U.S. v. Bellina

• Citation: 665 F.2d 1335
• Decision Date: 21 December 1981
• Docket Number: No. 81-5084,81-5084
• Parties: UNITED STATES of America, Appellant, v. Matthew BELLINA, Daniel David Hochroth, and Anthony Di Benedetto, Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 1335

665 F.2d 1335

UNITED STATES of America, Appellant, v. Matthew BELLINA, Daniel David Hochroth, and Anthony Di Benedetto, Appellees.

No. 81-5084.

United States Court of Appeals, Fourth Circuit.

Argued Oct. 9, 1981.

Decided Dec. 21, 1981.

Lionel S. Lofton, Asst. U. S. Atty., Charleston, S. C. (Henry Dargan McMaster, U. S. Atty., Columbia, S. C., Cameron B. Littlejohn, Jr., Asst. U. S. Atty., Columbia, S. C., on brief) for appellant.

Thomas C. Manning, Raleigh, N. C. (Cheshire & Manning, Raleigh, N. C., on brief), Jeffrey S. Weiner, Miami, Fla. (Geoffrey C. Fleck, Weiner, Robbins, Tunkey & Ross, P.A., Miami, Fla., G. Dan Bowling, Goodstein, Bowling, Douglas & Philips, Charleston Heights, S. C., on brief), for appellees.

Before RUSSELL, Circuit Judge, FIELD, Senior Circuit Judge, and PHILLIPS, Circuit Judge.

DONALD RUSSELL, Circuit Judge:

This is an appeal from a suppression order by the district court invalidating on constitutional grounds an airplane search. The facts are set forth in the testimony at the suppression hearing of the officers involved in the search: About one o'clock on the morning of December 3, 1980, a Piper Navajo airplane, FAA Registration N3527Q, landed at the Charleston (South Carolina) public airport and taxied to a point near the offices of Hawthorne Aviation, which operated an airplane servicing and maintenance service at the airport as well as an airplane chartering business. As it landed, the employee of Hawthorne on duty "heard a loud noise" which did not "sound like an ordinary plane." Two men emerged from the plane and inquired of the Hawthorne employee where they could secure lodging, adding they would be back in the morning. They were not otherwise communicative. They offered no explanation of the damage to the plane nor did they request any assistance in repairing or servicing the damaged plane. The employee secured a conveyance for them to a Holiday Inn.

After the pilot and co-pilot had left the airfield, the Hawthorne employee, curious, surveyed the damage to the plane. In so doing, he used a ladder which he placed a few feet from the plane. He discovered that the tips of the propellers were broken or bent, the landing gear "heavily damaged," and "one of the wing braces had been bent as the landing gear came up," bending "one of the wing struts." As an experienced plane mechanic, he gave an opinion that "the aircraft must have some time or other taxied into a deep chuckhole or ran (sic) off the side of a runway someplace, and caused the wheel-that side of the aircraft to drop down to the point that the propeller struck the ground." He added that it was his judgment that "it was very, very unsafe for anyone to fly an airplane in that condition" and "that it probably would have an awful lot of vibration." He, also, noted that the seats had been removed from the middle part of the plane. Because of all these unusual and suspicious circumstances, the manager of Hawthorne felt he should call the Charleston office of the United States Customs Service and suggest that it investigate the plane. As a result two patrol officers, Patterson and Stott, were directed to go to the Charleston Airport to investigate. At the same time the Customs Office notified the local Drug Enforcement Administration (DEA) office and enlisted its cooperation.

Upon their arrival at the airport Officers Patterson and Stott talked to the Hawthorne employees and obtained information on the plane's appearance at the airport, the action of its pilots and the damage suffered by the plane as well as the employees' opinion on the cause of the damage. The officers then made an independent inspection of the plane. Officer Patterson testified that, standing at a point some three or four feet from the plane, he observed through the windshield of the plane that all the seats behind the seats of the pilot and co-pilot had been removed, except two seats in the very rear of the aircraft. He deduced from this that cargo had been transported in the plane. He next stepped on a wing of the plane. The curtains on some of the windows had been partially closed but on other windows the curtains were open. He looked through one of the open windows and saw on the floor of the plane in the cargo area and also near the pilot's area what he, as an experienced officer in marijuana investigations, identified as marijuana.

