U.S. v. Finefrock, 80-2145

• Decision Date: 25 January 1982
• Docket Number: No. 80-2145,80-2145
• Citation: 668 F.2d 1168
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Paul Dodds FINEFROCK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1168

668 F.2d 1168

UNITED STATES of America, Plaintiff-Appellee, v. Paul Dodds FINEFROCK, Defendant-Appellant.

No. 80-2145.

United States Court of Appeals, Tenth Circuit.

Argued and Submitted Oct. 21, 1981.

Decided Jan. 25, 1982.

B. J. Rothbaum, Oklahoma City, Okl. (G. Phil Harney and William J. Skepnek, Oklahoma City, Okl., on brief), of Linn, Helms, Kirk & Burkett, Oklahoma City, Okl., for defendant-appellant.

John R. Osgood, Asst. U. S. Atty. (David L. Russell, U. S. Atty., and Frank Michael Ringer, Asst. U. S. Atty., Oklahoma City, Okl., on brief), for plaintiff-appellee.

Before DOYLE, LOGAN and SEYMOUR, Circuit Judges.

LOGAN, Circuit Judge.

Paul Dodds Finefrock appeals from his conviction on five counts for importing and possessing marijuana in violation of 18 U.S.C. § 2 and 21 U.S.C. §§ 841(a) (1), 952, and 963. The issues on appeal all relate to whether the district court correctly upheld the warrantless search and seizure of Finefrock's airplane and its contents. Finefrock argues that the district court incorrectly viewed the evidence in a light most favorable to the government; further, that to justify the search the court should have required the government to show that exigent circumstances were present. ¹

At about 3:30 a. m. on July 10, 1980, Finefrock landed his airplane at an airport in Hobart, Oklahoma. Suspecting that Finefrock was carrying drugs, several narcotics agents were waiting for him. After Finefrock left his plane and drove toward the airport terminal, one agent approached the plane and, using a flashlight, allegedly observed several large packages inside the plane. At the suppression hearing this agent testified that he saw what he believed was marijuana residue on the plane's window sill and marijuana stems and leaves protruding from tears in the packages. After this sighting he directed the other officers to arrest Finefrock. While an agent entered the aircraft shortly after the arrest, the officers did not search the plane or seize its contents until about 7 a. m., two hours after they had taken Finefrock to the county jail, when the agents returned to the plane to inventory the marijuana and verify its identity. The officers conducted the search and seizure without warrants.

The district court denied Finefrock's motion to suppress all evidence the agents obtained by means of their search and seizure. The parties then signed a stipulation reciting what the government's evidence would be at trial, and agreed that the district court could determine the defendant's guilt or innocence on the basis of this stipulation, preserving for this Court's review the lawfulness of the search and seizure.

Finefrock argues that the district court, in upholding this warrantless search and seizure, incorrectly evaluated the evidence in a light most favorable to the government. Whenever a defendant challenges a warrantless search or seizure, the government carries the burden of justifying the agent's actions. Chimel v. California, 395 U.S. 752, 762, 89 S.Ct. 2034, 2039, 23 L.Ed.2d 685 (1969). It must show that the agents had probable cause for their actions, and it must prove probable cause by a preponderance of the evidence. See United States v. Matlock, 415 U.S. 164, 177-78 n.14, 94 S.Ct. 988, 996, 39 L.Ed.2d 242 (1974); Lego v. Twomey, 404 U.S. 477, 488-89, 92 S.Ct. 619, 626, 30 L.Ed.2d 618 (1972).

The government attempts to justify the warrantless search under the automobile exception that we held applicable to searches of airplanes in United States v. Gooch, 603 F.2d 122 (10th Cir. 1979), and United States v. Sigal, 500 F.2d 1118 (10th Cir.), cert. denied, 419 U.S. 954, 95 S.Ct. 216, 42 L.Ed.2d 172 (1974).

Any application of the automobile-airplane exception depends upon whether the officer saw marijuana or items he reasonably believed to be marijuana through the window of that airplane. Therefore, a crucial issue is the credibility of the officers' testimony, and the standard of proof the court applied at the suppression hearing is quite important. After hearing the testimony and just before the judge ruled, the prosecutor commented, "I think the Court must take into consideration the evidence in the light most favorable to the Government at this particular juncture." R. IV, 68. A few moments later, the court denied Finefrock's motion to suppress and said:

"I think that under the totality of the circumstances and accepting the conflict of the testimony in a light favorable to the Government in this regard, that having the ability to observe torn bags of marijuana ... put (the agents) on probable cause to conduct-to effect the arrest of the Defendant and to conduct the search herein.

"I will confess that I'm-I don't find it a particularly easy case."

R. IV, at 69. (Emphasis added).

At oral argument the government urged that these comments of the judge should not be construed as indicating the judge applied the admittedly erroneous legal test of viewing the evidence in a light most favorable to the government. We do not agree. In the context of the prosecutor's remark immediately prior to the ruling, the only fair reading is that the judge applied the wrong test. The court should have fairly and evenhandedly weighed all the evidence and required the government to prove probable cause by a preponderance of the evidence.

The government next contends that we should apply a clearly erroneous standard to the district court's finding of probable cause, and, as a result, affirm the finding. Although normally we apply a clearly erroneous standard to a trial court's factual determinations at a suppression hearing, see United States v. Axselle, 604 F.2d 1330, 1335 (10th Cir. 1979), we do so only when the district court properly imposed the burden of proof and weighed the evidence using the preponderance of the evidence standard. Because the district court here did not use the correct standard in weighing the evidence, we do not employ a clearly erroneous standard.

Alternatively, the government argues that because the evidence is so overwhelming in its favor, we should independently find that the agents had probable cause. To the contrary, referring to whether the evidence should be suppressed, the district court stated, "I don't find it a particularly easy case." Finefrock presented conflicting testimony that, if believed, would have undermined the government's evidence. We must reverse, therefore, and remand this case to the district court to redetermine, applying the preponderance standard without viewing the evidence in a light favorable to either side,...