United States v. Rule

• Decision Date: 19 October 1984
• Docket Number: Crim. No. 84-00016P.
• Citation: 594 F. Supp. 1223
• Parties: UNITED STATES of America v. John D. RULE, et al.
• Court: U.S. District Court — District of Maine

594 F. Supp. 1223

UNITED STATES of America v. John D. RULE, et al.

Crim. No. 84-00016P.

United States District Court, D. Maine.

September 18, 1984.

On Motion for Reconsideration October 19, 1984.

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Richard S. Cohen, U.S. Atty., Margaret D. McGaughey, Asst. U.S. Atty., Portland, Maine, for plaintiff.

Samuel Harris Dawson, Gallop, Dawson, Kimelman & Clayman, New York City, for John D. Rule.

Daniel Bates, Portland, Me., for Dennis A. Beckwith.

Stephen W. Devine, Hewes, Culley and Beals, Portland, Me., for Nancy A. Beckwith.

Paula Van Meter, Brooklyn, N.Y., Guy L. Heinemann, New York City, for Thomas Alexander Browning.

Judy Potter, The University of Me. Law School, Portland, Me., for Robert M. Cushner.

Thomas O'Rourke, New York City, for Michael Leto.

Julian Sweet, Berman, Simmons, Laskoff & Goldberg, Lewiston, Me., for Thomas McHugh.

Graydon Stevens, Kelly Remmel & Zimmerman, Portland, Me., for Alan J. Mineart.

David C. Pomeroy, Portland, Me., for Daniel J. Quinn.

Peter J. DeTroy, III, Portland, Me., for Richard W. Robinson.

Richard Berne, New York City, for Gerald Sher.

John D. Patten, Patten & Ganun, New York City, for Craig James Sterner.

Richard Emerson, Portland, Me., for Thomas Streifel.

Peter K. Wilson, New York City, for Kyle Vanden Heuvel.

E. Paul Eggert, MITTEL & HEFFERAN, Portland, Maine, for defendant.

OPINION AND ORDER ON DEFENDANTS' MOTIONS TO SUPPRESS

GENE CARTER, District Judge.

In sixteen counts the instant indictment charges some or all of the Defendants in this case with possession with intent to distribute marijuana in March 1984 in violation of 21 U.S.C. § 846, 841(a), and 841(b)(6), and all Defendants with conspiracy to commit that offense. The conspiracy count has been severed and will be tried first. Currently before the Court are Defendants' motions to suppress evidence on that count pursuant to Fed.R.Crim.P. 12(b)(3) and 41. These motions have been adopted by all Defendants. The Court has heard the evidence and has considered the oral and written presentations of counsel. The findings of fact and conclusions of law required by Fed.R.Crim.P. 12(e) will be set forth in the discussion of each individual search and seizure.

I. Sterner's Car

The Court turns first to Defendant Craig Sterner's motion to suppress the fruits of the warrantless search of the rented red Mercury Marquis which he was driving when he was apprehended on March 22, 1984. The evidence at the suppression hearing showed that Kyle Vanden Heuvel had rented the automobile and that the rental agreement named Craig Sterner as a second driver. On the day the car was searched, Craig Sterner was the driver.

In order to sustain a Fourth Amendment challenge to the search and seizure of a car, a defendant must show a personal, legitimate expectation of privacy in the car searched. Rawlings v. Kentucky, 448 U.S. 98, 104-06, 100 S.Ct. 2556, 2561-62, 65 L.Ed.2d 633 (1980); Rakas v. Illinois, 439 U.S. 128, 130-31, n. 1, 139, 148-49, 99 S.Ct. 421, 423-24 n. 1, 428, 433, 58 L.Ed.2d 387 (1978); United States v. Cresta, 592 F.Supp. 889, 905 (D.Me.1984) (per Gignoux, J.). Only Kyle Vanden Heuvel and Craig Sterner have asserted any personal interest in the rented Mercury Marquis so they are the only two Defendants who may have standing to challenge the search of that car. Sterner, who was the actual driver of the car at the time of the warrantless search, and who had been designated as a second driver by the lessee, plainly had a privacy interest in the automobile. United States v. Portillo, 633 F.2d 1313 (9th Cir.1980). The record does not disclose Kyle Vanden Heuvel's intent in giving the car to Sterner, the extent and duration of his use of it, or how long she had been out of possession and control of it. The testimony of the officers to the effect that Vanden Heuvel was the lessee of the car is insufficient to meet Vanden Heuvel's burden of establishing that she had a legitimate expectation of privacy in the car which she had surrendered to Sterner. See United States v. Dall, 608 F.2d 910 (1st Cir.1979).

