U.S. v. Klein

• Decision Date: 04 November 1988
• Docket Number: No. 87-3094,87-3094
• Citation: 860 F.2d 1489
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Leo KLEIN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1489

860 F.2d 1489

UNITED STATES of America, Plaintiff-Appellee, v. Leo KLEIN, Defendant-Appellant.

No. 87-3094.

United States Court of Appeals,

Ninth Circuit.

Argued April 5, 1988.

Submitted Oct. 31, 1988.

Decided Nov. 4, 1988.

John W. Lundin, Seattle, Wash., for defendant-appellant.

Kenneth G. Bell, Asst. U.S. Atty., Seattle, Wash., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Washington.

Before BEEZER, HALL and WIGGINS, Circuit Judges.

BEEZER, Circuit Judge:

Appellant, Leo Klein, was convicted of conspiracy to distribute cocaine, under 21 U.S.C. Sec. 846, and of possession with intent to distribute cocaine in excess of five hundred (500) grams, under 21 U.S.C. Secs. 841(a)(1) and 841(b)(1)(B) (Supp. IV 1986). He was sentenced to five years imprisonment on each count, these terms to run concurrently.

Klein argues: (1) that his arrest was without probable cause and required a warrant, (2) that the search of his vehicle and "cutting open" of a package found therein required a warrant, (3) that the government failed to prove knowledge of possession of more than 500 grams of cocaine, and (4) that the five-year mandatory minimum sentence, imposed under 21 U.S.C. Sec. 841(b)(1)(B), unconstitutionally violates the eighth amendment, separation of powers, due process and equal protection.

We affirm.

I

On December 3, 1986, Canadian law enforcement officers learned, from a reliable informant, that a transaction would occur involving one or two kilograms of cocaine within the week. The informant identified a prospective participant in this exchange, Terry Germain.

On December 5, 1986, while under surveillance, Germain met appellant's codefendant, Linn. On that day, Linn engaged in a series of sizable cash transactions ¹ in Vancouver, British Columbia, Canada.

On December 8, 1986, Linn crossed the United States-Canadian border and registered in the Vance Hotel, Seattle, Washington.

On December 9, 1986, law enforcement officers learned from the informant that cocaine would arrive in Seattle from Miami that same day. They learned that a second individual would transport the cocaine from Seattle to Vancouver, and that the cocaine was scheduled to arrive in Vancouver on December 11, 1986.

On the evening of December 9, Linn made two telephone calls from his hotel lobby. Both calls were overheard by a DEA agent. One call pertained to the status of Eastern Airlines "flight 86," a scheduled Miami arrival. The other involved Linn assuring another party that Linn would make contact with that party in one hour.

Shortly thereafter, Linn carried a briefcase to the Seattle Sheraton Hotel, in which codefendant Adler had registered. Adler had listed his home address as "Coconut Grove, Florida." Adler had deposited a bulky envelope in the hotel safety deposit box. A short time earlier, Adler had telephoned Linn's hotel.

Codefendants Linn and Adler met for approximately forty-five minutes. Linn departed Adler's hotel, his briefcase in hand. Linn was met by appellant, who was driving a pickup truck. Appellant drove Linn to his hotel. En route, appellant and Linn stopped to speak and to undertake activity (the precise nature of which was unclear at the time) in the truck's passenger compartment. Appellant dropped Linn at his hotel. Appellant stopped once more in Seattle, apparently to undertake activities inside his truck. Appellant proceeded south, then east from Seattle.

During the foregoing period, DEA agents identified the registered owner and driver of the pickup truck as Leo Klein, appellant, and learned from Canadian officers that Klein was suspected of narcotics trafficking, including previously transporting narcotics from Spokane, Washington to Canada.

Appellant was kept under close surveillance. At Issaquah, a short distance from Seattle toward Spokane, the agents concluded that probable cause existed for appellant's arrest. The agents consulted a "supervisory special agent" by radio on the probable cause issue. Approximately fifteen miles further, the agents lost radio contact with their dispatch office.

Shortly thereafter, the agents stopped a truck which they erroneously believed to be appellant's. Upon discovering their error, the agents continued eastbound in an effort to relocate appellant, but did not regain sight of appellant's truck.

A short distance beyond Moses Lake, more than halfway from Seattle to Spokane, Washington State Patrol officers identified appellant's vehicle, stopped it, and arrested appellant. Appellant made statements independently known to be false. ² Appellant's vehicle was impounded by the police and sniffed by a narcotics dog. The dog reacted positively. The vehicle was taken to a secure location. Early the next morning, December 10, appellant's truck was searched. ³ A package, wrapped in grey duct tape, was discovered in the vehicle. Unwrapped, the package revealed two one-kilogram "bricks" of cocaine.

