U.S. v. Tinkle, 80-1877

• Decision Date: 08 September 1981
• Docket Number: No. 80-1877,80-1877
• Citation: 655 F.2d 617
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Herman Edward TINKLE, Jerry Nelson and Charles Richard Garrett, Defendants-Appellees. . Unit A
• Court: U.S. Court of Appeals — Fifth Circuit

Page 617

655 F.2d 617

UNITED STATES of America, Plaintiff-Appellant, v. Herman Edward TINKLE, Jerry Nelson and Charles Richard

Garrett, Defendants-Appellees.

No. 80-1877.

United States Court of Appeals, Fifth Circuit.

Unit A

Sept. 8, 1981.

James R. Gough, Asst. U. S. Atty., Houston, Tex., for plaintiff-appellant.

Robert A. Shults, Houston, Tex., for Tinkle.

Robert S. Bennett, Houston, Tex., for Nelson.

Charles S. Szekely, Jr., Asst. Federal Public Defender, Roland E. Dahlin, II, Federal Public Defender, Houston, Tex., for Garrett.

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

Before INGRAHAM, POLITZ and WILLIAMS, Circuit Judges.

POLITZ, Circuit Judge:

Herman Edward Tinkle, Jerry Nelson, and Charles Richard Garrett stand indicted for conspiracy to obstruct the communication of information by Peter Kalfas to a criminal investigator of the Alcohol, Tobacco and Firearms Division of the Treasury (ATF), and to injure Kalfas for giving such information, in violation of 18 U.S.C. § 1510. They are also charged with carrying firearms during the commission of the conspiracy, in violation of 18 U.S.C. §§ 371 and 1510. Garrett, a convicted felon, is charged with receiving a shotgun and pistol which had been transported in interstate commerce, in violation of 18 U.S.C. §§ 922(h)(1) and 924(a). Nelson, a convicted felon, was charged with unlawful possession of the shotgun and pistol, in violation of 18 U.S.C.App. § 1202.

Claiming Fourth Amendment violations, the defendants moved to suppress (1) the shotgun, pistol and ammunition found in the automobile occupied by Tinkle and Garrett at the time of their arrest, (2) a statement made by Tinkle at the time of his arrest, (3) statements by Tinkle made several hours after the arrest, (4) statements by Tinkle and Garrett made on the fifth day after the arrest, and (5) the results of a photo identification of Nelson made by Tinkle on the fifth day after the arrest. The trial judge granted the motion to suppress as it related to the weapons, ammunition, and statements made by Tinkle at the time of his arrest and shortly thereafter, but denied defendants' request for suppression of the other evidence. The government appeals the trial court's order. 18 U.S.C. § 3731.

We conclude that no constitutional violations occurred in the course of the stop and warrantless arrest of Tinkle and Garrett. To the contrary, we are impressed with the quality of the law enforcement work reflected in the record. Since the challenged evidence should not have been suppressed as the fruit of an illegal arrest, we reverse.

Facts

The duties of Treasury agents include providing protection for dignitaries. In the Houston area this includes the President, Vice-President, presidential candidates, and high government officials and heads of state visiting Houston for medical reasons. Local ATF agents bear a substantial part of the responsibility for securing the safety of these visitors. ATF agents also provide protection for persons furnishing information in criminal investigations they are conducting.

Peter Kalfas was a key source of information and a witness in the investigation of an arson ring that involved a large number of people. He provided evidence to both state and federal authorities. The investigation led to charges against Raymond Conti and Roland Sarvaunt. Kalfas was scheduled to testify as a prosecution witness at Conti's trial. Many others were targets of the continuing investigation and, at the time of the suppression hearing, were apparently on the verge of being indicted.

In September of 1979, Conti and Sarvaunt told ATF Agent Randy Cunningham that one or more of the persons under investigation had "put a contract" on Kalfas' life. They informed Cunningham that some of the people under investigation had been contacted by persons offering to kill Kalfas for payment. Cunningham, impressed by this information, advised Kalfas of the threat and began an informal, loosely coordinated surveillance of Kalfas. This included frequent telephone communications and some face-to-face exchanges in which he advised Kalfas on measures to avoid unnecessary risks. This early assistance included the spot checking of Kalfas' residence and business by ATF agents. In October 1979, after discovering that Kalfas was being watched furtively, the agents began counter-surveillance which increased in scope and intensity over the ensuing months. As the trial of Conti neared, the effort involved 15 agents and provided continuous protective coverage. The agents observed several persons, including Conti, watching Kalfas.

