907 F.2d 1267 (1st Cir. 1990), 90-1081, United States v. Panitz
|Docket Nº:||90-1081, 90-1082.|
|Citation:||907 F.2d 1267|
|Party Name:||UNITED STATES of America, Appellee, v. Solomon Philip PANITZ, Defendant, Appellant. UNITED STATES of America, Appellee, v. Andrew Stewart BAUMWALD, Defendant, Appellant.|
|Case Date:||July 13, 1990|
|Court:||United States Courts of Appeals, Court of Appeals for the First Circuit|
Heard June 5, 1990.
Richard E. Mischel, New York City, for appellant Solomon Philip Panitz.
Martin D. Boudreau and Boudreau, Burke, McMenimen & Barber, Boston, Mass., on brief, for appellant Andrew Stewart Baumwald.
Margaret D. McGaughey, Asst. U.S. Atty., with whom Richard S. Cohen, U.S. Atty., Portland, Me., and William H. Browder, Jr., Asst. U.S. Atty., Bangor, Me., were on brief, for the U.S.
Before CAMPBELL, Circuit Judge, COFFIN, Senior Circuit Judge, and SELYA, Circuit Judge.
SELYA, Circuit Judge.
Stung by a sting, defendants Solomon Philip Panitz and Andrew Stewart Baumwald received little balm from the United States District Court for the District of Maine. After that court denied various pretrial motions, each defendant pled guilty, conditionally, see Fed.R.Crim.P. 11(a)(2), and then appealed. Finding no prescription for the soothing unguent of reversal, we affirm the judgments below.
We set forth the general background of the sting and then particularize appellants' involvement, mindful that the essential facts are not seriously disputed.
In November 1988, with the aid of two informants (0010 and 0011), the Coast Guard intercepted and seized 10,000 pounds of Colombian marijuana on the high seas. The marijuana was taken first to Puerto Rico, then to Maine. At that point, a Drug Enforcement Administration (DEA) agent had 0011 call the suspected smuggler of the illicit shipment, one Michael Goldin, to announce that the contraband had arrived as scheduled. Entourage in tow, Goldin
flew to Boston on November 20, rented a car in an assumed name, drove to Maine, and registered at a local hotel (using the same alias).
A team of federal and state officers awaited his arrival. Informant 0011 introduced Goldin to Bansmer, an undercover operative. Bansmer took Goldin to a purported "stash house" near Newcastle, Maine. Goldin inspected the marijuana, stated that he had a list of twelve potential buyers, and took samples for display. The next day Goldin told one of the informants that six customers, identified by first name or description only, were en route to Maine. He also stated that he was still soliciting clients.
Blissfully unaware that he was dealing with a gang composed exclusively of federal and state lawmen, Goldin devised a plan for distributing the marijuana. He would make a series of vehicles available to his accomplices (agents all), turning over the keys. The agents would drive each vehicle, as received, to the place where the marijuana was being stored, 1 stuff it with whatever amount of marijuana Goldin specified, park at a prearranged spot, and return the keys to Goldin. The smuggler would then complete the transaction with the customer, exchanging the drug-laden vehicle for the balance of the agreed price.
Unbeknownst to Goldin, the agents added a new chapter to his script: the loaded vehicles were kept under constant surveillance. When a vehicle was claimed and driven away, it was followed. At a point sufficiently distant from the scene that the "real" criminals (like Goldin and the remaining customers) were unlikely to be alerted, a traffic stop would be accomplished by uniformed officers, the vehicle's occupants arrested, the vehicle searched, and the contraband repatriated. No arrest or search warrants were procured.
We move now from the general to the particular. On November 21, Goldin told one of the undercover agents that Baumwald had arrived in Maine, accompanied by two confederates, and had given Goldin two sets of car keys--keys to a BMW and a Ford, respectively. Although Baumwald had already paid for the marijuana, delivery was deferred until the next day at the agents' behest. On November 22, Goldin handed over both sets of keys. The automobiles were driven away from the base hotel (where Baumwald had taken a room), stocked with marijuana, and returned to the hotel parking lot.
At 1:30 p.m. on November 22, one of Baumwald's companions, Antonia Dinolfo, entered the Ford and proceeded to drive south on the Maine Turnpike. She was stopped and arrested at a predetermined point. The car was searched and the marijuana seized. About an hour later, Baumwald and his remaining cohort, Rosen, entered the BMW. Surveillance officers followed them south on the Maine Turnpike to Mile 24, where the scenario was reenacted.
