U.S. v. Flynn, 79-5406

• Citation: 664 F.2d 1296
• Decision Date: 07 January 1982
• Docket Number: No. 79-5406,79-5406
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Dennis Harry FLYNN and James Anthony McDonnell, Defendants-Appellants. . *
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 1296

664 F.2d 1296

UNITED STATES of America, Plaintiff-Appellee, v. Dennis Harry FLYNN and James Anthony McDonnell, Defendants-Appellants.

No. 79-5406.

United States Court of Appeals, Fifth Circuit. ^*

Jan. 7, 1982.

Alvin E. Entin, Steven Kollin, North Miami Beach, Fla., for defendants-appellants.

Nicholas P. Geeker, U. S. Atty., Pensacola, Fla., for plaintiff-appellee.

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

Before KRAVITCH, HENDERSON and REAVLEY, Circuit Judges.

KRAVITCH, Circuit Judge:

This case raises issues concerning the validity of the government's search of an aircraft after tracking its entry into this country through the use of electronic surveillance. Specifically, appellants argue the government violated their fourth amendment rights by attaching the tracking device, known as a "beeper," to the inside of their aircraft ¹ and by conducting a warrantless search of the plane after tracking its entry into the United States. Appellants also contend the evidence admitted at trial ² was insufficient to sustain their convictions for possession with intent to distribute approximately thirteen tons of marijuana. We hold: (1) that there was probable cause justifying attachment of the beeper to appellants' plane; (2) that the search of appellants' aircraft after its landing in the United States was a border search for which no warrant was required; and (3) that the evidence was sufficient to sustain appellants' convictions.

I. Facts

On January 15, 1979, U.S. Customs agents arrested James McDonnell, Anthony Ricci, and Victor Simeone at the Fort Lauderdale Airport in Florida in connection with suspected smuggling of narcotics. The agents had observed the three men at three a. m. in a remote area of the airport near a DC-3 aircraft that had landed about fifteen minutes earlier loaded with 5200 pounds of marijuana and hashish. McDonnell and Ricci disclaimed any involvement with the DC-3, but their fingerprints were later found within the aircraft. Simeone, who said he had come to the airport to pick up the other two men, was released because no other evidence linking him with the plane was discovered. McDonnell and Ricci each posted $50,000 in cash to gain release on the day of their arrest. Customs agents informed Kevin T. Foley, Special Agent with the Drug Enforcement Administration (DEA), of the events culminating in the arrest of McDonnell and Ricci.

Two weeks later, Agent Foley was contacted by Mr. B. L. Abram, Chief of the Transportation Section of the Federal Aviation Administration (FAA). Abram advised Foley that the FAA had grounded a Lockheed Constellation aircraft for safety violations. Thereafter James McHendree, the former owner of that plane, notified Abram that he had sold the plane and that the new owner, Victor Simeone, was concerned about compliance with FAA regulations. That evening Simeone telephoned Abram at his residence and told him the plane could not be grounded because Simeone had a commitment to use it the following day. Simeone said he would have a crew work on the plane that night to bring it into conformance with FAA standards by the following day. Abram told Simeone that he had three weeks in which to comply with the regulations, and Simeone replied that he, his pilot James McDonnell, and McHendree, would meet Abram at his office the following morning to discuss the problem. At eight a. m. the following day Simeone and McHendree arrived at Abram's office and advised him that the plane was mechanically sound and could be brought into compliance with FAA regulations by the end of the day. Abram advised Simeone that because of the change in ownership of the plane Simeone was required to submit to the FAA an inspection program, which could take up to three weeks to be approved. Simeone insisted that the plane could not be held up and requested a temporary permit, which Abram denied. ³ When questioned about the new registration, Simeone told Abram the aircraft was registered in the name of a corporation of which McDonnell was president and Simeone an "investor." Simeone and McHendree then left Abram's office, but McHendree returned a little while later and requested to speak to Abram privately. McHendree told Abram he was afraid Simeone would renege his purchase of the plane if it could not take off that day. McHendree said Simeone had suggested that McHendree reregister the plane in his name to avoid the necessity of obtaining a new FAA inspection program.

