United States v. Masiello

• Citation: 491 F. Supp. 1154
• Decision Date: 04 June 1980
• Docket Number: Crim. No. 79-268.
• Court: U.S. District Court — District of South Carolina
• Parties: UNITED STATES of America v. Stephen MASIELLO, Hervey Edgar Beckham and Bonnie Thomas Carter.

491 F. Supp. 1154

UNITED STATES of America v. Stephen MASIELLO, Hervey Edgar Beckham and Bonnie Thomas Carter.

Crim. No. 79-268.

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

June 4, 1980.

COPYRIGHT MATERIAL OMITTED

Eric W. Ruschky, Asst. U. S. Atty., Columbia, S. C., for the U. S.

Charles Porter, McNair, Glenn, Konduros, Corley, Singletary, Porter & Dibble, Columbia, S. C., for Masiello.

George W. Speedy, Furman & Speedy, Camden, S. C., for Beckham.

William R. Byars, Jr., Savage, Royall, Kinard, Sheheen & Byars, Camden, S. C., for Carter.

FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER

CHAPMAN, District Judge.

This matter is before the Court upon the motion of each and all defendants pursuant to the Federal Rules of Criminal Procedure 12(b) and 41(f) to suppress certain evidence obtained as a result of a warrantless search of a suitcase and subsequent warrantless arrest of the three defendants. A hearing was held in this matter on January 4, 1980, at which time defendants Masiello and Beckham, with the consent of the government and approval of the Court, waived their right to a jury trial and agreed to have the Court render a final verdict pursuant to Federal Rules of Criminal Procedure 23(a). Defendant Carter did not waive his right to a jury trial and appeared only for the purposes of his motion to suppress.

All of the defendants are charged in Count I of the indictment with conspiracy to possess with intent to distribute and to distribute approximately nine thousand nine hundred (9,900) tablets of Methaqualone, a Schedule II non-narcotic controlled substance as set forth in 21 U.S.C. § 812, in violation of 21 U.S.C. § 841(a)(1). Count II of the indictment charges all three defendants with possession with intent to distribute the 9,900 tablets of Methaqualone in violation of 21 U.S.C. § 841(a)(1).

After weighing the evidence and studying the applicable law, the Court, pursuant to F.R.Crim.P. 23(c), makes the following

FINDINGS OF FACT

1. On October 18, 1979, defendant Stephen Masiello was observed by Drug Administration Enforcement investigator Terry Mathewson in the Atlanta, Georgia airport. As a result of his observations, Agent Mathewson profiled Masiello as a possible drug courier.¹ Masiello's tickets, method of payment, and reservations were thoroughly checked as well as his credentials and it was determined by Agent Mathewson that Masiello should be stopped and questioned and possibly searched. Mathewson stopped Masiello, questioned him for a few moments, took him aside and searched his person. Mathewson asked if he could further search his bag which he had previously established as Masiello's and Masiello declined to give him permission. Masiello was also asked if DEA agents in Columbia, South Carolina, could search the suitcase when he arrived in that city and Masiello again refused to consent to such a search. Masiello was then released and he boarded his plane for Columbia.

2. Agent Mathewson then telephoned James Matthews, DEA agent in Columbia and told Matthews about the encounter with Masiello. He provided a description of Masiello and further informed Matthews of Masiello's refusal to consent to a search of the suitcase.

3. After talking with Mathewson, Agent Matthews went directly to the Columbia Metropolitan Airport. He gave a complete physical description of Masiello to other drug enforcement officers and agents working at the Columbia Airport.

4. One of these officers was A. W. Watson, Jr., an investigator for the narcotics division of the Richland County Sheriff's Department. Watson was sent to the Columbia Airport to observe Masiello deplane. He and Agent Craig, a narcotics investigator with the South Carolina Department of Environmental Control, spotted Masiello as he left the plane and entered the airport terminal. As he entered the terminal, Masiello saw Watson and Craig, and did a "double-take" of the two officers. Agent Watson testified that at this point Masiello appeared very nervous and was obviously aware that he was being followed. Craig and Watson followed Masiello as he left the terminal gate area and walked to the second level of the airport terminal.

