U.S. v. Clark, 76-3575

Citation559 F.2d 420
Decision Date19 September 1977
Docket NumberNo. 76-3575,76-3575
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Patricia F. CLARK, a/k/a "Pat" and Mrs. John Clark, William Scott Martin, a/k/a David McCarthy, and John N. Satre, a/k/a John Sallatery, Defendants- Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Joseph S. Oteri, James W. Lawson, Martin G. Weinberg, Boston, Mass., David J. Fine, Cambridge, Mass., for defendants-appellants.

William T. Moore, Jr., R. Jackson B. Smith, Jr., U.S. Attys., Elizabeth C. Chalker, Augusta, Ga., Henry L. Whisenhunt, Jr., Asst. U.S. Attys., Savannah, Ga., for plaintiff-appellee.

Appeals from the United States District Court for the Southern District of Georgia.

Before GEWIN, RONEY and HILL, Circuit Judges.

JAMES C. HILL, Circuit Judge:

John Satre, William Martin and Patricia Clark appeal from judgments of conviction entered against them after a non-jury trial in the District Court for the Southern District of Georgia. Each was convicted of one count of conspiracy to possess, with intent to distribute, approximately 1,225 pounds of marijuana (hashish) in violation of 21 U.S.C. § 846. Defendants Satre and Martin were also convicted of one count of possession with intent to distribute marijuana (hashish) in violation of 21 U.S.C. § 841(a)(1).

All the issues raised focus upon the legality of a warrantless search of a pickup truck with an attached camper top (camper truck) and a subsequent search, pursuant to a warrant, of another automobile, a boat, and a dwelling. Specifically, the question for decision is whether or not the district judge committed error in denying the defendants' motions to suppress the contraband. We affirm.

This type of case must stand or fall on its particular facts. We examine the facts derived from the transcript and the findings of fact of the trial court. Almost all the facts are uncontested. Those that are contested are immaterial to the result we reach.

Our inquiry begins at a time two years prior to the challenged searches and seizures. At this early date, Jerry Minchew, the Park Superintendent of Crooked River State Park, Camden County, Georgia became suspicious of the activities of defendant Satre. Satre had been one of a number of individuals who had rented a cabin at the Crooked River State Park. During this earlier stay, he had purchased an expensive boat from a local resident and a few days later had left the boat with another local resident to sell "for what he could get out of it." Minchew testified that while he felt the boat was worth over $1,500, the boat was sold for only $600. Minchew speculated that Satre was involved in the trafficking of drugs.

Minchew remembered Satre when he and four other persons returned to the State Park on December 30, 1975. On this visit, the group rented two cabins from December 30, 1975, to January 10, 1976. Minchew testified that during this period he received complaints from other cabin occupants concerning the noise and late night activities of the group. Minchew's attention was directed towards the vehicles driven by the group. One car bore Idaho license plates; the other vehicles bore Florida tags. Minchew thought this to be suspicious since all the group except defendant Martin had stated that they were from Colorado. Martin stated he was from Boston, Massachusetts. Minchew testified that the Florida license tags did not bear an "E" signifying a rental vehicle.

On January 10, 1976, the group checked out of the cabins and left the park. Yet, on the evening of January 11, 1976, the car bearing the Idaho license plates returned to the Park. Defendants Martin and Pascoe 1 were the occupants of the car. Martin told the Superintendent that he had driven about 50 miles down the road when he discovered that he had forgotten a piece of luggage for which he was returning. Minchew stated that he thought it strange that Martin had left the Park over 24 hours earlier yet stated that he had traveled only 50 miles. Martin retrieved the suitcase and departed.

On the evening of January 13, 1976, defendant Satre reappeared and asked if he could rent one of the cabins the group had previously occupied. When informed that the cabins were unavailable, Satre stated that "he would rather have one down in the bushes."

Before Satre departed for the secluded Cabin Number Six, Minchew observed water pouring from the stern of the boat being towed by Satre. Satre told Minchew that he had just returned from water skiing in Tampa, Florida. Minchew testified that his suspicions were aroused since it was "real cold weather" and it would be unusual for a boat to be dripping water after a 250 mile drive.

