U.S. v. Long

• Citation: 674 F.2d 848
• Decision Date: 30 April 1982
• Docket Number: No. 81-7290,81-7290
• Parties: 10 Fed. R. Evid. Serv. 438 UNITED STATES of America, Plaintiff-Appellee, v. Leland Wayne LONG, and Benjamin Charles Smith, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 848

674 F.2d 848

10 Fed. R. Evid. Serv. 438

UNITED STATES of America, Plaintiff-Appellee, v. Leland Wayne LONG, and Benjamin Charles Smith, Defendants-Appellants.

No. 81-7290.

United States Court of Appeals, Eleventh Circuit.

April 30, 1982.

Benjamin Daniel, Joseph A. Fawal, Birmingham, Ala., for Long.

Victor R. Arditti, El Paso, Tex., Don F. Gabriel, Tuscon, Ariz., for Smith.

Michael V. Rasmussen, Holly Wiseman, Asst. U. S. Attys., Birmingham, Ala., for plaintiff-appellee.

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

Before TUTTLE, KRAVITCH and JOHNSON, Circuit Judges.

JOHNSON, Circuit Judge:

At trial below a jury convicted Benjamin Charles Smith and Leland Wayne Long for violations of criminal drug laws and convicted Smith for violations of criminal aviation laws as well. They appeal. We affirm.

I. FACTS

We review these facts on appeal in the light most favorable to the government. See Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942).

In 1979, Smith moved to Georgia, where he lived under an alias and where he and his wife purchased adjoining tracts of land in an isolated rural area. The following year he purchased an airplane, giving his real name but claiming to act for a fictitious business at a non-existent address. Smith never registered the plane in his name or in that of his business. He rented a hangar at an airport in Talladega, Alabama, giving a fictitious address.

Customs officers, receiving information that Smith was involved in drug smuggling, obtained a court order and surreptitiously installed a transponder in Smith's plane on December 9, 1980. On December 15, an air traffic controller picked up a transponder signal on a plane headed south. A police officer, peering through the doors of Smith's hangar the next day, saw no plane inside. At 1:30 a. m. on December 16, a transponder signal was picked up this time on a plane headed north. ¹ The plane circled the area of Smith's land in Georgia for half an hour, then went on to land in Talladega, with two Customs planes in pursuit and landing behind it. A Customs pilot saw a man leaving the plane and shouted to him to halt. The man ran away with a curious, lurching gait. Unable to find the man, Customs agents looked through the windows of the plane-which was Smith's-and saw that the passenger seats had been taken out, that there were large white bundles inside, and that there was a boot in the cockpit.

The agents had received information that a truck with Florida license plates might be used in the smuggling operation. At 4:30 a. m., a truck drove toward the plane, turned, and slowly began to leave the area. Agents were able to see that the truck had a Florida license plate. The agents stopped the truck, ordered appellant Leland Long out of it, read him his rights, and searched him and the truck. The search produced keys to a Holiday Inn motel room into which Long had checked the day before and that was near Smith's land. The search also produced keys belonging to a truck in Smith's hangar and a commercial plane ticket made out to Ben Smith. Long, despite the time of day and even though there were no flights scheduled, stated that he had heard that he might obtain a ride to Florida at the airport. Long also at the time denied knowing the aircraft's pilot.

At dawn searchers found a trail of discarded items in an adjoining field. The items, which included keys to Smith's airplane; a boot matching the one left on the plane; a pilot's license in the name of Charles Smith; a Holiday Inn Matchbook; and paper with map coordinates for a town in Colombia, South America, led to some bushes, where Smith was found hiding. Smith, an amputee, had partially removed his leg prosthesis, had no shoes, and had $2,000 in cash on his person.

Agents searched Smith's plane and hangar after obtaining a search warrant. The plane held 676 pounds of marijuana, with a street value of $270,000; had an auxiliary fuel system allowing a round trip flight to South America without refueling; and contained charts, including one with Smith's fingerprints and a course to Colombia plotted and another with Long's fingerprints. A truck in the hangar contained paper with coordinates for Colombia.

In March 1981, Customs agents located the Georgia property that Smith's wife had owned at the time of the smuggling attempt. ² The land contained a barn but no residence. Agents walked through a field, looked through an open barn door, and saw two trash cans. Returning the next day with a search warrant, the agents found the trash cans and, inside them, strobe light devices commonly used to signal aircraft making clandestine contraband drops.

