United States v. Strmel, Crim. A. No. 83-317.

• Citation: 574 F. Supp. 793
• Decision Date: 17 October 1983
• Docket Number: Crim. A. No. 83-317.
• Parties: UNITED STATES of America v. Jeffrey Thomas STRMEL and Gregory Kirk Bell.
• Court: U.S. District Court — Eastern District of Louisiana

574 F. Supp. 793

UNITED STATES of America v. Jeffrey Thomas STRMEL and Gregory Kirk Bell.

Crim. A. No. 83-317.

United States District Court, E.D. Louisiana.

October 17, 1983.

COPYRIGHT MATERIAL OMITTED

Tom Watson, Asst. U.S. Atty., New Orleans, La., for plaintiff.

Provino Mosca, New Orleans, La., for Jeffrey Thomas Strmel.

Frank DeSalvo, New Orleans, La., for Gregory Bell.

WICKER, District Judge.

This matter came before the Court on a former date on motions of defendants, Jeffrey Thomas Strmel and Gregory Kirk Bell to suppress evidence seized following their arrest on June 24, 1983 for possession and possession with the intent to distribute marijuana. Defendants claimed that the search of a trailer by the United States Customs Service (Customs), the installation of two electronic "beepers" on the trailer, and post-arrest searches of the trailer and Bell's tractor cab violated their Fourth Amendment right against unreasonable searches and seizures. Finding that the search and installations did not violate defendants' Fourth Amendment rights, and that the subsequent search incident to arrest would have been lawful even had the previous governmental acts violated defendants' constitutional rights, the Court DENIED the motions and now enters its written reasons.

FACTS

On May 29, 1983, a trailer containing wicker furniture arrived in Houston, Texas from Venezuela aboard the M/V ZULIA. Customs did not inspect the trailer in Houston, but shipped it under Customs IT Transit bond to New Orleans, Louisiana. The "Transportation Entry and Manifest of Goods Subject to Customs Inspection and Permit" (Transportation Entry), Customs Form 7512 (Government Exhibit 2), designated New Orleans as the "port of exit or destination" in the United States. On June 22, 1983, Hunter Transportation, a bonded carrier licensed by Customs, delivered the Customs-sealed trailer to Bowman Transportation in New Orleans, where it remained in Customs custody.

At Bowman, Customs agents checked the trailer and its documents against a profile. The trailer was consigned to a David Schultz of St. Petersburg, Florida; over $8,000.00 had been paid in freight and delivery charges for the shipment whose value was designated as $11,000.00; and the license tag on the trailer, F68060, had no registered owner in the State of Florida. Based on the suspiciously disproportionate cost of freight, lack of Florida registration, the fact that the consignee was a first-time importer, and that Schultz had made numerous anxious telephone calls to Bowman to determine when he could pick up the trailer, Customs decided to open and inspect the trailer.

On June 23, 1983, Customs broke the seal, opened the trailer, removed the furniture, and employed a trained dog to "sniff" for drugs. Inside the trailer, the dog alerted officers of the presence of contraband behind the wall in the front of the trailer. Officials noted at that time that the interior dimensions of the trailer appeared to be somewhat shorter than the exterior.

Customs agents then removed the plywood paneling covering this wall. Behind it was sheet metal into which the agents made a hole, using a hammer, chisel, and tin snips, discovering a compartment containing boxes, two of which they removed. After the agents opened the boxes and discovered what field tests proved to be marijuana, the Drug Enforcement Agency at New Orleans was notified. Customs then measured the outside and inside dimensions of the trailer and estimated that a secret compartment, 4 feet × 8 feet × 9 feet was behind the false wall, containing roughly 7500 pounds of marijuana. At this time Customs agents decided to attempt a "controlled delivery" of the trailer.

A Customs agent installed a "cargo beacon" on the false wall inside the trailer. The beacon was an electronic transmitting device which would emit radio signals only if someone attempted to enter the secret compartment. Thereafter, the agent attached a direction finding device to the underside of the trailer. Both "beepers" were installed the evening of June 23, 1983.

At 8:00 a.m. on June 24, 1983, Customs released the trailer from its custody. Mr. Schultz was contacted and at his request Bowman agreed to stay open beyond its normal closing time of 4:00 p.m. so that his drivers could come to pick up the trailer. The trailer was under constant surveillance by DEA and Customs agents. At approximately 5:00 p.m. defendants Strmel and Bell arrived at Bowman in Bell's tractor along with a tan Pontiac bearing Florida plates. Bell showed Bowman employees a Bill of Lading (Defendants' Exhibit 3) authorizing him to obtain custody of the trailer. Agents observed Bell using a radio frequency detector, a device employed to detect the presence of electronic surveillance, on the trailer.