After leaving his hotel on December 10, codefendant Linn was arrested, driving northbound. At that time, Linn's vehicle was searched. A roll of grey duct tape, which matched the tape surrounding cocaine found in Klein's truck, was discovered in Linn's vehicle.

Codefendant Adler was also arrested on December 10. Pursuant to a search warrant, $45,000 cash and two checks (drawn on Vancouver banks) were seized from Adler.

Laboratory analysis revealed that the cocaine seized from appellant's vehicle weighed 1,991 grams. This analysis also indicated that the cocaine was 92 percent pure. Fingerprints belonging to appellant and to codefendant Adler were found on the cocaine package. An address book seized from appellant contained the name Terry Germain.

Prior to trial, appellant moved to suppress evidence of the cocaine and to challenge the constitutionality of his mandatory minimum sentence under 21 U.S.C. Sec. 841(b)(1)(B). The district court denied these motions. ⁴

Appellant was convicted of conspiracy to distribute cocaine, under 21 U.S.C. Sec. 846 (Count I), and possession with intent to distribute cocaine in excess of five hundred grams, under 21 U.S.C. Sec. 841(a)(1) and Sec. 841(b)(1)(B) (Count IV). The court sentenced Klein to five years imprisonment on Count I and to five years on Count IV, to run concurrently. Appellant is not eligible for parole during the term of imprisonment on Count IV.

Appellant timely appeals. This court has jurisdiction under 28 U.S.C. Sec. 1291.

II

Two fourth amendment issues are raised. First, appellant claims that probable cause did not exist for his arrest. Second, appellant argues that a search warrant was required prior to a search of his vehicle and the package found therein.

A

Appellant claims that DEA agents did not have probable cause for his arrest.

We review de novo a probable cause finding. United States v. Arrellano-Rios, 799 F.2d 520, 522 (9th Cir.1986). The district court's findings of fact, however, will not be disturbed unless they are clearly erroneous. United States v. Pinion, 800 F.2d 976, 979 (9th Cir.1986), cert. denied, 480 U.S. 936, 107 S.Ct. 1580, 94 L.Ed.2d 770 (1987).

The test for probable cause is whether "facts and circumstances within the officer's knowledge ... are sufficient to warrant a prudent person, or one of reasonable caution, [to believe], in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense." Michigan v. DeFillippo, 443 U.S. 31, 37, 99 S.Ct. 2627, 2632, 61 L.Ed.2d 343 (1979); see also United States v. Smith, 802 F.2d 1119, 1123 (9th Cir.1986); Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).

Surveillance implicated appellant in criminal activity. Royal Canadian Mounted Police and DEA surveillance demonstrated that appellant was meeting with, speaking to, and transporting Linn immediately after Linn was believed to have completed a narcotics transaction. Appellant's subsequent activities strongly indicated that appellant was likely to be trafficking in narcotics. Cf. United States v. Ginsberg, 758 F.2d 823 (2d Cir.1985).

Probable cause was further strengthened by information from an informant. In Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), an informant alleged illegal narcotics activities, identified suspects, and described a pattern of narcotics trafficking between Florida and a second state. Although the informant was anonymous, leaving unproven his basis of knowledge and reliability, the Supreme Court upheld a probable cause finding on the ground that facts alleged by the informant were independently corroborated. Corroboration was considered part of "the totality of the circumstances," id. at 243-46, 103 S.Ct. at 2334-36, supporting probable cause.

Here, an informant's information was corroborated and provided strong support for probable cause. ⁵ Under "the totality of the circumstances," we conclude that probable cause existed to arrest appellant by the time he reached Issaquah. A warrant was not therefore required for appellant's arrest. Gates v. Illinois, 462 U.S. at 214, 103 S.Ct. at 2320.

B

Appellant claims that the government was required to seek a warrant prior to searching his vehicle and "cutting open" the package found therein. The fourth amendment's search warrant requirement was intended to preserve freedom from unreasonable searches and seizures. This requirement, however, is subject to recognized exceptions, including the well-known "automobile exception."

Two principles underlie that exception. First, automobiles have historically been subject to "pervasive regulation", California v. Carney, 471 U.S. 386, 392, 105 S.Ct. 2066, 2069, 85 L.Ed.2d 406 (1985); see also Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925) (reduced privacy expectations in an automobile). Second, "[t]he mobility of automobiles ... 'creates circumstances of such exigency that, as a practical necessity, rigorous...