U.S. v. Swayne, 82-1598

• Decision Date: 25 February 1983
• Docket Number: No. 82-1598,82-1598
• Citation: 700 F.2d 467
• Parties: UNITED STATES of America, Appellee, v. James Frederick SWAYNE, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 467

700 F.2d 467

UNITED STATES of America, Appellee, v. James Frederick SWAYNE, Appellant.

No. 82-1598.

United States Court of Appeals,

Eighth Circuit.

Submitted Oct. 14, 1982.

Decided Feb. 25, 1983.

Thomas E. Dittmeier, U.S. Atty., Richard L. Poehling, Asst. U.S. Atty., St. Louis, Mo., for appellee.

Ed Leinster, Ed Leinster, P.A., Orlando, Fla., for appellant.

Before HEANEY and ROSS, Circuit Judges, and HENLEY, Senior Circuit Judge.

ROSS, Circuit Judge.

The appellant, James Swayne, was convicted of possession of cocaine with the intent to distribute in the United States District Court for the Eastern District of Missouri. ¹ The case was tried to the court. The appellant urges, as grounds for reversal, that the district court erred in failing to suppress cocaine found in the defendant's luggage and an inculpatory statement made after the arrest. Also, appellant maintains that the court erred in failing to find that insufficient evidence was adduced at trial to support his conviction. We affirm the judgment of the district court.

On January 31, 1982, a government informant, Richard Perez, spoke to Ted Lampus. In the course of the telephone conversation Perez arranged a sale of cocaine. Lampus, in addition to organizing the sale of cocaine, stated he would be accompanied by the appellant Swayne on a flight from Miami to St. Louis. Lampus requested that Perez secure two reservations for a return flight to Florida. A departure time of later that same night or for the early morning of the following day was requested.

Perez communicated this information to the Drug Enforcement Agency (DEA). DEA agents confirmed that Swayne and Lampus were booked on a flight from Miami and had in fact boarded the airliner together. DEA agents in St. Louis arranged with the informant Perez to meet with the suspects and ascertain whether cocaine was present in their luggage. If this was the case Perez was to then signal the waiting DEA agents by tugging on his left ear.

Perez met with the appellant and Lampus at the St. Louis airport. He engaged them in conversation while escorting them to the baggage carousel. Ted Lampus took two bags off the carousel and handed them to the appellant. Lampus took one more bag and the party started to leave the airport. At this point Perez tugged on his left ear to signal the DEA agents.

The DEA agents approached the party and placed them under arrest. Immediately following the arrest the appellant stated "one of us is a snitch, and it's not me." The DEA agents requested permission to search the luggage. Ted Lampus granted this request and a search of his suitcase and briefcase did not reveal any cocaine. The appellant denied consent to search his luggage, though consent to search his briefcase was granted. The search of the appellant's briefcase did not reveal evidence of cocaine.

The DEA agents seized all of the parties' luggage at the time of the arrest. Mr. Coleman, one of the DEA agents, took the appellant's luggage and displayed it to a trained police dog. The dog's reaction indicated the presence of cocaine in the luggage. The next morning agent Coleman procured a search warrant for the luggage. The affidavit included the information supplied by Perez, observations of the agents, and the reaction of the trained police dog. A search of the luggage revealed 576 grams of cocaine. The appellant's inculpatory statement was not included in the affidavit supporting the search warrant.

Appellant contends that the information available to the DEA agents was not sufficient to establish probable cause for his arrest, but only indicated that the appellant was a companion to a drug courier and that he was not directly implicated in any illegal activity, and therefore all fruits of the arrest, including the inculpatory statement, should be suppressed. The appellant's contention that the cocaine should have been suppressed is without merit. This would be true even if we were to assume, which we do not, that the arrest was not supported by probable cause. It is apparent from the facts in this case that the affidavit supporting the search warrant did not contain any information which could be considered as fruit of the arrest. It should be noted that in his motion to suppress the appellant conceded that a reasonable suspicion to detain the luggage existed prior to the arrest. ² In this situation the court must ask whether the evidence in controversy was procured through the exploitation of some illegality. United States v. Leonard, 630 F.2d 789, 791 (10th Cir.1980). If it is concluded that the evidence was produced through the use of sources independent from the illegal activity, then it must be considered admissible. The arrest of the appellant did not further the agent's efforts to procure the cocaine and thus it must be considered admissible.

