U.S. v. Vicknair

Citation610 F.2d 372
Decision Date25 January 1980
Docket NumberNo. 78-3561,78-3561
PartiesUNITED STATES of America, Plaintiff-Appellant, v. Felix Joseph VICKNAIR, Robert Girard Vicknair, James Edward Picker, Thomas D. Morgen, Fred Mell, Edward Kline, Russell Joe Kersting, Joseph Kersting, George Christ Karanicas and Frank S. Buckbee, Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Barbara D. Schwartz, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellant.

Joel Hirschhorn, Miami, Fla., for F. J. Vicknair and R. G. Vicknair.

Daniel S. Pearson, Miami, Fla., for defendants-appellees.

Appeal from the United States District Court for the Southern District of Florida.

Before GODBOLD, GEE and RUBIN, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

Police officers illegally went on private property in an exclusive suburban Miami neighborhood because they suspected it was being used for smuggling. Two weeks later, in an early morning raid on the same home, they seized nearly 30,000 pounds of marijuana and arrested the persons found on the property. Subsequently, the persons arrested were charged on a three count indictment with conspiracy to import and possess marijuana with intent to distribute, importation of marijuana and possession with intent to distribute. 1 The issue is whether the prior entry spread taint sufficient to require suppression of the product of the later seizure.

After hearing testimony and argument on a motion to suppress both the evidence seized during the raid and statements made by some of the defendants after the raid, the district court granted it. The government now asks us to reverse that decision.

I.

On November 22, 1977, the Coral Gables Police Department received a report from a neighbor of the residence at 9330 Balada Street that the house and grounds were not being well kept and that, although the house appeared uninhabited, boats would arrive in the canal at the rear of the property and people would enter and leave the residence at odd hours of the day and night. After preliminary observation of the house and a boat docked behind it, the police discovered that the house was titled in the name of Alvero Cabrera and the boat, the "Sky Top II," was owned by the FBV Corporation. The investigation also revealed that the "Sky Top II" and Felix B. Vicknair, president of FBV Corporation, were suspected by federal authorities of involvement in marijuana smuggling.

On November 23, the Coral Gables Police Department set up a 24-hour surveillance of the residence and the boat. The surveillance continued until the morning of November 25. During that time no suspicious activities were observed at the house or on the boat. On the morning of November 25, the police, accompanied by a Customs officer, decided to call on the occupants of the premises and, if possible, to search the "Sky Top II" for contraband. The party were in mufti but, accompanied by a uniformed officer, drove to the front of the residence in a marked police car. Unable to obtain an answer to their knocks on the front door, the members of the party went around the house and across the backyard to the Sky Top II. They then boarded the vessel and conducted a search that the government concedes was illegal. They observed that, although the exterior of the vessel gave the impression that it was a pleasure craft, the interior was messy, the carpets were rolled up and it had few of the normal accouterments of luxury. However, they found no signs of contraband.

The officers left the vessel and proceeded to the back of the residence where they entered its screened-in patio, circled its swimming pool and knocked on the back door. They received no response and, finding that the drapes and shutters prevented them from seeing inside the residence, they left. On their way back to the police car they detected what they believed to be the odor of marijuana coming from an air conditioning vent on the side of the house.

The Police Department thereafter continued its investigation of 9330 Balada, but reduced its surveillance to intermittent spot checks of the house and boat. On December 13, they received information that the "Sky Top II" had left its dockage. They staked out the house and began a helicopter search of the coast. Small craft warnings were announced, so the weather was not favorable for pleasure cruising. Therefore, after five hours of fruitless searching, the police concluded that the vessel had gone to sea to pick up marijuana, and they assembled a task force of police officers. 2 When the vessel returned after midnight on December 14, the police observed a human chain unloading bales from the vessel, so the task force moved in and made the arrests and seizure.

