684 F.2d 1078 (5th Cir. 1982), 79-5497, United States v. Parks

Docket Nº:79-5497.
Citation:684 F.2d 1078
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Harold Allen PARKS and Harry Bruce Holloway, Defendants-Appellants.
Case Date:August 20, 1982
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 1078

684 F.2d 1078 (5th Cir. 1982)

UNITED STATES of America, Plaintiff-Appellee,

v.

Harold Allen PARKS and Harry Bruce Holloway, Defendants-Appellants.

No. 79-5497.

United States Court of Appeals, Fifth Circuit

August 20, 1982

Page 1079

Gerald H. Goldstein, San Antonio, Tex., Raymond C. Caballero, El Paso, Tex., for Holloway.

Bruce R. Sternberg, Austin, Tex., for Parks.

LeRoy Morgan Jahn, Asst. U. S. Atty., San Antonio, Tex., for plaintiff-appellee.

Appeals from the United States District Court for the Western District of Texas.

Before COLEMAN, POLITZ and GARWOOD, Circuit Judges.

Page 1080

GARWOOD, Circuit Judge:

Parks and Holloway appeal their convictions for possession of and conspiring to possess marihuana with intent to distribute, contrary to 21 U.S.C. §§ 841(a) (1) and 846. The case presents a number of potentially difficult Fourth Amendment issues. The basis for our decision, however, is rather narrow: Parks and Holloway failed to establish that their Fourth Amendment rights were violated.

FACTS AND PROCEEDINGS BELOW

On March 21, 1979, an investigator for the Travis County District Attorney's Office obtained a warrant from a state district judge to install an electronic transponder (a "beeper") inside a twin-engine plane located at the airport in Austin, Texas. The investigator suspected that drug smugglers were using the plane. Later that night, an officer entered the plane and installed the beeper. 1 The warrant had a thirty-day time limit.

On April 20, 1979, the same investigator presented to the same state judge an affidavit requesting an extension for monitoring the beeper. The judge notarized the affidavit, but failed to issue a written extension. 2 Electronic surveillance of the plane was continued. On April 27, 1979, apparently in the morning, the agents received information from a monitoring station that the signal of a law enforcement beeper, whose source had flight characteristics fitting those of the plane in question, had been tracked in the air proceeding south into Mexico near Laredo. Agents then checked the Austin airport and found that the plane was absent. That evening Customs officials picked up the beeper signal from within Mexico and determined that the plane was moving toward the United States. Agents in intercept aircraft, apparently aided by the beeper, thereafter located and followed the plane as it proceeded in the dark, without lights, toward a landing site on Horsehead Crossing Road in the Big Bend area of Texas. When one of the Customs agents observed a light flashing from the ground, he contacted the local sheriff's department for assistance. The suspect plane landed and Parks and Holloway were captured after fleeing the landing site in a pickup truck loaded with over half a ton of marihuana. No evidence was taken from the plane.

Holloway and Parks moved to suppress all the evidence seized at the time of their arrests. The trial court denied the motion and convicted both. They appealed and, pursuant to the motion of all parties, we remanded the case for a hearing to determine the "standing" of Parks and Holloway to contest the search and seizure of the evidence. The trial court ruled that neither had standing. Parks and Holloway appeal once more.

The only grounds for the requested suppression that were supported by either evidence or argument in the district court, and the only grounds urged on appeal, relate to the contention that the beeper was illegally maintained and monitored. No one questions that the officers had probable cause both to stop appellants as they fled in the pickup truck and to seize the marihuana, once the officers arrived on the scene. Locating the plane through the beeper obviously enabled the agents to make the arrests and seizure. Therefore, we can sustain neither appellant's conviction if the district court erred in denying their motion to suppress, since the alleged unconstitutional

Page 1081

acts resulted in appellants' arrests and seizure of the marihuana.

Neither Holloway nor Parks testified at either of the suppression hearings. 3 On the night of their arrests both Parks and Holloway informed the agents that Holloway piloted the plane. Parks stated that he had served as the "ground crew," driving the truck from Austin to rendezvous with Holloway when he piloted the plane to the landing site, and carrying the airplane seats from near the Austin airport where "they had been stashed in the weeds." Parks also said the plane had been "staged" for the trip to Mexico at another airfield northwest of Austin and, after the seats were removed, loaded with fuel cans that had been purchased in Austin. Parks apparently did not disclose who removed the seats or loaded or staged the plane or acquired the fuel cans.

The government introduced evidence of the plane's registered ownership since 1969. Neither Parks nor Holloway ever had any documented, official interest in the plane. Its registered owner since 1977 was Wayne Roberson of Austin. However, other evidence showed the actual owner was Mikal Amuni, who customarily used various aliases. No evidence showed that either Parks or Holloway ever had any character of legal or proprietary interest in the plane, nor that Holloway had traveled in it other than on April 27, nor that Parks had ever done so. Except for a period of time from about February 2 to March 6, 1979, when it was being repaired in San Antonio and was then flown by Amuni to Oklahoma City for repainting, agents had maintained fairly regular surveillance over the plane from late January until the events in question on April 27. At no time did the agents observe either Parks or Holloway. Nothing evidenced any relationship between Parks or Holloway and Amuni, or the present or any previous registered owner, or any of the other several individuals whom agents had observed in activities related to the plane during this period. During the surveillance period, the plane's curtains were pulled shut, the cargo door was closed, and the pilot's door was padlocked. The night of the arrests the agents found the cargo door open and a padlock, with a key in it, on the wing next to the pilot's door. Subsequent investigation revealed Holloway was from Antlers, Oklahoma and had an aircraft facility there. Parks and Holloway were given notice of forfeiture proceedings commenced against the plane subsequent to April 27, and the forfeiture receipt was sent to Holloway. Since April 27 no one has claimed any interest in the plane.

During the day on April 27 the agents learned that after the plane departed for Mexico, Amuni appeared at the Austin airport and, using the name Jim Waters, claimed that the aircraft had been stolen. However, no formal report of theft was ever filed. Amuni was then under investigation for possible marihuana smuggling and a formal report that the plane was stolen would have required his correct name.

An agent testified that when Parks was questioned following his arrest on April 27, he initially stated he and Holloway had stolen the plane. The agent then told Parks the plane had been reported stolen and "that we possibly would be filing charges on theft of the aircraft." Parks thereupon denied the plane was stolen and told the agents that "a few days before" April 27 he and Holloway met with an unnamed man at a restaurant in Austin and obtained a key to the aircraft. We cannot determine which individual received the key, although the unnamed man apparently "worked out" various "details for the use of the aircraft" with Holloway. Parks described the man's physical characteristics, but whether this description fit that of Amuni or any other person shown to be

Page 1082

connected to the plane is unknown; nor does anything indicate this man's relationship to the plane or its owner or how he came to have the key. Although the agent did not include Parks' statement that the plane was stolen in his report, the trial court in its findings credited the agent's testimony that Parks said this. The agent's report also reflects that Holloway, when told the plane had been reported stolen and he had probably been "set up," replied, "I'm not a snitch. I won't tell on them." 4

Following the standing hearing, the trial court found Holloway piloted the plane "from" Mexico to the site of...

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