U.S. v. Blanco
| Citation | 844 F.2d 344 |
| Decision Date | 14 April 1988 |
| Docket Number | 86-6306 and 86-6307,Nos. 86-6305,s. 86-6305 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Juan Andres BLANCO (86-6305), Jorge Luis Fresneda (86-6306), Rafael Oscar Spinola (86-6307), Defendants-Appellants. |
| Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
Edward G. Drennan (argued), court-appointed, Florence, Ky., for blanco.
Louis DeFalaise, U.S. Atty., James Zerhusen (argued), Lexington, Ky., for the U.S.
Michael W. Burnbaum (argued), Coral Gables, Fla., for Spinola.
Wilbur M. Zevely (argued), Florence, Ky., for Fresneda.
Before GUY, NELSON, and BOGGS, Circuit Judges.
Defendants Juan Andres Blanco, Jorge Luis Fresneda and Rafael Oscar Spinola were convicted on federal charges relating to the possession of cocaine. Defendants Fresneda and Spinola contend on appeal that their convictions were tainted by the introduction in evidence of some six pounds of cocaine that they say was obtained through an unreasonable search and seizure. Defendant Spinola also contends, as does defendant Blanco, that the evidence against him was legally insufficient; Spinola alone contends that the government violated a duty to provide him exculpatory information and that the district court erred in refusing to sever his trial from defendant Fresneda's. Finding that there was no unlawful search or seizure and that none of the other contentions is meritorious, we shall affirm the convictions.
Shortly before 7:00 p.m. on Thursday, May 8, 1986, as the record indicates, defendant Spinola, accompanied by defendant Fresneda, rented a Hertz car at the Miami International Airport. The rental agreement, which listed Jorge Luis Fresneda as an additional authorized driver, provided for the car to be returned at the Miami airport on May 12, 1986.
After leaving the airport, Fresneda dropped Spinola off at the latter's house in Miami and picked up defendant Blanco. Fresneda and Blanco then drove nonstop to the Greater Cincinnati Airport--a distance of over 1,000 miles.
The two men checked into room 114 at the Americana Inn, on the airport grounds, at about 4:00 o'clock Friday afternoon, May 9, 1986. They had no reservations. They paid for the room, in advance, with cash. After carrying their luggage to their room, they moved their car from a parking spot in front of the hotel to one in back, where it could be seen from their window. They also placed an operator-assisted telephone call to Miami. The hotel desk clerk was suspicious of the Latin-Americans from Florida, and shared his suspicions with the local police; they called federal drug enforcement officials.
Special Agent William Modesitt of the United States Justice Department's Drug Enforcement Agency went to the hotel at about 6:00 p.m., accompanied by a Cincinnati Airport police officer. After interviewing the desk clerk and inspecting Mr. Fresneda's hotel registration records, Agent Modesitt had a look at the visitors as they were eating supper in the hotel's restaurant. He testified later that they were not wearing business suits, and he said that their mannerisms and dress were such that the men "did not look like they belonged at that hotel." He also had a look at their automobile, noting its Dade County license plate and a Hertz sticker. Agent Modesitt then made a series of telephone calls to learn what he could about Mr. Fresneda and his car. Nothing was turned up on Mr. Fresneda, but shortly before 8:00 p.m. the agent was told that a person named Rafael Spinola had rented the car in Miami only the day before.
Based on his extensive experience with narcotics cases, Agent Modesitt thought that the likeliest explanation for the presence at the airport hotel of the two hard-driving motorists from Miami was that they were drug couriers. The Greater Cincinnati Airport, situated in Erlanger, Kentucky, is, as the trial court observed, "located in the middle of nowhere from a standpoint of vehicular traffic and non-airplane traffic related guests." Aware that the Miamians' car had been rented only the day before in a distant city known to be a "source city" for narcotics (see United States v. Knox, 839 F.2d 285 (6th Cir.1988)), Agent Modesitt did not have to be Sherlock Holmes to realize, as Agent Modesitt testified he did realize, that "for two individuals [who looked out of place] to show up at the Americana Hotel in the middle of nowhere in Kentucky, [in] a rented car from Florida ... less than 24 hours from Miami ... fits a pattern by narcotic couriers who drive [drug] loads through." The agent decided to "approach the individuals in Room 114 and inquire of them what was going on...."
