United States v. McHugh, Cr. A. No. 83-045 P.

Decision Date08 November 1983
Docket NumberCr. A. No. 83-045 P.
Citation575 F. Supp. 111
PartiesUNITED STATES of America v. James McHUGH, et al.
CourtU.S. District Court — District of Rhode Island

James O'Neil, Asst. U.S. Atty., R.I., Providence, R.I., for plaintiff.

James Merberg, Boston, Mass., for Lawrence McHugh.

Martin G. Weinberg, Boston, Mass., for James McHugh.

MEMORANDUM AND ORDER

PETTINE, Senior District Judge.

Defendants James McHugh and Lawrence McHugh (aka Les McHugh) have both been charged in a two-count indictment with conspiracy to distribute marijuana, in violation of 21 U.S.C. § 846, and possession of marijuana with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) & 841(b)(6). James McHugh has moved for this Court to suppress the search and seizure of a 1982 grey GMC pickup truck shortly before midnight on July 15, 1983, and all of the evidence which flows from that search. Although other searches and seizures occurred on the night of July 15-16 which are related to this case, only the search and seizure of the grey GMC truck (GMC) are at issue here because the government does not intend to use the other evidence. A hearing was held at which the Court received the testimony of Norman Phelps, Joseph Thomas, and Alfred Craven.

The testimony indicated that on the night of July 15, 1983, Norman Phelps, Joseph Thomas, and Officer Coffey were observing a residence known as the Malone Camp. Norman Phelps was employed with the state division of drug control as an inspector, a position which he had held for thirteen years. For the past two years he had been assigned to the Rhode Island Drug Task Force, a force comprised of federal, state, and local law enforcement officials whose task is to intradict drug smuggling activities. Joseph Thomas is a deputy United States marshall who was also assigned to the Rhode Island Drug Task Force. Officer Coffey was a member of the Little Compton, Rhode Island, Police Department. The Malone Camp is a water front residence along the Sakonnet River in Portsmouth, Rhode Island.

At 8:45 p.m. on July 15, the three officers were observing the Malone Camp from the opposite side of the Sakonnet River. Phelps had engaged in similar surveillance of the residence before. On the night in question, the three officers were using 7 × 50 binoculars, telescopes, and a nightscope to aid their vision.

Phelps decided to go to the Portsmouth side of the river to observe the Malone Camp from there. Phelps saw a tan Toyota which was driven by a woman leave the Camp. Phelps followed the Toyota into Little Compton, where it went to the residence of James McHugh.

Phelps returned to the entrance of the Malone Camp on Water Street at approximately 10:30 p.m. He was alone at that time but he was in radio contact with Thomas and Coffey, who remained on the opposite side of the Sakonnet. Between 10:30 and 11:00 p.m., Thomas radioed that he heard boats. He also radioed to Phelps that he saw lights coming to, and going from, the Camp on the river.

Shortly after 11:00 p.m., agent Phelps saw the grey GMC coming up the drive from the Camp to Water Street. A Jeep Wagoneer was parked at the mouth of the driveway, facing into the Camp. The GMC, which was proceeding with its lights out, came to a stop at the Jeep. The Jeep was backed out of the drive so that it was facing the intersection of the driveway and Water Street, with the Jeep in the correct lane for the way which it was facing (which was the lane on the Camp side of Water Street). Phelps observed this activity from the passenger side of a car on the opposite side of Water Street. Phelps' car, which was three or four car lengths from the Jeep, was on the same side of the driveway as the Jeep but faced the opposite direction. The Jeep came to a stop immediately next to the driveway and the driver left its lights on after he had stopped.

The bed of the GMC was covered with a camper-type "cap". The cap's windows were covered with cardboard. The GMC was pulled out of the driveway and into the same lane as the Jeep on Water Street. Phelps and the Jeep were on the opposite side of Water Street's intersection with the driveway from the GMC. Phelps testified that as the GMC pulled on to Water Street, it was moving slowly over rough road and rocked from side to side. At this time the camper cap, which had only recently been put on the truck,1 was not securely affixed to the walls of the cargo bed. As the truck rocked out of the drive and on to the street, the cap separated from the walls of the cargo bed sufficiently to enable Phelps to see what was under the cap. Phelps saw large oblong bales covered with burlap, which he identified from his thirteen years of experience as a drug inspector to be bales of marijuana.