It was established that title to the house was in the name of a straw man and Felix B. Vicknair, the father of the defendants, Felix J. Vicknair, Paul Edward Vicknair and Robert G. Vicknair, was its owner. We find it unnecessary to sum up the evidence concerning how each defendant established his right to be in the house or on the vessel. We set forth in a footnote the contentions made in the defendants' brief. 3 It suffices for present purposes to accept their testimony that each had an invitation or permission from Felix Vicknair or from one of his invitees to enter the house or to reside in it or to use the vessel or to stay on it.

The government contends that, since the search of the premises at 9330 Balada on November 25 was constitutional, the November search did not taint the evidence seized in December and the Fourth Amendment rights of the defendants were not violated by the November search. 4 The district judge concluded that the November search of both boat and house were illegal, that each defendant had a reasonable expectation of privacy in the areas searched and that the evidence obtained in December was tainted by the November activities.

II.

The government concedes that the search of the "Sky Top II" was warrantless, unauthorized and not within any exception to the Fourth Amendment. However, it contends that the entry onto the premises of 9330 Balada, although technically trespass, did not rise to the level of a Fourth Amendment violation. It also contends that none of those arrested had a reasonable expectation that what was discovered in November would be private, and that, therefore, none can assert the unconstitutionality of the November entry.

In the normal discharge of their function, police officers must occasionally enter upon private property without the permission of the owner. See, e. g., Nordskog v. Wainwright, 5 Cir. 1977, 546 F.2d 69; United States v. Anderson, 8 Cir. 1977, 552 F.2d 1296. Police excursions onto private property have been upheld when designed to observe illegal acts through an unobstructed window, United States v. Johnson, D.C. Cir. 1977, 182 U.S.App.D.C. 383, 561 F.2d 832, Cert. denied, 432 U.S. 907, 97 S.Ct. 2953, 53 L.Ed.2d 1080, or to confirm an informant's tip that contraband was hidden in the crawlspace beneath a house, Giacona v. United States, 5 Cir. 1958, 257 F.2d 450, Cert. denied, 358 U.S. 873, 79 S.Ct. 113, 3 L.Ed.2d 104. The police excursion onto the premises at 9330 Balada, however, was neither entirely innocent nor within the scope of ordinary police routine. The police suspected that the house and boat were being used for marijuana smuggling. Their visit was made to confirm those suspicions. Receiving no response to loud knocking on the front door, they went to the rear of the residence and boarded and searched the "Sky Top II." Discovering no contraband, they then entered an enclosed area of the residential premises and continued the search with fruitless attempts to peer into closed windows.

The government asserts that the presence of a marked police car and a uniformed officer, the attempts to rouse any occupants of the house and the absence of any clandestine or surreptitious behavior by the police officers define their conduct as a mere trespass, a technical illegality, rather than an unconstitutional search. Such threads of distinction weave too fine a cloth to cover the unconstitutionality of the entry.

A search need not be clandestine to be unlawful. The police crossed the premises with the admittedly illegal purpose of searching the "Sky Top II." If that is not enough to infect the entire entry, their entry into an enclosed area of the premises and their attempts to observe the interior of the house through closed and shuttered windows belies the assertion that their sole purpose was to locate the owner of the premises. The district court was fully supported in concluding that the record painted a picture of warrantless intrusion onto private property to confirm suspicions of illegal activity and to conduct an illegal search of a vessel docked at the rear. The parade of a uniformed officer and marked police car does not mask the background of invalid purpose. The district court was correct in finding the November search unconstitutional.

III.

To challenge successfully the admissibility of evidence obtained unconstitutionally, a defendant must establish that his own Fourth Amendment rights were violated by the conduct upon which he wishes to base exclusion. See United States v. Reyes, 5 Cir. 1979, 595 F.2d 275, 278. The district judge ruled that all of the defendants had a reasonable expectation of privacy in the Balada Street residence and the "Sky Top II" at the time of the November searches. On appeal we are asked to decide whether, indeed, defendants' constitutional rights were violated on November 25. The defendants not only assert that they had a reasonable expectation of privacy, but further contend that the "automatic standing" rule of Jones v. United States, 1960, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, requires us to conclude that their rights were violated by the November search. Although all parties have dealt identically with the boat and the house, there are significant differences...

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