Accompanied by another DEA agent and three local law enforcement officers, Agent Modesitt went to the hotel room shortly after 9:15 p.m. A policeman knocked on the door. Defendant Blanco asked who was there. He was told it was the police and they wanted to ask some questions. Mr. Blanco opened the door, and the officers entered the room (which was lit only dimly) with handguns at the ready.
Someone turned up the lights. Finding their reception less hostile than they had feared, the officers (joined now by another DEA agent) put their weapons away and explained that they were looking into drug trafficking. Fresneda and Blanco denied knowing anything about that.
Agent Modesitt asked the men for identification, and they produced their driver's licenses. Modesitt then inquired what had brought them to Cincinnati, and whether they were visiting friends or relatives there. Mr. Fresneda replied that they were not visiting anyone and had driven up from Florida for a short "vacation." In response to a question as to what they planned to do in Cincinnati, Mr. Blanco told a white lie, as it were; he said they were going to see a Cincinnati Reds baseball game.
That proved to be a tactical error. The Cincinnati Reds were playing in New York that evening, and they were scheduled to play next in Montreal. The officers, unlike Mr. Blanco, knew the schedule.
"Bothered," as he put it, by the proposition that two gentlemen who had driven from Miami to Cincinnati to take in a baseball game should not have known that the team was going to be out of town, and "bothered" also by the fact that the two should have left Interstate 75 (the highway leading into Cincinnati) in order to take a single room in an out-of-the-way airport hotel more expensive than the motels along Interstate 75, Agent Modesitt asked the men if they would consent to a search of the room and car. The agent advised them, he testified, of their Fourth Amendment right to refuse consent. He also let them know that he would try to secure a search warrant if they did refuse.
Taking, perhaps, a calculated gamble, Mr. Fresneda indicated that he would consent to the search. "No problem," he told Agent Modesitt. The agent then produced a consent form utilized by the Drug Enforcement Agency, read the entire document aloud to Mr. Fresneda, and asked him if he understood everything in it. Mr. Fresneda said he did, and proceeded to sign and date the consent form. The DEA agents then signed the form as witnesses, and Agent Modesitt made a notation of the time: 9:34 p.m. 1
The ensuing search of the hotel room produced nothing of interest. Aside from a copy of the rental agreement, neither did the initial search of the car. 2 A dog was brought to the car to sniff for drugs, but the dog's reactions were inconclusive. Agent Modesitt, who had 17 years of drug enforcement experience, still thought that the logic of the situation pointed to the presence of drugs somewhere in the car; accordingly, like their French Connection counterparts, Modesitt and his associates proceeded, as Modesitt put it, "to pull the car apart."
Upon removing the interior panels of the rear doors of the car, the agents found, concealed inside the doors, three wedge-shaped packages wrapped in tape. Inside the packages was a little under three kilograms of cocaine. It was worth approximately $300,000.00. Messrs. Fresneda and Blanco--who subsequently indicated to Agent Modesitt that "they didn't know anything about it, they were as surprised as I was" 3--were placed under arrest.
Forty-five minutes after the arrest of Fresneda and Blanco, Mr. Spinola--the man in whose name the car had been rented in Miami--checked into the hotel. After going to his room, he placed a telephone call to Oxford, Ohio. The number he called was the same number to which a call had been placed earlier from the room occupied by Messrs. Fresneda and Blanco. Mr. Spinola was arrested too.
Prior to Mr. Spinola's arrival, the hotel had received a number of calls from Oxford; the caller, who identified himself as "Tom," asked for Mr. Spinola, who was not yet registered in the hotel and had no reservation. The next day there were two phone calls, one from Tom, to Mr. Spinola's hotel room. When the DEA agent who took Tom's call tried to ascertain whether he was trying to buy narcotics, the caller stated that he did not have any "business" with Mr. Spinola. The same agent subsequently took a second call for Mr. Spinola, and again attempted to ascertain the reason for the call. This time the caller abruptly hung up. The agent later described his conversations with the two callers in a report that was given to the defense at the time of trial.
Two evidentiary hearings--one before a magistrate and one before the district judge--were held prior to trial on motions by the defendants for suppression of "all evidence obtained in the case"--i.e., the cocaine. The magistrate concluded that there had been an unreasonable seizure of Messrs. Fresneda and Blanco at the time the officers entered their hotel room, so Mr. Fresneda's subsequent consent to the search was invalid; the magistrate recommended granting the motion...
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