U.S. v. Freeman

• Decision Date: 30 August 1982
• Docket Number: No. 81-1336,81-1336
• Citation: 685 F.2d 942
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gregory James FREEMAN and David Lyle Boese, a/k/a Dennis Phillip Stevens and David Sterling, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 942

685 F.2d 942

UNITED STATES of America, Plaintiff-Appellee, v. Gregory James FREEMAN and David Lyle Boese, a/k/a Dennis Phillip Stevens and David Sterling, Defendants-Appellants.

No. 81-1336.

United States Court of Appeals Fifth Circuit.

Aug. 30, 1982.

Roland Hill, Fort Worth, Tex., for Freeman.

Topel & Goodman, William M. Goodman, Marcus S. Topel, San Francisco, Cal., for Boese.

Gerhard Kleinschmidt, Asst. U. S. Atty., Fort Worth, Tex., for United States.

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

Before BROWN and RANDALL, Circuit Judges, and DUPLANTIER, District Judge ^*.

RANDALL, Circuit Judge:

Defendants Gregory James Freeman and David Lyle Boese were indicted and convicted of violations of 21 U.S.C. §§ 841(a)(1), 846, 952, 960, and 963 for possession of and conspiracy to possess cocaine with intent to distribute and for importation of cocaine. On appeal, Freeman and Boese argue that evidence admitted against them at their joint trial was the result of illegal searches and seizures by DEA agents. This case demonstrates the value of cautious and methodical police work. The government agents involved in this case took time to obtain search warrants at every conceivable opportunity, and thus we hold that, even assuming for purposes of argument that one of the warrants was partly invalid, the perspicacity displayed by the agents saved the remaining searches from invalidity. Because we think that the vast majority of evidence admitted against Boese was properly seized, and admission of the remainder was harmless error even if improper, we affirm Boese's conviction. We also hold there was no error in admitting any of the evidence against Freeman, and therefore affirm his conviction as well.

The evidence challenged by the defendants comes from a series of four searches conducted by DEA agents. Each search was made pursuant to a warrant obtained from a neutral and detached magistrate. The first search took place on November 21, 1980, and involved a search of Boese's house at 256 Seadrift Road, Stinson Beach, California. A search of Boese's Jeep was also made and produced two briefcases. A second warrant to search the briefcases was issued on November 24, 1980. This search led the agents to the Sound Genesis Warehouse at 2001 Bryant Street in San Francisco, California. A warrant was issued for this third search on November 25, 1980, and a search of the warehouse was made the same day. On December 4, 1980, a fourth warrant was issued and a safety deposit box belonging to Boese was searched. Each of these four searches produced evidence used against the two defendants at their trial.

We first consider the claims made by defendant Boese as to each of the four warrants. Since Freeman's claims depend on our resolution of these issues, we address his arguments afterwards.

I. The Search of the Seadrift Residence.

A. The Supporting Affidavit.

Boese argues that the affidavit accompanying the application for the first warrant did not state sufficient facts to justify a search of the Seadrift premises. The affidavit was made by DEA Agent Michael J. Fiorentino. A summary of it follows:

On April 24, 1980, United States Customs Inspectors discovered that a shipment which had arrived at the Dallas-Fort Worth International Airport contained approximately twenty-eight pounds of cocaine. The cocaine was concealed inside of six scuba diving tanks which had false bottoms. Information available to U.S. Customs at the time showed that the shipment was sent from David Sterling, Lagos, Nigeria, to David Sterling, c/o U.S. Customs, Dallas-Fort Worth Airport, Texas. Preliminary investigations by U.S. Customs Inspector Larry Hoyle revealed that on April 23, 1980, a man identifying himself as David Sterling had retained customs brokers D. J. Sekin and Company, Inc., of Dallas, Texas, to clear the shipment through customs and send it by Emery Air Freight to Sterling at the Fairmont Hotel in San Francisco. DEA Agents John Luger and Russell Pfeiffer discovered that a David Alan Sterling had checked into the Fairmont Hotel in Dallas, Texas, on April 23, 1980, and checked out of the hotel on the same date. Luger and Pfeiffer replaced a small quantity of cocaine in the shipment and permitted it to be forwarded to San Francisco in an attempt to make a controlled delivery to Sterling. The shipment arrived at the San Francisco International Airport on April 28, 1980.

On April 30, 1980, a man identifying himself as David Sterling picked up the shipment at the Emery Air Freight Warehouse in South San Francisco. Sterling and an unidentified limousine driver placed the freight in a limousine which was followed by Sterling and an associate subsequently identified as defendant Gregory Freeman. The party then drove to the Fairmont Hotel in San Francisco.

