U.S. v. Forker

• Decision Date: 09 April 1991
• Docket Number: No. 90-8347,90-8347
• Citation: U.S. v. Forker, 928 F.2d 365 (11th Cir. 1991)
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Daryl FORKER, Richard Frawley, Defendants-Appellees. Danny Lee Hinman, Defendant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 365

928 F.2d 365

UNITED STATES of America, Plaintiff-Appellant, v.Daryl FORKER, Richard Frawley, Defendants-AppelleesDanny Lee Hinman, Defendant.

No. 90-8347.

United States Court of Appeals Eleventh Circuit.

April 9, 1991.

F. Gentry Shelnutt, Amy D. Levin, Asst. U.S. Attys., Atlanta, Ga., for plaintiff-appellant.

Steven H. Sadow, Atlanta, Ga., for Frawley.

C. Michael Abbott, Atlanta, Ga., for Forker.

Appeal from the United States District Court for the Northern District of Georgia.

Before HATCHETT and DUBINA, Circuit Judges, and HILL, Senior Circuit Judge.

DUBINA, Circuit Judge:

Appellant, the United States of America, appeals the district court's order suppressing evidence in the appellees' criminal proceeding.Appellee, Richard Frawley("Frawley"), filed a motion to suppress evidence of an excess of $150,000 in cash found in his Cadillac automobile, and evidence of a key to the Cadillac found at the time of his warrantless arrest.Appellee, Daryl Forker("Forker"), sought to suppress evidence of the cash found in the Cadillac he had been driving.The matter was referred by the district court to a United States magistrate judge.The magistrate judge conducted an evidentiary hearing and entered a report and recommendation recommending that the appellees' motions to suppress be denied.The district court rejected the magistrate judge's recommendation and granted the appellees' motions to suppress.Upon a review of the record, we find that the district court erred in granting the motions to suppress.

I.BACKGROUND

In August 1988, undercover Drug Enforcement Administration (DEA) agents attempted to negotiate a sale of 1,000 pounds of marijuana with Todd Chapman and Mark Fustine.During these negotiations, agents observed Chapman and Fustine meeting with Hinman, Hrenko, ¹ and Forker, and from these negotiations learned that the money for the purchase of the marijuana was to come from Chicago, Illinois.The agents were unable to coordinate the details of the transaction so the deal never materialized.Ultimately, Chapman and Fustine were arrested for their participation in the conspiracy and they agreed to cooperate with the DEA.During a debriefing by Agent Barton, Chapman and Fustine discussed their involvement in three or four prior marijuana transactions with Hrenko, Forker, Hinman, and other unknown persons from Chicago.Agent Barton and Fustine, now working together, contacted Hrenko to negotiate another marijuana sale.

After Agent Barton and Fustine's telephone conversations with Hrenko, they decided that the marijuana would be viewed in Atlanta, Georgia.On March 3, 1989, Hrenko met with Agent Barton and viewed approximately 500 pounds of marijuana.At the time, Hrenko stated he was interested in purchasing approximately 630 pounds of marijuana from Agent Barton.During the negotiations, Hrenko told Agent Barton that the money would be in a box and would be shown to Fustine.Thereafter, Fustine, Forker and Hrenko met at the Embassy Suites Hotel and agreed that Forker would have to go elsewhere to pick up the money.After this discussion, which was monitored by a wire worn by Fustine, surveillance agents observed Forker leaving the Embassy Suites and driving a rental car to the Holiday Inn on Powers Ferry Road and Interstate 285.He was seen entering the Holiday Inn and then leaving a short time later.This time, however, he entered Frawley's Cadillac, which was parked at the Holiday Inn and which was the same car, with the same tag, that had been present during the aborted purchase of marijuana in August of 1988.

Forker initially drove Frawley's Cadillac away from the Holiday Inn toward the area of the Embassy Suites Hotel, but he then began driving erratically and ultimately returned to the Holiday Inn.Upon reaching the Holiday Inn, Forker got out of the Cadillac whereupon he was arrested by DEA agents fifteen yards from the car.Although the arrest occurred almost immediately after Forker's exit from the Cadillac, the keys to the Cadillac were not found on his person, but were located underneath a nearby vehicle.After the keys were found, the agents searched the car and the trunk.In the trunk, the agents discovered a cardboard box containing a large amount of cash.

While the search of the Cadillac was taking place, agents observed Frawley in the window of his motel room and discovered, through the motel registration, the exact room Frawley occupied.Within a short time after Forker's arrest, DEA agents also arrested Frawley and discovered a second set of keys to the Cadillac in his pocket.