Early that evening, Goldin gave the keys to a Chevrolet to an agent, with instructions for loading. The automobile was returned to the hotel parking lot at about 8:30 p.m. It was not immediately retrieved. Shortly after midnight, the agents chose to reveal their identity to Goldin. 2 Caught dead to rights, he agreed to cooperate. At that time, Goldin told the lawmen that Panitz and his brother had come to Maine. The Chevrolet remained under surveillance. An hour or two later, Solomon Panitz entered the car and drove it away. When stopped, it was searched and the 10 bales of marijuana reclaimed.
II. PROCEEDINGS BELOW
The sting operation gave rise to multiple indictments. Panitz was charged with conspiracy
to distribute in excess of 50 kilograms of marijuana in violation of 21 U.S.C. Secs. 841(a)(1), 841(b)(1)(C), 846, and with the related substantive offense, possession of more than 50 kilograms of marijuana in violation of 21 U.S.C. Secs. 841(a)(1), 841(b)(1)(C). Baumwald was charged with the same types of crimes in a separate indictment. Both men were also charged with aiding and abetting. 18 U.S.C. Sec. 2. By order of the district court, pretrial proceedings in all cases involving Goldin's customers were deemed consolidated.
Though a flood of pretrial motions ensued, only two sets are germane to these appeals. Early on, defendants moved to dismiss the indictments by reason of outrageous government misconduct and sought an evidentiary hearing in connection therewith. The district court denied the motions. United States v. Baumwald, No. 89-00002, slip op. (D.Me. June 19, 1989) (unpublished) (Baumwald I ). Motions to suppress physical evidence were also filed. A suppression hearing was held on June 21. The court thereafter issued a memorandum denying the motions. United States v. Baumwald, 720 F.Supp. 226 (D.Me.1989) (Baumwald II ). Eventually, both Panitz and Baumwald pled guilty, conditionally, to the conspiracy counts with which they were charged. We consolidated the resultant appeals for briefing and oral argument.
III. THE AUTOMOBILE SEARCHES
Both appellants assign error to the denial of suppression motions questioning the lawfulness vel non of the automobile searches. As described in Part I(B), supra, the officers, without obtaining warrants, searched both Panitz's Chevrolet and the BMW in which Baumwald was travelling. Although the searches occurred at different times and involved different vehicles, they share a common provenance and the same legal principles control.
Defendants' lament has three parts. The first posits the absence of "exigent circumstances" sufficient to justify the warrantless searches. See generally United States v. Curzi, 867 F.2d 36, 41-43 (1st Cir.1989) (discussing "exigent circumstances" doctrine); United States v. Cresta, 825 F.2d 538, 553-54 (1st Cir.1987) (similar), cert. denied, 486 U.S. 1042, 108 S.Ct. 2033, 100 L.Ed.2d 618 (1988). The second segment asserts that if any exigency existed it was manufactured by the government, ergo, unworthy of consideration. See generally Curzi, 867 F.2d at 43 n. 6 ("Circumstances deliberately created by the police themselves cannot justify a warrantless search."); United States v. Thompson, 700 F.2d 944, 950 (5th Cir.1983) (similar; listing other cases). The last subpart of the thesis suggests that, despite the agents' lack of particularized advance knowledge about who would be retrieving the drug-laden vehicles, they should at the very least have secured "anticipatory" search warrants. See generally United States v. Garcia, 882 F.2d 699, 702-04 (2d Cir.) (discussing government's use of anticipatory search warrants), cert. denied, --- U.S. ----, 110 S.Ct. 348, 107 L.Ed.2d 336 (1989); United States v. Hale, 784 F.2d 1465, 1468-69 (9th Cir.) (similar), cert. denied, 479 U.S. 829, 107 S.Ct. 110, 93 L.Ed.2d 59 (1986).
We find these lyrics, though sung with great gusto, to be out of harmony with both the facts and the law. Factually, the record tends to support the district court's thesis that the vehicle searches were accomplished under sufficiently exigent circumstances, not deliberately created by the government, to justify forgoing a trip to the magistrate. See Baumwald II, 720 F.Supp. at 230-31. We need not discuss the facts at length, however, because the thesis is flawed in a more fundamental sense. Each of appellants' asseverations depends on the premise that a warrantless search of the vehicles could only be made if exigent circumstances existed. Because that premise is faulty, the arguments collapse of their own weight. 3
Generally speaking, warrantless searches require both probable cause--that is, a well founded conclusion "that an offense has been committed and ... sound reason to believe that a particular search will turn up evidence of it," United States v. Aguirre, 839 F.2d 854, 857-58 (1st Cir.1988)--and the presence of exigent circumstances. In the instant case, defendants concede that the agents had probable cause to stop the cars and to think that they contained large quantities of marijuana (indeed, other agents had hidden the contraband in the automobiles). The question then becomes whether, absent some demonstrated,...
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