United States v. Martinez

• Decision Date: 10 December 1985
• Docket Number: Crim. A. No. 85-61-JJF.
• Citation: 625 F. Supp. 384
• Parties: UNITED STATES of America, Plaintiff, v. Gabriel deJesus MARTINEZ, et al., Defendants.
• Court: U.S. District Court — District of Delaware

625 F. Supp. 384

UNITED STATES of America, Plaintiff, v. Gabriel deJesus MARTINEZ, et al., Defendants.

Crim. A. No. 85-61-JJF.

United States District Court, D. Delaware.

December 10, 1985.

Richard J. McMahon, Asst. U.S. Atty., Wilmington, Del., for plaintiff.

Victor F. Battaglia, and J. Michael Johnson, of Biggs & Battaglia, Wilmington, Del., Attorneys for defendant Martinez.

Thomas R. Hunt, Jr., of Morris, Nichols, Arsht & Tunnell, Wilmington, Del., for defendant Seaver.

James L. Patton, Jr., of Young, Conaway, Stargatt & Taylor, Wilmington, Del., for defendant Demestichas.

Daniel A. Durkin, Wilmington, Del., for defendant Totora.

OPINION

FARNAN, District Judge.

This matter comes before the Court on defendant Gabriel DeJesus Martinez's (hereinafter "Martinez") Motion to Suppress the fruits of a warrantless search of a parked aircraft. Martinez is charged with possession with intent to distribute marijuana (21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2), importing marijuana (21 U.S.C. § 952(a) and 18 U.S.C. § 2), and conspiracy with intent to distribute and conspiracy to import marijuana (21 U.S.C. § 846 and 18 U.S.C. § 2). These charges stem from an incident on October 4-5, 1985, at the Wilmington Airport, during which in excess of 50 kilograms of marijuana were seized and Martinez was arrested. Pursuant to the Motion, suppression hearings were held on November 12 and November 22, 1985. During the hearings, the defendant did not present any evidence, deciding to rely on evidence elicited from the government's witnesses. Defendant Martinez's Motion is denied based on the findings of fact and conclusions of law stated herein.

FINDINGS OF FACT

On October 4, 1985, Airport Security Officer Rand Townley ("Townley") was on duty at the Wilmington Airport. As a security officer employed by New Castle County, Townley has the power to arrest, and to tow illegally parked aircraft. He is generally responsible for maintaining peace and order at the airport. Transcript of November 12, 1985 (hereinafter Tr. I) at pp. 4-7. At approximately 11:30 p.m., Townley was informed that Russell Becker ("Becker") at Bear Delivery was trying to reach him. Tr. I at 6. Bear Delivery receives freight flown from Detroit for Chrysler and General Motors (Tr. I at 6).

When Townley arrived at Bear Delivery, a Beech 18 aircraft was parked with its front wheels on the pavement and its rear wheel in the grass. Id. Becker told Townley that the aircraft was not making deliveries to Bear Delivery, that the pilot had asked permission to park on the ramp at Bear Delivery, and that another Bear Delivery employee had taken the pilot to the Kings Inn. Tr. I at 6. Because the ramp was in the control of Wilmington Airport, and therefore of Townley (Tr. I at 15), and because overnight parking is not permitted on ramps, Townley prepared to tow the aircraft (Tr. I at 7).

Airport regulations require that aircraft parked overnight in unauthorized areas, i.e. anywhere other than the terminal ramp or Atlantic Aviation, be towed. The airport has a contractual arrangement with Atlantic Aviation that provides for towing. The normal procedure calls for the security officer to enter the aircraft to check that the brake is released. The brake must be released to prevent damage during towing. Tr. I at 9-10.

Townley approached the aircraft to prepare it for towing. While standing on the ground at the rear of the aircraft, Townley shone his flashlight through the side window. Tr. I at 7, 17. Townley noted that the aircraft contained many bundles (Tr. I at 7), about three feet by one and one-half feet by one and one-half feet. Tr. I at 35. None of the bundles appeared to contain the customary airbills or manifests. Tr. I at 7. He also observed "green plant-like material" inside the aircraft about two feet away from him. Tr. I at 18, 33. The material covered an area approximately five inches by one-half inch, in between two stacks of bundles. Tr. I at 33. Townley estimated the quantity of the material was sufficient for one cigarette. Id. The material was not in leaf form, but appeared plant-like in its color and texture. Tr. I at 18-19. Townley testified it resembled chopped cigarette tobacco, except the pieces were larger. Tr. I at 19. Townley concluded that the plant-like material was marijuana because it looked like marijuana he has seen at the New Castle County Police Headquarters. Tr. I at 19-20. Based on these observations, Townley radioed the New Castle County Police Department for assistance, and requested a supervisor. Tr. I at 8.