A federal grand jury returned a three-count indictment against Forker and Frawley, charging them with conspiracy to possess in excess of 100 kilograms of marijuana, with attempting to possess in excess of 100 kilograms of marijuana in August 1988 and with attempting to possess in excess of 100 kilograms of marijuana from January 10 to March 3, 1989.

II.DISCUSSION

Rulings on motions to suppress evidence involve mixed questions of law and fact.SeeUnited States v. Garcia, 890 F.2d 355(11th Cir.1989).While we must defer to the district court's findings of fact unless clearly erroneous, we are to review the district court's application of law to the facts de novo.United States v. Campbell, 920 F.2d 793(11th Cir.1991).

A.Vehicle Search

An officer can conduct a warrantless search or seizure of a vehicle if there exists probable cause to believe that the vehicle contains contraband or other evidence which is subject to seizure under the law and there exist exigent circumstances which necessitate a search or seizure.United States v. Alexander, 835 F.2d 1406, 1409(11th Cir.1988).Probable cause to search exists "when the facts and circumstances would lead a reasonably prudent [person] to believe that the vehicle contains contraband."Id., quotingUnited States v. Clark, 559 F.2d 420, 424(5th Cir.), cert. denied, 434 U.S. 969, 98 S.Ct. 516, 54 L.Ed.2d 457(1977).Exigent circumstances arise when the inevitable delay incident to obtaining a warrant must give way to a need for immediate action.United States v. Satterfield, 743 F.2d 827, 844(11th Cir.1984), cert. denied, 471 U.S. 1117, 105 S.Ct. 2362, 86 L.Ed.2d 262(1985).If there is a possibility that the contraband will be destroyed or removed, then a warrantless search is justified due to these exigent circumstances.The officers or agents must determine if exigency exists at the time of the seizure of the automobile, not at the time of the search of the vehicle.United States v. Hall, 716 F.2d 826, 829(11th Cir.1983), cert. denied, 467 U.S. 1251, 104 S.Ct. 3534, 82 L.Ed.2d 840(1984).

In reviewing the totality of the circumstances, as required by Clark, the district court found that probable cause existed for the warrantless search of the vehicle, but found that no exigent circumstances existed.Accordingly, the district court determined that the search of the vehicle was violative of Forker and Frawley's fourth amendment rights and the evidence seized from the trunk of the car should be suppressed.

As this court held in Alexander, overwhelming exigency is not necessary.835 F.2d at 1410.The ability of the vehicle to become mobile is sufficient to satisfy the exigency requirement.Id. at 1409."Put differently, the mobility of an automobile is exigency enough."United States v. Nixon, 918 F.2d 895, 903(11th Cir.1990)."[T]he requirement of exigent circumstances is satisfied by the 'ready mobility' inherent in all automobiles that reasonably appear to be capable of functioning."Id.

The facts in this case are supportive of a finding of exigency.The officers were not certain how many sets of keys to the Cadillac existed; they were not certain if the car would remain in the parking lot if they left to obtain a warrant.At the time Forker was stopped and arrested at the Holiday Inn parking lot, there were suspects in another hotel ten minutes away and Frawley, the suspected source of the cash as well as the known owner of the Cadillac driven by Forker, was inside the Holiday Inn.The agents had not apprehended all suspects and were not even aware of how many people were involved in the conspiracy.Further, the Cadillac was in the middle of a public parking lot, vulnerable to the efforts of cohorts of Forker's to seize the cash or destroy evidence.The agents were in the middle of a fast-moving series of events which prompted the search of the vehicle.The circumstances that prompted the search of the Cadillac were certainly exigent and as such, we find that the search of the vehicle was not violative of Forker and Frawley's fourth amendment rights.

B.Motel Arrest

The district court found there was no probable cause to arrest Frawley in his motel room.Accordingly, the district court granted the motion to suppress the key found on Frawley's person.We disagree with the district court and find that both probable cause and exigent circumstances existed to arrest Frawley in the motel room.

Probable cause was evident due to the knowledge by the DEA agents of several facts about Frawley which would have provided a reasonably prudent person with probable cause to believe that Frawley was involved in criminal activity.These facts included: (1) Frawley had been present in August when Hrenko and Forker had attempted to purchase 1,000 pounds of marijuana; (2) Frawley's Cadillac was present at the August attempted drug transaction and was present again at the March transaction; (3) Frawley was from Chicago, and the money for the drugs was to come from Chicago; (4) When Forker obtained the money for the deal he went to Frawley's motel room; (5) As Forker left Frawley's motel room, he drove Frawley's Cadillac; (6) Frawley had been observed watching Forker drive the Cadillac out of the motel parking lot; (7) The arrest of Forker and seizure of Frawley's Cadillac occurred at the motel where Frawley was staying; and (8) The number of peo...