U.S. v. Williams

Decision Date30 April 1979
Docket NumberNo. 78-1725,78-1725
Citation594 F.2d 86
PartiesUNITED STATES of America, Plaintiff-Appellant, v. Jo Ann WILLIAMS, Defendant-Appellee.
CourtU.S. Court of Appeals — Fifth Circuit

William L. Harper, U. S. Atty., C. Michael Abbott, Asst. U. S. Atty., Atlanta, Ga., for plaintiff-appellant.

John A. West, Cincinnati, Ohio, Jo Ann Williams, pro se, for defendant-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before GOLDBERG, SIMPSON and CLARK, Circuit Judges.

SIMPSON, Circuit Judge:

Defendant-Appellee Jo Ann Williams was indicted, in a two-count indictment, for possession of heroin with intent to distribute in violation of 21 U.S.C. § 841(a)(1) (1976). At trial the district court, prior to placing the defendant in jeopardy, granted defendant's motion to suppress evidence of two packets of heroin seized by Drug Enforcement Administration ("DEA") Special Agent Paul J. Markonni. Pursuant to 18 U.S.C. § 3731 (1976) 1 the United States appeals from the

district court's order granting defendant's motion to suppress. We affirm.

I

In June of 1976, Special Agent Markonni arrested defendant in Toledo, Ohio, for possession of federally controlled narcotics. Thereafter, in March of 1977, defendant pleaded guilty in the United States District Court, Northern District of Ohio, to possession with intent to distribute a controlled substance in violation of 21 U.S.C. § 841(a)(1). 2 Pending her appeal to the United States Court of Appeals for the Sixth Circuit, defendant was released on bond. 3 As a condition of her bond, she was restricted in travel to the State of Ohio. 4

On September 28, 1977, Special Agent Markonni was on duty at Atlanta International Airport. At 7:20 P.M. he observed defendant deplane from a non-stop Delta Airlines flight originating in Los Angeles, California. Agent Markonni was present at this particular location as part of the DEA's Drug Courier Interdiction Program: flights arriving from Los Angeles were monitored because that city had been identified as a source of illegal drugs carried by drug couriers. 5

Agent Markonni closely observed defendant, recognizing her as the Jo Ann Williams he had arrested previously and the individual convicted, upon a guilty plea, of possession of a controlled substance with intent to distribute. He observed defendant walk from one airport concourse to another, look at a departing flight monitor screen, and turn down the concourse apparently to catch a departing flight. At this point Agent Markonni approached defendant, identified himself, and requested her to produce identification. Defendant produced the same Michigan driver's license she had produced in June of 1976 when first arrested by Agent Markonni. Defendant also produced her airline tickets upon Agent Markonni's request. These airline tickets indicated that defendant was traveling from Los Angeles, California to Lexington, Kentucky, with a connecting flight in Atlanta. Two baggage claim ticket stubs were attached to the airline ticket.

Markonni, aware of the travel restrictions imposed upon defendant under her appeal bond, 6 asked defendant whether she had permission to be outside her bond restricted area, the State of Ohio. Defendant's response was, "No, this is the first time." Markonni then asked defendant why she was going to Lexington, to which she responded, "I live there now."

Markonni then proceeded to arrest defendant for "bail jumping" because: (1) she admitted to being outside her bond restricted area without permission; (2) she was en route to Lexington, Kentucky rather than any location in the state of Ohio; and (3) she was preparing to board another airplane, which would have taken defendant out of Agent Markonni's observation and ability to continue surveillance. Although Agent Markonni had learned from defendant that she was outside her bond restricted area without the permission of the authorities, the record is clear that he had absolutely no knowledge of any outstanding arrest warrant for defendant, or that defendant was scheduled to make any court appearance or appear before any judicial officer, or had failed to do so previously. In fact, no such appearance was scheduled.

After placing defendant under arrest for "bail jumping", Agent Markonni took defendant to the airport police office where she was searched by two female security guards. A packet was discovered in defendant's coat pocket. A field test of the contents of this packet produced a positive reaction for presence of an opiate. Defendant was then arrested for violations of the Federal Controlled Substances Act.

