United States v. Miller

• Decision Date: 13 December 1977
• Docket Number: Crim. No. 77-37-SD.
• Citation: 442 F. Supp. 742
• Parties: UNITED STATES of America v. Jackie David MILLER.
• Court: U.S. District Court — District of Maine

442 F. Supp. 742

UNITED STATES of America v. Jackie David MILLER.

Crim. No. 77-37-SD.

United States District Court, D. Maine, S. D.

December 13, 1977.

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George J. Mitchell, U. S. Atty., Portland, Me., for plaintiff.

Gerald F. Petruccelli, Portland, Me., for defendant.

MEMORANDUM OF OPINION AND ORDER ON DEFENDANT'S MOTION TO SUPPRESS

GIGNOUX, District Judge.

Presently before the Court is defendant's motion for return of property and for suppression of evidence filed July 29, 1977 pursuant to Fed.R.Crim.P. 12(b)(3) and 41. An evidentiary hearing has been held, the issues have been comprehensively briefed and argued by counsel, and the following memorandum opinion contains the Court's findings of fact and conclusions of law as required by Fed.R.Crim.P. 12(g).

I The Facts

A. Events of Friday, May 13, 1977

On Friday, May 13, 1977, at approximately 5:45 a. m., Willard Muise, an employee at the Robinhood Marina, in Arrowsic, Maine, noticed a yacht, the Cold Duck, fouled in one of the marina's moorings approximately 250 yards offshore. Muise had not previously seen the craft. At about 7:00 a. m. on the same day, Muise conferred with Ralph Becker, the marina owner, who also knew nothing about the boat. Later in the day Robert Mansfield, an employee of the marina, and Becker also conferred about the boat and decided to discover the identity of the owner. To that end, Mansfield called the home port of the Cold Duck, found the marina at which it formerly had been based, and learned from personnel at the marina the name and telephone number of the former owner, Patrick Zecco. Mansfield later was able to reach Zecco, who told Mansfield that he had sold the boat to a person named Jackie Miller.

At approximately 2:45 p. m. Willard Muise rowed out to and boarded the Cold Duck. No one was aboard, and Muise returned to the marina. Because the boat was fouled in a mooring, and since the rubber dinghy aboard the Cold Duck used to ferry people from the boat to the shore had not been used for some time, Muise told Mansfield he feared a drowning might have occurred. At about 3:30 p. m. Mansfield telephoned the United States Coast Guard station at Boothbay Harbor and advised them of the events at the marina. Mansfield then left work for the day.

Sometime thereafter, the Coast Guard arrived at the marina to investigate the possibility of a nautical accident. The Coast Guard notified the Sagadahoc County Sheriff's Office of the incident. Pursuant to this notification, Sagadahoc County Chief Deputy Sheriff Charles Brawn arrived at the marina at approximately 5:30 p. m. No one was at the marina investigating the reported drowning, so Brawn departed. Brawn returned to the marina around 8:00 p. m. that evening. By that time the Coast Guard, Maine State Police, Sagadahoc County Sheriff Arthur Tainter, wardens from the Maine Department of Sea and Shore Fisheries, and marina owner Becker were at the scene probing the purported drowning.

Some two to two and one-half hours after he returned to the marina (at 10:00 or 10:30 p. m.), Brawn and Coast Guard officers boarded the Cold Duck in order to discover evidence of ownership. A search of the vessel was made, and the officers found a bill of sale and registration papers for the boat listing Jackie D. Miller as owner and Post Office Box 42 in Woolwich, Maine as his address of record. Later during the evening, after the search of the boat had been completed, Becker stated to several law enforcement officers that he suspected there had been some drug smuggling in the area, and he mentioned the name "Purmont."¹ Brawn, however, was not a party to these conversations and did not hear any discussion of drugs or drug smuggling or any mention of the name "Purmont." The Coast Guard later contacted the former owner, Patrick Zecco, and learned that Miller had paid $19,500 cash for the boat, mostly in small bills, which had been delivered in a brown paper bag. Miller had requested a receipt listing the purchase price as only $15,000.

Everyone left the marina toward midnight. Before departing, Sheriff Tainter informed the Coast Guard that he would arrange for divers to be at the marina the following morning. The Sheriff's office ordered Deputy Sheriff Frederick J. White, who went on duty at midnight, to check the boat once an hour to make sure that the boat was secure and that no one was tampering with her. White did so until his shift officially ended at 8:00 a. m., May 14.

