706 F.2d 1121 (11th Cir. 1983), 81-6203, United States v. Bachner

Docket Nº:81-6203.
Citation:706 F.2d 1121
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. Frank Edward BACHNER, a/k/a
Case Date:June 06, 1983
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 1121

706 F.2d 1121 (11th Cir. 1983)

UNITED STATES of America, Plaintiff-Appellant,

v.

Frank Edward BACHNER, a/k/a "Richard John Cassarella", a/k/a

"John Ryan", a/k/a "Jason", Defendant-Appellee.

No. 81-6203.

United States Court of Appeals, Eleventh Circuit

June 6, 1983

Page 1122

Thomas A. Blair, Asst. U.S. Atty., Miami, Fla., for plaintiff-appellant.

Neal A. DuPree, Asst. Federal Public Defender, Miami, Fla., for defendant-appellee.

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

Before FAY and CLARK, Circuit Judges, and MARKEY [*], Chief Judge.

FAY, Circuit Judge:

The appellee, Frank E. Bachner, was charged in a four-count indictment (and later in a superseding indictment) with conspiracy to import methaqualone (quaaludes), conspiracy to distribute and possess with the intent to distribute methaqualone, importation of methaqualone, and possession with the intent to distribute methaqualone, in violation of 21 U.S.C. Sections 963, 846, 953(a), and 841(a)(1). The appellee pleaded not guilty to all of the counts in the indictment and subsequently filed a motion to suppress his post-arrest statements and

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certain evidence seized by United States Customs Patrol Officers at the time of his arrest. Adopting in part the magistrate's "Review and Recommendation," the district court issued an order suppressing most of the appellee's post-arrest statements and all of the physical evidence. The government appealed under 18 U.S.C. Section 3731. 1 After a careful review of the transcript of the suppression hearing, the magistrate's Review and Recommendation, and the district court's suppression order, we conclude that the trial court has not made a sufficient factual determination on the question of whether the appellee's fourth amendment rights were violated by the challenged search and seizure. We therefore remand this case to enable the trial court to determine whether the appellee had a legitimate expectation of privacy in the areas searched and items seized by the government.

FACTS

On February 5, 1980, Customs Patrol Officer (CPO) James A. Howell received information from a confidential informant that a red, black, and white Piper Aztec aircraft, bearing number N5733Y and flown by John Ryan from Chicago, had left Vero Beach, Florida heading in a southerly direction. The informant told CPO Howell that the aircraft had only one seat and an illegal fuel tank, that Mr. Ryan had stated he was going "south for a load," that Mr. Ryan had inquired about the availability of fuel "down south," and that the aircraft was expected to return the following day.

CPO Howell subsequently checked available computer files but found no pilots named John Ryan from Chicago; FAA records revealed, however, that the aircraft was registered to William J. Retty of South Pasadena, California. Upon conferring with the FAA Miami Center, CPO Howell learned that the Aztec was not being tracked so he placed the aircraft on both local and FAA lookout status.

On February 7, 1980, United States Customs Patrol Officer Harold C. Briscoe, Jr., was flying in the vicinity of Fort Lauderdale at approximately 1:00 AM when he heard over Customs' radio a signal from an aircraft with partial call letters of "33 Yankee." Aware that the Aztec was on the lookout list, CPO Briscoe contacted his base and requested it to call Fort Lauderdale airport tower and obtain the aircraft's complete call letters. The tower responded that the aircraft's call letters were N5733Y, and it was an Aztec planning to land at North Perry Airport in Broward County. Upon being advised of the Aztec's complete call letters, CPO Briscoe diverted to North Perry Airport, where he saw the Aztec land and taxi to a parking area.

Shortly prior to these events, Customs officers in a radar equipped airplane patrolling in the vicinity of Bimini began tracking a target which was westbound from the vicinity of Bimini heading toward Fort Lauderdale at a speed of 140 to 150 knots. Another Customs airplane was launched to try to intercept the unidentified radar target, but after it got airborne, the radar patrol plane advised it that the target had been lost.

