778 F.2d 899 (1st Cir. 1985), 85-1127, United States v. Veillette

Docket Nº:85-1127.
Citation:778 F.2d 899
Party Name:UNITED STATES of America, Plaintiff, Appellee, v. George E. VEILLETTE, Jr., Defendant, Appellant.
Case Date:December 02, 1985
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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Page 899

778 F.2d 899 (1st Cir. 1985)

UNITED STATES of America, Plaintiff, Appellee,

v.

George E. VEILLETTE, Jr., Defendant, Appellant.

No. 85-1127.

United States Court of Appeals, First Circuit

December 2, 1985

Argued Aug. 7, 1985.

Page 900

[Copyrighted Material Omitted]

Page 901

Daniel W. Bates, with whom Daniel G. Lilley, Portland, Me., was on brief, for defendant, appellant.

Margaret McGaughey, Asst. U.S. Atty., with whom Richard S. Cohen, U.S. Atty., Portland, Me., and Jay P. McCloskey, Asst. U.S. Atty., Bangor, Me., were on brief, for plaintiff, appellee.

Before CAMPBELL, Chief Judge, BOWNES and TORRUELLA, Circuit Judges.

TORRUELLA, Circuit Judge.

This appeal arises out of an indictment charging nineteen persons with conspiracy to possess over a thousand pounds of marihuana with the intent to distribute the drug. See 21 U.S.C. Sec. 841 and 846. It was the government's position that the conspirators were involved in the purchase and sale of a large supply of marihuana which was kept near Bangor, Maine. Eleven of the nineteen were tried by a jury. The convicted defendants, with the exception of the herein appellant Veillette, who fled following conviction, were sentenced on May 16, 1984. Their convictions were upheld by this court. See United States v. Anello, 765 F.2d 253 (1st Cir.1985).

Veillette raises three issues on appeal. First, he claims that the district court erred in failing to suppress evidence found and seized in his motorcycle shop. Second, he claims that his right to a speedy trial was violated and, finally, that the court should have declared a mistrial based on juror misconduct. These last two issues were raised on appeal by Veillette's codefendants and carefully examined by us. We reject these claims here for the same reasons stated in the Anello opinion, supra.

On July 29, 1982, the Drug Enforcement Administration in Maine received information that 40,000 pounds of marihuana were en route to that state. Drug Enforcement Administration agents waited for two of the principal participants to arrive at the airport and followed them to their hotel, where aural surveillance was established. This was supplemented by the physical surveillance of the various persons believed to be involved, as well as of the premises known as Thee Motorcycle Shoppe (Shoppe), which was owned by suspect George Veillette and which was believed to be the stash house for the contraband.

On July 4, 1982, the day chosen to close in on the operation, a yellow truck that had been under surveillance was backed up to the Shoppe. After a period of ten to thirty minutes during which the truck was apparently loaded, it drove away and headed south from Bucksport, Maine on an interstate highway. When the truck reached a point on the road that was out of range of radio contact with those sites from which the conspirators could call to warn others, the agents stopped and searched the vehicle. They discovered numerous bales of marihuana in the truck.

Between 2:00 and 2:30 PM that same day, D.E.A. agents met with police officers to coordinate arrest strategy, with a goal to ensuring surprise and "securing" certain places for search through several simultaneous raids.

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About one hour later, a team of eight to ten law enforcement agents arrived at the Shoppe. Although several vehicles were parked in the parking lot, the vehicles that police knew belonged to the appellant were not among them. Several officers walked around to the south side of the building. They noticed that the windows on the lower portion of the Shoppe were covered with an opaque black material. The door was locked, the sign on it indicating that the business was closed. Sergeant Bailey knocked on the front door and announced the officers' presence. There was no response. Nothing was seen or heard from the outside to indicate that anyone was there. Bailey shattered the glass of the door with a cinder block and several officers entered the premises. Searching the main floor area only in places large enough to hide a person, the officers found no one. Proceeding to the lower level, they spotted Veillette's pickup truck parked inside the garage. Bailey unsnapped the tarp which completely covered the truck bed and discovered marihuana bales. He replaced the tarp and went upstairs, leaving the contraband where it was found. Having secured the Shoppe, the officers left it under guard until a search warrant was obtained on the evening of July 6, 1982.

Warrantless searches, 1 although ordinarily presumed to be unreasonable, Coolidge v. New Hampshire, 403 U.S. 443, 479, 91 S.Ct. 2022, 2044, 29 L.Ed.2d 564 (1971); United States v. Picariello, 568 F.2d 222, 225 (1st Cir.1978), are constitutional if the government establishes the requisite exigent circumstances. See Welsh v. Wisconsin, 466 U.S. 740, 104 S.Ct. 2091, 2097, 80 L.Ed.2d 732 (1984); United States v. Baldacchino, 762 F.2d 170, 176 (1st Cir.1985); United States v. Irizarry, 673 F.2d 554, 557 (1st Cir.1982). In determining whether the circumstances of a case fall into one of the emergency conditions characterized as exigent circumstances, the court must consider: the gravity of the underlying offense; whether delay poses a threat to police or the public safety; whether there is a great likelihood that evidence will be destroyed if there is a delay until a warrant can be obtained. United States v. Baldacchino, supra, at 176. See also Welsh v. Wisconsin, supra, 104 S.Ct., at...

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