U.S. v. Moschetta

• Decision Date: 01 June 1981
• Docket Number: 80-5475,Nos. 80-5270,s. 80-5270
• Citation: 646 F.2d 955
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Matthew J. MOSCHETTA and Edward M. Spieler, Defendants-Appellees. UNITED STATES of America, Plaintiff-Appellant, v. Matthew J. MOSCHETTA, Edward M. Spieler and Gerald Deutsch, Defendants- Appellees. . Unit B
• Court: U.S. Court of Appeals — Fifth Circuit

Page 955

646 F.2d 955

UNITED STATES of America, Plaintiff-Appellant, v. Matthew J. MOSCHETTA and Edward M. Spieler, Defendants-Appellees.

UNITED STATES of America, Plaintiff-Appellant, v. Matthew J. MOSCHETTA, Edward M. Spieler and Gerald Deutsch,

Defendants- Appellees.

Nos. 80-5270, 80-5475.

United States Court of Appeals, Fifth Circuit.

Unit B

June 1, 1981.

Martin R. Raskin, Sp. Atty., U. S. Dept. of Justice, Miami, Fla., Theodore G. Gilinsky, U. S. Dept. of Justice, Washington, D. C., for plaintiff-appellant.

Neal R. Sonnett, Miami, Fla., for Matthew Moschetta.

Steadman S. Stahl, Jr., Joseph A. Varon, Hollywood, Fla., for Edward Spieler.

Joseph S. Paglino, Miami, Fla., for Gerald Deutsch.

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

Before DYER, TJOFLAT and FAY, Circuit Judges.

FAY, Circuit Judge:

Appellant, the United States of America, seeks reversal of the District Court's affirmation of the Magistrate's report and recommendation for the suppression of evidence seized by agents of the Bureau of Alcohol, Tobacco and Firearms from appellee's, Edward Spieler, automobile. Finding that the warrantless search of the trunk of the automobile was proper, that exigent circumstances justified the warrantless search of a briefcase in that trunk, but that the Supreme Court of the United States ruling in Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979) requires the police to obtain a warrant before searching any closed opaque container (in this instance a brown paper bag) whose exterior or shape does not disclose its probable contents, we affirm in part and reverse in part the District Court's action.

I.

In November, 1978 Gregorio Suarez, upon referral by the Hialeah Police Department, Hialeah, Florida, contacted Bureau of Alcohol, Tobacco and Firearms' (ATF) agents Wilhjelm and Brady in regards to the distribution of illegal silencers and weapons in South Florida. Suarez stated that he had been approached by Gerald Deutsch, a man under Suarez's supervision at his place of employment, who stated that such contraband was for sale if Suarez was interested. ATF agents instructed Suarez to pursue the offer. ¹

As a result Suarez went with Deutsch to Calamity Jane's Gunshop where he met Matthew Moschetta. Suarez related to the agents that when silencers were discussed Moschetta said that his man "Ed" made the best and that he could supply one attached to an automatic pistol for $1,000.00. Suarez also related to agents that Deutsch indicated that "Ed" and Moschetta were ex-partners in the gun business, that "Ed" had quoted to Deutsch a lower price but since he no longer had "Ed's" phone number they had to deal through Moschetta.

Subsequently on December 9, 1978 Moschetta delivered to Suarez one silencer with attached .22 automatic in a brown paper bag for $1,000.00. ATF investigation and surveillance continued. On December 19, 1978 Suarez telephoned Moschetta and asked when a second silencer would be ready and Moschetta stated, "just a moment, my man Ed is here at this time, I'll ask him." Record, Suppression Hearing at 24. Surveillance of the Calamity Jane Gunshop indicated that Edward Spieler had entered the shop while Moschetta was there on the afternoon of the call. No one else had been observed on the premises during that visit, although the agent testifying at the suppression hearing indicated that he did not know whether there was also a back door to the shop. At any rate, on December 20, 1978 Moschetta delivered a .22 automatic pistol with a silencer attached to Suarez in return for $1,000.00.

On January 13, 1979 Suarez and Moschetta again met at the gunshop and Moschetta said that he had a "friend" who could make an assassination kit. ² In response to this offer on February 20, 1979 Suarez, accompanied by undercover agent Volaska, met Moschetta and ordered an assassination kit as well as an AR7 rifle with attached silencer. ³ Two days later they delivered to Moschetta a dark gray Samsonite briefcase to be used in the construction of an assassination kit. The briefcase was an ordinary business model and without any exterior distinguishing marks. The only identifying mark placed on it was on the inside hinge. This was visible only under close observation with the briefcase opened.

