733 F.2d 492 (8th Cir. 1984), 82-2447, United States v. Reed

Docket Nº:82-2447.
Citation:733 F.2d 492
Party Name:UNITED STATES of America, Appellee, v. George REED, Paul Sheary, Johnathan Riebli, Thomas Schenk, Peter Miller, Appellants.
Case Date:April 13, 1984
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 492

733 F.2d 492 (8th Cir. 1984)

UNITED STATES of America, Appellee,

v.

George REED, Paul Sheary, Johnathan Riebli, Thomas Schenk,

Peter Miller, Appellants.

No. 82-2447.

United States Court of Appeals, Eighth Circuit

April 13, 1984

Submitted Dec. 12, 1983.

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Michael H. Metzger, Sausalito, Cal., for appellant Peter John Miller.

Judd C. Iversen, San Francisco, Cal., for Jonathan Riebli.

Daniel R. Marlowe, Oakland, Cal., for George Reed and Thomas Schenk.

Robert G. Turner, Houston, Tex., for Paul Sheary.

Thomas E. Dittmeier, U.S. Atty., Michael W. Reap, Asst. U.S. Atty., St. Louis, Mo., for appellee.

Before LAY, Chief Judge, FLOYD R. GIBSON, Senior Circuit Judge, and BRIGHT, Circuit Judge.

FLOYD R. GIBSON, Senior Circuit Judge.

Defendants George Reed, Paul Sheary, Johnathan Riebli, Thomas Schenk, and Peter Miller appeal their convictions for possessing marijuana with intent to distribute and conspiracy to distribute marijuana. 21 U.S.C. Secs. 841(a)(1) and 846. Their convictions stemmed from the DEA's seizure, while executing search warrants, of 8 1/2 tons of marijuana found on the premises of a St. Louis Construction Company called the Chi-Del-Yans Corp. ("C.D.Y.") and inside three rental trucks seen leaving C.D.Y. premises.

As grounds for reversal, defendants Sheary, Riebli, Schenk, and Reed claim the trial court clearly erred in finding that probable cause and exigent circumstances justified the initial warrantless entry onto C.D.Y. premises; they accordingly claim the marijuana and other evidence gathered at C.D.Y. should have been suppressed as the product of this warrantless entry. Reed also contends the trial court erred in failing to suppress the marijuana found in the truck he was driving; he claims the initial stop of the truck amounted to a warrantless arrest, supported by neither probable cause nor exigent circumstances. Miller separately contends the trial court abused its discretion in failing to grant his severance motion since the other defendants presumably were willing to testify, at a separate trial, that Miller was not present at C.D.Y. when the marijuana was loaded. All defendants claim the trial court erred in not granting their motions for dismissal because of preindictment delay. We reject all of defendants' claims and affirm their convictions.

I. Facts

  1. Searches and Seizures

    The relevant facts concerning the searches and seizures were brought out during rather lengthy and exhaustive pre-trial suppression hearings before a United States Magistrate. Much of the suppression hearing testimony consisted of government agents' accounts of information and events detailed in DEA Agent Sawyer's

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    search warrant affidavit. The C.D.Y. ultimately became the focus of a two year long DEA--St. Louis Police Department Task Force investigation into the drug trafficking activities of Anthony Clay Olivastro, Steven Meoli, Steven Nuelle and Thomas Cabrera--all members of a group called "Olivastro". In 1978 and 1979, Detective Charles Richmond, operating undercover, infiltrated "Olivastro", made numerous drug purchases from Nuelle and Meoli, and learned that Olivastro, Meoli, and Nuelle were involved in a large scale marijuana distribution in the St. Louis area. In late January, 1980, Olivastro told Richmond that his narcotics source was in Florida.

    On January 29, 1980, confidential informant # 1 told the DEA that Nuelle was travelling to Fort Lauderdale, Florida in a rented Winnebago motor home to obtain controlled substances. Task force agents followed up on this tip and through independent investigation confirmed that Meoli and Nuelle drove a Winnebago from St. Louis en route to Florida. The task force then decided to begin continuous, intensified surveillance of Meoli, Nuelle, Cabrera and Olivastro. Throughout this undertaking, up until the search of C.D.Y. on February 7, all task force agents maintained common radio communication and were advised of events as they occurred.

    On February 1, 1980, task force surveillance and investigation revealed that Nuelle, Meoli, Olivastro, and Cabrera arrived at the St. Louis airport on a flight from Fort Lauderdale, Florida. They drove to the nearby Sheraton Westport Inn, where Cabrera reserved a room. About this time, confidential informant # 1 told agents that the drug shipment was coming to the St. Louis area but that its arrival was delayed because of bad weather. This was confirmed by Detective Richmond, who reported that Olivastro told him that a large marijuana shipment was expected to arrive in East St. Louis, Illinois.

