U.S. v. Nigro, 81-5535

• Decision Date: 13 February 1984
• Docket Number: No. 81-5535,81-5535
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Edward Robert NIGRO, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 100

727 F.2d 100

UNITED STATES of America, Plaintiff-Appellee, v. Edward Robert NIGRO, Jr., Defendant-Appellant.

No. 81-5535.

United States Court of Appeals, Sixth Circuit.

Argued Oct. 10, 1983.

Decided Feb. 13, 1984.

George V. Denny, III, argued, Sherman Oaks, Cal., for defendant-appellant.

W. Hickman Ewing, Jr., U.S. Atty., Devon L. Gosnell, Asst. U.S. Atty., argued, Memphis, Tenn., for plaintiff-appellee.

Before LIVELY, Chief Judge, and EDWARDS, ENGEL, KEITH, MERRITT, KENNEDY, MARTIN, JONES, CONTIE and KRUPANSKY, Circuit Judges ^*.

LIVELY, Chief Judge, delivering the opinion for the Court.

A divided panel of this court reversed Nigro's conviction on four counts of drug-related offenses and one count of unlawfully carrying firearms during the commission of a felony. The government filed a petition for rehearing, with a suggestion that the case be reheard en banc. Rules 40 and 35, F.R.A.P. This court granted the petition for rehearing and directed that the case be reheard en banc. The effect of this action by the court was to vacate the previous opinion and judgment of this court and to restore the case on the docket as a pending appeal. Rule 14, Rules of the Sixth Circuit. The court received supplemental briefs from the parties and heard additional oral argument, after which the case was submitted for decision by the full court.

I.

On April 26, 1977 a four-engine DC-6 cargo plane landed at Memphis International Airport at about 8:30 a.m. One of the engines on the plane was "feathered"--i.e., a propeller was not functioning and was turned inward toward the plane. It is common practice to notify the control tower of such a condition before landing. The district judge found, following a suppression hearing, that no notification was given. The plane also followed an unusual pattern in landing. Because the pilot had not notified the tower of the type of plane he was flying, it was necessary to change the landing instructions after the original approach. The plane landed and taxied to a private fuel supplier, Hi-Air, where it was refueled. The circumstances surrounding the arrival of the plane had aroused the concern of John Wright, Chief of the District Office of the Federal Aviation Agency (FAA), and sometime later he drove out to the Hi-Air ramp, parking his car under the nose wheel so the plane was immobilized.

Wright saw someone in the cockpit and climbed a ladder hanging from the side of the plane to the cockpit door. He identified himself as an FAA inspector and questioned the occupant about the plane. The occupant was Brian Corp, who said he was a pilot for Mackey Airlines and was delivering the plane from Miami to Detroit. When questioned further Corp was evasive and hostile, requesting Wright to leave the plane. Wright climbed down the ladder and directed another FAA official to check Corp's credentials. When this official attempted to question Corp further, Corp denied having his pilot certificate or his medical certificate, both of which are required to be carried by pilots and to be produced upon request by FAA officials. Upon further questioning Corp stated that he did not have a license and that he didn't even know his name. He gave similar answers to Wright a short time later.

While on the ladder Wright saw that the plane did not have a normal cabin door, but that a solid sheet of plywood was blocking the doorway. After descending the ladder Wright called airport security for assistance and notified the United States Customs Service in New Orleans of his suspicions concerning the plane. While going through the operations room at Hi-Air to make the call to New Orleans Wright saw two men walking back and forth between the DC-6 and the Hi-Air lounge. He stopped one of the men, and upon learning that he was with the DC-6, identified himself as an FAA inspector and said he wanted to talk with the man. The other person replied that he was going out to the plane and would talk with Wright later. Wright did not see either of the two men again.

One of the men who came off the plane requested the operations director of Hi-Air to refuel it. It required 4100 gallons of gas and 68 gallons of oil and took two to three hours to complete the fueling process. One of the men who left the plane when it landed had paid Hi-Air for the fuel with a $2,000 cashier's check and sixteen one-hundred dollar bills which he took from a briefcase filled with money.

