U.S. v. Harrison

• Decision Date: 19 November 1990
• Docket Number: Nos. 90-4204,90-4250,s. 90-4204
• Citation: 918 F.2d 469
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jack Eugene HARRISON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Gary Don JETER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 469

918 F.2d 469

UNITED STATES of America, Plaintiff-Appellee, v. Jack Eugene HARRISON, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Gary Don JETER, Defendant-Appellant.

Nos. 90-4204, 90-4250

Summary Calendar.

United States Court of Appeals,

Fifth Circuit.

Nov. 19, 1990.

Charles O. Grigson, Austin, Tex., for Jack Eugene Harrison.

L. Stuart Platt, Asst. U.S. Atty., Bob Wortham, U.S. Atty., Beaumont, Tex., for the U.S.

Stanley G. Schneider, Houston, Tex., for Gary Don Jeter.

Appeals from the United States District Court for the Eastern District of Texas.

Before KING, GARWOOD, and DUHE, Circuit Judges.

DUHE, Circuit Judge:

In this consolidated appeal, Jack Eugene Harrison and Gary Don Jeter contest their convictions of drug-related offenses. After entering conditional pleas of guilty, Harrison was convicted of possession of cocaine with intent to distribute, and Jeter was convicted of conspiracy to distribute and possess with intent to distribute marijuana. Each defendant now complains that the district court erred by denying his motion to suppress evidence and by failing to prevent pretrial delays. In addition, Harrison claims double jeopardy, and Jeter complains of the alleged excessiveness of his sentence. Finding no error, we affirm both convictions and uphold Jeter's sentence.

EARLIER PROCEEDINGS

Chambers County sheriff's deputies arrested appellants in July 1982. That same month Texas indicted both appellants for drug offenses. Harrison entered a plea agreement in July 1983 and received a probated sentence. He was released from probation in December 1985. State charges originally filed against Jeter were dropped in 1982.

On July 1, 1987, two days before the limitations period was to expire, appellants and three others were indicted in a five-count indictment arising out of the July 1982 incident. Motions to suppress evidence and to dismiss for want of a speedy trial were heard and denied.

Count 5 of the indictment was severed as to appellant Harrison and transferred to the United States District Court in Sherman, Texas. Harrison entered a conditional plea to that count and received a probated sentence. Remaining counts against him were dismissed later.

Jeter pleaded guilty in the United States District Court in Beaumont, Texas to Count 3 of the indictment. He entered a conditional plea and was sentenced to two years and six months' imprisonment. Remaining counts were dismissed. Both appellants filed timely notices of appeal.

FACTS

Chambers County sheriff's officers became aware that an airplane might be bringing illegal drugs to a private dirt airstrip, at night, in rural Chambers County. Several law enforcement officers were dispatched to the area to watch for the airplane and to observe the surrounding roads. Captain Edward Vaccaro of the sheriff's department was in charge of the operation. At approximately 9:00 p.m. one of the officers radioed the others that he saw an airplane leave the area. Officer Martin heard this broadcast and soon observed a pickup truck without lights pulling onto the rural road where he was stationed. He also thought the truck might be speeding. He chased the truck and pulled it over within a hundred yards of the interstate highway. Harrison was the driver and Jeter was the passenger. Officer Martin frisked them for weapons but found none. Captain Vaccaro and other officers soon arrived, and Vaccaro asked Harrison if the officers could look in the truckbed, which was covered with a tarpaulin. Harrison agreed and helped Vaccaro unsnap the tarp, revealing several hoses and a cardboard box wrapped in plastic. Vaccaro sought to open the box, and Harrison offered his own pocket knife to Vaccaro for that purpose. Vaccaro found marijuana inside the box and arrested the appellants. Officers then looked inside the truck and found a gym bag containing several battery-operated lights. The truck was removed to the sheriff's office, where a thorough search revealed a .22 caliber pistol in the glove box, a brief case, an airplane frequency radio, and a vial of cocaine under the dashboard. No search warrant was obtained. Appellants were advised of their rights only after the officers had found the marijuana and arrested them.

On the night of the arrests United States Customs agents learned of the arrests and the circumstances. There was no federal involvement in the matter until late September 1984, when the sheriff met with federal authorities to request that charges against appellant be pursued. The United States Customs Service opened a file on the matter in February 1987, but no investigation commenced until May 1987.