Agent Markonni then took the baggage claim ticket stubs from defendant and requested Delta Airlines to remove this luggage. After the luggage was retrieved and brought to the airport police office, Markonni asked defendant for consent to search the luggage and advised her of her right to refuse. Defendant asked and received permission to telephone her attorney. After doing so, defendant refused to consent to the search. Both pieces of luggage were retained overnight. The following morning, September 29, 1977, Agent Markonni filed an affidavit for a search warrant before a United States Magistrate. The magistrate, based upon the representations in the affidavit, 7 issued a warrant authorizing On November 11, 1977, defendant was indicted, in a two-count indictment, for possession of heroin with intent to distribute in violation of 21 U.S.C. § 841(a)(1) (1976). The heroin seized formed the basis for the indictment. 8

a search of defendant's luggage. The search uncovered a large quantity of suspected heroin. Markonni's field test produced another positive reaction indicating the presence of an opiate. Both quantities of the suspected heroin were sent to the DEA Laboratory in Miami, Florida, where analysis established that the material seized was heroin.

Defendant made a timely motion to suppress all evidence seized by government authorities. After a hearing upon this motion, a United States Magistrate recommended that the motion be denied: the magistrate concluded that Agent Markonni's arrest of defendant for "bail jumping" was lawful because based upon probable cause 9 even though he had no knowledge of any scheduled court appearance defendant failed to attend. Because the warrantless arrest was lawful, the magistrate then concluded that the search incident thereto was lawful. Consequently, the first packet of heroin seized was not suppressible. This evidence, in turn, provided probable cause for the issuance of a search warrant for defendant's luggage. Hence, the second search was lawful.

After hearing extensive oral argument from counsel, the district court disagreed with the magistrate's recommendation, sustaining defendant's motion to suppress all the evidence seized.

II

The government's position on this appeal is that Agent Markonni's warrantless arrest was authorized by 21 U.S.C. § 878(3) (1976) which provides:

Any officer or employee of the Bureau of Narcotics and Dangerous Drug designated by the Attorney General may

(3) make arrests without warrant (A) for any offense against the United States committed in his presence, or (B) for any felony, cognizable under the laws of the United States, if he has probable cause to believe that the person to be arrested has committed or is committing a felony . . ..

Two theories are offered. First, the government maintains that Agent Markonni had probable cause to arrest defendant for "bail jumping" as proscribed by 18 U.S.C. § 3150 (1976). Alternatively, the government claims that there was probable

cause to arrest defendant for "bail jumping" under 18 U.S.C. § 3146 (1976), Or 18 U.S.C. § 401(3) (1976), Or a combination thereof, because she violated the travel restriction condition of her bond. 10

A. SECTION 3150 WILLFUL FAILURE TO APPEAR

The only criminal penalties provided for in the Bail Reform Act of 1966 11 are found in 18 U.S.C. § 3150 (1976).

S 3150. Penalties for failure to appear

Whoever, having been released pursuant to this chapter, Willfully fails to appear before any court or judicial officer as required, shall, subject to the provisions of the Federal Rules of Criminal Procedure, incur a forfeiture of any security which was given or pledged for his release, and, in addition, shall, (1) if he was released in connection with a charge of felony, or while awaiting sentence or pending appeal or certiorari after conviction of any offense, be fined not more than $5,000 or imprisoned not more than five years, or both, or (2) if he was released in connection with a charge of misdemeanor, be fined not more than the maximum provided for such misdemeanor or imprisoned for not more than one year, or both, or (3) if he was released for appearance as a material witness, shall be fined not more than $1,000 or imprisoned for not more than one year, or both.

18 U.S.C. § 3150 (1976) (emphasis added).

The essence of the crime of "bail jumping", proscribed under section 3150, is the Willful failure to appear before any court or judicial officer as required. United States v. Bright, 541 F.2d 471, 474 (5th Cir. 1976), Cert. denied, 430 U.S. 935, 97 S.Ct. 1560, 51 L.Ed.2d 780 (1977); United States v. Logan, 505 F.2d 35, 37 (5th Cir. 1974); United States v. West, 477 F.2d 1056, 1058 (4th Cir. 1973). The mere violation of a bond condition, other than failure to appear as ordered, is not a criminal offense within the meaning of section 3150.

Not all breaches of bond conditions give rise to criminal liability under the statute. Only failures to appear as ordered constitute bail jumping, and that conduct is precisely what Congress intended to deter by making bail jumping a serious crime.

United States v. Bright, 541 F.2d at 475. Accord United States v. DePugh, 434 F.2d 548, 552 (8th Cir. 1970) (statute fixes no criminal penalty for violation of bond conditions imposed under ...

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