Officer Stott made his investigation in a different way. He ascended the ladder which had been used by the Hawthorne employee in his survey of the plane and from which, at a distance of a few feet from the plane, he peered into the plane. He, also, saw marijuana seed in what would have been the cargo area of the plane. Although the employee at Hawthorne offered to open the plane with a key he had, the officers made no effort to enter the plane itself. Instead, they reported this information developed as a result of their investigation to their superior at the Charleston office, where the heads of the local office of the Customs Office and DEA were, following the investigation. Patterson and Stott were instructed to put the plane under surveillance for the time being and await the return of the two pilots who were supposed to return that morning.

Shortly before officers Patterson and Stott began their investigation of the damaged plane, Officer Garcia had reported to the Charleston Customs office that he had discovered twelve bales of abandoned marijuana alongside the runway of the Walterboro/Colleton County (South Carolina) airport, located about twenty or thirty miles from the Charleston airport. Officer Garcia had been informed in the course of his investigation that a plane "had been at the airport in the middle of the night, stayed there a short time and took off again, and there was a lot of noise and problems with the plane." Garcia was then told of the "suspicious" plane at Hawthorne and instructed to join Patterson and Stott at the Charleston airport. He reached the Charleston airport about 11:00 or 11:30 that morning.

When the pilots did not return during the morning, Stein, in charge of the Charleston DEA office, began to trace the ownership of the plane. He first inquired through FAA as to the owner of the aircraft and was advised that the owner was a Dr. Moore in Jenkintown, Pennsylvania. He telephoned Dr. Moore around noon. Dr. Moore told him that, while he was the registered owner of the aircraft it was subject to a lease purchase arrangement with Aero Ventures in New Jersey which was actually in charge of the plane. Dr. Moore gave Stein the telephone number of Aero Ventures as well as the name of the president of that company. Stein telephoned Aero Ventures and asked to speak to the president of the company. He was told that the president was not there but that a Mr. Simms was in charge. When he talked to Simms he inquired about the plane. Simms told him that the plane had been leased in December for three days to Matthew Bellina, a licensed pilot with a New York address, and was due to be returned that day (December 3). Stein told him that the plane was then in Charleston, South Carolina, in a damaged condition. He specifically told Simms that the only seats in the plane were those of the two pilots and the two rear seats, adding that "the cargo area was completely empty." Simms at this point referred Stein to a Mr. Katz, an attorney and one of the owners of Aero Ventures. When Stein told Katz about the plane's condition, Katz became quite concerned about the seats which he said "were worth about $9,000" and inquired "if we had any idea where his seats were ...." Stein told Katz that all he could tell him was that "by looking through the windows we could tell there were no seats in the aircraft" and that the Government would like permission to investigate further by entering the plane. Katz expressed a willingness to cooperate fully and agreed to a search of the plane. Stein relayed this information to Settles, the Director of the Customs Patrol, with the request that he instruct his officers to search the plane.

Settles did not, however, instruct his officers to search the plane, but communicated with a Mr. Murphy in the Customs Office in Philadelphia. He told Murphy the situation and requested Murphy to secure, if possible, written consent from Aero Ventures for the search. Murphy visited Simms at Aero Ventures and told him that the plane "was under surveillance in Charleston, South Carolina (and) that he believed it had been used to transport contraband." Simms showed Murphy a lease agreement under which the plane had been leased to the defendant Matthew Bellina. The terms of the lease were reviewed with Murphy by Simms. Under the provisions of the lease the plane could not be operated at night and "the lessee shall not molest or tamper with the equipment in the airplane." After communicating with his supervisor Simms signed a written consent for the search of the plane. Only after they were advised by Murphy in Philadelphia that the latter had in hand a written consent to search did Settles and Stein instruct their officers at the airport to search the plane. The search, conducted at about 4:30 in the afternoon, revealed the removal of four seats and the presence of marijuana about the interior of the plane. Following this discovery the plane was sealed by the searching officers.

About 7:30 on the evening of December 3 while the officers were still at the airport a yellow Hertz truck which had driven into the airport and up to the seized plane, suddenly was driven at great speed through a locked gate, proceeding in the wrong direction down a one-way road. After pursuit the officers overtook the truck, discovered four airplane seats in the truck, and removed two persons, the defendants David Hochroth and Anthony Di Benedetto, from it. Both were placed under arrest and, along with Matthew Bellina, were later indicted and charged with violation of 21 U.S.C. §§ 841(a)(1), 846...