U.S. v. Sigal
| Decision Date | 21 October 1974 |
| Docket Number | No. 73-1934,73-1934 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Barry SIGAL, a/k/a Barry Edwards, a/k/a David Allen Spector, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Stephen K. Lester, Asst. U.S. Atty. (Robert J. Roth, U.S. Atty., on the brief), for plaintiff-appellee.
Robert I. Kalina, New York City (Christopher J. Redmond, Wichita, Kan., on the brief), for defendant-appellant.
Before LEWIS, Chief Judge, and McWILLIAMS and BARRETT, Circuit judges.
This is a search and seizure case. Barry Sigal was convicted in a trial to the court of unlawfully possessing 445 pounds of marijuana with an intent to distribute in violation of 21 U.S.C. 841(a)(1). Prior to trial, Sigal filed a motion to suppress the use upon trial of the 445 pounds of marijuana obtained by United States Customs Agents from his airplane in Liberal, Kansas, on the grounds that such was obtained in an unlawful search and seizure. Also, Sigal sought to suppress the use upon trial of certain statements he made to the arresting agents at the Liberal, Kansas, airport on the grounds that such had been made under duress and prior to the time he had been advised of his constitutional right to remain silent. After an extended evidentiary hearing, the trial court denied the motion to suppress.
When the matter came on for trial, Sigal waived his right to jury trial and the case was tried on the basis of various stipulations, which included the right of the trial court to consider the testimony given at the hearing on the motion to suppress. No other evidence was offered by either side. Based, then, on such evidentiary matter, the trial court found Sigal guilty of having violated 21 U.S.C. 841(a)(1). Sigal now appeals his conviction, and we affirm.
The principal matter on appeal is whether the Government obtained the 445 pounds of marijuana from Sigal's airplane at the Liberal, Kansas, airport in a search and seizure which had been tainted by a prior unlawful intrusion. Our study of the matter leads us to conclude that the search and seizure was a lawful one, even though no search warrant had ever been issued, because the search and seizure was based on probable cause under exigent circumstances which obviated any necessity to obtain a search warrant. The facts as developed at the hearing on the motion to suppress will be summarized briefly in order to give meaning to our conclusion.
Barry Sigal crossed the border into the United States from Mexico at El Paso, Texas, under circumstances which aroused the suspicion of the Customs Inspector. Among other things, Sigal tried to 'plam' a key bearing a tag marked 'N4270T.' The inspector related the circumstances of Sigal's entry to one Jerald G. Weatherman, a special agent for the United States Customs. Weatherman was the only witness called by the Government at the hearing on the motion to suppress and this recital is necessarily based, in the main, on his testimony. Sigal did not himself testify at the suppression hearing, though he did call three employees of the Liberal Airport, who testified concerning Sigal's arrest.
Armed with the information which he had acquired from the Customs Inspector, agent Weatherman went to the El Paso International Airport and located a Piper Cherokee-6 airplane bearing the number 'N4270T.' Four of the six seats inside the Piper had been removed and approximately 20 flattened-out cardboard boxes and two large boxes that were sealed occupied the space where the seats had been. Weatherman watched this plane until late in the evening, when he was relieved by another agent. Weatherman was advised the following day by the agent who had relieved him that the Piper had taken off about 2:30 A.M. and was followed by Customs Agents to the airport in Wilcox, Arizona, where somehow the agents lost contact with the Piper.
Shortly thereafter word was received that the Piper had landed in Holbrook, Arizona, and Weatherman proceeded at once to Holbrook where he observed the Piper bearing number 'N4270T.' Weatherman testified that he saw Sigal enter the Piper and take off. Weatherman followed Sigal in a Government plane to Long Beach, California. Weatherman was then called off the case.
About ten days later, Weatherman was contacted in El Paso by another Customs agent who informed him that numerous boxes had been loaded into Sigal's plane in Los Angeles, and that Sigal's plane had then taken off with a Customs aircraft in pursuit. Weatherman, as requested, took off in another Government plane and made visual contact with Sigal's plane and the other Customs aircraft near Holbrook, Arizona. The two Customs planes followed Sigal's airplane as it apparently headed towards Albuquerque, New Mexico. However, before reaching Albuquerque, Sigal's plane turned sharply to the left and landed at Grants, New Mexico, some ninety miles west and north of Albuquerque. The Customs planes maintained aerial surveillance for about an hour and then, when it became obvious that Sigal had landed for something other than refueling, they too landed. What happened thereafter in Grants, New Mexico, is of paramount importance.
Upon landing in Grants, Weatherman learned from airport employees that although Sigal had gone to a local motel, 'he said he would be back as soon as it (presumably the plane) got cool.' At this time Weatherman looked inside the suspect aircraft and saw numerous large cardboard boxes. Upon an inspection around the air vents, Weatherman detected what he described as the 'strong odor of marijuana.' After revealing this fact to a fellow agent, Weatherman checked the door of the aircraft, which he found to be locked. However, upon further investigation, he found the front baggage compartment to be unlocked. Weatherman testified that he then opened this compartment, reached inside and opened one of the large cardboard boxes which had been sealed with masking tape. Inside the box Weatherman saw that which he believed to be some 20 pounds of marijuana. He later resealed the cardboard box and closed the baggage compartment. Weatherman and his fellow agent then waited for Sigal to return to his plane.
Sigal did not return to his plane until early the following morning, when it was just beginning to get light. Sigal then took off, followed shortly thereafter by the Government planes.
Sigal next flew to Liberal, Kansas, where he landed his plane. The Government planes landed very shortly thereafter. Sigal got out of his plane and was thereupon arrested by the Customs agent. Weatherman testified that he identified himself as an agent and inquired as to what was in the plane, to which Sigal replied, 'grass.' Weatherman then asked if he could have the key so as to search the Piper, to which inquiry Sigal stated that the aircraft was unlocked. Weatherman thereupon searched the Piper and removed cardboard boxes containing some 445 pounds of marijuana.
As indicated, Sigal did not testify at the hearing on the motion to suppress, though he did call as witnesses three employees from the Liberal, Kansas, airport. Each testified as to what he saw and heard at the time of the arrest, with emphasis being made of the fact that at least some of the Customs agents drew their guns.
The main thrust of Sigal's search and seizure argument is that Weatherman's search of Sigal's plane in Grants, New Mexico, was an unlawful one, and that the subsequent search and seizure in Liberal, Kansas, was thereby rendered unlawful under the fruit of the poisonous tree doctrine. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Let us now analyze Weatherman's search of Sigal's plane in Grants, New Mexico.
Weatherman's search and inspection of Sigal's aircraft in Grants, New Mexico, was conducted without the sanction of a search warrant. However, the absence of a search warrant does not necessarily mean that Weatherman's search of Sigal's plane was unreasonable under the Fourth Amendment. Under the authorities, if Weatherman's search was in fact based on probable cause and if there existed exigent circumstances which made impractical and...
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