797 F.2d 836 (10th Cir. 1986), 85-2333, United States v. Smith

Docket Nº:85-2333.
Citation:797 F.2d 836
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Timothy G. SMITH, Defendant-Appellant.
Case Date:July 16, 1986
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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797 F.2d 836 (10th Cir. 1986)

UNITED STATES of America, Plaintiff-Appellee,


Timothy G. SMITH, Defendant-Appellant.

No. 85-2333.

United States Court of Appeals, Tenth Circuit

July 16, 1986

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James K. Bredar (Robert N. Miller, U.S. Atty., with him on brief), Asst. U.S. Atty., Denver, Colo., for plaintiff-appellee.

Frank R. Courbois (Rick Chew, Durango, Colo., and Fred L. Staggs, Oklahoma City, Okl., with him on brief), Oklahoma City, Okl., for defendant-appellant.

Before HOLLOWAY, Chief Judge, and BARRETT and SEYMOUR, Circuit Judges.

BARRETT, Circuit Judge.

Timothy G. Smith (Smith) appeals from his sentence following a jury verdict of guilty to charges of possession with intent to distribute marijuana in violation of 21 U.S.C. Secs. 841(a)(1) and 841(b)(1)(B), importation of marijuana in violation of 21 U.S.C. Secs. 952(a) and 960(a) and (b)(2), and smuggling goods into the United States in violation of 18 U.S.C. Sec. 545.


In keeping with its duty to monitor the nation's borders for smuggling activities, the Customs Service has employed Service Detection Systems specialists who monitor radar screens at Federal Aviation Administration (F.A.A.) control facilities throughout the southwestern United States to detect smuggling by aircraft. On April 10, 1985, at 8:54 p.m., Service Detection Systems Specialist Ronald O'Neill observed a target on his radar screen at the F.A.A., Albuquerque, New Mexico, Control Center. The radar target was observed to be heading north in the vicinity of Reserve, New Mexico, about 113 nautical miles north of the Republic of Mexico. Specialist O'Neill determined that the target aircraft was not in radio contact with the F.A.A. controllers and that the plane's transponder was not in operation. A transponder is an electronic device which, when in operation, emits a signal permitting "tracking" by another electronic device. Drawing on his experience, O'Neill determined that the aircraft was not in the vicinity of an airport, that the airplane likely had been in flight for some time, and that it was flying at a low altitude in order to avoid radar detection. Specialist O'Neill was aware that the area

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around Reserve, New Mexico, is well known to the Customs Service for flights involving illegal smuggling by aircraft. The so-called "Reserve Corridor" extends from Reserve, New Mexico, for more than 100 miles south into the Republic of Mexico. As an aircraft flies north in the "corridor" approaching Reserve, it must gain altitude in order to fly over the mountains north of Reserve. When this occurs, the airplane becomes a "target" on the F.A.A. radar screen. O'Neill telephoned airports in the general area and F.A.A. control facilities in adjacent areas to determine whether an airplane had recently become airborne in the Reserve, New Mexico, area. The responses were negative.

The combination of prior detections and matters known from experience led O'Neill to suspect that the "target" was an aircraft attempting to evade radar contact; O'Neill then determined that an attempt should be made to intercept the aircraft. O'Neill contacted Customs Service interceptor aircraft and crews at Albuquerque, New Mexico, and Phoenix, Arizona. The Albuquerque interceptor aircraft and its three member crew, consisting of Customs Service Air Officer Arturo Haran (Haran), Air Officer Ward Olson (Olson) and Customs Air Officer and Pilot Gary Gran (Gran), intercepted the "target" aircraft at about 10:02 p.m. near Farmington, New Mexico. O'Neill's radar screen had "tracked" the target aircraft continually to that point following its first radar sighting near Reserve. The interceptor aircraft made actual visual contact with the Smith aircraft near Farmington, New Mexico, when the lights on the Smith aircraft suddenly appeared. The Albuquerque interceptor aircraft was then joined by the Phoenix, Arizona, Customs Service aircraft. Both followed the Smith aircraft to the Durango/La Plata County, Colorado, Airport, where they observed it approach and land.

The Phoenix aircraft maintained radar and electronic contact with the Smith airplane while the Albuquerque Customs Service aircraft landed at the Durango airport three or four minutes after the Smith aircraft had landed. The Phoenix aircraft, with its radar and electronic contact maintained on the Smith aircraft while flying around the airport, directed the Albuquerque aircraft to the Smith airplane which had been parked on the southwest end of the public tie-down area. Customs Officers Haran and Olson climbed out of their airplane and proceeded to the Smith aircraft in the darkness. Haran carried an M-16 rifle and a flashlight. He testified that as he approached the target aircraft, identified as a 1978 Cessna Turbo 310 twin-engine, his first concern was for his safety and that of Officer Olson in determining whether there were any people inside the Smith airplane. Officer Haran had investigated more than 200 smuggling cases prior to this occasion and 90 percent of them had involved Customs Service air interceptions and interdiction; further, of those 200 cases, 95 percent had proven to be drug smuggling flights. (R., Vol. III, pp. 126-129.)

Officer Haran believed that there might be smugglers aboard the Cessna aircraft. He decided to locate the plane's occupants. He stepped onto the airplane's left wing, flashlight and rifle in hand, and looked into the cockpit. The plane's engines were still hot. The plane had not been tied down. While searching for occupants, Officer Haran, with the use of the landing lights of the Customs Service aircraft, detected some boxes in the cabin compartment of the Smith airplane. He suspected that the boxes contained contraband. Upon further view he "[d]etected some marijuana debris between the boxes and the plastic that they were wrapped with...." Id. at 143. Officer Haran then proceeded with his M-16 and flashlight to climb up on the right wing of the Smith airplane in order to determine whether anybody was hiding behind the curtains in the cabin compartment. Id. With the use of his flashlight, he again observed the boxes. Officer Haran then looked through the window on the right side of the cabin compartment of the suspect plane. He detected open boxes containing marijuana which was entrapped between

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the outer surface of the boxes and clear plastic with which the boxes were wrapped. Officer Haran did not observe any occupants of the Smith airplane. At no time had Officer Haran entered the Smith aircraft. His observations had been made by viewing from outside of the aircraft. After Officer Haran alerted Officer Olson of his detection of marijuana, the two officers then conducted a search of the hanger and parking lot areas for suspects. Soon they were joined by local law enforcement officers.

The Smith airplane was towed to a location near the airport service building. Officers Haran and Olson then spoke by phone with Assistant United States Attorney William Pharo in Denver, Colorado, following which they picked the door lock on the Smith airplane, entered it and discovered a large amount of marijuana.

Thereafter, the Customs officers learned from persons working at the airport that the suspect aircraft was owned by Appellant Smith. They prepared an affidavit and sought a search warrant for Smith's local residence, his pick-up truck...

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