US v. Baumwald, Crim. No. 89-00002-P to 89-00005-P.

• Decision Date: 27 July 1989
• Docket Number: Crim. No. 89-00002-P to 89-00005-P.
• Citation: 720 F. Supp. 226
• Court: U.S. District Court — District of Maine
• Parties: UNITED STATES of America v. Andrew Stewart BAUMWALD, et al. UNITED STATES of America v. Norman J. PANITZ, et al. UNITED STATES of America v. Joseph John FRISONE, et al. UNITED STATES of America v. Robert Alan BERZON, et al.

720 F. Supp. 226

UNITED STATES of America v. Andrew Stewart BAUMWALD, et al.

UNITED STATES of America v. Norman J. PANITZ, et al.

UNITED STATES of America v. Joseph John FRISONE, et al.

UNITED STATES of America v. Robert Alan BERZON, et al.

Crim. Nos. 89-00002-P to 89-00005-P.

United States District Court, D. Maine.

July 27, 1989.

Nicholas M. Gess and William H. Browder, Asst. U.S. Attys., Portland, Me., for U.S.

Martin D. Boudreau, Boston, Mass., for Baumwald.

Richard S. Emerson, Jr., Portland, Me., for Rosen.

Stephanie Anderson, Portland, Me., for DiNolfo.

Robert I. Kalina, New York City, for N. Panitz.

Howard J. Herman, Brooklyn, N.Y., for S. Panitz.

Frank T. Geoly, Brooklyn, N.Y., for Frisone.

Marshall A. Stern, Bangor, Me., Judith H. Mizner, Newburyport, Mass., for Hertz.

Bruce B. Hochman, Portland, Me., for Lopopolo.

Jack Zalkind, Boston, Mass., for Berzon.

Robert D. Hertzberg, Miami, Fla., for Novak.

Barry P. Wilson, Boston, Mass., for Haskins.

Richard M. Egbert, Boston, Mass., for Braun.

MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS' MOTIONS TO SUPPRESS STATEMENTS AND EVIDENCE

GENE CARTER, District Judge.

In these actions Defendants are charged with conspiracy to possess with intent to distribute marijuana and possession with intent to distribute marijuana, in violation of 21 U.S.C. §§ 841, 846 and 18 U.S.C. § 2. The charges are the result of an investigation by the United States Drug Enforcement Agency and other law enforcement agencies. Defendants Rosen, DiNolfo, Solomon Panitz, Norman Panitz, Hertz, Haskins, Braun, Novak, and Berzon¹ have moved to suppress statements made by them, evidence taken from them, or both.

Facts

In the fall of 1988, Michael Goldin, an unindicted coconspirator, planned the importation of 10,000 pounds of marijuana into Maine. Two cooperating individuals "CIs", SGI-86-0010 and SGI-86-0011, arranged for the transfer of the marijuana for Goldin, originally from Colombia, by boat through the French West Indies to Maine. On November 20, 1988, Goldin and the two CIs came to South Portland, Maine via Boston. Goldin went to the Sheraton Motor Inn next to an exit on the Maine Turnpike, where he was to stay.

Later that day, Goldin met undercover DEA Agent Bansmer, and they went together to the Damariscotta area in Maine to inspect the marijuana. Goldin selected marijuana samples, most of which were later found in a room at the Sheraton. Goldin agreed to pay the CIs and the undercover agents $660,000 for the transportation, storage and processing of the marijuana.

Goldin was in frequent communication with various individuals concerning the deal. On the twenty-first, Goldin told the CIs that Joe, later identified as Defendant Frisone, was en route, bringing money with him, and that Goldin hoped to sell him a large quantity of marijuana. Goldin also told the CIs that Andy was en route to Maine with a car and a truck driven by a fifty-five-year-old woman. Andy was later identified as Defendant Andrew Baumwald. Goldin also reported that Defendant Berzon and "Toy," later identified as Defendant Novak, were coming to Portland in connection with the marijuana deal.

After a meeting at the Sheraton later in the afternoon, Goldin told the CIs that Andy had arrived and was staying in a particular room at the Sheraton. Goldin said Andy had brought a Ford and a BMW with him as well as two drivers, a male and a fifty-five-year-old woman. The woman was later identified as Defendant DiNolfo, and the man as Defendant Rosen. Goldin said that he had received the keys for both cars and $15,000 from Andy and that Andy would have $250,000 in cash for more marijuana after the first was distributed. CI 0011 told Goldin that they could not load the cars until Tuesday, November 22, and declined to keep the keys or the money. The officers learned that both Joe and Berzon had arrived.

