U.S. v. Allen
| Decision Date | 16 April 1981 |
| Docket Number | 79-1060 and 79-1063,Nos. 79-1059,s. 79-1059 |
| Citation | 675 F.2d 1373 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Arthur A. ALLEN, Peter A. Diffenderfer, Kevin T. Kerr, William P. Kolander, Derek S. Sherman, Spencer C. Sherman, and Gary L. Theriaque, Defendants-Appellants. to 79-1067. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Martin Weinberg, Boston, Mass., Marcus S. Topel, San Francisco, Cal., argued for defendants-appellants; Oteri & Weinberg, Boston, Mass., Robert F. Collins, Troy & Collins, Dorchester, Mass., on brief.
David Smith, Crim. Div., Washington, D. C., for plaintiff-appellee.
Appeal from the United States District Court for the Northern District of California.
Before KENNEDY, TANG and ALARCON, Circuit Judges.
After customs interdiction of an amphibious operation to import over eight tons of marijuana, the participants were convicted of federal offenses. These appeals followed. Appellants allege the prosecution used evidence resulting from unlawful surveillance and illegal seizures and arrests, that the evidence was insufficient, and that the sentences were improper. We reject these contentions and affirm. 1
In the summer of 1977, Arthur Allen purchased 200 acres of coastal property near Coos Bay, Oregon. The property was located in a secluded area. It came to be known as the Allen Ranch. The ranch was parallel to the ocean for about one mile, but it was separated from the beach by a narrow strip of federal property. Shortly after purchasing the property, Allen posted "No Trespassing" signs at points around the perimeter of the property and constructed a gate across the main access road to the ranch. Allen also terminated the previous owner's practice of permitting local fishermen and hunters to cross the property to reach the federal property on the ocean side.
On November 6, 1977, the United States Customs Bureau opened an office in Coos Bay. The officer in charge, Larry Gano, almost immediately became aware of complaints from local residents who had been refused permission to cross the Allen Ranch. A check on Allen's background led Gano to suspect that the ranch might be a drug-smuggling base. On December 5, 1977, Gano accompanied members of the Coast Guard on a helicopter flight past the ranch. According to the Government, the Coast Guard routinely flew over or near private property on the Oregon coast for training flights and other purposes, including law enforcement. Although the pilot's testimony at the suppression hearing strongly suggests that the helicopter avoided Allen's airspace, this was not unequivocally established. Using a telephoto lens, Gano took photographs of the ranch property. The photos revealed unusually wide tire tracks leading to and from a barn and a new extension built on the barn.
The next day, Gano accompanied two officials of the Bureau of Land Management (BLM) to the ranch. In response to the number of complaints they had received from fishermen and hunters, the officials sought to obtain a public easement across the ranch. As the men approached the ranch house, Allen appeared at the door and told them to leave. After one of the BLM officers identified himself and stated that they wanted to talk about obtaining a public easement across the property, Allen allowed them to approach. When Allen asked to see their identification, the BLM officials produced theirs, but Gano, not wanting to reveal his identity as a customs official, said his was at home. While on the property, Gano noticed that it was not being used as a farm and that Allen's hands were not calloused.
Because his observations increased his suspicion, Gano decided to monitor vehicular activity in and out of the property by implanting seismic sensors at the entrances. The sensors detect vibrations which vehicles cause as they pass by. According to the Government, they are capable of distinguishing people and animals from vehicles. These sensors emit a series of beeps recorded or monitored at a unit some distance away. Gano also set up a command post in the hills directly east of the Allen Ranch. While planting the sensors on federal land near the ranch, a customs officer noticed tire tracks 78 inches wide running from a river to a road which led to the ranch. The tracks were wider than those made by a dune buggy or other such vehicles. Beginning on December 8, 1977, the ocean, beach, and a small portion of the ranch were kept under nearly constant surveillance by officers using a variety of vision-enhancing devices. On the night of December 18, the officers noticed a significant increase in vehicular activity on the ranch; although they could not actually see any vehicles, they could see the glare of moving lights.
