U.S. v. Curtis

• Decision Date: 12 October 1977
• Docket Number: 77-2071,Nos. 77-2070,77-2235 and 77-2107,s. 77-2070
• Citation: 562 F.2d 1153
• Parties: UNITED STATES of America, Appellee, v. Theodore Thomas CURTIS, Appellant. UNITED STATES of America, Appellee, v. Dale Peter CORDOVA, Appellant. UNITED STATES of America, Appellee, v. Kevin Andrew CURTIS, Appellant. UNITED STATES of America, Appellee, v. John Phillip DULIN, Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1153

562 F.2d 1153

UNITED STATES of America, Appellee, v. Theodore Thomas CURTIS, Appellant.

UNITED STATES of America, Appellee, v. Dale Peter CORDOVA, Appellant.

UNITED STATES of America, Appellee, v. Kevin Andrew CURTIS, Appellant.

UNITED STATES of America, Appellee, v. John Phillip DULIN, Appellant.

Nos. 77-2070, 77-2071, 77-2235 and 77-2107.

United States Court of Appeals Ninth Circuit.

Oct. 12, 1977.

Robert J. Hooker, Kent D. Morgan, Tucson, Ariz., for appellants.

Dale A. Danneman, Asst. U. S. Atty., Tucson, Ariz., U. S. Atty., Phoenix, Ariz., for appellees.

Appeal from the United States District Court for the District of arizona.

Before ELY and CARTER, Circuit Judges, and ENRIGHT, District Judge. ^*

ELY, Circuit Judge:

The four appellants were charged and convicted of having possessed a quantity of marijuana with the intent to distribute the same, a violation of 21 U.S.C. § 841(a)(1). Other charges in the original indictment, conspiracy to import marijuana and unlawful importation of marijuana, had been dismissed, pursuant to stipulation, prior to the nonjury trial. The appellants present four principal contentions:

(1) That the installation of a so-called transponder in a Piper Navajo aircraft, and the introduction of evidence derived from the use of the transponder, constituted an infringement of the appellants' Fourth Amendment rights.

(2) That arresting officers did not have probable cause to stop and search a vehicle being driven by the appellant Kevin Curtis.

(3) That a confession made by the appellant Dulin was involuntary.

(4) That the prosecution's evidence was insufficient to support the convictions of the appellants Thomas Curtis, Cordova, and Dulin.

We pass an extended discussion in respect to the claim of inadequate evidence. If Dulin's confession was voluntary, there obviously was sufficient evidence to convict him. And if the evidence derived from the transponder and the marijuana revealed by the search were properly received, the evidence, considered as a whole and viewed in the light most favorable to the Government, was adequate to support the convictions of Cordova and Theodore Curtis.

As to the appellants' argument in respect to Dulin's confession, the argument has no merit. The trial judge made the determination that Dulin's confession was voluntary, and that finding must be upheld unless it can be said that the finding is clearly erroneous. United States v. Cluchette, 465 F.2d 749, 754 (9th Cir. 1972). The investigating officers twice gave Dulin the required warnings before Dulin made his admissions. Dulin argues that he was in fact promised, or thought he was promised, leniency in return for the admission. The record belies this contention. Dulin was not offered leniency. He was told only that it would be made known to responsible authorities that he had cooperated. Furthermore, Dulin admitted that he realized at the time he made his admissions that no promise was being made to him. A simple representation to a cooperating confessor that the fact of his cooperation will be made known to prosecuting authorities is insufficient to render a confession involuntary. United States v. Glasgow, 451 F.2d 557, 558 (9th Cir. 1971). The court's finding that Dulin's confession was voluntary is fully supported.

While it is probably unnecessary, we briefly review the circumstances surrounding the installation of the transponder. The appellant Theodore Curtis (hereinafter Theodore) was an experienced aviator. ORCO Aviation, whose general manager at Riverside, California was one Joe Pagan, owned a Piper Navajo airplane. Theodore had rented the plane from October 4th to October 15th, 1976. When the aircraft was returned on the 15th of October, Pagan suspected that the plane had been used to transport marijuana. His suspicion was based on the following: (1) There were apparent discrepancies between the supposed itinerary of the aircraft and the receipts for the fuel that had been consumed; (2) some of the seats in the plane had been removed and improperly replaced; (3) one of the cabinet doors of the aircraft had been damaged; (4) there was vegetable debris in the plane that Pagan thought was marijuana; (5) the aircraft's propellers bore evidence that the plane had been landed on at least an unimproved airstrip. On October 26, 1976 Theodore arranged with Pagan to rent the aircraft again. The period of rental was to be ten days, beginning on November 3, 1976, and Theodore deposited $300 to secure the arrangement. On November 1st, two days before this rental period was to commence, Pagan informed agents of the United States Customs Service of his suspicions. At the same time, he arranged for the installation by Customs officials of the transponder, an electronic tracking device, in the aircraft. The installation was made on the following day, November 2d, without prior judicial approval, while the plane still remained in the possession and control of Pagan, who, as has been noted, was the agent and general manager of the aircraft's owner. After Theodore took possession of the plane on November 3d, and during the period from that date to November 10th, various trackings of the aircraft's flights were made and recorded with the use of the transponder. The plane was tracked to the Litchfield Airport in Litchfield, Arizona, some ten to fifteen miles outside the City of Phoenix, where Theodore and Cordova were observed with the plane. The ship was also tracked to Phoenix, and in the early hours of November 10th, the transponder's signals indicated that the plane was headed in the direction of the Mexican border. The signals from the transponder were lost when the plane was approximately forty miles north of the border, but at 2:40 a. m. on November 10th, signals reappeared indicating that the plane was returning in a northerly direction. In the evening of November 10th, at 9:20 p. m., signals reappeared as the plane proceeded toward the Mexican border. The signals were lost at the same place as before, but at 12:45 a. m. on November 11th, the signals reappeared and disclosed that the aircraft was heading northerly, away from Mexico. The signals were tracked to the vicinity of Wenden, Arizona, and then lost. A Customs aircraft was dispatched for the purpose of intercepting the Piper Navajo, but the officials were unable to locate the Piper. The officers then proceeded in their aircraft to an abandoned airstrip about thirty miles from Wenden. The Customs plane was equipped with an infrared surveillance device, and at approximately 1 a. m., the Customs agents, with the use of this device, detected an airplane with the configuration of a Piper Navajo. The detected plane was parked on an abandoned airstrip. After this plane had been sighted, the Customs officers observed two land vehicles of normal size approach the parked airplane and remain for a period of five or...