U.S. v. Lueck

• Decision Date: 14 June 1982
• Docket Number: No. 80-5898,80-5898
• Citation: 678 F.2d 895
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Arthur Mitchell LUECK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 895

678 F.2d 895

UNITED STATES of America, Plaintiff-Appellee, v. Arthur Mitchell LUECK, Defendant-Appellant.

No. 80-5898.

United States Court of Appeals, Eleventh Circuit.

June 14, 1982.

Arthur W. Tifford, Melvyn Kessler, L. Mark Dachs, Miami, Fla., for defendant-appellant.

Elizabeth A. Jenkins, Asst. U. S. Atty., Orlando, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before FAY, VANCE and ARNOLD ^*, Circuit Judges.

FAY, Circuit Judge:

The appellant, Arthur Mitchell Lueck, seeks to overturn his conviction for importation into the United States of approximately sixty pounds of marijuana and forty-five pounds of methaqualone, in violation of 21 U.S.C. §§ 952(a), 960, and for possession with intent to distribute marijuana and methaqualone, in violation of 21 U.S.C. § 841(a)(1), on the grounds, inter alia, that the trial judge improperly denied his motion to suppress the evidence and statements seized at the time of his arrest. Our appellant's fate, alas, is less fortunate than his name; after careful consideration, we reject Mr. Lueck's challenge.

I. THE FACTS: A Borderline Case

On the evening of March 20, 1980, Customs Air Officer Gary Grahn was on duty at the Air Traffic Control Center of the Federal Aviation Agency (FAA), in Miami, Florida. Officer Grahn's task was to survey the skies, by means of radar, in search of aircraft entering the United States in violation of Customs regulations. At approximately 8:25 p. m., Officer Grahn spotted the appellant's plane on radarscope at a point outside the United States, thirty-seven miles north northeast of Bimini. The craft, which was travelling in a north, northwesterly direction, was not emitting a transponder code ¹ and had not filed a flight plan, as mandated by FAA regulations. These violations, coupled with the plane's flight above open waters at night, aroused Customs Officer Grahn's suspicion. He sought immediate dispatch of a United States Customs Service chase plane to intercept and identify the craft. Officer Grahn maintained continued radar surveillance of the target until it was approximately ten miles east of Vero Beach.

Meanwhile, Customs pilots aboard the dispatched chase plane were able to identify the target as a single-engine, home-built, experimental aircraft known as a "Veri-Eze." The Customs plane tracked the Veri-Eze continuously on radar until a point above Titusville, Florida. By this time, approximately 9:40 p. m., a second Customs chase plane, manned by Customs Pilot Douglas Fults and Radar Operator, Customs Air Officer Dale Harper, had spotted the target. Aside from an interval of one to three minutes, the latter craft tracked the Veri-Eze without a break until its landing at about 9:50 p. m. at the Titusville-Cocoa Airport. Pursuing the target, the second chase plane landed at the same airport at 9:52 or 9:53 p. m.

Officers Fults and Harper proceeded at once to a hangar area which the Veri-Eze had been observed entering. Running down the row of hangars, Officer Harper found the Veri-Eze standing before an open, unlit hangar. The appellant emerged from the hangar and approached Officer Harper, who identified himself and displayed his badge. Harper's single gun was at all times pointed downward, away from Lueck; Harper at no time placed his finger on the trigger. Harper questioned Lueck as to the origin of his flight; after Lueck responded that he had come from South Carolina, Harper revealed that he had tracked the plane from outside the United States until its landing in Titusville. Harper then observed a Dodge Colt automobile within the hangar. The left front door of the car was open. In view of the conflict between Lueck's responses and Customs observations, Harper asked the appellant if he would accompany him to discuss the matter further with additional Customs personnel. Lueck acquiesced. Before the two men left the hangar area in search of additional Customs officers, Harper asked Lueck if the latter possessed any valuables in the craft which he wished to secure. Lueck freely responded that he had already placed a briefcase and jacket inside his automobile. Lueck then closed the canopy of the Veri-Eze. The two proceeded around the corner, approximately 100 feet from the hangar, where they met Officer Fults. The three men spoke for an additional five minutes before returning together to the hangar area.

