705 F.2d 980 (8th Cir. 1983), 82-1870, United States v. Wallraff

Docket Nº:82-1870.
Citation:705 F.2d 980
Party Name:UNITED STATES of America, Appellee, v. Mark Stephen WALLRAFF, Appellant.
Case Date:April 20, 1983
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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705 F.2d 980 (8th Cir. 1983)

UNITED STATES of America, Appellee,


Mark Stephen WALLRAFF, Appellant.

No. 82-1870.

United States Court of Appeals, Eighth Circuit.

April 20, 1983

Submitted Dec. 14, 1983.

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[Copyrighted Material Omitted]

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Brian H. Miller, Miller & Boeder, Minneapolis, Minn., for appellant.

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James M. Rosenbaum, U.S. Atty., John M. Lee, Asst. U.S. Atty., D. Minn., Minneapolis, Minn., Robert S. Soskin, Legal Intern, for appellee.

Before ROSS and FAGG, Circuit Judges, and SCHATZ, [*] District Judge.

SCHATZ, District Judge.

In this case we are called upon to assess the constitutionality of an airport stop and search initiated by Drug Enforcement Administration agents to apprehend a suspected narcotics courier. The matters presented herein require us to consider and determine "the delicate balance which must be struck between the interest of the public in terminating narcotics smuggling and the individual's right to live unburdened by unreasonable intrusions on his privacy ..." United States v. Ramirez-Cifuentes, 682 F.2d 337, 338 (2d Cir.1982).

The defendant-appellant, Mark Stephen Wallraff (defendant), was charged by indictment with possession with intent to distribute 2.2 pounds of cocaine, in violation of 21 U.S.C. § 841(a)(1). Prior to trial, the defendant filed a motion to suppress all evidence seized from his person and suitcase as well as certain statements he made to law enforcement officers. This motion to suppress was referred by the district court 1 to United States Magistrate Floyd E. Boline for hearing and the filing of a report and recommendation. A four-day suppression hearing was held before the magistrate, during which several witnesses testified to the events leading up to the detention of the defendant and his suitcase. After this plenary evidentiary hearing, the magistrate filed a comprehensive, well-reasoned report and recommendation of 37 pages, in which he made extensive findings of fact and recommended by way of conclusion that the defendant's motion to suppress be denied. Thereafter, on May 5, 1982, the district judge considered the timely objections of the defendant to the magistrate's report and recommendation, made a de novo determination adopting the factual findings and legal conclusions of the magistrate, and denied the motion to suppress. On the same date, the defendant waived his right to trial by jury and was convicted following a trial on stipulated facts. The district court subsequently sentenced the defendant to five years imprisonment and a special parole term of three years.

The defendant now appeals on the ground that the district court erred in not granting his motion to suppress evidence, and presents the following contentions for reversal: (1) that the detention of the defendant and his suitcase at the Minneapolis-St. Paul Airport amounted to an unreasonable search and seizure violative of the Fourth Amendment; (2) that the statements made by the defendant prior to his formal arrest were the result of a custodial interrogation and should be suppressed in light of the absence of timely Miranda warnings; and (3) that the affidavit accompanying the application for a warrant to search the defendant's bag was insufficient to establish probable cause, and contained intentional or recklessly made misstatements necessary to a finding of probable cause. We conclude that the trial court properly denied the suppression motion, and accordingly affirm the judgment of conviction of the defendant.

At the suppression hearing before the magistrate, the scenario of surveillance and the eventual encounter unfolded. The facts are these. On November 7, 1981, Sergeant David Knudson (sergeant Knudson) of the Minneapolis-St. Paul Airport Police Department was advised that Emery Air Freight had opened a parcel containing a substance suspected to be cocaine. This package, which proved to contain 26 grams of cocaine and six letters addressed to one Patty Blair, had been shipped from Longwood Development, 2331 Palmetto Drive, Longwood, Florida, to Mr. Terrance Anderson of Stillwater,

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Minnesota. On November 9, 1981, Drug Enforcement Administration Agent James Lewis (agent Lewis) of Minneapolis contacted Task Force Officer Edward Porro (officer Porro) of Orlando, Florida, to request assistance in conducting a follow-up investigation of the above-described drug shipment.

