U.S. v. Kreimes

• Decision Date: 09 July 1981
• Docket Number: No. 80-5290,80-5290
• Citation: 649 F.2d 1185
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Peter KREIMES, Defendant-Appellant. . Unit B
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1185

649 F.2d 1185

UNITED STATES of America, Plaintiff-Appellee, v. Peter KREIMES, Defendant-Appellant.

No. 80-5290.

United States Court of Appeals, Fifth Circuit.

Unit B

July 9, 1981.

Ross Rosenberg, Miami, Fla., for defendant-appellant.

Donald E. Christopher, Asst. U.S. Atty., Orlando, Fla., for plaintiff-appellee.

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

Before HILL, FAY and HENDERSON, Circuit Judges.

FAY, Circuit Judge:

Appellant, Peter Kreimes, appeals his conviction, following jury verdicts of guilty, on charges of conspiracy to possess and possession of marijuana with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1), 846 and 18 U.S.C. § 2 (1976). Finding that the arresting officer had reasonable grounds for stopping the appellant and that exigent circumstances justified the warrantless search of appellant's luggage, we affirm the trial court's denial of appellant's motion to suppress all evidence so obtained. Finding, further, sufficient evidence for a jury verdict of guilty on the charge of conspiracy, we affirm appellant's conviction on all counts.

I.

On June 26, 1979 at approximately 11:00 P.M. St. Lucie County Deputy Sheriff Mosley heard a low-flying multi-engine aircraft pass over his home five miles south of Fort Pierce, Florida and two miles from the Atlantic Ocean. The aircraft headed in a westerly direction and did not display navigational lights. Because he felt the plane might be involved in smuggling, Mosley broadcast this information over his police radio.

At approximately 11:30 P.M. Osceola County Deputy Sheriff Bavar received a communication from his radio dispatcher that a BOLO teletype had been received from the Fort Pierce Police Department regarding a northbound low-flying aircraft, without navigational lights, headed toward Osceola County. Deputy Bavar was, at this time, near Kenansville, Florida, an isolated southern Osceola County town. He stepped out of his patrol car and heard a large low-flying aircraft, without lights, heading north up Highway 441. The aircraft made a clockwise circle east of Kenansville and then continued its flight north, following Highway 441.

Deputy Bavar notified the Osceola County Sheriff's office of his observations and then proceeded north in his patrol car on Highway 441 at a high rate of speed. Seven miles north of Kenansville, Deputy Bavar stopped and exited his car. Once again, he heard the sound of a large aircraft to the north but then he heard the engines slow as if throttled back for a landing. Pursuant to procedures established by the Osceola County Sheriff's Department, the Orlando Flight Service had been contacted about these developments. They advised that radar contact had been lost with a plane approximately three miles southwest of Holopaw, Florida. This information was passed to Deputy Bavar who proceeded north on Highway 441 to a point a mile and a half south of Holopaw and a quarter of a mile south of a dirt road, known as the Charlie Russell Ranch Road which leads west from Highway 441. This position provided Deputy Bavar a command view of the land west of Highway 441.

Shortly thereafter, Deputy Bavar heard a metal to metal sound similar to a truck pulling a trailer or a rattling tailgate which appeared to be coming up the Charlie Russell Ranch Road toward Highway 441. This road was accessible to the public and although not owned by the County it was nonetheless graded by the County as far as Charlie Russell's trailer. Additionally, one of the two residents along the road requested a regular patrol by the deputy sheriffs. The private roads leading off of this road were enclosed by locked gates. The District Court found that the Charlie Russell Ranch Road was open to the public, a finding we conclude is not clearly erroneous.

Deputy Bavar advised by radio other officers responding to the area of his observations and then turned west off of Highway 441 onto the Charlie Russell Ranch Road with his headlights off. Not being able to see the oncoming vehicle on the straight road ahead, Deputy Bavar, fearing a collision, then turned on his car headlights. In clear view in front there appeared a large white one and one-half ton panel truck moving slowly with headlights off. The truck was not similar to those vehicles used in the area's cattle and citrus activities. In response to Deputy Bavar's disclosure of his position, the truck stopped and its passenger door opened as if discharging someone, however Deputy Bavar was not in a position to see any individual depart. Thereupon, Deputy Bavar accelerated his patrol car and turned on his overhead blue flashing lights. The passenger door of the truck closed and the truck proceeded towards Deputy Bavar, both vehicles stopping ten feet apart, facing each other, about 150 yards west of Highway 441. Deputy Bavar exited his car, weapon drawn, smelled a strong odor of marijuana and ordered the driver, later identified as the appellant, to get out of the truck. Appellant was frisked, cuffed, placed under arrest, advised of his rights and placed in the rear of the patrol car of Lt. Charles Croft who had just arrived. Once placed in the car Deputy Bavar started to question him. During this initial questioning, appellant consented to a search of the truck. However, Lt. Croft and Deputy Bavar discovered that the rear door of the panel truck was padlocked and did not attempt entry at that time. Other deputies and officials began arriving on the scene.

