United States v. McMichael
| Decision Date | 01 March 1982 |
| Docket Number | Crim. No. K-81-00467. |
| Citation | 541 F. Supp. 956 |
| Court | U.S. District Court — District of Maryland |
| Parties | UNITED STATES of America v. Richard Porter McMICHAEL. |
J. Frederick Motz, U. S. Atty., and Steven A. Allen and Lawrence L. Hooper, Jr., Asst. U. S. Attys., Baltimore, Md., for the U. S.
Robert B. Schulman, Baltimore, Md., for defendant.
Defendant McMichael, charged with conspiracy to distribute and with distribution of cocaine,1 was arrested on October 5, 1981, at approximately 11:00 p. m. by Special Agent ("SA") DiGravio of the Federal Drug Enforcement Administration ("DEA"). At the time of arrest DiGravio took from McMichael the keys to a 1969 Buick Skylark automobile (the "Skylark") and informed McMichael that the automobile was seized for violation of the federal narcotics laws. After his arrest, McMichael was booked and interrogated by DiGravio and other DEA agents and taken, at or about 5:00 a. m. on October 6, 1981, before a judicial officer. At approximately 2:00 p. m. on October 6, 1981, SA McKinney of the DEA took physical possession of the Skylark, DiGravio having left the keys therefor at the DEA's Washington Field Office. Subsequently, on October 6, 1981, DEA agents conducted an inventory search of the Skylark.
On December 10, 1981, the Government entered into plea agreements with McMichael's two co-defendants, namely, Hess and Steinfuhrer.2 During debriefing, Hess related to SA Brown of the DEA that he had accompanied McMichael on one occasion to Washington National Airport to pick up a shipment of cocaine from Florida. Hess further related that at that airport, McMichael had picked up an Airport to Airport Express Mail package mailed from Video Technics in Miami, Florida, to Vitron Distributors at the Washington National Airport. Subsequent DEA investigation revealed that both Video Technics and Vitron Distributors are nonexistent entities. Hess stated that McMichael's practice was to mail packages of money wrapped in aluminum foil to Florida and to get back packages of cocaine wrapped in the same manner. Steinfuhrer told Brown that McMichael was afraid that DEA agents would search the trunk of the Skylark.
As a result of receiving that information from Hess and Steinfuhrer, Brown and DiGravio conducted an investigatory search of the trunk of the Skylark on December 11, 1981, and found two envelopes containing pieces of aluminum foil which matched the description given by Hess. The two envelopes recovered from the trunk of the Skylark on December 11, 1981, bore Airport to Airport Express Mail labels addressed to Vitron Distributors from Video Technics in Miami, Florida. Pursuant to procedures which govern Express Mail, the person who receives the same is required to initial the label affixed to the envelope. The labels on the two envelopes recovered from the trunk of the Skylark on December 11, 1981, reflect receipt by "R.P.Mc." The Government contended during the first trial and continues to assert that McMichael placed his initials on the said envelopes when he receipted for them and their contents, that those envelopes contained cocaine, and that some or all of the cocaine, which is the subject of the alleged October 5, 1981 sale, was contained in those envelopes.
DiGravio testified during the first trial and also a few weeks ago during an evidentiary motion hearing with regard to the within motion to suppress. During the mistrial, DiGravio testified that he had seized the Skylark during the night of October 5-6, 1981. However, during the recent motion hearing, DiGravio testified that McKinney seized the Skylark physically at approximately 2:00 p. m. on October 6, 1981. The latter testimony is accepted as accurate.
McMichael states three grounds in support of his pending motion to suppress the fruits of the seizure and search of the Skylark: (1) that automobile was not used to "facilitate" the commission of the crime within the meaning of 21 U.S.C. § 881(a)(4);3 (2) the warrantless seizure of the automobile was unlawful; and (3) the warrantless search of the automobile on December 11, 1981, was unlawful.4
Further Facts and the Word "Facilitate"
The following further facts are relevant and material with regard to the pending motion to suppress: On the night of September 23, 1981, DiGravio observed, from a car which he was driving, McMichael drive the Skylark5 on to a parking lot adjacent to the Wheaton Plaza Shopping Center in Wheaton, Maryland. DiGravio observed McMichael drive around said parking lot and stop several times at locations from which McMichael could observe a prearranged transaction involving the purchase of cocaine from Hess by Brown acting in an undercover capacity. Hess had previously informed Brown that the source of the cocaine would be present on September 23, 1981, in a Buick. DiGravio was thus on the lookout for a Buick and subsequently observed McMichael in the Skylark. After the September 23, 1981, transaction between Brown and Hess had been completed, DiGravio observed McMichael in the Skylark follow Hess in another car to a Donut King where DiGravio overheard Hess and McMichael discuss the cocaine sale to Brown.
