U.S. v. Vanichromanee

• Citation: 742 F.2d 340
• Decision Date: 15 August 1984
• Docket Number: No. 83-2295,83-2295
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Pornpong VANICHROMANEE, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 340

742 F.2d 340

UNITED STATES of America, Plaintiff-Appellee, v. Pornpong VANICHROMANEE, Defendant-Appellant.

No. 83-2295.

United States Court of Appeals Seventh Circuit.

Argued March 26, 1984.

Decided Aug. 15, 1984.

George Becker, Chicago, Ill., for defendant-appellant.

John L. Sullivan, Asst. U.S. Atty., Dan K. Webb, U.S.Atty., Chicago, Ill., for plaintiff-appellee.

Before BAUER, WOOD and ESCHBACH, Circuit Judges.

ESCHBACH, Circuit Judge.

Pornpong Vanichromanee was named in five counts of a six count indictment. ¹ Count I charged a conspiracy to import heroin in violation of 21 U.S.C. Sec. 963. Counts II and V charged him with interstate travel with the intent to promote or carry on an unlawful activity in violation of 18 U.S.C. Sec. 1952(a)(3), (b). Count III charged a conspiracy to possess with intent to distribute and to distribute heroin in violation of 21 U.S.C. Sec. 846. Finally, Count VI charged distribution of heroin in violation of 21 U.S.C. Sec. 841(a)(1). Following a bench trial, Vanichromanee was found guilty on all five counts. He was sentenced to concurrent ten year terms of imprisonment on Counts I, II, III, and V, to be followed by five years of probation on Count VI. Vanichromanee appeals and we affirm the convictions.

I.

On April 26, 1982, Somsuan Chaisri ("Somsuan"), a Chicago resident, received a letter from Thailand. The author of the letter, Sarasak Naranong, was unknown to her, but he wrote that he was a friend of her finance. Naranong requested Somsuan to accept delivery of several packages, which he would retrieve from her when he arrived in the United States.

On the following day, a package addressed to Somsuan passed through customs at the Air Mail Facility in the John F. Kennedy Airport in New York. Because of its suspicious appearance, a customs inspector pulled the package. A subsequent search revealed that the package contained a picture and that the picture frame concealed heroin. Most of the heroin was removed and replaced with a substitute. A beeper was also placed in the frame. After these actions were taken, the package was forwarded to Chicago for delivery. On April 28, four more packages addressed to Somsuan were processed. They, too, had heroin-filled picture frames, and customs agents removed the heroin and inserted a substitute and a beeper. A total of 22 pounds of heroin was discovered in the five packages.

Vanichromanee and Naovarat Vanichrat (a friend of Somsuan) obtained visas from the American Embassy in Thailand to enter the United States. They then traveled to the United States, by way of Tokyo, and arrived in New York City on April 30. They were on the same plane from Tokyo, as evidenced by the consecutive numbers on their customs immigration forms, and passed through the same customs check, as evidenced by their passports being stamped by the same customs inspector. They spent the night at the Hotel Edison in New York City. On May 1, Vanichromanee purchased two Amtrack tickets to Chicago and on the second of May, he rented a room at the Chicago Holiday Inn on Lake Shore Drive (hereinafter "Holiday Inn").

On May 3, Somsuan received a call from a man who identified himself as the author of the April 26 letter. He asked whether the packages had arrived yet; she informed him that they had not. Later that day, however, two of the parcels were delivered to Somsuan's apartment. A postal inspector attempted to delivery a third package on May 5, but Somsuan was not home at the time of the delivery. She called for the package at the post office later that day.

Vanichrat called Somsuan early on May 6 and had her pick him up at the Holiday Inn. He informed her that he had come to the United States with the author of the April 26 letter. After they returned to Somsuan's apartment, the final two packages arrived. The postal inspector saw an oriental man take one of the packages and rip off the outer cover. About 4:40 that afternoon, one of the beepers in the frames began to emit a continuous signal, indicating that a package had been opened. DEA agents immediately executed a search warrant. However, when Somsuan opened the door and admitted the agents, Agent Aurilio noticed that the packages had not been opened. The agents told Somsuan that they had the wrong apartment, got directions to another apartment, and left. Agent Aurilio noticed Vanichrat speaking on the phone during this incident.

Meanwhile on the sixth, Vanichromanee flew on United Airlines from Chicago to New York City, where he met with Char Fong "Jimmy" Tom at the Hotel Edison. Tom rented a car and the two drove to Chicago, arriving on the afternoon of May 7. Upon their arrival, the two ate lunch at the Thai Star Cafe. While eating, Tom wrote his home phone number on a Thai Star Cafe card and gave it to Vanichromanee. Toward the end of the meal, Vanichromanee made a phone call.