The next day, Gano, strongly suspecting that a conspiracy to import marijuana was under way, met with the local sheriff and Coast Guard officials to develop a contingency plan for interdicting the operation. Two days later, on December 21, Gano made a second helicopter overflight. An officer looking through binoculars saw a large van and semi-trailer parked on the property. As a result of this discovery, Gano put the Sheriff's department and Coast Guard on the alert and intensified the surveillance.
At approximately 10:00 p.m. on December 29, after the surveillance team saw light signals passing between the beach and an unlighted vessel positioned just offshore, Gano alerted the Coast Guard and Sheriff's department to prepare for action pursuant to the pre-arranged plan. It soon appeared, however, that the suspected smuggling operations had been called off due to bad weather. Some of the officers, at Gano's request, then entered Allen's property and searched a graveled clearing, described as a "parking lot," on the west end of the ranch. According to the Government, the officers found nothing of any use to the investigation. Assuming that the vessel would attempt to offload the following night, Gano directed all personnel to regroup then.
At approximately 10:30 p.m. on December 30, the officers at the command post saw an unlighted vessel just offshore, near the Allen property. At approximately 11:45 p.m. a team stationed by the beach saw a flash of light from the vessel. At 1:00 a.m. the beach team saw an amphibious vehicle. Shortly thereafter it entered the water and proceeded to the ship. Gano telephoned the Coast Guard and put the contingency plan into effect.
At 3:00 a.m. the first amphibious vehicle returned to shore and the beach team overheard the sound of boxes being unloaded and people congratulating each other. At 4:45 a.m., when the vehicles returned from a second trip out to the vessel, the officers ignited a flare as a signal to begin the arrests. The men on the beach were ordered to freeze, but they scattered as soon as the flare went out. At the same time, the vessel was illuminated by a Coast Guard helicopter. Waiting teams of officers then swarmed the property. The beach team secured the amphibious vehicles, the van and semi-trailer parked nearby, and they looked into all the vehicles. The officers discovered boxes in the trailer, on the beach, and in the amphibious vehicles. They cut one open and found marijuana inside. The officers then inventoried the contents of the trailer and van, including unlocked luggage and attache cases. While these operations were performed on land, the ship was tracked by the use of radar and helicopters.
One of the arrestees told officers that there were a few unarmed men in the ranch house. The officers then entered the house to secure it and conducted a brief search, but found no one inside. Apparently the officers proceeded to most parts of the house. While there, the officers observed radio equipment. They so testified at trial.
At approximately 5:00 a.m. the ship, which was about eight miles offshore, was illuminated again by the Coast Guard helicopter and ordered to stop and identify itself. It identified itself as the Cigale, of Panamanian registry. The crew of the vessel was either in the process of, or then began, throwing boxes over the side. The Coast Guard later boarded the vessel, which by that time had been abandoned by its crew and was flooded with water. The Coast Guard, fearing that the Cigale would sink, seized some documents from it. The Coast Guard retrieved 174 boxes from the water, two of which had burst open revealing the contents to be marijuana.
Because it was suspected that some of the participants had fled in the darkness, a law enforcement bulletin was issued to check anybody in the vicinity of the Allen Ranch who was wet or cold and without identification. At approximately 11:30 a.m. on December 31 (about seven hours after some suspects fled from the beach), a Coos Bay police officer saw Kolander sitting in a field a few miles from the beach. The police officer stopped to question him. The officer noticed a bulge in Kolander's pocket and that he was wet. The officer frisked him, found a pair of pliers similar to a pair seen at the Allen Ranch, and arrested him. Kerr was apprehended walking along the highway in a full skindiver's wetsuit at 5:30 p.m. that day. Spencer Sherman was arrested at 9:00 p.m. that evening while he was hitchhiking on the highway near the ranch, wearing soaking wet clothes covered with sand. Allen was arrested at 6:00 p.m. on January 2, 1978 (approximately 37 hours after the suspects fled from the beach) after he was seen coming out of the bushes into the road. Solely on the suspicion engendered by his presence in the area, a deputy sheriff ordered Allen to lie on the ground, frisked him, and handcuffed him. He was identified by the search as Arthur Allen and placed under formal arrest.
Shortly before appellants' trial was to begin, the trial judge became unavailable, and Judge...
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