U.S. v. Nargi

• Decision Date: 16 April 1984
• Docket Number: D,No. 942,942
• Citation: 732 F.2d 1102
• Parties: UNITED STATES of America, Appellee, v. Paul NARGI, Defendant-Appellant. ocket 83-1377.
• Court: U.S. Court of Appeals — Second Circuit

Page 1102

732 F.2d 1102

UNITED STATES of America, Appellee, v. Paul NARGI, Defendant-Appellant.

No. 942, Docket 83-1377.

United States Court of Appeals Second Circuit.

Argued March 13, 1984.

Decided April 16, 1984.

John J. Bergeron, Burlington, Vt. (Howard E. VanBenthuysen, Desautels & Bergeron, Inc., Burlington, Vt., of counsel), for appellant.

Holly K. Harris, Asst. U.S. Atty., Rutland, Vt. (George W.F. Cook, U.S. Atty. for the Dist. of Vt., Peter W. Hall, Asst. U.S. Atty., Rutland, Vt., of counsel), for appellee.

Before FEINBERG, Chief Judge, MANSFIELD and MESKILL, Circuit Judges.

MANSFIELD, Circuit Judge:

Paul Nargi appeals from an order of the District of Vermont, Albert W. Coffrin, Chief Judge, denying his pretrial motion to suppress 628 pounds of marijuana found in a van he was driving on April 14, 1983. Subsequent to that ruling, the defendant pleaded guilty to a charge of possession of marijuana with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1) and was sentenced to two years imprisonment followed by a three-year special parole term. The plea was entered pursuant to an agreement preserving Nargi's right to appeal the suppression ruling.

This case stems from events on the night of April 14, 1983, in and around Burlington International Airport. Shortly before 9:00 P.M. that evening, Officer Steven A. Cheney of the Burlington, Vermont, Airport Police received a phone call from Trooper Lawman of the Vermont State Police, who relayed information he had received from Jack Barnwell, a United States Customs Officer stationed in North Carolina. Barnwell had advised Lawman that a twin-engine aircraft with mud on its fuselage and bearing the tail number T or N6240J, which was suspected of carrying bales of marijuana, had taken off from North Carolina and was believed to be headed for Burlington where it would arrive sometime between 9:00 and 9:30 that evening. He reported that two white men were aboard the plane, one approximately six feet, two inches tall with a beard, the other slightly shorter and clean shaven. Barnwell also reported that the men and the aircraft had made two earlier trips to Burlington from North Carolina, and he had noted that the men had seemed very nervous on the first trip, less so on the second, and not very nervous at all on the night of April 14.

Officer Cheney called the South Burlington Police Department to request assistance, and then asked the airport control tower to inform him when the suspect aircraft made radio contact with the tower.

Cheney next called Special Agent Theodore Handoga of the Drug Enforcement Agency, to inform him of what he had learned. Handoga had also received the tip about the twin-engine plane and was attempting to gather more information. Cheney agreed to keep Handoga posted about the flight's arrival. Five minutes later, after Handoga had contacted his sources, he confirmed Cheney's information, advising that the plane was a gray Beech Baron with a blue stripe, bearing the tail number N6240J. The two men spoke once more when Cheney learned from the airport control tower that the plane in question had radioed that it expected to arrive in 10 or 15 minutes; Handoga instructed Cheney not to allow the aircraft or anyone associated with it to leave the airport, and then departed for the airport.

Cheney, who had been joined by another South Burlington police officer, drove in his airport police "Bronco" to a point near the southern end of the airport. Airport traffic was very light at that time, and there were no other ground vehicles in operation in the area. The officers were joined by a third South Burlington policeman as they awaited the plane's arrival. They were eventually notified by the tower that the aircraft was about to land.

Cheney saw the plane as it was taxiing south along Runway 15 toward a group of hangars in the far corner of the airport known as the "alert area." He lost sight of the craft as it went down a grade and behind some buildings, still heading in the same direction. The officers contacted the tower to verify that the plane was destined for the alert area and then drove to that area.

Upon reaching the dark alert area, the officers began checking the various buildings. Officer Cheney exited the Bronco to look inside one of the hangars but he did not see any moving aircraft or any planes meeting the description he had received from Trooper Lawman. Cheney got back in the Bronco and began driving toward another hangar.