On the afternoon of May 7, Vanichrat and Somsuan were in Somsuan's apartment. At some point, Vanichrat received a phone call. Following the call, Vanichrat loaded the five packages into the car of Choob Chaisri ("Choob"), Somsuan's brother who was visiting from Indiana. Vanichrat, Somsuan, and Choob then drove to the Thai Star Cafe, where Vanichrat and Vanichromanee transferred the five parcels from Choob's car to Tom's car. Tom drove off alone, and the four others returned to Somsuan's apartment.

About 6:30 p.m., the four left the apartment in Choob's car. DEA agents then executed a warrant to search Somsuan's apartment. They found Tinnagorn Chaisri ("Tinnagorn"), a relative of Somsuan and Choob, in the apartment. He related that the five parcels had been taken from the apartment by Choob, Somsuan, and a man who had recently arrived from Thailand. The agents discovered wrapping paper from the packages and passports belonging to Vanichromanee and Vanichrat, which showed that both had recently arrived from Thailand together.

Vanichromanee, Vanichrat, Somsuan, and Choob returned to the apartment around 8:30 p.m. Choob let Somsuan out of the car near her car and then continued to drive around the building to the parking garage. DEA agents stopped Somsuan and escorted her up to her apartment. DEA agents Ekman and Labik followed Choob's car into the parking garage. Once Choob parked, the agents approached the car, identified themselves as federal narcotics agents, and asked the occupants for identification. The language barrier (none of the three spoke English) made communication difficult. The agents patted down the three men and searched the hatch section of the car for weapons. After approximately five to ten minutes, the agents were instructed via their two-way radio to bring the three up to Somsuan's apartment.

In the apartment, the three men sat on the couch with Tinnagorn and were permitted to smoke. Agent Ripley spoke with Somsuan, who related to him the events of the day, including the meeting with Vanichromanee at the Thai Star Cafe and his involvement with transferring the packages from Choob's car to the New York car. Following this interview, all of the apartment's occupants were taken to the Federal Building. Events in the apartment transpired during an additional five to ten minute period. Shortly after their arrival at the Federal Building, Agent Ekman had Choob empty his pockets. A DEA report indicates that $1,400 was taken from Vanichromanee at approximately 10:00 that evening.

On the basis of the preceding facts, Vanichromanee was found guilty on all five counts of the indictment involving him. He appeals.

II.

The district court denied Vanichromanee's motion to suppress after a hearing. Vanichromanee raises two issues on appeal related to his unsuccessful attempt to have certain evidence suppressed.

A.

The first of these issues concerns the time when Vanichromanee was arrested and whether that arrest was based on probable cause. This issue is important here because at least two of the three items seized from his pockets--a Thai Star Cafe card bearing the name "Jimmy" and a phone number, a receipt for the Hotel Edison, and fourteen $100 bills--were later introduced at his trial. The Thai Star Cafe card was particularly damning because it led to Jimmy Tom, the government's principal witness. If the arrest was unlawful, then the three items seized--and all other evidentiary fruits--should have been suppressed.

Vanichromanee contends that the arrest took place in the parking garage of Somsuan's building; the government asserts that he was not arrested until he was in Somsuan's apartment. Vanichromanee counters that probable cause to support an arrest existed at neither time. The district court held that the parking garage detention was only an investigatory stop and that the arrest was in the apartment. Further, the district court held that probable cause existed to support the arrest at that time. We concur fully with the district court's conclusions.

It is clear that Vanichromanee and the two others were seized in the parking garage within the meaning of the Fourth Amendment: Agent Ekman testified that the three men would have been stopped had they attempted to leave. Mere detention, however, is not an arrest. A police officer may, short of an arrest, detain an individual briefly "in order to determine his identity or to maintain the status quo momentarily while obtaining more information," Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972), if the officer has knowledge of "articulable facts sufficient to give rise to reasonable suspicion that [the] person had committed or is committing a crime," United States v. Black, 675 F.2d 129, 133 (7th Cir.1982), cert. denied, 460 U.S. 1068, 103 S.Ct. 1520, 75 L.Ed.2d 945 (1983). See also Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229 (1983) (plurality opinion); Michigan v. Summers, 452 U.S. 692, 699 (1981); United States v. Brignoni-Ponce, 422 U.S. 873, 881, 95 S.Ct. 2574, (1975); Terry v. Ohio, ...