5. Meanwhile, Agent Matthews, along with several other drug investigators, including Christopher Kitts, a Lexington County narcotics investigator, had positioned themselves in the baggage claim area. Kitts, using the description provided by the Atlanta DEA agent, spotted Masiello with two individuals, defendants Carter and Beckham. The three defendants approached the baggage claim area and stopped approximately five or six feet from Kitts, whereupon Masiello handed Carter a small green piece of paper which was later identified as Masiello's luggage claim ticket. Masiello and Beckham then left the baggage claim area and walked to the airport parking lot. Kitts then notified Agent Matthews that Carter, and not Masiello, would be claiming Masiello's suitcase.

6. Agent Matthews kept a close watch over Carter as he waited for Masiello's suitcase to appear on the luggage conveyor belt. At this time, the majority of the passengers had already claimed their bags and departed. Carter was one of less than a handful of people in the claim area, and there was a very small amount of luggage left on the conveyor belt. As he waited for Masiello's suitcase to appear, Carter nervously looked around the claim area to see if he was being watched.

7. After several minutes, Masiello's bag appeared on the belt. Carter looked at the bag, which was positioned on the belt so that the claim ticket number was directly in front of him. In this position, Carter would have had no difficulty in determining the claim number on the bag. However, he let the suitcase go by and it continued its loop through the claim area. During the hearing, Carter testified that his reason for not picking up the suitcase when he first saw it was that he was not sure it was Masiello's bag. However, for reasons to be discussed below, the Court finds Carter's testimony totally lacking in credibility, and infers from his hesitancy in claiming the bag his desire to insure he was not being followed.

8. Carter continued his surveillance of the claim area. He was unable to "make" Agent Matthews and the other investigators watching him, so as the bag made its second trip around the belt, he quickly reached over, picked it up, and hurriedly proceeded toward the exit doors.

9. At this point, Agents Matthews and Craig, and investigator J. E. Clark, stopped Carter. Agent Craig identified himself as a narcotics officer, and advised Carter that the officers would like to question him. At Matthews' suggestion and with Carter's approval, the four men walked back to the airport's security offices for more privacy.

10. Carter testified that when he was stopped, one of the officers took the suitcase as the other agents handcuffed him. He stated that the handcuffs were not removed until he was in the security office. Agent Matthews testified, however, that Carter was not handcuffed until after he was arrested. The Court cannot accept Carter's version of his detainment. As noted previously, the Court is of the opinion that the greater portion of Carter's testimony was totally lacking in credibility. Such a conclusion is warranted in light of Carter's preliminary testimony as to what he was doing in Columbia when he was arrested. Carter, a resident of Lancaster,² South Carolina, testified that he had stayed home from work that day because he had a migraine headache and was too ill to work. Yet, he further testified that despite his illness he was willing to drive Beckham from Lancaster to Columbia, arriving in Columbia during five o'clock rush hour traffic. Further, he indicated that he planned to return to Lancaster that evening in order to attend a three-hour night school class. Carter would have the Court believe that he was going to accomplish these things in spite of his migraine headache, which allegedly had rendered him too sick to work. Such a story justifies the Court's conclusion that Carter was lying repeatedly as he testified.

11. Once the officers had taken Carter to the airport security office, Agent Matthews introduced himself and investigator Clark, then Clark advised Carter that the officers were conducting an investigation which led them to believe that the suitcase Carter was carrying contained narcotics or controlled drugs. Carter stated that he did not know what was in the bag, and that he had been paid five dollars ($5.00) to pick up the bag by an individual he knew only as "Steve", who was waiting for him in the parking lot. Investigator Clark then advised Carter of his constitutional rights per Miranda. Carter handed Clark the baggage claim ticket and Clark, in turn, gave it to Matthews. The testimony indicates that throughout this period, none of the agents threatened Carter, nor did they make any promises to him to get him to talk. He was in fact, voluntarily cooperative in answering the questions of the officers.

12. At this point, an airport security guard came by and opened up a private conference room for the agents. Before they walked into the room, Agent Matthews asked Carter for consent to search the suitcase. He answered that "The bag is not mine. I don't care." and then walked into the conference room. Carter was then warned that if he did give consent to a search, and narcotics or contraband substances were found, that such substances could be used against him in a court of law. Carter replied that he understood this.

13. Matthews again asked Carter for consent to search the suitcase, warning, though, that he did not have to consent if he chose not to. Matthews further stated that if Carter did refuse, the officers would attempt to get a search warrant, but that they could not guarantee a search warrant would be forthcoming. Matthews was aware, at this time, that Investigator Clark had previously tried...