767 F.2d 1113 (5th Cir. 1985), 84-2376, United States v. Amuny

Docket Nº:84-2376.
Citation:767 F.2d 1113
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Mikal Habeeb AMUNY, a/k/a James Anderson, a/k/a Jim Waters, and a/k/a Wayne Roberson, George Ellis Gaston, and Royce David Hebert, Defendants-Appellants.
Case Date:July 29, 1985
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 1113

767 F.2d 1113 (5th Cir. 1985)

UNITED STATES of America, Plaintiff-Appellee,

v.

Mikal Habeeb AMUNY, a/k/a James Anderson, a/k/a Jim Waters,

and a/k/a Wayne Roberson, George Ellis Gaston, and

Royce David Hebert, Defendants-Appellants.

No. 84-2376.

United States Court of Appeals, Fifth Circuit

July 29, 1985

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Dick DeGuerin, Houston, Tex., for Amuny.

Richard Thornton, Galveston, Tex., for Gaston.

Gerald H. Goldstein, San Antonio, Tex., for Hebert.

Henry K. Oncken, U.S. Atty., James R. Gough, Asst. U.S. Atty., Houston, Tex., Mervyn Hamburg, Atty., Dept. of Justice, Washington, D.C., for U.S.

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

Before WISDOM, WILLIAMS and HILL, Circuit Judges.

JERRE S. WILLIAMS, Circuit Judge:

Mikal Habeeb Amuny, a recent visitor to this Court, 1 and his two confederates challenge the search and subsequent seizure of 550 pounds of marihuana found on board a private aircraft in which they had completed a flight. They also challenge their federal prosecution, since a state court had concluded that the search was unconstitutional and had suppressed the fruits of that search. We find that in their zeal to enforce the narcotics laws the officers conducted an unconstitutional search. We therefore reverse the district court's denial of the appellants' motion to suppress.

I. BACKGROUND

  1. The Investigation, Arrests, and Search

    In mid-May 1980, a non-uniformed officer of the United States Customs Service, Henry Castro, was investigating an unrelated matter at Scholes Field Airport in Galveston, Texas. He noticed an individual acting somewhat furtively. Castro watched this individual exit an automobile, walk over to a twin-engine Beechcraft Bonanza model airplane, and continually look around the airport, particularly at the terminal building, as he examined the airplane. Castro transmitted the license plate number of the automobile to a radio dispatcher and received a report that the car was registered to appellant Amuny, a resident of Austin, Texas. The report also indicated that Amuny had two previous drug arrests, one in Austin and another in Port Arthur, Texas.

    Castro investigated the matter further. He obtained a photograph of Amuny from the Port Arthur Police Department, which confirmed that Amuny was the person he saw acting suspiciously at the airport. A

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    check of the registration information of the aircraft Amuny had been inspecting revealed that in April 1979, it had been sold to a "Jim Waters", who purported to reside in Houston. Officer Castro then learned from Customs Service and Treasury Department intelligence sources that Amuny had used three aliases in the past, one of them being "Jim Waters". Local airport personnel told Castro that the tie-down fees and servicing costs for the plane had been paid in cash or cashier's checks by an individual named "James Anderson". The physical description of Anderson given by the airport manager and a mechanic matched Amuny. On June 10, 1980, the mechanic contacted Castro and advised Castro that Amuny had returned to the airport, requested the mechanic to perform work on the brakes of the aircraft, and had said that soon he would be using the aircraft. Castro conveyed this information to the Drug Enforcement Agency (DEA) and local law enforcement officers.

    DEA agent Lewis Richenberger then prepared an affidavit seeking authorization to install an electronic tracking device, commonly known as a beeper, in the interior of the airplane. The affidavit stated that (1) Amuny had stared suspiciously at a non-uniformed officer (Castro) at the airport; (2) Amuny was "documented" with federal intelligence sources as a smuggler of drugs by air; (3) another aircraft that was registered to a "Wayne Roberson", an alleged alias of Amuny, transported marihuana and was seized by Customs authorities approximately one year earlier; (4) Amuny had used an assumed name; (5) Amuny had paid certain fees related to the airplane's maintenance in cash; and (6) Amuny had failed to maintain a current safety inspection authorization for the aircraft. A federal magistrate signed the authorization, and the beeper was installed.

