U.S. v. Ellis

• Decision Date: 23 February 1977
• Docket Number: No. 76-1658,76-1658
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. David ELLIS and William P. Gaskamp, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 863

547 F.2d 863

UNITED STATES of America, Plaintiff-Appellee, v. David ELLIS and William P. Gaskamp, Defendants-Appellants.

No. 76-1658.

United States Court of Appeals Fifth Circuit.

Feb. 23, 1977.

As Modified on Rehearing Granted April 15, 1977.

Leo A. Thomas, Pensacola, Fla. (court appointed), for defendants-appellants.

Clinton Ashmore, Asst. U. S. Atty., Nickolas P. Geeker, U. S. Atty., Pensacola, Fla., for plaintiff-appellee.

Appeals from the United States District Court for the Northern District of Florida.

Before TUTTLE, CLARK and RONEY, Circuit Judges.

CLARK, Circuit Judge:

Consent to search a motor vehicle while on board a Naval Air Station was validly obtained through issuance, acceptance and display of a visitor's pass. The marijuana disclosed by a warrantless search made pursuant to this consent was legally obtained. No hearsay objection barred the introduction of the declaration of a coconspirator which did not affect the objecting defendant. The court had the prerogative to make and strictly enforce a deadline on plea bargaining. The resolution of these issues dictates the affirmance of the convictions of both defendants appealed here.

On Monday, August 11, 1975, David Ellis was a member of the United States Navy stationed at the Naval Air Station, Pensacola Florida. His assigned living space was on the second level of Barracks 3468. At approximately 4:30 or 5:00 p. m., Emanuel J. Grady, a station investigator who was driving by Barracks 3468 on his way home, observed a male with long hair and dressed in civilian clothing, later determined to be William P. Gaskamp, come out onto a second-level balcony area of the barracks. Grady stopped his vehicle to observe further and saw Gaskamp come out of the barracks and walk toward an automobile parked nearby. Grady testified that after looking around as though to see if anyone was watching, Gaskamp opened the trunk of the car. Grady's full view of Gaskamp's activity at the trunk was blocked, but he saw Gaskamp return to the barracks with a neatly wrapped brown towel tucked under his arm.

With the help of the barracks duty officer, Grady traced Gaskamp to Ellis' room. Grady then went to the door of this suite and, as he was about to enter to determine the reason for the presence of a civilian in this military area, the door was opened by Ellis, and Grady observed a group of people standing near the brown towel which was then spread on the bed. Grady also saw Gaskamp drop something but could not tell what it was. Grady asked Ellis for permission to inspect his room to determine whether he had civilians staying there. David Ellis stated that his brother, Richard T. Ellis, and the defendant Gaskamp, who were civilians, had spent the previous evening in his quarters because they did not have a place to stay. After receiving this information Grady asked all the persons in the room to step out into the lounge area. Present in the room at that time were the two Ellis brothers, Gaskamp, and two other Navy personnel Christopher Clark and Mark Fredericks.

After the room was emptied, Grady requested permission to inspect Gaskamp's vehicle. When Gaskamp hesitated, Grady asked him if the car was on the base under a visitor's pass. Gaskamp replied that it was. In response to Grady's question, Gaskamp stated that he had read the pass. Grady then asserted a right to inspect the vehicle based upon the consent which the pass acknowledged. ¹ A search of the vehicle by Grady revealed 20 plastic bags containing marijuana.

Subsequent to this vehicle search, Bruce Allen Smart, a special agent for the Naval Investigative Service, contacted David Ellis and requested his permission to search his barracks room. That consent was given in writing. The room search disclosed two additional bags of marijuana.

In the course of the trial, Mark Fredericks testified as follows: On a Sunday evening, either one or two weeks before the Monday afternoon searches, David Ellis had said to him that "his brother might be coming in with some grass." On the afternoon of the searches, David Ellis came to Fredericks' barracks room and invited him to come to Ellis' room to "meet his brother and his brother's friend." As the two of them started toward the room occupied by Ellis, they met Christopher Clark who was on his way there also. When Fredericks entered the room of Ellis, he saw two bags of marijuana lying on the foot of a bed. In Gaskamp's presence, David Ellis offered to sell some of the marijuana to Fredericks. At the instant Fredericks picked up one of the bags of marijuana, he saw Grady at the door.