At 10 p. m., another Customs craft landed at the airport. Morris Helgeson, a Customs pilot aboard the newly-arrived plane, questioned Lueck again regarding the origin of his flight. After receiving the same response as Officer Harper, Helgeson told Lueck that he had been tracked from foreign air space. Despite this, Lueck maintained that he had come from the Florida Keys, where he had visited a woman he wished not to involve. When queried as to why he had been flying so far out at sea, Lueck replied that he wished to avoid the T-Terminal C-Control Area in Miami.

Helgeson next advised Lueck that because he had crossed from foreign to domestic airspace without stopping to obtain a Customs inspection, a search would now be conducted of both the craft and the vehicle. Lueck's response was, "Fine, go ahead." Helgeson shone a flashlight into the craft's closed canopy, but detected no cargo. At this point, Harper informed Helgeson of Lueck's statement that he had transferred a flight jacket and briefcase from the Veri-Eze to the automobile. Helgeson walked over to the car. Reaching through the open door, Lueck retrieved for Helgeson the jacket and case. Helgeson peered into the car and observed no bulk cargo. After Helgeson stated, "Let's look in the trunk," Lueck complained that it was very difficult to open. Helgeson persisted in his request, suggesting that they try to open it. Lueck took a key from his pocket and placed it in the trunk lock, which opened immediately and without any difficulty. No sooner did the trunk open, however, than Lueck closed it. At Helgeson's request, Lueck opened the trunk a second time. Again, the trunk opened at once, and again Lueck shut it quickly. After unlocking the trunk yet a third time, Lueck finally let the trunk remain open.

The trunk contained three packages wrapped in heavy brown paper: One was a cardboard box; the remaining two were round packages. All were labeled "Fragile-Handle with Care" and contained return addresses of "J & J Electronics, North Carolina." One package was addressed to R. B. Johnson at an illegible street and city location. The remaining packages contained no forwarding addresses.

Asked what the packages contained, Lueck answered, "Ceramic parts." Helgeson smelled a heavy odor emanating from the packages which, from his experience in drug work, had taught him was that of marijuana. Helgeson stated that the packages did not smell like ceramic parts. Lueck agreed, maintaining that someone had set him up. Helgeson disputed the likelihood of a set-up, given the fact that both the trunk and hangar had been locked. After Helgeson closed the trunk, Lueck was given his Miranda warnings and placed under arrest.

On request, Lueck removed the cardboard box from the trunk. Officer Helgeson opened it and saw inside a plastic bag containing white pills. Helgeson told Lueck that he smelled marijuana in the airplane as well. After Lueck opened the craft's canopy, Helgeson decided to keep it closed. Customs officers seized the craft and vehicle later that night. The remaining evidence, including the cardboard box containing the white pills and the two additional packages recovered from the trunk, were given to agents of the Drug Enforcement Administration (DEA) at the scene, who took them to the DEA's Orlando office. That same night, the interior of the airplane was examined by a crime lab technician searching for prints and residue. A small amount of green leafy material was found in the rear cockpit. The residue, along with approximately fifty-four pounds of green leafy material contained in the two round packages found in the car trunk, were analyzed the next day by DEA chemists. The test confirmed what Officer Helgeson had determined at the airport, based on the packages' unmistakable smell: They contained marijuana. The white pills taken from the cardboard package were found to constitute forty-one pounds of methaqualone.

Both the craft and vehicle were registered in the name of the appellant, who is a certified pilot and 50 year-old engineer. The Veri-Eze craft seats two people, contains almost $50,000.00 worth of equipment and is sufficiently large to accommodate the three packages found in the car trunk. The hangar space where the vehicle and craft were parked on the night of the incident in question were leased to Lueck. The lease's prohibition against subleasing, as well as the management's lack of a key to the hangar space when leased and its periodic checking to make certain the hangar remained locked, assured Lueck's sole access to and control of the hangar space.

Prior to his trial on charges of drug importation and possession, the appellant moved to suppress the evidence found in the trunk and aircraft, as well as his pre-arrest statements. The trial court denied the motion, finding that Miranda warnings were properly given and that the warrantless search did not violate the fourth amendment. After his trial, the appellant was convicted on both counts of the indictment. He was sentenced to concurrent terms of two years' imprisonment on each count, along with a special parole term of two years. In addition, a fine of $5,000.00 was imposed as to Count One.

II. THE LEGAL CHALLENGE

A. Motion To Suppress

1. Pre-Arrest Statements

The appellant attacks the trial court's denial of his motion to suppress statements which he made to Customs officers prior to his arrest, on the grounds that they were obtained in violation of his constitutional right to Miranda warnings.

The universally...