United States v. Manbeck

• Citation: 526 F. Supp. 1091
• Decision Date: 24 November 1981
• Docket Number: Crim. No. 80-278.
• Court: United States District Courts. 4th Circuit. United States District Court of South Carolina
• Parties: UNITED STATES of America, v. Robert John MANBECK, Thomas Manbeck, Kenneth Herring, Gary Gallopo, Mark Huiet Sale, David Martin Summerville, Lorenz Josephus Proden, Kermit Theodore Brogden, John O'Hare, Eddie Brantley, Thomas Earnest Folske, Thomas Sams Hightower, Timothy Alan Laxton, Harrel Lewis, Jr., John Isidore Stevens, Aaron Douglas Staetter, John Michael Iyoob, James Anthony Hastings, John Benjamin Barton, Jr., John Wesley Flannel, Jessie Lee Mallory, Arthur Duncan, and Gregory Michael Scott.

526 F. Supp. 1091

UNITED STATES of America, v. Robert John MANBECK, Thomas Manbeck, Kenneth Herring, Gary Gallopo, Mark Huiet Sale, David Martin Summerville, Lorenz Josephus Proden, Kermit Theodore Brogden, John O'Hare, Eddie Brantley, Thomas Earnest Folske, Thomas Sams Hightower, Timothy Alan Laxton, Harrel Lewis, Jr., John Isidore Stevens, Aaron Douglas Staetter, John Michael Iyoob, James Anthony Hastings, John Benjamin Barton, Jr., John Wesley Flannel, Jessie Lee Mallory, Arthur Duncan, and Gregory Michael Scott.

Crim. No. 80-278.

United States District Court, D. South Carolina, Charleston Division.

November 24, 1981.

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Lionel S. Lofton, Asst. U. S. Atty., Charleston, S. C., Cameron B. Littlejohn, Jr., Asst. U. S. Atty., Columbia, S. C., for plaintiff.

Mark Kadish, Rhonda A. Brofman, Kadish, Davis & Brofman, P. C., Atlanta, Ga., Gedney M. Howe, III, Howe & Howe, Charleston, S. C., for defendants Manbeck and Herring.

Michael L. Pritzker, Marcia L. Smith, Stroup, Goldstein, Jenkins & Pritzker, Chicago, Ill., Dennis E. O'Neill, Burkett, Guerard, Wooddy, Bargmann, Cisa & O'Neill, Mount Pleasant, S. C., for defendant Gallopo.

Edward Garland, Austin E. Catts, John R. Hesmer, Garland, Nuckolls & Catts, Atlanta, Ga., for defendants Sale and Proden.

Mark C. Tannenbaum, Charleston, S. C., for defendant Sale.

Gedney M. Howe, III, Howe & Howe, Charleston, S. C., for Proden and Brogden.

R. David Botts, Harper, Wiggins & Botts, Atlanta, Ga., Gedney M. Howe, III, Howe & Howe, Charleston, S. C., for Summerville.

Arthur G. Howe, Paul Uricchio, Barry Krell, Uricchio, Howe & Krell, P. A., Charleston, S. C., for defendants O'Hare, Brantley, Folske, Hightower, Lewis, Laxton and Stevens.

Edwin Marger, Diane Marger, Atlanta, Ga. and Peden B. McLeod, McLeod, Fraser & Unger, Walterboro, S. C., for defendants Staetter, Iyoob, Hastings and Scott.

Donald B. Walker, Atlanta, Ga., and Peden B. McLeod, McLeod, Fraser & Unger, Walterboro, S. C., for defendants Barton, Mallory and Duncan.

Robert G. Fierer, Steven Westby, Atlanta, Ga., and Peden B. McLeod, McLeod, Fraser & Unger, Walterboro, S. C., for defendant Flannel.

ORDER

HAWKINS, District Judge.

INTRODUCTION

This case is one of an increasing number of federal prosecutions brought against individuals charged with smuggling marijuana into states of the Fourth Circuit. South Carolina, like some other states in this circuit, is located along the Atlantic Seaboard. The state's coastline, with its many bays, rivers and inlets, provides drug smugglers with easy access to the ocean for the smuggling of marijuana into this country.

This case involves a multiple count indictment¹ against twenty-six defendants² alleging various drug-related charges arising out of a drug smuggling operation which took place at Bennett's Point, South Carolina, in November 1980. On March 12, 1981, an extensive suppression hearing commenced in the case. Upon completion of the hearing and on April 1, 1981, all remaining defendants, with the exception of Robert John Manbeck and Gary Gallopo, pursuant to Rule 23(a) of the Federal Rules of Criminal Procedure,³ waived their right in writing⁴ to trial by jury and requested a trial before the court. The government consented to such a waiver. Record, Vol. VIII, at 42-90. Thereafter, the government and the defendants agreed to a stipulation adopting the record of the suppression hearing as the record of the case in chief, subject to any objections to be filed by the parties with the court. The trial of the defendant Gary Gallopo constituted the final segment of the proceedings. After these in-court proceedings, all parties filed with the court their objections and arguments as to the suppression hearing and as to the record stipulated as the record of the case in chief.