In a statement to Federal Bureau of Investigation Agent David Mitchell, also admitted at trial, Gaskamp stated that he left Fort Worth, Texas, in his automobile at approximately midnight on Friday, August 8, after purchasing between 40 and 50 baggies of marijuana. He then traveled to Pensacola, Florida, arriving Saturday night, August 9. He spent that night in the barracks on board the Naval Air Station. Sunday night was spent at a motel on the Mobile highway and at approximately 4:00 or 4:30 p. m. on Monday afternoon, August 11, Gaskamp returned to the Air Station and to David Ellis' room at the barracks. There he was told that some buyers for the marijuana were coming. After learning this, he went to the car, obtained two of the bags of marijuana, wrapped them in a towel and carried them back to the room for purposes of sale. Gaskamp's fingerprints were found on one of the baggies containing marijuana found in the room of David Ellis when it was searched. Neither Gaskamp nor David Ellis testified before the jury.

At the conclusion of the joint trial of Gaskamp and the brothers Ellis on a charge of conspiring to possess with intent to distribute marijuana, ² the trial judge sustained a motion for judgment of acquittal by the defendant Richard T. Ellis, but denied similar motions by David Ellis and Gaskamp. The jury found David Ellis and Gaskamp guilty of conspiracy. Each was sentenced to a term of two years, with six months to serve in a jail-like institution. The remainder of the sentence was suspended and the defendants were placed on probation for two years. Additional two-year special parole terms were also imposed.

The linchpin of the appeals by Ellis and Gaskamp is the validity of the warrantless search of Gaskamp's car. They urge that Grady did not have probable cause nor did he have valid consent from Gaskamp.

Assuming arguendo that Grady lacked probable cause and exigent circumstances even under the unusual conditions existing here where a civilian vehicle was temporarily located within the confines of a Naval Air Station, Gaskamp, at the time of his entry onto the premises of the Naval Air Station, had validly consented to the subsequent search. A base commander may summarily exclude all civilians from the area of his command. Greer v. Spock, 424 U.S. 828, 96 S.Ct. 1211, 1217, 47 L.Ed.2d 505 (1976). It is within his authority, therefore, also to place restrictions on the right of access to a base. Here, subjecting one's person and vehicle to search upon request was such a proper restriction. This consent covered the actions of Grady which resulted in the discovery of the initial cache of marijuana. Gaskamp's car was subject to routine search when he passed through the guard station roadblock as he entered the confines of the Naval Air Station, just as it would have been had he presented himself to a Customs Service immigration station at the boundary of the country. Protection of the function of the military installation gave the Navy authorities a right of inspection which is equal in status to the right retained to protect the fiscal and physical integrity of the nation from foreign contraband or tariffed items. See, United States v. Vaughan, 475 F.2d 1262 (10th Cir. 1973); United States v. Collins, 349 F.2d 863, 868 (2d Cir. 1965), cert. denied, 383 U.S. 960, 86 S.Ct. 1228, 16 L.Ed.2d 303 (1966). Gaskamp certainly should have realized that his actions in presenting his vehicle to the guard at the entrance to the Air Station with an implied request to drive aboard carried the possibility of an inspection then and there. The same need for preservation of military security gave governing authorities of the base every reasonable right to allow him to drive his car onto the Naval Air Station uninspected, but under terms of a visitor's pass which conditioned his entry and stay on the military reservation upon his consent to the search of the vehicle at anytime it was on Station premises.

The consent here would not be a valid basis for supporting the search unless it could be determined the consent was "freely and voluntarily given." Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1778, 1792,20 L.Ed.2d 797 (1968). The issue of voluntariness is to be resolved by considering the "totality of the circumstances." Schneckloth v. Bustamonte,412 U.S. 218, 227, 93 S.Ct. 2041, 2048, 36 L.Ed.2d 854 (1973). Gaskamp stated he read the pass. He complied with its written requirement of display on his windshield. His decision to enter the base subject to the possibility of a search can in no wise be considered coerced. To the contrary, the consent was knowing and voluntary and could have left Gaskamp with no reasonable expectation of privacy in his vehicle. The right to make a search pursuant to such consent does not turn on the presence of probable cause. United States v. Vaughan, supra ; United States v. Fox, 407 F.Supp. 857 (W.D.Okl.1975). Without reaching the question of whether Gaskamp had a right to turn back at the gate, his offer to remove the vehicle after officials demanded a search came too late.

The parties dispute the relationship of the discovery of marijuana in Gaskamp's car and the search of David Ellis' room. This too is an issue we need not reach. When David Ellis was requested to consent to the search of his barracks room, it was given, and the room...