After being called by Wright, Customs Inspector Halbert Jones went to the Hi-Air ramp and talked with Corp. Corp denied being the pilot and refused to answer when asked if he had entered from a foreign country and if he had a general declaration. When asked for identification Corp gave Jones his passport which showed entry and exit stamps for Colombia and Venezuela in February 1977. Corp again refused to answer when asked if he had been out of the country. Inspecting the exterior of the plane Jones saw nicks on the propellers and underside which indicated to him that the plane had been operated from a gravel airstrip. In addition, the windows were painted over and there was a large improvised latch on the exterior. Jones opened the unlocked belly cargo door of the plane and found marijuana debris in the compartment. Corp was arrested and placed in a police car. Subsequently a key which fit the lock on the plane was found in an ashtray in the police car near where Corp was seated. Jones then opened the compartment and found 5,420 pounds of marijuana, two .30 caliber M-1 carbine rifles and several hundred rounds of ammunition.

A bank teller identified Nigro as the person who had purchased a $2,000 cashier's check payable to Hi-Air, saying he paid for it with $100 bills which he took from a briefcase. Nigro's fingerprints were found inside the DC-6. A grand jury indicted Corp, Nigro and Jacques Damien Lee on July 12, 1977, charging them with conspiracy to possess controlled substances with intent to distribute and to import into the United States, 21 U.S.C. Sec. 846; possession of controlled substances with intent to distribute, 21 U.S.C. Sec. 841(a)(1); importation of marijuana, 21 U.S.C. Sec. 952(a); possession of marijuana on an aircraft not having marijuana entered on the manifest, 21 U.S.C. Sec. 955; and unlawfully carrying firearms during the commission of a felony, 18 U.S.C. Sec. 924(c)(2).

Corp was brought to trial and in November 1977, a hearing was held on his motion to suppress evidence taken from the DC-6. The district court issued a memorandum opinion denying the motion. United States v. Corp, 452 F.Supp. 185 (W.D.Tenn.1977). Nigro was a fugitive until his arrest in March 1981. After his arrest he filed a pretrial motion to suppress the evidence and it was stipulated that the testimony would be substantially the same as that taken at the evidentiary hearing on Corp's motion and that a further hearing was not required. After Nigro's motion was denied he was convicted by a jury on all five counts of the indictment. The court sentenced Nigro to five years imprisonment on counts 2, 3 and 4, to be served concurrently, followed by two years special parole, and to three years imprisonment on count 5, to be served consecutive to the five-year sentence on counts 2, 3 and 4, for a total of eight years. Imposition of sentence on count 1 was suspended and Nigro was placed on probation for three years to begin at the termination of his sentences on counts 2, 3, 4 and 5. In addition the court imposed fines of $15,000 each on counts 1, 2, 3 and 4 for a total committed fine of $60,000.

II.

On appeal Nigro argues that the officers did not have probable cause to search the airplane. Even if probable cause did exist, he argues that there were no exigent circumstances which excused the officers from the requirement of obtaining a search warrant. Though the government maintains that Nigro lacked standing to object to the search of the plane, we conclude that under all the circumstances, including the stipulation for use of the Corp hearing as a basis for deciding Nigro's motion, standing was established. The government contends there was abundant probable cause to search the DC-6 and that exigent circumstances recognized in the "automobile exception" to the requirement of a search warrant existed in this case.

Probable cause has been defined repeatedly by the Supreme Court in terms of the facts and circumstances known to the officers at the time the decision is made to undertake an arrest or search. See, e.g. Brinegar v. United States, 338 U.S. 160, 175-76, 69 S.Ct. 1302, 1310-11, 93 L.Ed. 1879 (1949):

Probable cause exists where "the facts and circumstances within their [the officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that" an offense has been or is being committed. Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543.

(Footnote omitted). Tested by this standard we conclude that the officers did have probable cause to search the DC-6.

At the time the decision to search was made the officers knew that the plane had landed without giving the tower any notice of the feathered propeller or of its configuration, requiring an unusual landing pattern. They knew that its fuel tanks were nearly empty and that the plane was capable of flying from South America without refueling. They knew that two of the three occupants had left the plane immediately after landing and had eventually paid for the fuel partly with $100 bills taken from a briefcase filled with money. They knew that these two men had disappeared after one of them agreed to talk with FAA Inspector Wright. They knew that the man who remained with the plane refused to answer questions about the origin of the flight to Memphis, the plane's flight or destination, and even claimed not to know his own name. When asked for identification this man, Corp, produced a...