This order sets forth the rulings of the court as to defendants' motions to suppress, their objections to the record of the case in chief, and the guilt or innocence of the defendants. Two extensive orders have already been filed by the court in this case. On April 24, 1981, an order was filed denying defendants' motion to dismiss the indictments. That order was subsequently amended on June 17, 1981.⁵ On May 12, 1981, this court filed another order denying defendants' Speedy Trial motion and granting the government's motion to dismiss Count 4 of the indictment.⁶

I. STATEMENT OF FACTS⁷

At approximately 8:45 p. m. on November 26, 1980, Deputy Harold Canady of the Colleton County Sheriff's Department received a telephone call from his office advising him that an unidentified person had called the local fire department and stated that a truck was being loaded with marijuana at Bennett's Point, South Carolina. Canady proceeded to Deputy Allen Beach's residence and there he informed Beach and Deputy Earl Fowler, who was also present, of the phone call. The three proceeded on to Bennett's Point, which is located on the South Carolina coast, and arrived at approximately 9:30 p. m. Canady and Beach went in one patrol car and Fowler drove his own car. Canady and Beach proceeded on to the landing, while Fowler checked some vehicles parked on the road leading to the landing. The weather on this evening was cold and rainy.

Upon arriving at Bennett's Point landing, Canady and Beach observed a tractor-trailer backed up between a shrimp house and the dock. Canady recorded the number of the Georgia license plate on the tractor-trailer. The two officers then observed a white "U-Haul type" truck parked in the parking lot at the landing. They then recorded its Georgia license plate number. A brown "econoline-type" van was also observed at the scene, parked facing the tractor-trailer behind the shrimp house. Canady also recorded the Georgia license plate number of this vehicle. In addition, the officers observed a shrimp boat named the "Hazel B" docked at the south dock. No individuals were observed in the area at this time.

After making these preliminary observations, Officers Canady and Beach left the area and conferred with Officer Fowler who had been waiting on the paved road leading into the dock area. Fowler subsequently maintained a surveillance point on Bennett's Point Road at the entrance to the landing. Canady and Beach went back down to the landing for further observations and then proceeded up Bennett's Point Road to a private residence to telephone the Sheriff of Colleton County.

Upon notifying Colleton County Sheriff John Seigler of their observations, Officers Canady and Beach proceeded to check out another known drug smuggling site referred to as the "Wiggins area." After finding nothing unusual there, the two officers went to a location known as "Brickyard Bridge" which was on the one road that runs from U. S. Highway 17 to Bennett's Point. Upon arriving at Brickyard Bridge, Officers Canady and Beach received a radio communication from Officer Fowler advising that the tractor-trailer had departed Bennett's Point landing. Thereafter, Sheriff Seigler radioed officers Canady and Beach and directed them to stop the tractor-trailer at the intersection of Bennett's Point Road and U. S. Highway 17.

Officers Canady and Beach proceeded down the road about one mile ahead of the tractor-trailer, while Officer Fowler followed the vehicle from behind. At the intersection of Bennett's Point Road and Highway 17, Officer Canady positioned his patrol car so as to block the road. When the tractor-trailer, a Peterbilt tractor with the name of Polar Transportation on its door, arrived, Officer Canady went to the driver's side and asked the driver to step out of the vehicle. The driver stepped out and, on request, showed his driver's license and registration. He also provided Officer Canady with a bill of lading which indicated that the tractor-trailer was carrying a load of lard from a Charleston business named "Central Soya." The driver was then asked to sit in the patrol car with the two officers because of the inclement weather conditions. Officer Canady then radioed Sheriff Seigler and provided him with an updated report of the situation and gave him the information from the bill of lading for him to check out. Meanwhile, Officers Canady and Beach elicited from the driver that he was at Bennett's Point visiting a friend. When asked where he was keeping his tractor-trailer truck parked, the driver's response conflicted with what the officers had previously observed at Bennett's Point. When asked about when he had left Charleston, the driver responded that he had left two days before but had become ill and stayed in a motel room for some time before proceeding to Bennett's Point. Sheriff Seigler subsequently radioed Officers Canady and Beach and informed them that he could not locate any company in Charleston with the name shown on the bill of lading provided by the driver.

Subsequently, Officer Fowler, who had arrived at the scene, requested Officer Canady and Officer Beach to get out of the patrol car and come to the back of the trailer. Upon approaching the rear of the trailer, the officers smelled an extremely strong odor of what they believed to be marijuana coming from the back of the trailer. Thereafter, the driver, defendant Kenneth Brogden, was placed under arrest for possession of marijuana and was then searched and handcuffed.

As the Peterbilt tractor and trailer were being removed from the scene, Officer Canady spotted a second tractor-trailer coming from Bennett's Point. As it approached, Canady observed that it bore Georgia license plates and carried the name of "Polar Transportation" on its door as had the first tractor-trailer; however, this tractor was a Ford. The tractor-trailer stopped and, as before, the odor of marijuana was detected coming from the trailer. Deputy Fowler immediately placed the driver of this second tractor-trailer, Donald Bohanon, under arrest.

Officer Canady, Deputy Beach, Deputy...