On Saturday, February 24, 1979, Suarez told agent Wilhjelm that Moschetta had called and indicated that Suarez could expect delivery of the silencers that evening. Pursuant to this information agent Wilhjelm began surveillance of Spieler. He set up constant surveillance of the machine shop and Spieler's car after he noticed that the car had been moved from Spieler's home to the shop. At approximately 4:15 p. m. the surveilling agents saw Spieler leaving the building carrying a brown paper bag and a dark gray briefcase. He placed these items in the trunk of his automobile, went back into the building, returned shortly thereafter and got into the car. The agents testified that at that point they believed Spieler was carrying the assassination kit briefcase which had been provided to Moschetta.

As Spieler began to back the car up, the agents blocked his path with one of their vehicles. Then with drawn guns they approached his car and ordered Spieler from his vehicle. At that point agent Wilhjelm took the keys from the ignition and without Spieler's consent, opened the locked trunk of the vehicle. Inside he saw an ammunition box, a gray briefcase, a number of paper bags and miscellaneous items including what appeared to be the stock of an AR-7 rifle. He then "opened up the brown paper bag, the first one that was right next to (him) and found three metal devices that were silencers " Record, Suppression Hearing at 31. With this discovery, agent Wilhjelm temporarily halted his search and advised Spieler that he was under arrest and that his vehicle would be seized. ⁴

Thereafter, agent Wilhjelm opened the briefcase. As to his motives he testified that:

I opened up the briefcase because I thought it contained it was the Government briefcase, that it did contain an assassination kit which would include a loaded weapon with a triggering device and I wanted to make it secure, plus to ascertain for sure that it was the one.

Record, Suppression Hearing at 20. He further stated that such actions were consistent with procedure. ⁵ However, the briefcase did not contain the assassination kit but rather loaded handguns, personal effects and the barrel for the AR7 that had been threaded.

The agents did not attempt to secure an arrest or search warrant during either the surveillance or the stop and search of Spieler's automobile. Accordingly, after a hearing, the Magistrate recommended to the District Court that appellee's motion to suppress all evidence seized from the trunk be granted despite the fact that probable cause existed for a warrant had it been sought. The Magistrate also ruled that appellee, Moschetta had automatic standing under Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960) and United States v. Reyes, 595 F.2d 275 (5th Cir. 1979). The District Court affirmed both recommendations. The United States appeals both decisions.

II.

At principal issue is the application of Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979) and United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977) to the search of containers found in appellee's trunk. These decisions, and specifically Sanders, established that, absent exigent circumstances, the police are required to obtain a search warrant before opening and searching any type of luggage, locked or unlocked, taken from an automobile which has been properly stopped and searched, without a warrant but on probable cause, for contraband. As stated by Judge Ginsburg in United States v. Ross, No. 79-1624 (D.C.Cir. March 31, 1981) (en banc ), a case involving a similar stop and search for contraband, "(t)he case before us raises the question whether Sanders establishes only a 'luggage rule' or whether the reasoning of that decision extends as well to other containers used to carry personal belongings and effects, containers smaller, less solid, or less durable than those on sale in a luggage shop." Slip op. at 2. We conclude, in line with Ross, that Sanders does not establish a "luggage rule" or by implication an "unworthy container" exception, but that it requires the police to obtain a warrant before searching any closed opaque container whose exterior or shape does not disclose its probable contents. United States v. Ross, slip op.at 1 (Wilkey, J. dissenting on other grounds). See 422 U.S. at 764-65, n.13, 99 S.Ct. at 2593-2594.

In Sanders police officers acting on an informant's tip placed the Little Rock, Arkansas Airport under surveillance specifically for the defendant and a green suitcase allegedly containing marijuana. As predicted Sanders appeared and after retrieving a green suitcase from the airlines baggage claim he gave it to a companion who placed it in a waiting taxi's trunk. When the taxi drove away carrying the suitcase and the companions the police pursued and stopped it. At the request of the police, the taxi driver opened the trunk and without asking permission the police opened the unlocked green suitcase and discovered 9.3 pounds of marijuana. Subsequent to this discovery the individuals were arrested.

The Supreme Court upheld the warrantless stop and search of the taxi's trunk for contraband based upon the long standing "automobile exception" to the warrant requirement. See, e. g., United States v. Martinez-Fuertes, 428 U.S. 543, 555, 561-62, 96 S.Ct. 3074, 3081, 3084, 49 L.Ed.2d 1116 (1976); United States v. Ortiz, 422 U.S. 891, 896, 95 S.Ct. 2585, 2588, 45 L.Ed.2d 623 (1975); Chambers v. Maroney, 399 U.S. 42, 49-50, 90 S.Ct. 1975, 1980, 26 L.Ed.2d 419 (1970); Carroll v. United States, 267 U.S. 132, 153, 45 S.Ct. 280, 285, 69 L.Ed. 543 (1925)....