U.S. v. Gaultney

• Decision Date: 10 October 1978
• Docket Number: No. 77-3482,77-3482
• Citation: 581 F.2d 1137
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Hoyt Albert GAULTNEY and Francis Gilmere, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1137

581 F.2d 1137

UNITED STATES of America, Plaintiff-Appellant, v. Hoyt Albert GAULTNEY and Francis Gilmere, Defendants-Appellees.

No. 77-3482.

United States Court of Appeals Fifth Circuit.

Oct. 10, 1978.

William L. Harper, U.S. Atty., Robert A. Boas, Asst. U.S. Atty., Atlanta, Ga., for plaintiff-appellant.

P. Bruce Kirwan, Federal Public Defender, Al M. Horn, Reber F. Boult, Atlanta, Ga., for defendants-appellees.

Appeal from the United States District Court for the Northern District of Georgia.

Before COLEMAN, GEE and HILL, Circuit Judges.

COLEMAN, Circuit Judge.

In this criminal case the government appeals the suppression of evidence by the District Court. We reverse and remand.

I The Nature of the Case

In various counts, the defendants, Gilmere and Gaultney, were charged with distribution of cocaine, possession of cocaine with intent to distribute, and conspiracy to distribute cocaine. Both defendants moved before trial for the suppression of evidence seized by government officers on the day of the arrests. An evidentiary hearing was held before a magistrate, who subsequently recommended that the motions be granted. The District Judge adopted the magistrate's final report and recommendation as the order of the Court and suppressed the evidence.

The government appeals pursuant to 18 U.S.C., § 3731, and raises two questions for resolution:

(1) Whether the evidence obtained as a result of a warrantless search of Gilmere's truck, when that search was substantially contemporaneous both in time and in place with the arrest of the defendant and when the government agents had probable cause to search the vehicle, should have been suppressed for lack of a warrant issued by a neutral arbiter, and

(2) Whether the evidence obtained from Gaultney's apartment and statements made by him after his arrest on probable cause should be excluded because the arrest was made inside his apartment without a warrant.

II Gilmere's Case

There is no substantial dispute about the facts found by the magistrate. On May 18, 1977, at approximately 11:00 a. m., Special Agent James H. Williams of the Drug Enforcement Administration (DEA) met with Francis Gilmere at the Marriott Hotel in Atlanta. Williams, acting in an undercover capacity, intended to make arrangements to purchase a pound of cocaine from Gilmere, who advised Williams that it might be possible for him to purchase an additional ten pounds later in the day. Gilmere had to go to "the north side of town" to get the drugs, so the two men agreed to meet around 12:45 p. m. at Charlie Magruder's Restaurant to complete the transaction. Gilmere was to bring a sample of the larger amount of cocaine along with the one pound previously agreed upon.

Williams then returned to the DEA district office, where he monitored radio communications from other DEA agents who were surveilling Gilmere. Gilmere went north on Interstate 75, left the highway to make a telephone call, and then proceeded to a nearby waffle shop, where he met inside with an individual later identified as Hoyt Albert Gaultney. After a few minutes, Gilmere and Gaultney drove their respective vehicles to the Moonraker Apartments, where they both entered Apartment 6 in Building F-1. Immediately after they entered the apartment, the blinds on the front window, which had been open, were closed. Several minutes later, surveillance agents observed Gilmere leave the apartment, Carrying a reddish box under his arm, and get into his truck. He was observed driving south on Interstate 75. Shortly after Gilmere departed, two men drove up in a Corvette and went inside. A few minutes later, the agents remaining on the scene observed an unknown woman (later identified as Gaultney's wife) leave the apartment and drive away in the car in which Gaultney had previously arrived. Due to lack of a pursuit vehicle she was not followed.

Williams, who was aware of all these events by radio monitoring, met Gilmere in front of the restaurant at the appointed time. Gilmere handed him a small envelope which he said contained the sample of cocaine. Inside the restaurant, the two men had a drink at the bar and discussed the pound of cocaine Williams wished to buy. Gilmere said that he wanted $22,000 for the pound And that it was outside in his truck. Williams then went to the men's room to field test the sample; the test gave a positive indication for cocaine. Special Agent Caron Durel, who had followed Gilmere from the Moonraker Apartments and who had been on surveillance inside the restaurant, subsequently followed Williams into the men's room, received the test results, talked to Williams about the two men who had driven by the apartment in the Corvette, and then instructed Williams to have Gilmere go out to his truck to get the cocaine. There the arrest would be made, rather than in the crowded restaurant.