Two deputies were sent up the Charlie Russell Ranch Road to follow the tracks of the truck driven by the appellant. At this point two gunshots were heard coming from the area south of the road near the stopped truck. Proceeding on the deputies traced the tracks of the appellant's truck to a large pasture on the north side of the road where a Convair 440 aircraft, with engines still warm, was parked facing east. Another large blue and white paneled truck was backed up to the open left rear cargo door of the plane. The plane smelled of hydraulic fuel and marijuana. The tarps covering the floor of the aircraft contained the residue of marijuana. Speed rollers led out of the rear door of the aircraft to the panel truck which contained 129 bales of marijuana weighing approximately 4,500 pounds. No persons were found in or around either vehicle. In the pasture itself were found smudgepots laid out in a U formation, apparently for use as landing lights, and some tire tracks of a vehicle equipped with mud or sand tires which appeared to have spun off and left the pasture in a northerly direction. These tracks went through several fences and rough undeveloped land out to Highway 192 which leads to the east, to Melbourne, Florida.

Lieutenant Baker arrived at the scene soon thereafter and took command of the investigation. After inspecting and securing the area around the aircraft, he returned to the site where appellant's truck had been stopped and was advised of appellant's consent to search the truck. Lt. Baker entered the rear of the truck by use of bolt cutters and discovered inside 175 bales of marijuana packaged in black plastic and weighing approximately 6,000 pounds. Lt. Baker then questioned Deputy Bavar regarding the events surrounding the shots heard soon after the appellant's arrest and learned of how appellant's truck had appeared to stop and let off a passenger just prior to appellant's arrest. At that point, even though somewhat removed in time from the initial stop, Lt. Baker commenced a warrantless search of a zippered suitcase found lying on the passenger side in the cab of the truck. He stated that he:

felt there might be someone still out there on foot in the area. So at that time, I went in the truck and I opened the suitcase, just unzipped the top of it, to see if there might be a wallet or anything there.

Record, Suppression Hearing at 290. The luggage contained a fully loaded Browning .9 millimeter automatic pistol and a Marlboro cigarette package bearing a latent fingerprint of the appellant later introduced as evidence in appellant's trial.

An advance room registration receipt for the Holiday Inn at Fort Pierce, Florida found in appellant's wallet later led to the arrest of five other persons at the Holiday Inn-West in Melbourne, Florida. These individuals were indicted with the appellant on conspiracy charges. Discovered as well in Melbourne was a four wheel drive vehicle containing navigational maps, smudgepots, gas tanks and other items linked directly to the aircraft offloading operations near Holopaw, Florida.

Charges against two of appellant's co-defendants were dismissed prior to trial, the government's motion for mistrial was granted as to another and motions for judgments of acquittal were granted as to the remaining two co-defendants. The jury deliberated only as to the charges against the appellant. They returned a guilty verdict on the instruction that appellant could be convicted of conspiracy only if the evidence showed that he conspired with someone other than one of the named co-defendants due to the disposition of their charges.

In addition to the evidence cited above indicating a conspiracy, the government also showed that the Convair 440 aircraft discovered in the pasture was last seen refueling at the Tico Airport, Titusville, Florida on Sunday June 24, 1979. At that time the pilot reserved 1,700 gallons of fuel for purchase on June 26th. Also on the afternoon of June 24th the appellant checked into the Holiday Inn in Titusville using the name of "Wilson." He was in a group of approximately eight persons led by a man named Ron Lawrence, who purchased rooms for the others with cash. Two of appellant's indicted co-defendants were identified as being present in Lawrence's group.

The jury rendered a verdict of guilty on both counts and appellant was sentenced to four years imprisonment followed by a special parole term of two years, on each count,...