Over the next two days a pattern of controlled delivery and surveillance was followed, resulting in the arrest of numerous Defendants. Goldin would give the keys of a particular vehicle to undercover Special Agent Gagner or another member of the undercover transport group, and Gagner, sometimes with the assistance of Agent Bansmer, would drive it to the Scarborough Police Barracks, where the marijuana was being stored. Goldin had told Gagner to fill the trunks or cargo areas of the vehicles with marijuana and that was accomplished. Gagner then drove each vehicle back to the vicinity of the Sheraton parking lot where he left it with the keys hidden in it, and numerous law enforcement officers began surveillance. Many of the surveillances are documented by videotapes as well as by reports of the officers. After varying waits, a Defendant or group of Defendants would retrieve the vehicle and head south on the Maine Turnpike.² Surveillance of the vehicle was maintained.

Teams of law enforcement officers had been informed of the details of the investigation and of the information known to date. They were later advised of the description of the vehicles that had been loaded with marijuana. The officers had been instructed by Special Agent Cunniff, the DEA officer in charge, to make a Terry stop of each vehicle and to determine whether, based on the investigation information and the circumstances known to them at the time of their stop, they should arrest the occupants of the vehicles.

The stops for the most part were made around Exit 2 on the Maine Turnpike in Wells, Maine. After a routine traffic stop³ was conducted by a state police officer and questions concerning point of departure and destination were asked, Defendants were informed by another agent that the stop was part of a routine drug interdiction program carried out by the DEA and state law enforcement officers. The purpose, in fact, was to identify individuals involved with the cars carrying the marijuana and to arrest them, if appropriate. In the course of a series of questions about drugs, the drivers were asked if the officers could look in the trunk or cargo areas of the stopped vehicles. Consent was given only by Defendant Haskins. Most of the Defendants denied knowledge of any marijuana, and indeed none had looked into the trunk or cargo area of his or her vehicle before leaving the Sheraton parking lot.

Despite the lack of consent in most cases, the officers looked into the trunk or cargo area of each vehicle and, having seen the marijuana, placed Defendants under arrest. Miranda warnings were administered to each Defendant and they were transported back to lock-ups in Portland. The vehicles were removed by teams of officers who had been waiting to assist if arrests should be made.

The Court notes that passengers in the cars transporting marijuana were arrested as well as the drivers. Also arrested were Defendants Braun and Berzon, the occupants of the Jeep which had dropped two of the drivers off at two of the waiting marijuana-filled vehicles and which had then traveled in tandem with one of those vehicles on the Maine Turnpike.

In this manner, on November 22, 1988, Defendant DiNolfo was arrested with the Ford LTD, Defendants Baumwald and Rosen were arrested with the BMW, Defendant Haskins was arrested with a pickup truck, Defendant Novak was arrested with a Cadillac, and Defendants Berzon and Braun were arrested with the Jeep. Early on the morning of November 23, Defendant Solomon Panitz was arrested in the Chevrolet Caprice, and later that morning Defendants Frisone, Hertz, and Lopopolo⁴ were arrested in a gold Mercedes.⁵ All of the vehicles except the Jeep contained large quantities of marijuana that had been placed in them by the investigating officers on instructions by Goldin. Tr. 46.

Some of the Defendants made statements at the time of their arrests or while being transported to Portland. The circumstances of these statements will be discussed more fully later. After the arrests of all of the individuals in the car had been accomplished, on the afternoon of November 23, 1988, Special Agent Cunniff went to Room 518 of the Sheraton Motor Inn, identified himself, and arrested Jaime Suarez. The other occupant of the room identified himself as Norman Panitz. After asking Panitz a few questions, Agent Cunniff also arrested him. Some of the sample marijuana given to Goldin was found in the closet of the room.

Discussion

The first issue raised by Defendants' motions is whether the arresting officers could stop and search the vehicles as they did without warrants. The agents had been told by Goldin that he was having various people come to Maine to buy the marijuana and take it back to New York. Goldin had mentioned some of the people he expected by first name, description, or nickname, but he had not provided their names so the agents did not know exactly who was involved in the conspiracy. A plan was set up whereby Goldin gave the keys for a number of different automobiles to Special Agent Gagner or other undercover personnel so that Gagner and others would load them with the marijuana that had been brought from Colombia. Given the information from Goldin and the nature of the plan — that Gagner would return the cars to the Sheraton parking lot and leave them there in a specific area with the keys in them for pick-up — the officers had probable cause to believe that individuals who came, got into the cars, and headed south with them on the turnpike were involved in criminal activity. The officers, therefore, had probable cause to stop the cars and arrest the occupants, particularly after the initial questioning determined where they were from and where they were going.

Once there was probable cause to arrest the occupants of the marijuana-bearing vehicles under New York v. Belton, 453 U.S. 454, 460, 101 S.Ct. 2860, 2864, 69 L.Ed.2d 768 (1981), the officers permissibly could search, incident to arrest, the passenger compartments of the vehicles.⁶

In the more recent case of United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72...