After attaching the tractor to the trailer, Bell and Strmel drove out of Bowman, followed by the Pontiac and Customs and DEA agents, and drove onto Interstate 10 heading East. A police records search revealed that the Pontiac had been reported stolen.

The Pontiac slowed to allow surveillance cars to pass. Customs agents then stopped the car to see if it were stolen while others continued to follow Strmel and Bell. Thereafter, agents observed Strmel and Bell attempting to locate the Pontiac by visual sightings.

Defendants pulled off at the first exit in Slidell, Louisiana where they changed the license plates on the trailer. They then stopped at the weigh station in Slidell and went on to the Slidell Union 76 Truck Stop. Arriving at approximately 6:30 p.m., Bell and Strmel ate dinner and sat around the truck stop. Bell was observed making telephone calls.

At approximately 10:00 p.m. Bell and Strmel were about to drive the tractor-trailer out of the truck stop when the agents arrested them.

Bell's tractor was driven to the Slidell police station where it and the trailer were searched. Officials found about 7800 pounds of marijuana in the trailer and a radio frequency detector in a soft-sided briefcase in the cab of Bell's tractor. Defendants wish to suppress this evidence.

I. STANDING

The Government contends that, since defendants have no proprietary interest in the trailer, they have no standing to bring this motion.

Fourth Amendment rights are personal rights which may not be vicariously asserted. Its protections, embodied in the exclusionary rule, extend only to defendants whose own rights have been violated. Rakas v. Illinois, 439 U.S. 128, 134, 99 S.Ct. 421, 425, 58 L.Ed.2d 387 (1978).

In Rakas, the Supreme Court considered whether automobile passengers could assert Fourth Amendment rights with respect to items located in a car in which they were riding. The Court held that the issue of whether they were legitimately on the premises is not determinative of whether they had Fourth Amendment rights; rather, the inquiry was whether the areas were ones in which a passenger qua passenger would normally have an expectation of privacy. 439 U.S. at 148-49, 99 S.Ct. at 433. Thus, the defendants did not have a legitimate expectation of privacy in the glove compartment or the area under the seat where evidence was found.

The Court in Rakas merged issues of standing and substantive Fourth Amendment law. The determinative inquiry became "whether the challenged search or seizure violated the Fourth Amendment rights of a criminal defendant who seeks to exclude the evidence obtained during it. That inquiry in turn requires a determination of whether the disputed search and seizure has infringed an interest of the defendant which the Fourth Amendment was designed to protect." 439 U.S. at 140, 99 S.Ct. at 429.

In Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980), the defendant sought to suppress drugs he owned which were seized from an acquaintance's purse. The Supreme Court held that defendant's Fourth Amendment rights were not violated because he had no expectation of privacy in the purse. The Court reaffirmed the Rakas approach to standing as an inquiry that focused directly on the substance of defendant's claim that he or she possessed a "legitimate expectation of privacy" in the area searched under the Fourth Amendment. The Court held that, subsequent to Rakas, the two inquiries of standing and reasonable expectation of privacy merge into one: "whether governmental officials violated any legitimate expectation of privacy held by petitioner." 448 U.S. at 106, 100 S.Ct. at 2562.

The Fifth Circuit interpreted the Rakas-Rawlings standing merger in U.S. v. Parks, 684 F.2d 1078 (5th Cir.1982). Under Parks a defendant must show that governmental action infringed an interest of his own which the Fourth Amendment was designed to protect. 684 F.2d at 1083. In that case, one defendant, Holloway, although having custody and control of an airplane, failed to show that his own rights were violated. Although the defendant had a key to the plane given to him by an unidentified third party, this third party was not shown to have had any other indicia of ownership, possession, or authority. Since the defendant could not show that his possession was legitimate, his Fourth Amendment rights were not invoked.

Defendant Bell's situation differs from Holloway's in Parks. The tractor which Customs searched was owned by Rainbow Transport, a company which Bell owns. Bell was legitimately in the truck in which he had a proprietary interest and a legitimate expectation of privacy. He has standing to challenge its search.

Bell also was in possession of the Bill of Lading (Defendants' Exhibit 3) which he received from Schultz. Bell proffered this to Bowman to receive custody of the trailer. Although Bell was not the consignee, he picked up the trailer at the consignee's request. Bell was in lawful possession of the trailer. See U.S. v. Richards, 638 F.2d 765, 769-70 (5th Cir.1981), cert. denied, 454 U.S. 1097, 102 S.Ct. 669, 70 L.Ed.2d 638 (1981). In addition, it was attached to his tractor. Thus, Bell...