Between September of 1979 and March 13, 1980, the date of the arrests at issue, Cunningham and other agents sought to ascertain the identifies of the persons seeking funds to kill Kalfas. They checked the license plates of vehicles containing persons watching Kalfas and found more than one-half to be stolen.

Cunningham was suspicious of Conti's motives; he believed that Conti had reported the plan to kill Kalfas as a cover for himself. Consequently, Conti was never told that Kalfas was under protective surveillance, and Cunningham was of the opinion that Conti was unaware of the agents' activities.

Conti's trial was scheduled for Monday, March 17, 1980. On Thursday, March 13, 1980, agents observed two men watching Kalfas from a blue Dodge parked near Kalfas' business. At one point, when Kalfas passed the Dodge on the way to his vehicle, the passenger appeared to shield his face from Kalfas. This was reported to Cunningham when he came to the area to check with Northcutt, the agent then on duty watching Kalfas. Although the agents had seen persons observing Kalfas before, Cunningham's concern about Kalfas' safety intensified. The impendency of the trial, the manner in which the occupants of the blue Dodge acted, weighed in light of the information collected over a period of months, combined to cause Cunningham to conclude that the threatened assassination attempt might be at hand.

After conferring with Northcutt and Kalfas, Cunningham devised a plan to determine if the occupants of the Dodge intended to do more than merely observe Kalfas at work as the previous watchers had done. He told Kalfas to depart from his business and drive to a remote subdivision 18 miles away. He instructed Northcutt to follow closely behind Kalfas and, if the Dodge followed and tried to draw abreast of Kalfas, he was to prevent the maneuver by ramming the Dodge, if necessary. These instructions underscored the seriousness with which Cunningham viewed the situation. Cunningham then departed the parking lot ahead of Northcutt and Kalfas, drove a short distance away, and positioned his vehicle where he could see, but not be seen by, passing vehicles.

In a few minutes Cunningham noted Kalfas pass, followed by Northcutt. A few vehicles passed and then the blue Dodge came into view. Cunningham pulled into the chain of traffic where he could see the movement of the Dodge. It was obvious that the Dodge was following Kalfas or Northcutt; the driver repeatedly drove into the oncoming lane of the two-lane highway to get a view of traffic ahead and pulled over the center line to look down the road when stopping for traffic lights or signs. At one point, while the Dodge and Cunningham were stopped by a light, Kalfas and Northcutt disappeared from view. The Dodge was driven at a high rate of speed to overtake them. Apparently this was the first time that the persons who had been watching Kalfas actually followed him when he departed his home or business place.

When it became clear to Cunningham that the Dodge was following Kalfas or Northcutt, he radioed for help. He contacted two other ATF agents in the vicinity, Allen and Taylor, told them that Kalfas was being followed, and informed them of the destination. He instructed the agents to go to the remote subdivision and position themselves so that they could observe traffic. He further instructed the agents to cover Kalfas as he entered the subdivision; if the Dodge followed Kalfas into the subdivision they were to stop and arrest the occupants. Taylor and Allen quickly went to the designated place and waited.

As the convoy approached the subdivision, Cunningham radioed Northcutt and told him that after exiting the interstate highway he was to continue along the service road and not enter the subdivision. This maneuver was to make certain that the Dodge was following Kalfas and not Northcutt. When Kalfas turned to enter the subdivision, the Dodge, in line behind Northcutt, quickly turned left from the wrong lane and followed Kalfas.

As Kalfas neared the intersection at the subdivision entrance, agents Taylor and Allen took their positions in the traffic flow; Taylor pulled behind Kalfas, followed by the Dodge, in turn followed by Allen. Taylor hesitated at the subdivision entrance long enough for Kalfas to drive from view, then proceeded straight through the intersection, watching the Dodge as he did so. The occupants of the Dodge hesitated at the intersection, looked in all directions, and finally turned right. Allen followed. Taylor turned around, returned to the intersection, and followed Allen. The Dodge was proceeding very slowly; the occupants were looking in each driveway. The pace was so slow, five or six miles per hour, that Allen felt compelled to pass in order to avoid suspicion. He radioed Taylor, who was approaching from the rear, of his move.

The three vehicles proceeded in line Allen, the Dodge and then Taylor down a narrow subdivision street to a stop sign. At that point Allen raised his radio microphone to speak to Taylor. The driver of the Dodge, apparently seeing the microphone, reacted by backing up very rapidly, narrowly avoiding Taylor's vehicle. The Dodge was now blocked by the two agents' vehicles. Both agents exited their cars with weapons in hand, identified themselves, and told the occupants of the Dodge...