Following his landing at North Perry Airport, the appellee parked the Aztec at the south side of the airport and exited his aircraft where he was approached by Broward County Deputy Sheriff Michael Sokolowski, who had observed the Aztec land, taxi, and park. Deputy Sokolowski asked the appellee for identification and a pilot's license, but the appellee had neither. The appellee identified himself as Richard Cassarella.

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Approximately ten minutes later, the Customs aircraft landed and taxied to Deputy Sokolowski's position, and CPO Briscoe got out of his aircraft. CPO Briscoe could see into the airplane's windows with his flashlight while he was standing on the ground outside the airplane. In addition to observing that the exterior of the airplane was dirty, he saw through the windows that there were boxes having "some kind of writing in Spanish on it," along with a wrist watch and aircharts. CPO Briscoe then stepped on the wing for a better look and saw that the chart was of the "South American area." CPO Briscoe asked the appellee if he could take a further look inside, and the appellee replied, "no," and closed the plane. With respect to the boxes in the airplane, CPO Briscoe observed that they were "virtually identical" to boxes seized a few days earlier from another aircraft which had been found to contain contraband. The boxes in the aircraft had the same "type of markings and bindings on them."

CPO Briscoe again asked the defendant for identification, he said he had none. Nor was he able to produce a pilot's license. When asked the origin and nature of his flight, the appellee stated that "he had departed Chicago, that he could not remember what airport he had departed from, and that he was transporting a cargo of car parts." Deputy Sokolowski placed the appellee under arrest on charges of operating an aircraft without a pilot's license. When the appellee was searched following his arrest, Deputy Sokolowski found one quaalude tablet in his pocket.

The appellee and CPO Briscoe went to an airport office where Customs telephoned the United States Drug Enforcement Administration (DEA). Upon being advised by his DEA office that an aircraft had landed at North Perry Airport and was suspected to be carrying narcotics, DEA Special Agent Avelino Fernandez traveled to the airport where he met with CPO Briscoe and Deputy Sokolowski. CPO Briscoe advised Agent Fernandez of the preceding events whereupon the officers went into the office, and the appellee was advised of his Miranda rights. The appellee then told the officers that he was not going to talk and that they would have to get a search warrant to search the Aztec.

Special Agent Fernandez told the appellee that they were going to search the Aztec; he then told CPO Briscoe in the appellee's presence to open the aircraft. CPO Briscoe obtained the key to the aircraft from the appellee; the appellee then stated that "the plane was loaded."

The aircraft was opened and searched. CPO Briscoe believed that the search was authorized as a border search. Agent Fernandez opened one of the boxes which had a small tear in the outer covering and observed white pills contained in clear plastic "sandwich" baggies which were later determined to be quaaludes. The agent observed that the aircraft contained two front seats and a rear bench seat, but the middle seats were missing and that area, as well as the baggage compartment, was filled with stacked boxes. After verifying that the first box contained quaaludes, the remaining boxes were unloaded and the aircraft was seized.

The appellee was then taken to the Fort Lauderdale DEA office, where, at Agent Fernandez's suggestion, he agreed to cooperate with the DEA. The appellee made one written statement and several oral statements implicating his non-appealing co-defendant, Fernando Galindo-Delvalle, who, the appellee stated, was going to provide the truck to transport the quaaludes. The appellee stated that he would be willing to arrange for Galindo-Delvalle to pick up the drugs. The appellee, wearing a body wire, met with Galindo-Delvalle twice that day, but Galindo-Delvalle failed to return later to pick up the drugs as he had agreed to do. The agents left the appellee at a hotel that night, and he was gone the next morning.

Since the agents had released the appellee before his true name was learned, he was subsequently indicted as "John Doe, a/k/a Richard John Casserella, a/k/a John Ryan." When his true name was ultimately

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discovered, a superseding indictment was then returned.

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