    On the same day, Meoli and Cabrera rented a U-Haul truck and parked it in the Sheraton Westport Inn parking lot. On February 3, 1980, Detective Stolte saw a person later identified as defendant Peter Miller assist Meoli in attempting to start the U-Haul truck in the Sheraton Westport Inn parking lot. Miller and Meoli conversed for about an hour and ten minutes. The next day, February 4, 1980, Miller returned to Sheraton Westport Inn parking lot, driving a white over blue Mercury Cougar automobile. He met a person later identified as Robert Blair, who was driving a Ryder rental truck bearing Missouri license plates (Missouri Ryder). After a brief exchange, Miller parked the Cougar and Blair parked the Missouri Ryder near the U-Haul rented by Meoli.

    On February 5, 1980, Special Agent Terry Sawyer saw the Missouri Ryder truck leaving the Sheraton Westport Inn. He followed the Missouri Ryder as it travelled to the nearby San Antonio Inn. The Missouri Ryder was parked next to a Ryder rental truck with Colorado license plates (Colorado Ryder) and near the previously seen white over blue Mercury Cougar. The Colorado Ryder was later driven from the San Antonio Inn, but surveillance was broken off.

    On February 6, 1980, the informant told agents that the Olivastro group would return one of its rental trucks to the rental agency and use another truck parked at a motel in North St. Louis County to transport the marijuana. He further advised agents that the marijuana distribution site was to be in St. Louis, Missouri rather than in Illinois. Later that day, a DEA agent saw James Patrick Herman following a Ryder rental truck from the Holiday Inn in North St. Louis County to a rental agency. Just one week earlier, Herman had been convicted on drug charges in Georgia. The returned rental truck had been rented in the name of Thomas Cabrera. Herman and the driver of the returned rental truck then went to the residence of Anthony Olivastro.

    During the evening of February 6, surveillance agents again sighted the Colorado Ryder, the Missouri Ryder, and the white over blue Mercury Cougar, this time parked next to each other in the Holiday

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    Inn parking lot. The agents also noticed that near the Missouri Ryder there were two other Ryder trucks, one with Oklahoma license plates and the other Pennsylvania plates.

    Later that evening, the Oklahoma Ryder was driven from the Holiday Inn, and Officers Jones and Zambo followed it to the C.D.Y. Corp., a St. Louis construction company. This was the first time the task force became aware of the C.D.Y. The business premises of C.D.Y., located in a semi-commercial area, consists of a building bound on three sides by public streets. The building contains a basement warehouse with a rear overhead door that opens onto a truck loading area and back parking lot. The back parking lot, with dimensions running approximately 120 feet by 75 feet, is bound on the east and south sides by a chain link fence. Public entrance to the parking area is through an open 18'4" wide gate on the south side of the lot, next to a public street. On the west side of the lot, there is a separate fence running adjacent to a carpet business.

    When Officers Jones and Zambo arrived at C.D.Y. they noticed the Colorado Ryder truck backed up to the rear overhead door. Using binoculars, they continued their surveillance of C.D.Y.'s back lot from their automobile, parked on the adjacent street east of the lot. The lot was lit by a dusk-to-dawn light and by the street lights. At approximately 10:00 p.m., Officer Jones saw an individual later identified as Thomas Schenk leave the C.D.Y. building, enter the Colorado Ryder truck, drive it away from the rear overhead door, leave the truck, and then return to the C.D.Y. building. Later that night two other men were seen entering the C.D.Y. building.

    At approximately 4:00 a.m. on February 7, Agent Pyla, who was supervising the surveillance, contacted an Assistant United States Attorney by telephone to advise him of what had occurred. The U.S. Attorney directed the investigation to continue, but advised that if circumstances at C.D.Y. changed--i.e., if it appeared that contraband or evidence would be lost--to secure the premises pending issuance of search and arrest warrants. At 6:30 a.m., the surveillance Officers Jones and Zambo saw the Colorado and Oklahoma Ryder trucks leaving the C.D.Y. premises. DEA Agent Stoddard and several other agents followed both trucks as they travelled north on Lindberg Road. The Oklahoma truck turned into the Holiday Inn North and the Colorado truck turned into the nearby San Antonio Motel parking lot. Stoddard watched the driver of the Colorado truck, defendant Schenk, park the truck and get into another Ryder rental truck, this one bearing a Missouri license, and driving it south on Lindberg Road in the direction of C.D.Y. Stoddard continued his surveillance of the Colorado rental truck until 6:00 p.m. that evening, when he entered it to execute a search warrant.

    Shortly after the Colorado and Oklahoma Ryder trucks left C.D.Y., Officers Jones and Zambo...

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