At the Fairmont, Agent Fiorentino observed Sterling arrange for the baggage to be placed in a storage area of the hotel. Sterling left for the Mark Hopkins Hotel across the street. Shortly thereafter Sterling left the Mark Hopkins carrying a briefcase. He was not seen again.

From April 30, 1980, until May 2, 1980, DEA agents maintained a continuous surveillance of the Fairmont Hotel. On May 2, 1980, a representative of K & M Drayage picked up the freight consigned to Sterling and transported it to the K & M warehouse for storage. Fiorentino and another DEA Agent, Steven Wood, interviewed the owners of the warehouse, James and Dennis Eagan, and discovered that Sterling had retained the warehouse to store the freight until an undisclosed future date. Dennis Eagan also stated that Freeman was a former employee of the warehouse and a close personal friend of Eagan's deceased brother. The freight was subsequently transported to the Drug Enforcement Administration Office at the San Francisco International Airport for storage. ¹

On May 12, 1980, Fiorentino learned from Edmund DeGange, a taxicab driver, that a man using the name Sterling hired him outside of the Chancellor Hotel, 433 Powell Street, San Francisco, to pick up some diving gear and a camera case that Sterling had stored in the K & M Warehouse. Mr. DeGange had gone to the warehouse and attempted to pick up the freight with a money order that Sterling gave him for storage fees. Attempts to locate Sterling at the Chancellor Hotel were unsuccessful.

The affidavit then describes several months of investigations by Fiorentino and others in an attempt to identify Sterling and discover his whereabouts. Fiorentino learned that Sterling might also have the alias of Dennis Phillip Stevens. Subpoenaed telephone toll records of calls made at Freeman's residence included a call to Stevens' telephone number. The address listed for that number was 256 Seadrift Road, Stinson Beach, California. The phone call was made at 2:24 a.m. on May 1, 1980, approximately one hour after Freeman was last seen at the Fairmont Hotel by DEA agents. Agents Fiorentino and Woods identified a picture of Stevens taken from his California driver's license as the subject using the name Sterling at the Fairmont. An employee of the D. J. Sekin customs brokerage firm in Dallas identified the picture of Stevens as that of the customer representing himself as Sterling on April 23, 1980.

Fiorentino learned that a 1977 report by Special Agent Dennis Petrotta from San Francisco had mentioned that Stevens was suspected of transporting cocaine from Peru to the United States using the commercial vessel the "Santa Mariana." Chief Mate of the "Santa Mariana" was Mahlon Boese. According to the 1977 report, both Mahlon and David Lyle Boese listed an identical address in Larkspur, California, and David Lyle Boese was the owner of a 1954 Jaguar registered to Stevens. On June 17, 1980, Agent Wood determined that Mahlon W. Boese was the registered owner of a house at 256 Seadrift Road, Stinson Beach, California.

On July 8, 1980, Fiorentino read in the San Francisco Chronicle that David Sterling was injured when his motorboat exploded in San Francisco Bay. A nurse at the St. Francis hospital burn ward in San Francisco identified a photograph of Stevens as that of the injured Sterling.

Fiorentino next examined three passport applications made by Stevens in April of 1977, November of 1976, and October of 1974. The photographs attached to each application were those of Sterling. In September of 1980, handwriting analysis of samples by Sterling and Stevens was performed by a Document Examiner for the United States Postal Inspection Service Laboratory in San Bruno, California; the conclusion reached was that the samples were probably written by the same person.

On October 29, 1980, Fiorentino interviewed Mr. George Elwell, Manager for the Seadrift Co. Realtors in Stinson Beach, California. Mr. Elwell stated that David Boese lived at the 256 Seadrift Road residence, and gave a description of Boese which matched that of Sterling and Stevens.

On November 3, 1980, Jeff Bradley of the California Department of Motor Vehicles reported to Fiorentino that thumbprints from the license applications of Stevens and Boese matched. On November 13, Fiorentino compared Stevens' and Boese's passport applications and noted that the photographs of Boese were the same as those of Stevens. ²

On November 20, 1980, based upon the above information, United States Magistrate Owen E. Woodruff authorized a search of the premises located at 256 Seadrift Road. The warrant authorized a search for and seizure of passports, drivers licenses, receipts for airline tickets and hotel registrations, bills of lading, receipts for purchase of scuba diving and camera equipment, bank and safety deposit box records, correspondence and other business records relating to importation and distribution of cocaine and other controlled substances, cocaine itself or other controlled substances, and any dilutents, cutting agents, scales, packaging materials or other items used in the...