At trial, a jury convicted Smith of using a fraudulent airman's certificate in violation of 49 U.S.C.A. § 1472(b), of displaying misleading numerals on his aircraft in violation of 49 U.S.C.A. § 1472(b), of importing cargo not entered on the aircraft manifest in violation of 21 U.S.C.A. § 955, of importing marijuana in violation of 21 U.S.C.A. § 952, and of possession of marijuana with intent to distribute in violation of 21 U.S.C.A. § 841. It convicted Long of aiding and abetting the importation of marijuana in violation of 18 U.S.C.A. § 2 and 21 U.S.C.A. § 841 and of attempting to possess marijuana with intent to distribute in violation of 21 U.S.C.A. §§ 841 and 846.

II. ISSUES

A. Fourth Amendment Concerns

1. Court Order Authorizing Installation of a Transponder

Smith raises several arguments contesting the validity of the court order authorizing installation of a transponder on his airplane. First, he argues that the order was unreasonable because it authorized installation and monitoring of the beeper for 90 days. The former Fifth Circuit considered a similar warrant in United States v. Cady, 651 F.2d 290 (1981), and ruled that the relevant inquiry was the time during which a signaling device actually was in use, not the maximum time that an order permitted. ³ Seventeen days of operation the Court held reasonable in Cady. The week of operation in this case we therefore also hold reasonable.

Smith next alleges that the information on which the order was based was stale, unsupported, irrelevant, and not reliable, and that it therefore did not provide the probable cause necessary for issuing the order. Smith faces a difficult task in trying to overturn the order. It must indeed be based on probable cause, but if a magistrate, using "his own judgment based on the entire picture presented to him and utilizing his common sense" finds probable cause, " 'his determination is conclusive in the absence of arbitrariness.' " United States v. Weinrich, 586 F.2d 481, 487 (5th Cir. 1978) (quoting Bastida v. Henderson, 487 F.2d 860, 865 (5th Cir. 1973)), cert. denied, 441 U.S. 927, 99 S.Ct. 2041, 60 L.Ed.2d 402 (1979). We have reviewed the information forming the basis for the warrant and conclude that the magistrate's assertion that probable cause existed was not arbitrary. ⁴

Smith finally asserts that the transponder's weight and radio signal might have made flying his aircraft dangerous. His contention is utterly without supporting evidence. We dismiss this argument as frivolous.

2. Search of Barn

Smith contends that Customs agents violated his Fourth Amendment rights when they climbed a fence, entered land formerly belonging to Smith's wife, and looked through the open door of a barn. The strobe lights found the next day pursuant to a search warrant should, he concludes, have been excluded as evidence at trial. We reject this contention. A person can claim the protection of the Fourth Amendment only if he can show some legitimate expectation of privacy in the area or object searched. ⁵ The former Fifth Circuit has held that there is no legitimate expectation of privacy in outbuildings and open fields, even if fenced, unless they are part of the curtilage, or the immediate appurtenances, of a home. United States v. Williams, 581 F.2d 451, 453-54 (5th Cir. 1978), cert. denied, 440 U.S. 972, 99 S.Ct. 1537, 59 L.Ed.2d 789 (1979); United States v. Brown, 473 F.2d 952 (5th Cir. 1973); Hodges v. United States, 243 F.2d 281, 283 (5th Cir. 1957). There being no residence on the land at issue in the curtilage of which the barn arguably might have been situated, there was no legitimate expectation that Smith or anyone else could claim in the contents of the barn. ⁶

3. Search of Long's Person and Truck

Long argues that the Customs agents had no probable cause to arrest him at the airport and hence could not justify the search of his person and truck as incident to an arrest. Evidence from that search, he opines, therefore should not have been admitted at trial. We find his argument without merit. The test for probable cause is clear: probable cause exists if facts and circumstances within the knowledge of an arresting officer and of which he has reasonably trustworthy information are sufficient to warrant a man of reasonable caution in the belief that an individual has committed a crime. See, e.g., United States v. Elsoffer, 671 F.2d 1294 at 1298 (11th Cir. 1982); United States v. Preston, 608 F.2d 626, 632 (5th Cir. 1979), cert. denied, 446 U.S. 940, 100 S.Ct. 2162, 64 L.Ed.2d 794 (1980). We believe that the agents, knowing that ground crews often help unload contraband drugs from airplanes and that a truck with a Florida license plate might assist in the unloading, had probable cause to arrest Long when they saw him drive up near the plane in question at 4:30 in the morning at a deserted airport near Talladega, Alabama, using a truck with a Florida license plate.

B. Sufficiency of the Evidence

Both appellants contest the sufficiency of the evidence for certain convictions. ⁷ We may overturn the convictions only if, looking at the evidence in the light most favorable to the government, we conclude that a jury necessarily must have entertained a reasonable doubt about ap...