B. Events of Saturday, May 14, 1977

1. Prior to the Mill Isle Visit

Shortly after midnight, Deputy Brawn attempted to telephone Drug Enforcement Agency (hereinafter D.E.A.) Special Agent Edward V. Drinan, Jr., the agent in charge of D.E.A. operations in Maine. Brawn suspected that the Cold Duck might be involved in drug operations allegedly taking place in Westport, Lincoln County, Maine. Brawn was unable to complete the call to Drinan.²

At 12:30 a. m., May 14, without knowledge of Brawn's actions, a Coast Guard warrant officer, who had attended drug "awareness" seminars conducted by Drinan for the Coast Guard, also telephoned Drinan. The warrant officer reported the peculiar facts thus far discovered about the Cold Duck and said that he was "suspicious" of the situation. Drinan stated that he would proceed to the marina the next day. Around 4:00 a. m. Drinan received a message from the Boston D.E.A. office to call the Sagadahoc County Sheriff's Office. At 8:00 a. m., the Sheriff's Office called Drinan, who replied that he was aware of the purported drowning and was proceeding to Robinhood Marina. Before heading to the marina, Drinan stopped at his office to pick up his handcuffs and his field kit, which contained Miranda forms, evidence envelopes, and similar matter. Drinan at this time and at all times subsequent was acting in his official capacity as a D.E.A. Special Agent.

Toward 9:00 a. m. Deputy White returned to the marina to learn of progress in the investigation of the accident. There White met Deputy Sheriff Gordon E. Kinney, the deputy in charge of criminal investigation. The Sheriff's Office had contacted Kinney in the event that foul play somehow had been involved in the purported drowning. At this time divers were working the waters beneath the boat and around the marina. White and Kinney boarded the Cold Duck to help Coast Guardsmen tow the boat back to the gas dock at the marina. While aboard, the men noticed several thousand dollars worth of new electronic navigational gear, which had been installed in a sloppy, unprofessional fashion. White and Kinney also noticed three to five partially burned marihuana cigarettes in an ashtray on the deck and on the flying bridge.

Kinney noticed a navigational chart (Government Exhibit 8), folded so that the printed part of the chart was exposed, lying on the floor of the main cabin between a table and a bench. He spread the chart on the table and observed a penciled course line on the chart threading its way from Robinhood to a ledge located off Mill Isle. White and Kinney discussed the course in general terms and did not specifically refer to Mill Isle.³ White and Kinney did not engage in a general search of the boat, and the objects they spotted on the Cold Duck were in plain view.

At 9:00 a. m., Deputy Brawn arrived at the marina. After the Cold Duck was towed to the dock, while White and Kinney were still aboard, Brawn boarded the boat. White and Kinney showed him the chart with the course line. The three speculated about possible involvement of the Cold Duck with the purported drug activities in Lincoln County. While Brawn, White and Kinney were conferring on the Cold Duck, a young man later identified as the defendant, Jackie D. Miller, drove into the marina parking lot. The time was approximately 10:00 a. m. Miller's vehicle was a late model, black Chevrolet Blazer. Marina employee Muise was working in the lot at the time. Miller approached Muise, gave his name as Miller, and stated that he wished to lease a mooring for his boat. When Muise asked the defendant what type of boat he owned, the defendant pointed to the Cold Duck and noticed the law enforcement officers on her. Defendant inquired about their presence, and Muise answered that the men had taken the boat to the dock in order to free the mooring. Muise suggested that defendant check with the office about moorings and then walked away.

Shortly thereafter Muise went down to the Cold Duck and asked if defendant had been there. Defendant had not. After procuring a description of defendant and his vehicle, Deputy White, in his Sheriff's Department automobile, and Deputies Kinney and Brawn in a separate car, left the marina to locate defendant. In Georgetown Center White passed defendant heading in the opposite direction. The two had eye contact, and defendant accelerated rapidly. White turned around and gave chase. To catch defendant White traveled at speeds near 90 m. p. h. With his lights and siren operating, White caught up with defendant after 1½ to 2 miles and tailed defendant for another mile at 70 m. p. h. before defendant stopped his vehicle. The road was two lanes, narrow and winding. The speed limit was unposted but was statutorily set at 45 m. p. h. Defendant produced his license and the vehicle registration for White, and in response to a question, defendant told White that he owned the Cold Duck. Defendant agreed to accompany White back to the marina. Brawn and Kinney pulled their car in behind White on the way to the marina.

At the marina parking lot, Brawn began to question defendant. Defendant admitted that he owned the Cold Duck, but refused to state why he had left the marina so abruptly. Brawn then read defendant his Miranda rights from White's Miranda warning card. Defendant agreed to speak without a lawyer. Sheriff Tainter next arrived. Defendant said that ownership papers were on the boat and voluntarily accompanied Brawn...