Abram promptly informed DEA Agent Foley of the grounding of the Constellation aircraft and of his ensuing conversations and meeting with Simeone and McHendree. On the morning of February 1, 1979, Agent Foley set up surveillance of the Constellation at the Miami International Airport. At that time he observed McDonnell, Simeone, and Ricci performing maintenance work on the aircraft. Later that day FAA personnel conducted a routine FAA inspection of the plane and found that it was completely devoid of seats. ⁴

On the basis of the above information, ⁵ which Agent Foley submitted in an affidavit to a federal magistrate, he obtained an order from the magistrate authorizing placement of an electronic surveillance device in the aircraft. Pursuant to that order, government agents entered the plane on February 4, 1979, and installed a beeper in the cockpit area. The agents observed the plane's departure from the Miami airport on the morning of February thirteenth. Just after midnight on the fourteenth, the aircraft's signals were picked up as it approached the continental United States. A Customs aircraft followed appellants' plane from a point near West Palm Beach to the airport in Panama City, Florida, where it landed at three o'clock that morning. After making a landing at the same airport, the Customs agents who had followed the Constellation were met by Customs officials from the Panama City branch office. Meanwhile, the Constellation, after landing and while taxiing, had become stuck when its front wheel went off the runway. An airport security officer observed McDonnell, Dennis Flynn, and Henry Mora deplane and noticed that the plane was loaded with some kind of bundles. Appellants asked the officer whether they could get assistance in dislodging the plane's wheel but were told help would be unavailable until later in the day. They then left the terminal area on foot and were arrested by Customs officers while standing on a road near the runway. A warrantless search of the plane thereafter disclosed a cargo of approximately thirteen tons of baled marijuana. Fingerprints taken from the aircraft matched those of McDonnell and Flynn.

Appellants ⁶ were charged and convicted of possession of marijuana with intent to distribute in violation of 21 U.S.C. § 841(a)(1). ⁷ They appealed to this court challenging the district court's denial of their motions to suppress and contesting the sufficiency of the evidence on which their convictions were based. While the appeal was pending the Fifth Circuit decided, and then voted to rehear en banc, the case of United States v. Michael, 622 F.2d 744 (5th Cir. 1980), which addressed the issue of whether placement of a beeper on the outside of a vehicle requires a warrant or probable cause under the fourth amendment. The en banc court held that neither a warrant nor probable cause were necessary and that reasonable suspicion of criminal activity was sufficient to justify installation of the beeper. United States v. Michael, 645 F.2d 252 (5th Cir. 1981) (en banc). In light of Michael, we remanded this case to the district court for a determination of the placement of the beeper. Had the beeper been attached to the outside of the aircraft, Michael would have controlled, ⁸ and it would have been unnecessary to decide the admittedly close question whether the warrant here was based on probable cause. On remand the parties stipulated that the beeper was installed on the inside of the plane in the cockpit area. The Michael court did not consider the legality of a warrantless beeper installation inside a conveyance. ⁹ Before addressing this issue, we first examine the facts of the case before us to determine the validity of the warrant. Having reviewed the supporting affidavit, we conclude that the warrant was based on probable cause. Because the intrusion into appellants' plane was justified by a valid warrant, we need not decide whether it would have transgressed the bounds of the fourth amendment had it been conducted without a warrant on the basis of a mere reasonable suspicion.

Appellants' motion to suppress the contraband and other evidence discovered during Customs' search of the Constellation at the Panama City Airport is based on two arguments. First, appellants claim the warrant authorizing attachment of the beeper to their plane was not supported by probable cause. Since Customs' observation of appellants' landing and the ensuing search of the plane at the Panama City Airport could not have occurred but for the installation of the electronic device, appellants argue, the contraband discovered during that search is the fruit of a poisonous beeper and therefore should have been suppressed. Appellants' second contention is that, even if attachment of the beeper and surveillance of their whereabouts was authorized by a valid warrant, Customs should have obtained another warrant before searching the aircraft at Panama City. Moreover, appellants claim that there was no probable cause when the plane arrived at Panama City that it contained contraband and the search was therefore illegal. The following two sections address these arguments in turn.

II. The Beeper Search

Appellants advance three arguments for their position that the affidavit used by Agent Foley to obtain the beeper warrant was invalid. They claim first that the statements made by Abram to Agent Foley and recounted by Foley in the affidavit failed to meet the reliability...