United States v. Ader

• Decision Date: 07 August 1980
• Docket Number: No. 79-24-CR.-4.,79-24-CR.-4.
• Citation: 520 F. Supp. 313
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: UNITED STATES of America, v. Philip Norman ADER, a/k/a, et al., Defendants.

520 F. Supp. 313

UNITED STATES of America, v. Philip Norman ADER, a/k/a, et al., Defendants.

No. 79-24-CR.-4.

United States District Court, E. D. North Carolina, New Bern Division.

August 7, 1980.

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Joel Hirschhorn, Miami, Fla., and Herman E. Gaskins, Jr., Washington, D. C., for Phillip Norman Ader, aka Chic Eder and Mary Beth Welke.

Susan Henri Johnson, Ward & Smith, P. A., New Bern, N. C., for Fenwick Putnam Tucker.

Steven A. Bernholz, Martin J. Bernholz, Chapel Hill, N. C., for Charles Douglas Gower.

Joseph W. Dean, Dean & Dean, Raleigh, N. C., for Dean (NMN) Tedder.

Mobley F. Childs, Decatur, Ga., and Herman E. Gaskins, Jr., Washington, D. C., for Michael Wayne Sherer.

Herman E. Gaskins, Jr., Washington, D. C., for Jeffrey Craig Fleissner and Cary Joan Boulter.

Steven A. Bernholz, Martin J. Bernholz, Coleman, Bernholz, Dickerson, Bernholz, Gledhill & Hargrave, Chapel Hill, N.C., for Wanda Gay Adkins Gower.

Martin J. Bernholz, Chapel Hill, N. C., for LuAnn Shuskey.

James Hurwitz, Sausalito, Cal., William C. Lawton, Raleigh, N. C., for Janet Inez Langtree.

Jack B. Swerling, Laurie, Curlee & Swerling, Columbia, S. C., for Kay Norris Huggins.

Marcus W. Chesnutt, Trawick H. Stubbs, P. A., New Bern, N. C., for Miguel Victor Ortiz.

Jimmie C. Proctor, Brock, Foy & Proctor, Trenton, N. C., for Roberto Quintana.

S. Stuart Popkin, Jacksonville, N. C., for Hugo Morejon.

ORDER ON MOTION TO SUPPRESS EVIDENCE OBTAINED BY WARRANTLESS SEARCHES AND SEIZURES AT OR NEAR THE BAY RIVER SEAFOOD COMPANY

HEMPHILL, District Judge, Sitting by Designation.

This matter is before the court on the motion of defendants, by and through their attorneys pursuant to Rules 12(b)(3) and 41(f) of the Federal Rules of Criminal Procedure, and Criminal Rule 3 of the local rules of the United States District Court for the Eastern District of North Carolina, to suppress as against them any and all evidence seized as a result of the warrantless searches of the vessels "Theresa Ann" and the "Sea Ox" the vessel "Pisces", and the Aquasport 19-foot vessel, registry N. C. 2014, a 10-foot home made outboard vessel, registry N. C. 2861, a vessel Scottie Craft, 27-feet, white in color, registry N. C. 9249, a vehicle, 1977 BMW, VIN 5420180, a vehicle tan and white 1976 Chevrolet truck North Carolina License BC 4366, a vehicle tan and brown Chevrolet pickup truck N. S. License HB 1374, a vehicle 1971 Buick Skylark, North Carolina License PRW 766, a boat and trailer, Cox brand, silver, identification E 18030, the Bay River Seafood Company and adjoining premises, general delivery, Stonewall, North Carolina, and other evidence obtained as a result of wire taps and beepers utilized in this case, on the grounds that those searches and all evidence seized as a result of those searches were illegally and unconstitutionally obtained for the reasons that (1) all of the above cited searches were warrantless searches and impermissible under the existing law and facts (2) all of the above cited searches and the results thereof were the direct results of an illegal beeper and wire taps which were unconstitutionally instituted by the investigative authorities in the case and that all evidence derived therefrom, including the searches, and all other items of evidence in this case, fall under the fruit of the poisonous tree doctrine and are unconstitutionally inadmissible.