The precise sequence of events which thereafter transpired is not explicitly clear from the record, but at least this much is clear. Gilmere was arrested in the vicinity of his truck, perhaps no more than two or three feet away, but before he had actually gotten into the vehicle. Agents Durel, Chapman, and Von Yarn made the arrest. After patting Gilmere down for weapons, the agents obtained the keys to his truck. Chapman opened the vehicle and Williams entered it, immediately locating a red Scrabble box under the passenger seat. The box was taped shut, but the agents opened it on the spot, discovering a clear plastic bag which contained a white powdery substance later determined to be cocaine. The agents had not attempted to secure a search warrant, nor did they obtain Gilmere's consent to search the truck (although there was some testimony that Gilmere had "volunteered" his keys), nor did they announce that the vehicle was being seized pursuant to statutory authorization, nor did they conduct anything resembling an inventory search. The agents did, however, advise Gilmere of his Miranda rights.

The Search of the Automobile

In its appeal, the United States offers two alternative theories to justify the search of Gilmere's truck. The first theory, squarely presented to this Court apparently for the first time, ¹ relies on the authority of the federal forfeiture statutes, 21 U.S.C., § 881 ² and 49 U.S.C., §§ 781, 782. ³ Second, the government argues that, even if these statutes did not authorize the search, the DEA agents had sufficient probable cause to make the search without obtaining a warrant, given the exigent circumstances of the situation.

Since the agents had unimpeachable grounds for arresting Gilmere for the possession of the cocaine already delivered to Williams and since we believe the subsequent search of the truck and seizure of the reddish box containing cocaine was effected on probable cause and in exigent circumstances at a time when Gilmere was proceeding with no expectation of privacy in the contents of the box, we need not reach or evaluate the government's Forfeiture argument.

Generally speaking, searches conducted without the prior approval of a judge or magistrate must be justified under one of the "specifically established and well-delineated exceptions" to the warrant requirement. See Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564 (1971). Among those exceptions, as the Coolidge Court itself recognized, Id. at 458-64, 91 S.Ct. 2022, is what is commonly denominated as the "automobile" exception and which had its genesis in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). In Carroll, a provision of the National Prohibition Act, 41 Stat. 305, 315 (1919), authorized officers who discovered persons engaged in the Transportation of illegal alcohol to seize the liquor, take possession of the vehicle and arrest any person in charge. Another provision required a warrant to authorize a search for liquor in "private dwellings". In a lengthy opinion, Mr. Chief Justice Taft traced the history of similar statutes from the days of the First Congress, noting that there were well established differences "between goods subject to forfeiture, when concealed in a dwelling house or similar place, and like goods in course of transportation and concealed in a movable vessel where they readily could be put out of the reach of a search warrant", 267 U.S. at 151, 45 S.Ct. at 284.

In the critical portion of the Carroll opinion Mr. Chief Justice Taft declared that:

On reason and authority the true rule is that if the search and seizure without a warrant are made upon probable cause, that is, upon a belief, reasonably arising out of circumstances known to the seizing officer, that an automobile or other vehicle contains that which by law is subject to seizure and destruction, the search and seizure are valid. 267 U.S. at 149, 45 S.Ct. at 283.

The potential reach of this broad statement has, from the beginning, produced extensive differences of opinion among commentators and lower courts, but subsequent Supreme Court opinions have substantially settled the law on automobile searches.

In Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), the Supreme Court held that as to automobile searches on probable cause there is no difference under the Fourth Amendment between seizing and holding a car before presenting the issue of probable cause to a magistrate and carrying out an immediate warrantless search. In Chambers the car was driven to the police station after the arrest. A search conducted at that place unearthed the evidence which the defendants sought to suppress. The Court found that there was probable cause to make the arrest and reaffirmed that the right to search the automobile and the validity of the seizure did not depend on the right to arrest but, instead, depended on the reasonable cause the seizing officer had for the belief that the contents of the automobile offended against the law, 399 U.S. at 49, 90 S.Ct. 1975. Since the...