United States v. Hensel

Decision Date23 March 1981
Docket NumberCrim. No. 80-00030 P.
Citation509 F. Supp. 1376
CourtU.S. District Court — District of Maine
PartiesUNITED STATES of America v. David Keith HENSEL et al.

COPYRIGHT MATERIAL OMITTED

Thomas E. Delahanty, II, U. S. Atty., Margaret D. McGaughey, Asst. U. S. Atty., Portland, Me., for plaintiff United States of America.

John P. Ward, Michael Avery, Boston, Mass., for defendant David K. Hensel.

Jack H. Simmons, Lewiston, Me., for defendant Gerald W. Case.

Marshall A. Stern, Bangor, Me., for defendant Craig L. Dill.

Theodore K. Hoch, Bath, Me., for defendant John T. Downing.

Edward T. M. Garland, Atlanta, Ga., Joseph M. Hochadel, Portland, Me., for defendant Larry R. Duke.

Peter J. Rubin, Portland, Me., for defendant Robert C. Hubbard.

Peter J. DeTroy, III, Mark G. Lavoie, Portland, Me., for defendant William Storey.

David C. Pomeroy, Portland, Me., for defendant Charles T. Standley.

William P. Hardy, Lewiston, Me., Mark J. Kadish, Atlanta, Ga., for defendant John J. Wells.

MEMORANDUM OF OPINION AND ORDER ON DEFENDANTS' MOTION TO SUPPRESS

GIGNOUX, Chief Judge.

Nine defendants are charged in a one-count indictment with conspiracy to possess with intent to distribute and to import into the United States approximately 18.7 tons of marijuana, in violation of 21 U.S.C. §§ 846 and 963. Presently before the Court is the motion to suppress evidence filed by all defendants, other than defendant David Keith Hensel, pursuant to Fed.R.Crim.P. 12(b)(3) and 41.1 An evidentiary hearing has been held, the issues have been comprehensively briefed and argued by counsel, and the following memorandum opinion contains the Court's findings of fact and conclusions of law as required by Fed.R. Crim.P. 12(e).

I THE FACTS
A. The Preliminary Investigation of Turkey Cove

The investigation that led to the instant indictment began in late April 1980. At that time agents of the Drug Enforcement Administration (DEA) and the Maine State Police (MSP) Anti-Smuggling Unit received information that on April 24, an individual using the name of James T. Duke of Roswell, Cobb County, Georgia, had purchased Lot # 3, in the Turkey Cove subdivision, Tenant's Harbor, Maine, for $170,000 in cash. Subsequent investigation disclosed that Lot # 3 consisted of 2.89 acres of wooded land in a secluded area on the St. George River on the Maine coast. On it were three wood frame buildings, a wooded garage, and a deepwater dock with direct access to the Atlantic Ocean. Access to the Turkey Cove subdivision is by a dirt road extending from the Glenmere Road, a public highway leading to Thomaston, approximately 20 miles away.

In late April the agents also learned that on April 7 defendant Craig Lee Dill, using the name R. C. Hubbard, had purchased the vessel SUNSHINE, a 32-foot Pacemaker sport fishing vessel, from Northeast Marine Brokers in East Boothbay, Maine. The purchaser made a $3,000 deposit with a bank check and paid the remainder of the purchase price on April 10 with three bank checks totaling $30,000. Thereafter, $8,000 worth of electronics equipment, including a Loran C finder, a marine VHF radio and a CB radio, was installed on the SUNSHINE. On April 26, Dill and one Fred Bauer told employees of Northeast Marine Brokers that they were taking the SUNSHINE to Massachusetts. Instead, agents observed the boat being taken to Turkey Cove. A check of the El Paso Information Center (EPIC) computer revealed that in 1974 Dill had been arrested and convicted in Venezuela for possession of 2½ kilograms of cocaine and had received a four-year prison sentence.

As a result of the foregoing information, DEA and MSP agents instituted surveillance of the Turkey Cove property. Outlooks were set up on adjacent properties, and an observation post was established across the St. George River, approximately three-fourths of a mile away. Aerial surveillance was also conducted two to three times a week, and some photographs were taken, both ground and aerial. The surveilling officers at the observation post used nonmagnifying nightscopes at night, and a spotting scope, a telescope and binoculars during the day. With these visual aids, the agents could see persons and vehicles on Lot # 3, and any vessel moored at the dock, but they could not observe activities inside the buildings or identify the individuals observed.

During the month of May, the surveilling officers observed the SUNSHINE making numerous trips out toward the open ocean. The boat would leave late in the afternoon and return late at night, frequently without navigational lights. Once, during a surveillance flight, they observed the SUNSHINE lying idle in the water off the coast, apparently not engaged in any activity.