McMichael's said use of the Skylark on September 23, 1981, constituted use of the car "in any manner to facilitate" the cocaine "sale" on that date from Hess to Brown within the meaning of 21 U.S.C. § 881(a)(4), which provides in pertinent part:
(Underlining supplied.) The case law leaves little doubt that the use of the Skylark by McMichael to act as a lookout on September 23, 1981, constituted use of that vehicle "in any manner to facilitate" the cocaine sale.6
On October 5, 1981, at approximately 10:15 p. m., DiGravio observed McMichael come out of McMichael's home and get into the Skylark. DiGravio, in the car he was driving, followed McMichael in the Skylark for long enough to ascertain that McMichael was driving the Skylark around McMichael's neighborhood and was, in the opinion of DiGravio, attempting to determine whether or not he was being followed and watched.7 DiGravio stopped following the Skylark and waited close to McMichael's home until McMichael returned in the Skylark approximately fifteen minutes after McMichael's earlier entry into that car. McMichael parked the Skylark in front of Hess's house which was several doors from McMichael's home. McMichael got out of the Skylark, met Hess and the two of them got into another automobile which Hess proceeded to drive. DiGravio followed Hess and McMichael to the Dart Drug parking lot in Wheaton, Maryland. At that parking lot, DiGravio observed Hess get out of the car Hess had been driving and meet, again by prearrangement, Brown acting in an undercover capacity, to make a sale of cocaine. McMichael remained in Hess's car in a position enabling McMichael to watch the transaction between Hess and Brown. DiGravio, after that transaction was completed, arrested McMichael. Brown arrested Hess, and other DEA agents arrested Steinfuhrer who was also present on the parking lot.
Under the above facts, the use of the Skylark on October 5, 1981, by McMichael to try to determine whether or not he was being watched and to avoid surveillance constituted use of that car "in any manner to facilitate" the cocaine sale on October 5, 1981, within the meaning of 21 U.S.C. § 881(a)(4).8
The issues concerning seizure are considerably more difficult than the issue of facilitation discussed above.9 21 U.S.C. § 881(b) reads as follows:
Subsection (1) is inapplicable. While seizure of the keys to the Skylark occurred incident to McMichael's arrest, that apparently does not constitute seizure of the car itself. See Cardwell v. Lewis, 417 U.S. 583, 591 n.6, 94 S.Ct. 2464, 2470 n.6, 41 L.Ed.2d 325 (1974), in which Justice Blackmun, in a pluralty opinion, wrote:
Petitioner contends that Lewis' car keys and the parking lot claim check were seized in plain view as an incident to his arrest, and that this seizure served to transfer constructive possession of the vehicle which could then be searched and seized as an instrumentality of the crime. We feel that the District Court and the Court of Appeals were correct in rejecting this argument. Irrespective of the plain-view or instrumentality analyses, the concept of constructive possession has not been found to justify the search or seizure of an...
To continue reading
Request your trial
-
State v. Dixon
...of a rented vehicle had a subjective expectation of privacy that society is prepared to accept as reasonable); United States v. McMichael, 541 F.Supp. 956, 958 n. 5 (D.C.Md.1982) (accused having full use of parents' car has "standing"); State v. Wells, 539 So.2d 464, 468 n. 4 (Fla.1989) (ac......
-
State v. Dixon
...v. Griffin, 729 F.2d 475, 483 and n. 11 (7th Cir.1984); U.S. v. Williams, 714 F.2d 777, 779 n. 1 (8th Cir.1983); U.S. v. McMichael, 541 F.Supp. 956, 958 n. 5 (D.C Md.1982); U.S. v. Posey, 663 F.2d 37 (7th Cir.1981), cert. denied, 455 U.S. 959 (1982); U.S. v. Portillo, 633 F.2d 1313 (9th Cir......
-
U.S. v. One 1976 Ford F-150 Pick-Up VIN F14YUB03797
...929 (N.D.Cal.1982) (noting that mere use of vehicle to commute to scene of illegal activity is insufficient); United States v. McMichael, 541 F.Supp. 956, 959 n. 6 (D.Md.1982) (same); United States v. One 1970 Buick Riviera, 374 F.Supp. 277 (D.Minn.1973) (use of vehicle to transport drug de......
-
United States v. Leslie
...486 F.2d 208 (8th Cir.) (Lay, J. dissenting), cert. denied, 414 U.S. 1043, 94 S.Ct. 546, 38 L.Ed.2d 334 (1973); United States v. McMichael, 541 F.Supp. 956 (D.Md.1982). Weighing against the Pappas court's interpretation of the statute, however, is the plain language of the statute itself as......