MOTIONS TO SUPPRESS

Appellants contend that the district court erred in denying their motions to suppress evidence seized from the truck. They argue that there was no probable cause to stop the truck and that the claimed traffic violations were merely a pretext. They further argue that there was ample time to obtain a search warrant and that the warrantless search of the truck and the containers found therein was, therefore, unreasonable.

We review the district court's fact-findings on a motion to suppress under the clearly erroneous standard. United States v. Duckett, 583 F.2d 1309, 1313 (5th Cir.1978); United States v. Basey, 816 F.2d 980, 987 (5th Cir.1987).

We note preliminarily that appellant Jeter lacks standing to contest the search. He asserts no ownership interest in the truck. See Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), reh'g denied 439 U.S. 1122, 99 S.Ct. 1035, 59 L.Ed.2d 83 (1979); United States v. Johnston, 685 F.2d 934, 939 (5th Cir.), cert. denied, 460 U.S. 1053, 103 S.Ct. 1501, 75 L.Ed.2d 932 (1983). He argues that, however, as a passenger, he had an expectation of privacy in the items within his immediate control in the truck's cab. This argument fails for two reasons. First, the driver consented to the search, and, the law is clear that once the officers found contraband in the bed of the truck, they could proceed to search the remainder of the vehicle. United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). Second, Jeter pleaded guilty to the count charging possession of the marijuana found in the bed of the truck, not to the count dealing with the vial of cocaine in the cab of the truck.

It is well-established that a vehicle and its occupants may be briefly detained for investigation based not upon probable cause, as appellants argue, but upon reasonable suspicion of criminal activity. Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 1879-80, 20 L.Ed.2d 889 (1968). We determine reasonableness by examining the totality of the circumstances existing at the time of the stop. The detaining officer must have a particularized and objective basis for suspecting of criminal activity the person detained. United States v. Aldridge, 719 F.2d 368, 371 (11th Cir.1983). Terry provides a two-step inquiry for determining reasonableness: "Whether the officer's action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place." Terry, 392 U.S. at 20, 88 S.Ct. at 1879. Put otherwise, an officer who stops a motor vehicle must have "at least an articulable and reasonable suspicion that ... either the vehicle or an occupant is ... subject to seizure for violation of law." Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 1401, 59 L.Ed.2d 660 (1979). The fact that Officer Martin may have given a pretextual traffic violation as the reason for this stop will not invalidate an otherwise justified stop. United States v. Hawkins, 811 F.2d 210, 213 (3d Cir.), cert. denied, 484 U.S. 833, 108 S.Ct. 110, 98 L.Ed.2d 69 (1987).

The record makes clear that Officer Martin had a reasonable suspicion of criminal activity sufficient to support the stop. He knew that an airplane, and very likely a pickup truck, would be involved in a drug smuggling operation in the area at that precise time. He knew that an airplane had just been sighted leaving the airstrip on which officers expected the smuggling operations would take place. Martin saw a truck leaving a daytime business area (a farm that he knew did not operate during the evening hours). The truck, which was operating without lights, was the only vehicle observed in the area adjacent to the suspect landing strip. In the officer's opinion the driver was attempting to speed away from him. Furthermore, Martin did not recognize the truck as belonging to any of the citizens who lived and worked in that area. A tarpaulin covered its bed, hiding anything therein from view. The totality of these circumstances was sufficient to create reasonable suspicion of criminal activity. Additionally, the collective knowledge of all officers involved in the matter can be considered. United States v. Kreimes, 649 F.2d 1185 (5th Cir.1981). Captain Vaccaro had knowledge from a tip that may or may not have been conveyed to Officer Martin.

We review the district court's findings of historical facts on the issue of reasonable suspicion under the clearly erroneous standard. The ultimate determination of the reasonableness of an investigatory stop, however, is a conclusion of law reviewed de novo. United States v. Basey, 816 F.2d 980, 988 (5th Cir.1987).

In Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 1924, 32 L.Ed.2d 612 (1972), the Supreme Court advised that the proper determination is whether the information that forms the basis of a police officer's action possesses indicia of reliability. We think it clearly does. This case is factually quite similar to Kreimes, in which we found that reasonable suspicion justified the stopping of a vehicle. In that case, a large aircraft without navigation lights was heard to land. A truck unlike trucks normally seen in the area was travelling without lights from the direction where the plane was suspected to have landed....