U.S. v. Shovea

• Decision Date: 27 July 1978
• Docket Number: 77-1079 and 77-1184,Nos. 77-1078,s. 77-1078
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Scott Andrew SHOVEA, Gebbie Hugh Robba, Stephen Howard Gaias, Jr., Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1382

580 F.2d 1382

UNITED STATES of America, Plaintiff-Appellee, v. Scott Andrew SHOVEA, Gebbie Hugh Robba, Stephen Howard

Gaias, Jr., Defendants-Appellants.

Nos. 77-1078, 77-1079 and 77-1184.

United States Court of Appeals, Tenth Circuit.

Submitted May 8, 1978.

Decided July 27, 1978.

Rehearing Denied in No. 77-1078 Sept. 13, 1978.

Jonathan L. Olom, Denver, Colo. (Stanley H. Marks, Denver, Colo., on brief) for appellant Shovea.

Edward L. Kirkwood, Asst. Federal Public Defender, Denver, Colo. (Daniel J. Sears, Federal Public Defender, Denver, Colo., on brief) for appellants Robba and Gaias.

Edward W. Nottingham, Asst. U. S. Atty., Denver, Colo., for appellee (Joseph F. Dolan, U. S. Atty., Denver, Colo., with him on brief for Shovea and Robba, Cathlin Donnell, U. S. Atty., Denver, Colo. (Interim) with him on brief for Gaias).

Before BARRETT, and McKAY, Circuit Judges, and BRATTON, District Judge. ^*

BARRETT, Circuit Judge.

Scott Shovea (Shovea), Gebbie Robba (Robba) and Stephen Gaias (Gaias) appeal their jury convictions of conspiracy to manufacture and possess with intent to distribute methamphetamine, a schedule II controlled substance, in violation of 18 U.S.C.A. § 2 and 21 U.S.C.A. § 841(a)(1).

Appellants were originally indicted with Geoffrey Hungerford (Hungerford). At the commencement of the trial, the Government dismissed its charges against Hungerford. Thereafter, a mistrial was declared as to Gaias. The trial proceeded as to Shovea and Robba. They were convicted. Subsequent thereto, Gaias was tried individually and convicted. A detailed recitation of the pertinent facts should facilitate our review.

Gaias originally ordered a chemical, phenyl-2-proponone (p-2-p), a primary precursor of methamphetamine, from a New York chemical company under the name of "Jay Edwards." The order was submitted on behalf of "Royce International, 315 Broadway, Port Jefferson, New York." Thereafter federal agents set up a controlled delivery for the chemical.

On September 17, 1976, Gaias was observed by the agents picking up the chemical, after which he was followed to 315 Broadway, a house in a residential area. Shortly thereafter, Gaias was observed exiting the house carrying a suitcase very carefully. He held the suitcase flat, rather than by the handle. Two agents then followed Gaias to an airport. While en route, Gaias drove in excess of the posted speed limits in an elusive manner. Once at the airport, Gaias boarded a plane which flew to Denver. The agents flew to Denver on the same plane. They kept Gaias under surveillance at all times. Gaias arrived in Denver during the early morning hours of September 18, 1976. He was met there by Robba. Gaias and Robba drove from the airport to a residence located at 3352 West Gill Place. Agents followed them to the residence. After Robba and Gaias entered the house, the agents placed an electronic tracking device on Robba's car. Sporadic surveillance of the residence continued September 18 through September 20, 1976.

Gaias' suitcase did not arrive on his incoming flight but it did arrive in Denver later that morning. Prior to its arrival, Gaias filled out a lost luggage claim wherein he listed Robba's name and requested that the suitcase be delivered to 3352 West Gill Place upon its arrival. The suitcase was X-rayed following its arrival at the Denver airport. The X-rays revealed that four bottles were in the suitcase. The agents did not open the suitcase. Pursuant to Gaias' request, the suitcase was delivered to 3352 West Gill Place.

Shortly after the suitcase was delivered, Gaias and Robba were observed by the agents leaving the residence and proceeding to Royce International where they, together with Shovea, loaded and unloaded boxes from their vehicles. Robba and Shovea were both employed at Royce International at that time. Investigation had established that someone allegedly associated with Royce International had, within the prior four months, ordered various chemicals and glassware from a scientific company, all of which could be utilized in the manufacture of methamphetamine.