The critical facts which led to the seizure of the contraband occurred later on the evening of January 13, 1976. At approximately 10:00 p. m., Minchew drove by Cabin Number Six and observed that the car with the Idaho plates, the car that had returned for the forgotten luggage, had again returned to the Park. Minchew then contacted the Camden County Sheriff's Office and requested that an officer be dispatched to check into the activities of the occupants of Cabin Number Six.

At approximately 11:00 p. m., Officers Barber and Dudley arrived and ascertained the license numbers of the vehicles so that they could be checked for irregularities. Shortly thereafter, the three officers heard hammering noises in the area of the cabin. From a distance of 35-40 yards, they placed the cabin under surveillance. During this observation period, defendants Satre, Martin and Pascoe were observed building a wooden structure in the back of a camper pickup truck. Shortly after the structure was completed, the officers observed the defendants carrying various large plastic and burlap sacks. The defendants were removing these bags from the boat and loading them into the truck and the station wagon. The bags appeared to be quite heavy.

In conjunction with their visual observations, the officers overheard the defendants make the following comments:

Female Voice: "Bill, did the Park Superintendent see both of you?"

Female Voice: "Are you going to give them the best load now or wait and give them the best load later"?

Male Voice: "Did you get the shotgun? Be sure and get the gun, get the shotgun".

As a result of the above observations, Deputy Barber radioed Chief Deputy Kennedy of the Camden County Sheriff's Office for additional assistance. Officer Kennedy was enroute to the Park when the pickup truck, occupied by defendants Martin and Satre and containing the wooden structure and the large plastic and burlap bags, departed from the area of Cabin Six.

The officers relayed the events they had witnessed and their suspicions to Officer Kennedy. Officer Kennedy, who was enroute to the Park, was alerted that the pickup truck was proceeding in his direction and was requested to "check it out."

Kennedy spotted the truck coming out of the Park, turned around, and followed it for a distance of 2-3 miles. He testified that it appeared heavily loaded and was weaving. Having been advised to use caution because of the possibility that the occupants were armed, Kennedy radioed Officer Carter of the St. Mary's Police Department for assistance. After Officer Carter came into sight, Kennedy pulled over the truck.

Martin, the driver, and Satre emerged from the truck. Officer Kennedy advised the defendants to keep their hands out of their pockets and asked Martin for his driver's license and the motor vehicle registration certificate. Officer Kennedy testified, and the District Court found that Martin produced a driver's license but no vehicle registration.

Kennedy then asked Martin if he could take a look in the truck. Martin replied, "Go Ahead." Kennedy shined his flashlight through a window of the truck. He observed on the floorboard of the vehicle a plastic bag containing a marijuana-like substance. He also testified that he smelled a strong odor of marijuana coming from the truck and that Martin appeared to be "stoned" or intoxicated on drugs.

Martin and Satre were placed under arrest and the truck was thoroughly searched. The search revealed that the wooden platform the defendants had constructed was designed to be a false bottom. Underneath the platform, the large burlap and plastic bags were found. Over 700 pounds of hashish was found in these bags.

Shortly after the arrest of Martin and Satre, Officer Barber appeared before a Camden County Justice of the Peace who, based upon the affidavit of Officer Barber, issued a search warrant for Cabin Number Six and the boat and station wagon, which had remained at the Park.

In executing the search warrant, over 500 pounds of hashish was found in the station wagon and a small quantity of the contraband, approximately 5-6 pounds, was found in the cabin.

Prior to trial, the trial judge held a hearing and after taking evidence, denied the motions to suppress.

With respect to the search of the camper pickup truck, the trial judge held the legality of the search had been established under two theories. First, the Court held that from the totality of the facts and circumstances, the officers had probable cause to stop and search the truck. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973). Alternatively, the Court held, assuming arguendo, that probable cause was lacking, the officers had a reasonable suspicion. Having such reasonable suspicion, the initial stop of the truck was lawful under the "investigative stop" theory. Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); United States v. Rollerson, 491 F.2d 1209 (5th Cir. 1974); United States v. Worthington, 544 F.2d 1275 (5th Cir. 1977). While maintaining the status quo pending further investigation, Officer Kennedy then smelled the odor of marijuana and...

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