STANDING

The government has conceded that each of the defendants is charged in the indictment in the third count with possession of marijuana with the intent to distribute (Title 21, United States Code, Section 841), and that since the indictment alleges that they were in possession of the contraband at the time of the search, defendants have standing to challenge the searches and subsequent seizures which resulted in the discovery of the marijuana. United States v. Brown, 411 U.S. 223, 228, 93, S.Ct. 1565, 1568, 36 L.Ed.2d 208 (1973); Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387. However, the government has not conceded that each of the defendants has standing to challenge the warrantless searches conducted by customs officers and others at and near the Bay River Seafood Company. In this respect, the defendants have relied upon the holding in Simmons v. United States, 390 U.S. 377, 389-394, 88 S.Ct. 967, 973-976, 19 L.Ed.2d 1247 (1948). The Brown case, supra, indicates that the standing of a defendant is dependent upon whether he was on the property at the time of the search, has a propriety or possessory interest in the property, or is charged with possession of evidence seized at the time of the search. After defendants indicated their intentions to assert standing under the Simmons case, supra, each admitted to either presence or a proprietary or possessory interest in the subject property at the motions hearing held in Raleigh, North Carolina, on June 5, 1980.¹ This court has considered those admissions sufficient to grant standing to defendants based upon the Simmons decision which allows the defendants to assert standing with respect to those motions without the contents of those assertions being admitted at trial.

FACTS

On September 2, 1979, culminating months of extensive investigation of an alleged conspiracy to import marijuana into the United States, agents of the Drug Enforcement Administration, the North Carolina State Bureau of Investigation, (SBI), the United States Coast Guard, the United States Customs Patrol and the Pamlico County Sheriff's Department raided the Bay River Seafood Company near Stonewall, North Carolina. Ten (10) defendants were arrested, numerous searches (warrantless) were conducted, thirty-one thousand pounds of marijuana, the trawler "Theresa Ann", the vessel, "Sea Ox", and three other vessels, a 1977 BMW automobile, were seized.

As early as June 8, 1979, investigation officers had information which led them to believe that the "Theresa Ann" would off-load marijuana at the Bay River Seafood Company. United States Customs Service transmittal and routing slips for the month of July, 1979, showed that the Seafood House was surveilled on several occasions. Officers intercepted a radio message on August 31, 1979 which led them to believe that the "Theresa Ann" would arrive on Sunday, September 2, 1979. Following this, surveillance was established in New Bern and Stonewall, North Carolina.

The day before the raid, officers gathered at the Holiday Inn in New Bern which was to be the "joint command L/E center" for the operation. The SBI launched a surveillance vessel on September 1, 1979 in preparation for the raid the next day. At approximately 3:15 P.M. on September 2, the "Theresa Ann" was positively identified in Pamlico sound making for the Bay River. An organized surveillance of the vessel was made until the time it was docked at the Bay River Seafood Company.

A raid team had been assembled and moved to a school in the Bay River area to await the signal to assault. At 5:40 P.M. an SBI surveillance team was placed across the river from the Bay River Seafood Company.

At approximately 9:15 P.M., six (6) hours after entering the Pamlico Sound, the "Theresa Ann" docked at the Bay River Seafood Company and began unloading what appeared to be bails of marijuana onto the dock. SBI agents, Paul Bateman and Doug Phillips, in hiding across the river from the seafood house, relayed the raid signal to the raid team. At least five (5) vehicles carrying at least 13 law enforcements entered the premises of the Bay River Seafood Company by way of the driveway from Highway 55. Flares were ignited and planes flew overhead as the assault commenced. Within minutes, the raid team had arrested a number of people in the area of the fish house. Defendants, Gower and Shuskey were arrested by customs agents when they were found seated in the front seat of a BMW automobile, which had previously been seen driving away from the seafood house and was now parked along side the entrance road to the Bay River Seafood Company. Other defendants were arrested either on board one of the vessels found at the site or in the immediate area. This includes several defendants who were "fished" out of the water in the dock area. During the course of the raid, the police conducted a general warrantless search of the "Theresa Ann", the seafood house and the vessels and vehicles which were later seized in the area. No reports indicated that any defendants were actually arrested inside the seafood house, nonetheless, officers entered the building and conducted the warrantless and detailed search. Each room in the building was searched and inventoried, including the office. This search included cabinets, shelves, desks, and desk drawers found in each room of the seafood house for which each item found was thereafter listed in agent Lewis's report. The vessels, "Theresa Ann" and "Sea Ox", as well as the BMW were searched with equal thoroughness.

ARGUMENT

This motion is one in a series of motions filed by defendants for the purpose of excluding evidence derived as a result of various governmental searches and seizures. Several issues raised by defendants in the present motion have been previously ruled upon by this court and are as follows.

Defendants moved to suppress evidence obtained as a result of the New York and Florida wiretaps on the grounds that such information was obtained as a result of an unconstitutional search. This court previously ruled that both wiretaps were constitutional and otherwise valid. Defendants also objected to the use of information obtained as a result of a "beeper" placed aboard the "Theresa Ann". This court ruled that the warrant, issued by United States Magistrate, Robert S. Carr, District of South Carolina, for the placement of the beeper on board the "Theresa Ann", was based upon a sufficient showing of probable cause and that the subsequent monitoring of the beeper signals did not...