The Jeep's driver, who was James McHugh, jumped out of his vehicle and adjusted the cap as the GMC briefly paused.2

McHugh returned to the Jeep and started following Craven to Route 138. Phelps joined the caravan a short ways away, as did Officer Coffey, who was driving a separate vehicle. After one mile on Route 138, the Jeep turned around and headed back towards the Camp.

Coffey and Phelps discussed their observations over their radios as they drove. By this time the caravan was on Route 88 in Massachusetts. Phelps observed a Massachusetts state trooper at the side of the road giving another driver a ticket. Phelps stopped and enlisted the aid of the trooper, Officer Candeias. Candeias started chasing the GMC and stopped it. Phelps, who was right behind the trooper, got out of his vehicle. Candeias arrested Craven.

Phelps could smell marijuana inside the cap. He also could see inside the cap through the rear window of the cab of the truck which, unlike the side and rear windows of the cap, was not covered by cardboard. Phelps opened the rear of the truck and saw the distinctive looking burlap-covered bales, which confirmed his earlier identification of them as marijuana. He did not open the bales on Route 88. The GMC was towed to a nearby Massachusetts state police barracks where the cap was again opened and the bales observed. The bales were not actually opened until July 22.

The legal questions raised by the defense and prosecution are:

1) does James McHugh have standing to object to the stop of the truck?
2) was the stop without a warrant legal?
3) was the search of the truck at the scene without a warrant legal? and
4) was the opening of the bales a week later without a warrant legal?
1. STANDING
"Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted."
A person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person's premises or property has not had any of his Fourth Amendment rights infringed. And since the exclusionary rule is an attempt to effectuate the guarantees of the Fourth Amendment, it is proper to permit only defendants whose Fourth Amendment rights have been violated to benefit from the rule's protections.
Rakas v. Illinois, 439 U.S. 128, 133-34, 99 S.Ct. 421, 425 58 L.Ed.2d 387 (1978) (quoting Alderman v. United States, 394 U.S. 165, 174, 89 S.Ct. 961, 966 22 L.Ed.2d 176 (1969)) (citations and footnote omitted).

Since the rule of "automatic standing" to object to the search and seizure of evidence in crimes of possession was overruled in United States v. Salvucci, 448 U.S. 83, 85, 100 S.Ct. 2547, 2549, 65 L.Ed.2d 619 (1980), the defendant asserting a fourth amendment violation must show that he "had a reasonable expectation of privacy in the place searched or the thing seized." United States v. Thornley, 707 F.2d 622, 624 (1st Cir.1983). Two factors must be proven to satisfy this test: first, did the defendant exhibit a subjective expectation of privacy and, second, was this subjective expectation justifiable when viewed objectively under the circumstances. Id. (citing Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220 (1979)).

At the suppression hearing, Thomas testified that he had ordered a Registry of Motor Vehicles record search of the GMC three or four days before its seizure. The record check indicated that it was registered by a Paul Richter to Paul's Building Company. No connection was shown between either Paul Richter or Paul's Building Company and James McHugh. No evidence, other than some evidence that James was in actual possession of the vehicle, was introduced to show that James had any legal or legitimate interest in possession of the GMC.

The evidence of possession was not, of itself, very compelling. Phelps testified that the GMC had been observed at several locations associated with James McHugh. Thomas testified that he had seen both James and Lawrence McHugh, but no one else, drive the truck. He also stated that he had seen the truck for approximately three weeks before July 15. Alfred Craven testified about being asked by James to drive the truck earlier in the evening of the 15th from the Camp to James' house, in addition to the trip during which he was arrested. Finally, James McHugh has introduced no evidence of ownership of the marijuana in the GMC.

Although the Supreme Court has "emphatically rejected the notion that `arcane' concepts of property law out to control the ability to claim the protections of the Fourth Amendment," Rawlings v. Kentucky, 448 U.S. 98, 105, 100 S.Ct. 2556, 2562, 65 S.Ct. 633 (1980), "property ownership is clearly a factor to be considered ...." Salvucci, supra, at 91, 100 S.Ct. at 2553. In this case not only does the Court have evidence that the truck did not belong to James, the Court has no evidence that James had any legal right to exclude others from its possession or use. See Rawlings, supra, at 105, 100 S.Ct. at 2561. Additionally, at the time of the seizure, Craven was in possession of the vehicle.

In the light of these facts the Court finds James McHugh has not shown that he had an objectively...

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