    Monitoring the beeper revealed that on two occasions the aircraft traveled from Galveston, Texas, to the Palacios, Texas area, a town on the coast of the Gulf of Mexico. 2 On both occasions, the agents monitoring the plane lost track of the plane around Palacios. The first such trip occurred on June 19, 1980. The plane departed from and returned to Scholes Field in Galveston on the same day. After the plane returned to Scholes Field, the three appellants (Amuny, George Gaston, and Royce Hebert) alighted from the plane, went into a nearby hangar, and transported some boxes from the hangar to the airplane. Officers observing their actions could not determine whether the appellants were carrying "equipment or groceries or extra fuel or anything else." The group then departed by car, leaving the plane at Scholes Field.

    The next morning the appellants returned to the airport. Agents monitoring the aircraft witnessed Amuny and Hebert load a bucket of the Colonel's world-famous chicken and a styrofoam cooler into the plane. Amuny and Hebert then flew away. Again, customs officers lost track of the aircraft around Palacios. Unlike the flight on the previous day, however, the appellants did not return to Scholes Field that day. Since the agents lost track of the craft, they did not know where the plane had landed that day, and they had no information about a point of origin for a return flight. The next morning, June 21, 1981, the agents who were monitoring the plane electronically picked up the beeper signals near Palacios, Texas. The agents determined that the plane was traveling northeast toward Scholes Field.

    Shortly before the aircraft arrived at Scholes Field, Gaston arrived at the airport. After the plane had landed, and Amuny and Hebert had disembarked from the aircraft, approximately one dozen non-uniformed state and federal officers converged on the aircraft and the appellants in six unmarked automobiles. Apparently, several of the officers approached the aircraft with their weapons drawn. The three

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    appellants fled but were quickly captured, handcuffed, and placed in a seated position some distance from the aircraft.

    Officer Castro then approached the airplane. By visual search alongside the aircraft, he could see only packages pressed against the closed and curtained side windows of the craft. Since the plane stood very high off the ground, it was impossible to look through the uncurtained front windshield and see the interior of the craft. Officer Castro, therefore, climbed onto the wing of the aircraft, which was approximately four feet above the pavement, moved to the front edge of the wing, leaned across the nose of the plane, and looked through the front windshield. From that vantage point, he was able to see several packages wrapped in brown paper and encased in plastic. Castro later stated at a state court suppression hearing that based upon his experience as a customs officer he believed that the packages contained contraband. He acknowledged, however, that he did not detect any odor of marihuana emanating from the plane. Shortly thereafter, still without a search warrant, the officers opened the doors of the plane, entered the craft, and removed and opened the packages. The record is in conflict as to whether or not the passenger door of the aircraft was locked. The packages were found to contain marihuana.

  2. Proceedings Below

    Immediately after the arrest and search, the federal and state officers involved met with Assistant United States Attorney George Jacobs, who at the time bore responsibility for prosecuting all drug-related cases in the Southern District of Texas. Since a federal magistrate had issued the warrant to install the beeper and federal agents had coordinated the investigation, policy and procedure of the Justice Department ordinarily required that such a case be tried in a United States District Court. The officers involved in the investigation and arrest, however, indicated to Jacobs that they preferred prosecuting this case in state court. Jacobs agreed, and federal agents relinquished custody of the appellants and filed no federal charges against them.

    The appellants were then indicted in State District Court, Galveston County, Texas. The appellants moved to suppress the warrantless search of the aircraft and the resulting seizure of the marihuana. The State District Court found the warrantless search unlawful, ordered the suppression of the evidence, and dismissed the case. The federal agents then brought the case back to Assistant United States Attorney Jacobs. After presenting the evidence to a federal grand jury, Jacobs recommended to the members of that grand jury that they decline to indict the appellants. The grand jury followed Jacobs's recommendation.

    No further action was taken until some two years later when, without prior Justice Department approval, another Assistant United States Attorney presented the case to another federal grand jury which returned the indictments before us.

    In the district court, the appellants moved to dismiss the indictments because (1) the federal government was seeking to prosecute them for crimes occurring over three years earlier, (2) a state court had granted their suppression motion, and (3) one federal grand jury had declined to indict. Alternatively, the appellants moved to suppress the introduction of the marihuana, arguing that the magistrate lacked probable cause to authorize the installation of the...

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