On the evening of September 20, 1976 agents detected a strong odor of ether emanating from the 3352 West Gill Place residence. Shovea was observed leaving the residence, walking down the street, looking in all directions, and then returning to the residence. The agents, based on their prior experience, associated the strong odor of ether and Shovea's suspicious movements with the clandestine manufacturing of methamphetamine. Accordingly, when all of the defendants were observed leaving the residence carrying boxes which they loaded into Hungerford's car, the three agents arrested them.

After the arrests were effected, the cars and the residence were secured while a search warrant was obtained. The affidavit in support of the requested warrant stated in part: "Fellow agent Larry Lamberson stated that he checked with the airport authorities and found that the suitcase carried by Gaias was X-rayed and 4 bottles were seen inside." (R., Vol. IV, at 8.) The warrant was issued. A subsequent search of the cars and residence disclosed concentrated liquid methamphetamine and numerous articles used in its manufacture.

Prior to trial, a hearing was held on defendants' motions to suppress evidence allegedly seized as a result of the X-ray search of the suitcase as well as the evidence seized by searching the cars and the residence. The trial court ruled that the X-ray search of the suitcase constituted an unlawful search violative of Gaias' Fourth Amendment rights. A mistrial was granted as to Gaias. The trial court ruled, however, that the evidence of the airport X-ray search was admissible against Shovea and Robba; that evidence seized by search of the cars and the residence was admissible against all of the defendants; and that the search of the cars and residence was not tainted by reference in the affidavit alluding to the X-ray search of the suitcase which disclosed the four bottles.

After the court had ruled on the various motions to suppress, Shovea and Robba proceeded to trial. In the course of their trial, the Government developed the conspiracy in detail. A forensic chemist testified for the Government. He identified the chemical seized as methamphetamine and stated that the volume seized would produce approximately 100,000 doses. At the close of the Government's case, Shovea and Robba elected not to present any evidence. Verdicts of guilty were subsequently returned against them.

Thereafter, Gaias was tried. Prior to trial, the court ruled that the Wong Sun doctrine did not preclude admission of the evidence obtained via issuance of the search warrant inasmuch as the information relative to the X-ray of the suitcase contributed little to the search of the residence, and that the Government "could easily have established probable cause for the search of the house had there been no search at the airport." (R., Vol. I, p. 10.) At the conclusion of the Government's case, Gaias moved for acquittal. The motion was denied. Thereafter, the defense rested without introducing any evidence. Gaias was convicted.

I.

Robba contends that the trial court erred (1) by allowing the Government to introduce evidence obtained by exploitation of the X-ray search of the suitcase, and (2) by allowing the admission of evidence obtained by exploitation of the illegal surveillance precipitated by the use of an electronic tracking device placed on his vehicle.

(a)

Robba claims that the trial court erred in allowing the Government to introduce testimony and exhibits obtained by exploitation of the illegal X-ray search of the suitcase and by ruling that he did not have standing to challenge the X-ray search. Robba argues, in part based upon an affidavit which was not admitted in evidence, that he provided Gaias funds to purchase p-2-p in New York, that he was the owner of the p-2-p purchased, that the p-2-p was purchased in the name of Royce International where he was employed and that the lost luggage claim filled out by Gaias set forth his (Robba's) name and residence for purposes of identity and delivery of the suitcase. Robba contends that under these circumstances he had standing to challenge the X-ray search. Robba declares that the X-ray search was illegal and that the illegality thereof was compounded when the Government exploited the X-ray results in order to obtain the search warrant. Under the totality of these circumstances, Robba concludes that the "fruit of the poisonous tree" doctrine as enunciated in Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963) precluded admission of all "the incriminating evidence which the government developed after they searched Robba's residence and the two vehicles adjacent thereto." We hold that the trial court did not err in finding that Robba lacked standing to challenge the X-ray search or in admitting in evidence the testimony and certain exhibits derived from the search.

Robba failed to establish standing to challenge the search. In United States v. Galvez, 465 F.2d 681 (10th Cir. 1972), we said:

Our conclusion that the two defendants in the instant case have no standing to contest the legality of the seizure of the package containing hashish from Karen's automobile in Walsenburg is supported by our understanding of such cases as Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960); Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); and Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969), as well as by numerous cases from this circuit.

In Jones, the Supreme Court declared as follows:

"In order to qualify as a 'person aggrieved by an unlawful search and seizure' one must have been a victim of a search or seizure, one against whom the search was directed, as distinguished from one who claims prejudice only through the use of evidence gathered as a...