The legality of the arrest remains in issue, however, as the appellant's inculpatory statement was admitted into evidence at trial. Appellant contends that the admission of this statement was reversible error as it must be considered the fruit of an illegal arrest. The question thus presented to this court is whether the arrest was supported by probable cause.

Probable cause exists if at the moment of arrest the "facts and circumstances" within the agent's knowledge and of which "they had reasonably trustworthy information were sufficient to warrant a prudent man in believing" that the appellant had committed or was committing an offense. Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964).

Probable cause for a warrantless arrest "is to be assessed in terms of the circumstances confronting a reasonably cautious and prudent police officer at the time of the arrest." United States v. McGlynn, 671 F.2d 1140, 1143-44 (8th Cir.1982). See United States v. Luschen, 614 F.2d 1164, 1171 (8th Cir.), cert. denied, 446 U.S. 939, 100 S.Ct. 2161, 64 L.Ed.2d 793 (1980); United States v. Neumann, 585 F.2d 355, 357 (8th Cir.1978). However, when the officers' belief rests in large part on an informant's tip there must be disclosed both the circumstances underlying the informant's knowledge, and the circumstances underlying the officer's belief in the informant's reliability. United States v. Neumann, 585 F.2d at 357-58.

United States v. Wentz, 686 F.2d 653, 656 (8th Cir.1982).

Even though Richard Perez was known to defense counsel, he would meet the stringent standards for an undisclosed informant. He was a government informant with an extensive history of providing accurate information. This established his reliability under McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967); United States v. Schmidt, 662 F.2d 498, 502 (8th Cir.1981). In addition to the history of reliability, the information supplied by Perez was borne out by the independent corroboration of the authorities. Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). Perez' information was verified in part by the DEA agents in that the reservations made by Perez, the fact that the suspects were traveling together, as well as the time and place of their arrival, were checked and confirmed by the DEA agents. Thus, under established standards, Richard Perez must be considered a reliable informant.

While the information supplied by Perez clearly established probable cause to arrest Lampus, it also established a close link between the appellant and Lampus and placed this relationship in the context of a planned sale of cocaine. The concept of guilt by association is repugnant to our notion of elemental justice and fair play. However, the courts have recognized that in certain circumstances a person's choice of whom to associate with, as well as the nature of that association, must be taken into account when assessing probable cause. United States v. Vasquez, 638 F.2d 507, 521, 522 (2d Cir.1980), cert. denied, 454 U.S. 975, 102 S.Ct. 528, 70 L.Ed.2d 396 (1981).

The issues present in the case of United States v. Lugo-Baez, 412 F.2d 435 (8th Cir.1969), cert. denied, 397 U.S. 966, 90 S.Ct. 1000, 25 L.Ed.2d 257 (1970) are quite similar to the issues confronting the court in this case. In Lugo-Baez, the defendant contacted a government informant and proposed a sale of heroin. Subsequent negotiations were carried out between government agents and the defendant. These negotiations concluded with a telephone conversation between the defendant and the agents during which the defendant stated he would be flying into St. Louis accompanied by his girl friend. The defendant provided descriptions of the girl friend and himself as well as the arrival time of their flight.

Lugo-Baez and his companion were both arrested at the airport. A search of the companion revealed a package of heroin. This court in upholding the arrest and search of the companion stated: "[C]ommon sense dictated that under the circumstances in this case the officers had probable cause to arrest both defendant and Angulo (the companion) and simultaneously to search them, and indeed would be derelict in their duty had they failed to act as they did." Id. at 438. ³ See also United States v. Buckhanon, 505 F.2d 1079, 1081 (8th Cir.1974) where this court upheld the arrest and search of a drug courier's companion. Probable cause was based on the companion's association with a known courier who had a history of using associates in the transportation of heroin.

The recent case of United States v. Capers, 685 F.2d 249 (8th Cir.1982), also addresses the question of probable cause to arrest based in part on association with a known suspect. In Capers probable cause was established against Yancy, a companion of the defendant. The police, pursuant to a valid warrant, conducted a search of Yancy's home. In the course of this search they uncovered evidence that Yancy was currently accompanied by an unknown person who had spent the previous night at the home. The police were not provided with a...