Sergeant Handley Orr, a Street Supervisor with the New Castle County Police, Department, was the first officer to arrive. Tr. I at 8, 43. Orr had worked as an undercover agent in the Drug Control Unit from 1970 through 1972. Tr. I at 43. When Orr arrived, Townley explained his conversation with Becker, that the aircraft was illegally parked and had to be towed, and his observations that led him to believe the aircraft contained marijuana. Tr. I at 8, 44-45.

While standing on the ground, Orr smelled an odor of marijuana near the cargo door of the aircraft (Tr. I at 45), and observed many bundles (Tr. I at 60). Orr observed more bundles when he stepped on the wing of the aircraft. Id. Orr noticed that one of the bundles on the top of a stack had a torn corner, about one and one-half to three inches in diameter, on which there was no paper (Tr. I at 61; Tr. II at 25), and through which he observed a green plant material protruding (Tr. I at 45, 56-57, 60). The tear was not a cut or a slit, but appeared to be a rupture caused by being thrown or bumped. Tr. I at 61. Orr does not recall whether he observed the torn bundle while he was on the ground or on the wing. Id.

At Orr's request, Townley unlocked the aircraft using a master key supplied by his employer. Tr. I at 8, 22. After the door was opened, Townley also smelled the odor of marijuana. Tr. I at 8, 45. Orr entered the plane alone. Id. While inside, he noted that the odor of marijuana was stronger, and that a green residue of plant material was on the floor by the doorway. Tr. I at 45, 62. Orr inspected the package with the torn corner and "felt" it contained marijuana. Id. He counted twenty-seven packages weighing approximately sixty pounds each. Tr. I at 57. He did not seize anything, however, he did have Townley secure the plane, i.e. lock the door. Tr. I at 45-46; Tr. II at 25, 33.

After Orr's inspection of the aircraft, he had Townley notify the U.S. Customs Service, and he also requested that the County Police Detective Division have a detective report to the site. Tr. I at 46. While awaiting the detective's arrival, Orr learned from another New Castle County patrol officer, who had also responded to the scene, that the pilot was at the General Wayne Motel. Id. Orr sent the patrol officer to the motel to attempt to locate the pilot. Id.

After searching the aircraft, Townley took the tail number to determine to whom it was registered. At that point, he noticed the third character, a numeral two, was newer and larger than the other three characters. Townley determined from microfiche records at the terminal building that the number was fictitious. Tr. I at 8.

Detective James R. Hedrick ("Hedrick") arrived at the site of the aircraft at approximately 11:50 p.m. Transcript of November 22, 1985 (Tr. II) at p. 24. Orr and Townley recounted their observations to Hedrick. Tr. II at 25. Hedrick then examined the interior of the plane, while standing on the ground. Id. He noticed a bale near the door with a small tear in the corner, "about the size of a fifty cent piece or a little larger" with what appeared to him to be marijuana protruding from it. Id.

After the door was opened for him, Hedrick looked inside and saw small particles of what appeared to be marijuana on the floor at the rear of the aircraft. He also smelled what he believed to be marijuana. Id. After his inspection, Hedrick had Townley secure the door again. Tr. II at 26.

Hedrick interviewed Becker, the Bear Delivery employee who had initially contacted Townley about the illegally parked aircraft. Becker advised Hedrick that the pilot requested permission to leave the plane on the ramp for a short time and said he could not tell Becker the contents of the cargo. Tr. II at 26.

Hedrick, another detective, and Orr commenced a surveillance of the aircraft. Tr. I at 46; Tr. II at 26. A group of officers was stationed at a facility approximately one-quarter of a mile from the aircraft. Two more officers were sent to the General Wayne Motel to determine the pilot's room number and begin a surveillance there. Tr. II at 27. Orr and a Customs Agent also participated in the motel surveillance. Tr. I at 47.

Approximately forty-five minutes after Orr arrived at the motel surveillance site, two vehicles, a Capri and a white rental van, arrived at the pilot's room. Tr. I at 49; Tr. II at 28. Both vehicles left the motel after a short time, and proceeded north on Route 13. Tr. I at 47. Orr and another officer followed the vehicles. Id. Meanwhile, at about 3:00 a.m., Hedrick was advised that the vehicles had departed the motel. Tr. II at 28. The vehicles took more than forty-five minutes to find their way back to the airport gate where the aircraft had been parked. Tr. I at 47.

The Capri remained at the gate with one person standing nearby. The rental van parked on the left side of the aircraft, near the cargo door. Tr. I at 48; Tr. II at 28.

Orr remained near the gate to continue his surveillance of the Capri. Tr. I at 48. Hedrick and the officers surveilling the aircraft could observe the Capri and the man near it, as well as the van, the aircraft, and the three men in the van. Tr. II at 28.

After the three men with the van unloaded about five of the bales from the aircraft, Hedrick signalled for all of the surveillance officers to close in. Tr. I at 48; Tr. II at 28. Orr approached the airport gate in his car,...