The agents also observed a number of vehicles come and go from Lot # 3. Five Pennsylvania vans registered to the same owner and two Georgia vans, all with substantial cargo capacity, were seen on the premises at various times. A tan pickup truck without a cover was also observed during a surveillance flight. A number of different persons were seen visiting and working around the property. Toward the end of May, persons were observed strengthening the dock and constructing a plywood platform on it. Some of the work took place at night, by flashlight. A man fitting the description of defendant Charles Thad Standley, who had been observed doing carpentry work around the dock, was seen at a restaurant in Thomaston with other individuals and vehicles which had been on the premises.

On May 30-31, MSP Sgt. Harry Bailey followed eight hi-cube vans, each with a large cargo area, from Thomaston to the Ramada Inn in Lewiston. Three of them, a red van with temporary Pennsylvania plates, and two vans with Georgia registrations, had been seen on Glenmere Road near the access road to Lot # 3. The drivers of several of the vans checked into the Ramada Inn, indicating that they planned to stay until June 3. Two days later, on June 2, investigating agents learned that the drivers had unexpectedly checked out of the motel. A white GMC step van WY 3943 was the only one of the eight vans that remained behind.

B. The Arrival of the PATRICIA in the Gulf of Maine

On May 30, Special Agent Edward Drinan of the DEA, who with Sgt. Bailey was in charge of the Turkey Cove investigation, received a report from the United States Coast Guard (USCG) Operations Center in Boston. A large vessel, the M/V PATRICIA, had been seen by a commercial fishing vessel, the J. BRADLEY O'HARA, hovering off the Maine coast in the Sewell Ridge area approximately 90 miles southeast of Rockland. One white male, later identified as defendant Hensel, and several black men were on board. The white man had informed the O'HARA boat that his radio was inoperative and had requested the O'HARA captain to call three land line telephone numbers. Instead of placing the calls, the O'HARA captain had notified the USCG Operations Center, relaying the telephone numbers. An EPIC check revealed that a vessel named PATRICIA was suspected of drug smuggling.2 DEA investigation also disclosed that two of the telephone numbers the PATRICIA had asked the O'HARA boat to call were to exchanges in Florida listed to suspected drug smugglers. The third telephone number was to an exchange in Cobbtown, Georgia, but the identity of the subscriber could not be determined at that time. The USCG Operations Center also informed Drinan that when a Coast Guard rescue aircraft arrived at the scene, the PATRICIA, although it had been reported disabled, had started up under its own power and was proceeding northeasterly toward the Nova Scotia coast. The vessel was being pursued by American and Canadian aircraft and a Coast Guard cutter.

Agent Drinan, anticipating a possible link between the PATRICIA and the Turkey Cove investigation, was in continual contact with the USCG Operations Center and the Drug Division of the Royal Canadian Mounted Police (RCMP) regarding the 24-hour high seas chase of the PATRICIA on May 30-31 and the interrogation of defendant Hensel by the RCMP on June 1.3 On May 31, he received word shortly before noon that the PATRICIA had been boarded and seized by the Canadians that morning; that approximately 19 tons of marijuana had been found on board; and that Hensel had been arrested by the RCMP. On June 1, he was informed of the results of Hensel's interrogation by the Canadian officers and that Hensel had told the Canadians his cargo had been destined for "the States."

C. The Events of the Night of June 2-3

At approximately 11:30 p. m. on the night of June 2, MSP Trooper Michael Roux, on duty at the observation post across the St. George River, saw the SUNSHINE, which had set out toward the open sea during the afternoon, returning to the Turkey Cove dock accompanied by a larger 60 to 70-foot vessel.4 Believing that this might be the marijuana boat the officers were expecting, Roux notified MSP Cpl. David Sinclair at the Thomaston State Police Barracks, who in turn notified DEA Special Agent Michael Cunniff. Cunniff and Sinclair met at the command post near Turkey Cove with other members of the surveillance team, and it was decided that Cunniff and Sinclair would scout the Turkey Cove property on foot.

At approximately 12:30 a. m. on June 3, Cunniff and Sinclair made their way along the Turkey Cove access road and through the woods on property adjacent to Lot # 3 to the beach. They then continued along the rocky beach below the high water mark to a point where fallen timber and debris blocked their passage. Cunniff remained behind while Sinclair waded through the waist-deep water around the debris and continued on the beach to a point where he could observe the dock. The time was approximately 2:30 a. m. Sinclair observed persons leaving the compound to board the large boat, but saw no offloading activity. At 2:58 a. m., he observed the large boat leave the dock.

Cunniff, after waiting 20 minutes, also waded through the water around the debris...

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