Cir. 1975). This essential ingredient was missing in Brennan.

The evidence of a border-plane nexus was more substantial in the present case. Though it is true the present information does not rise to the level of certainty...