Just then a van drove past the Bronco, moving at a normal rate of speed. It was coming from the back of the alert area and was headed for the airport exit. The van was driven by a white, clean shaven male; no other occupants were visible. As the van passed the Bronco and cut across its headlights, the driver turned his head slightly to the left, away from the police vehicle. Officer Cheney considered the motion suspicious, and he also noted that the van was capable of carrying bales of marijuana.

Cheney pulled out after the van and signaled it to stop. The van stopped and Cheney brought his Bronco to a halt approximately 20 feet behind the van. The van's driver jumped out immediately, leaving the driver's door open and walking back toward the police vehicle. The police simultaneously exited the Bronco. Cheney walked directly toward the rear of the van with his hand on his service revolver; he unsnapped the holster, but did not remove the gun. One of the officers went to the right of the van, carrying a shotgun. The third officer went to the left of the van, and stood in the "ready position" with his revolver drawn.

Cheney met the driver of the van midway between the two vehicles. He asked the driver for identification and informed him that he had been stopped because of suspected marijuana trafficking. The man produced papers identifying himself as Paul Nargi. Cheney then asked whether Nargi would mind opening the van; Nargi replied that he would. Cheney walked to the rear of the van and looked through the windows with the aid of a flashlight. In the course of his 10 years' police experience he had seen bales of marijuana. He now observed what appeared to be approximately 12 or 15 bales of marijuana. He then placed Nargi under arrest.

Following his arrest Nargi was charged in an indictment with conspiring to distribute marijuana, 21 U.S.C. Sec. 841(a)(1) (Count 3), possession of marijuana with intent to distribute, 21 U.S.C. Sec. 841(a)(1) (Count 4), and possession of marijuana aboard an aircraft

in violation of 18 U.S.C. Sec. 2 (Count 5). On June 24, 1983, Chief Judge Coffrin held a hearing upon Nargi's motion to suppress the marijuana as illegally seized, at which Officer Cheney, DEA Agent Handoga, and U.S. Customs Officer Jack Barnwell testified. The motion was denied and Nargi then pleaded guilty to Count 4 pursuant to a plea agreement reserving his right to appeal the denial of the suppression motion, which is now before us.

DISCUSSION

Nargi argues that the seized marijuana must be suppressed as the fruits of an illegal search. Since the government concedes that there was not probable cause to arrest Nargi at the time his van was stopped, the threshold question is whether the stop can be justified as an investigatory measure permitted by Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and its progeny. Nargi claims that the police did not have sufficient grounds to make such a stop and that in any event the manner in which they effected the stop was so intrusive as to amount to an arrest. We disagree with both contentions.

The controlling principles are well established. "The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape." Adams v. Williams, 407 U.S. 143, 145, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972). On the other hand, a policeman does not have unbridled discretion to make an investigatory stop; he must be aware of specific, objective and articulable facts giving rise to a reasonable suspicion that the suspect is, was, or is about to be engaged in criminal activity. United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 694, 66 L.Ed.2d 621 (1981); Reid v. Georgia, 448 U.S. 438, 440, 100 S.Ct. 2752, 2753, 65 L.Ed.2d 890 (1980) (per curiam); Brown v. Texas, 443 U.S. 47, 51, 99 S.Ct. 2637, 2640, 61 L.Ed.2d 357 (1979); United States v. Brignoni-Ponce, 422 U.S. 873, 884, 95 S.Ct. 2574, 2581, 45 L.Ed.2d 607 (1975); Adams v. Williams, 407 U.S. 143, 146-49, 92 S.Ct. 1921, 1923-1924, 32 L.Ed.2d 612 (1972); Terry v. Ohio, supra, 392 U.S. at 21, 88 S.Ct. at 1879; United States v. Harley, 682 F.2d 398, 400-01 (2d Cir.1982); United States v. Streifel, 665 F.2d 414, 421 (2d Cir.1981); United States v. Vasquez, 634 F.2d 41, 43 (2d Cir.1980); United States v. Buenaventura-Ariza, 615 F.2d 29, 31 (2d Cir.1980). A reviewing court must determine in each case whether the policeman's suspicions were reasonable under the circumstances. Sibron v. New York, 392 U.S. 40, 59, 88 S.Ct. 1889, 1900, 20 L.Ed.2d 917 (1968); United States v. Delos-Rios, 642 F.2d 42, 45 (2d Cir.), cert. denied, 451 U.S. 941, 101 S.Ct. 2025, 68 L.Ed.2d 330 (1981).

Upon the record facts, we have little difficulty in concluding that the police had ample justification for stopping Nargi's van. Officer Cheney had a detailed description of a plane that was...