On November 12, 1981, officer Porro and another law enforcement agent located 2331 Palmetto Drive in an unincorporated portion of Seminole County, Florida. The officers knocked on the front door of the residence located at that address, but received no response. In the driveway of 2331 Palmetto Drive, the agents observed two vehicles: a brown Mercedes Benz bearing Florida license VRD 836; and a red Chevrolet Camaro with Florida license PHK 809. Upon radioing the Orlando Police Department for license verifications, officer Porro was advised that the Mercedes was registered to the defendant and the Camaro was registered to a Patty Blair.

Subsequently, law enforcement officers secured records reflecting long distance toll calls made between the Florida telephone number assigned to the defendant and the Minnesota telephone number assigned to Terrance Anderson. It was thereby determined that: (1) twelve calls had been made from the defendant's telephone to Terrance Anderson's telephone between August 1, 1981, and October 31, 1981; and (2) approximately 25 calls had been made from Terrance Anderson's telephone to the defendant's telephone between February 1, 1981, and October 31, 1981.

On January 8, 1982, Officer Porro and Task Force Officer Steven Collins (officer Collins) returned to 2331 Palmetto Drive. No one was found at home and no cars were parked in the driveway. Upon examination of the contents of two garbage cans which had been placed next to the curb in front of the residence, the officers discovered a prescription bottle with the name Patty Blair on it, an envelope addressed to Gregg and Patty Wallraff, and an envelope addressed to Gregg Wallraff.

After leaving the Palmetto Drive address, the officers proceeded to 1321 South Grant Street, which was listed as the defendant's address by the telephone company. There, after locating the defendant, the agents identified themselves as police officers and asked the defendant if they could speak with him. Defendant assented, but was visibly nervous and began to stutter. Officer Porro informed the defendant that he need not be alarmed, since the agents were not there to arrest or detain him. Initially, the defendant denied knowing anyone who lived on Palmetto Drive, but in response to further questioning: (1) the defendant said he knew a girl named Yvonne Miller who lived somewhere on Palmetto Drive; (2) the defendant admitted that his brother, Gregg Wallraff, and Patty Blair had lived at 2331 Palmetto Drive; (3) the defendant indicated that his brother and Patty Blair had separated, and his brother had moved to 521 Granada Way, an address adjacent to the defendant's Grant Street residence; and (4) the defendant stated that he had visited 2331 Palmetto Drive on occasion. During the course of this conversation, the defendant acknowledged that he was acquainted with Terrance Anderson, and stated that Anderson had done some woodcarving for his (defendant's) home. Defendant also expressed his willingness to meet with the Emery Air Freight driver who, on November 6, 1981, had picked up the cocaine-laden package from 2331 Palmetto Drive. Officer Porro subsequently attempted to locate Gregg Wallraff on four occasions, both at the Palmetto Drive residence and the Granada Way residence, but was unsuccessful. Prior to February 1, 1982, officer Porro transmitted to agent Lewis the result of the follow-up investigation by Florida agents of the November 6-7, 1981, cocaine shipment.

At approximately 2:30 p.m. on February 1, 1982, officer Collins recognized, and initiated direct surveillance of, the defendant in the Orlando airport. Officer Collins followed the defendant to a departure terminal where the defendant checked in as a passenger on Republic Airlines Flight 407 (Orlando to Minneapolis with an interim

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stop in Memphis), which was late. Collins took a seat about twenty feet from the defendant in the departure gate area, whereupon: (1) the defendant looked at and appeared to recognize officer Collins as a result of their face-to-face meeting on January 8, 1982; (2) the defendant became extremely nervous; and (3) the defendant stood up and began to pace about the departure gate area. At some point, officer Collins was informed by a Republic Airlines ticket agent that the defendant was travelling under the name of "Mr. Willis" and had purchased a one-way ticket to Minneapolis with cash. Defendant subsequently walked to the Republic Airlines ticket counter, where he changed his reservation from Flight 407 to Flight 431, a direct flight from Orlando to Minneapolis scheduled to depart at 4 p.m. After checking with the ticket agent regarding the defendant's modified itinerary, officer Collins followed the defendant, who peered back over his shoulder at least once, to a second departure gate. Defendant sat down and stared intently at officer Collins. When Flight 431 started to board, the defendant moved ahead of some other passengers in the boarding line; while waiting to enter the jetway, the defendant raised up on his toes four or five times and looked back as if trying to detect whether he was being followed. Shortly after the boarding process was completed, officer Collins telephoned agent Lewis in Minneapolis and summarized his observations regarding the defendant's conduct in the Orlando airport.

About 6:15 p.m. on February 1, 1982, agent Lewis...

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