The facts surrounding the warrantless search of Sterner's car are as follows. In late 1983 the Boston Police Department referred James King to agent Michael Cunniff of the Drug Enforcement Agency. King was an informant who was represented to have aided the Boston Police Department in a cocaine investigation. In early January King came to Cunniff and reported going to a party in New York and being introduced to a Jack Rule and his partner, "T.O.," by two individuals named "Craig" and "Kyle." According to King, Rule had told him that he was a cocaine smuggler and that he used cars to transport marijuana. The DEA had been investigating Rule's activities for several months before that time, and King's information coincided with their suspicions. King was then registered by Cunniff as an informant for the DEA. Shortly thereafter he told Cunniff that he was to meet Rule in Manhasset, New York. Cunniff and another agent waited at the address in Manhasset which King had told them was where Craig and Kyle lived, and saw a car they knew to be Rule's arrive. King and Rule got out of the car. King later reported that Rule had asked him to be a money courier in a drug operation.

A few days later King told the DEA that Rule had asked him to travel to Florida to transport marijuana to New York in the trunk of a rented car. Agent Cunniff and a fellow officer went to the designated airport in Florida and saw Rule, King and a third person arrive and pick up a rental car. No arrests were made and later King explained that King's proposed operation had been cancelled because Rule's source had not produced the marijuana which he was to transport.

On March 22¹ King reported to the DEA that he had learned from Craig that Craig expected to pick up a trunkload, about 300 pounds, of marijuana at a stash house in Naples, Maine in a rented red Mercury Marquis. King described the house from which the marijuana was to be obtained as a "chalet-type" with an alarm and a garage. He provided directions to the building.² King said that he had seen the Mercury Marquis on Congress Street in Portland and had left a note for Craig to meet him at The Bag, a Portland restaurant. Agent Cunniff located the Mercury Marquis and subsequently followed it to 80 North Street where King lived. After a ten-minute stop, the car drove out Forest Avenue in Portland. The car at first took a turn on Forest Avenue that did not coincide with the directions King had given to the stash house. It then turned back, continued out Forest Avenue to Route 302 and generally followed the directions King had provided.

Aerial surveillance of the car was maintained when it was not in sight of the DEA vehicles. After a fifteen-minute stop at the alleged stash house, which has since been identified as one rented by Defendant Cushner, the rented Marquis went to another house in Naples, subsequently identified as being that of the Defendants Beckwith. It backed into the yard, where it remained for about thirty minutes. The car then followed Route 302 to the Portland area, and stopped briefly at a Howard Johnson's restaurant. The driver entered the restaurant momentarily and then returned to the car. The car then entered the Maine Turnpike southbound at Exit 8. Shortly thereafter a Maine State Trooper, alerted by the DEA, pulled the Mercury Marquis over to the side of the highway. Agent Cunniff observed that the back seat of the car was filled with clothes. When asked for identification by the trooper, the driver presented a license bearing the name Craig Sterner. After Sterner got out of the car, Agent Cunniff took the keys and opened the trunk, discovering five bales of marijuana.

It has long been established that a warrantless search of a car is not unreasonable, within the meaning of the Fourth Amendment, if the police officers conducting the search have probable cause to believe the car contains contraband. United States v. Ross, 456 U.S. 798, 800, 102 S.Ct. 2157, 2159, 72 L.Ed.2d 572; Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). The scope of a permitted search is as broad as that which could be authorized by a magistrate in a warrant, and may include closed compartments and containers within the car. United States v. Ross, 456 U.S. at 800, 102 S.Ct. at 2159. Defendant Sterner asserts, however, that the agents had no probable cause to search his car and that in doing so they violated his Fourth Amendment privacy rights. He challenges the agent's determination of probable cause and specifically attacks the reliability of the informant King, who provided the information which resulted in the search and Sterner's arrest.

In Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed. 527 (1983), the Supreme Court addressed the issue of assessing informant reliability, in the context of a determination of the existence of probable cause for the issuance of a warrant. The Corut in that case found reliable the "tip" of an anonymous informant when details provided in the tip were corroborated by independent police work. The anonymous letter had informed police that Lance and Susan Gates were drug dealers who utilized a certain modus operandi. According to the letter, Sue Gates drove the couple's car from Illinois to Florida and left it to be loaded up with drugs. Lance Gates then flew to Florida and drove the loaded car back. Surveillance of the couple corroborated this activity in major part, and this corroboration formed one of the "totality of the circumstances" which was influential in the determination of probable cause:

Finally, the anonymous letter contained a range of details relating not just to easily obtained facts and conditions existing at the time of the tip, but to future actions of third parties ordinarily not easily predicted. The letter writer's accurate

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