United States v. Sullivan

• Decision Date: 04 August 1982
• Docket Number: Crim. No. 81-00016-B.
• Citation: 544 F. Supp. 701
• Court: U.S. District Court — District of Maine
• Parties: UNITED STATES of America v. Stanley SULLIVAN, Jr., Defendant.

544 F. Supp. 701

UNITED STATES of America v. Stanley SULLIVAN, Jr., Defendant.

Crim. No. 81-00016-B.

United States District Court, D. Maine.

August 4, 1982.

COPYRIGHT MATERIAL OMITTED

Jay P. McCloskey, Asst. U. S. Atty., Bangor, Maine, for Government.

John L. Carver, Belfast, Maine, Marshall A. Stern, J. Hilary Billings, Bangor, Maine, for defendant.

MEMORANDUM DECISION AND ORDER ON MOTIONS TO SUPPRESS

CYR, District Judge.

The defendant, under indictment for conspiring to possess and for possessing cocaine, with intent to distribute, in violation of 21 U.S.C. §§ 846 and 841(a)(1), moves to suppress evidence under Federal Rules of Criminal Procedure 12(b)(3) and 41. The issues were briefed and argued by counsel following the suppression hearing. The within memorandum contains the findings and conclusions contemplated by Federal Rule of Criminal Procedure 12(e).

I THE FACTS

On November 17, 1981, Delta Airline employees Jonathon Davis and Michael Johnson were on duty at the Delta airfreight counter at the Bangor International Airport. While Davis was waiting on airfreight customers shortly before the scheduled departure of Delta flight 323, the defendant, Stanley Sullivan, Jr., entered the airfreight-customer waiting area with a package. Johnson noticed that the defendant appeared "a little bit nervous," walking from one side of the waiting area to the other while Davis was waiting on another customer. When the defendant came to the counter to present the package for shipment, Davis explained the difference between regular Delta airfreight service and Delta Dash service, the latter involving special handling with guaranteed, scheduled delivery. The defendant identified "Sentry Associates" as the shipper, "Prince D. Beach" of "Trilby, Fla." as the consignee, and the contents as "watches." Davis recorded this information on the Delta Dash airbill, which was signed by "Stan Sullivan," and the defendant was given a copy. At the time it was presented, the wrapped package, which was somewhat smaller than a shoe box and very light, bore the handwritten inscription "Do not open until Christmas." The destination of the shipment was given as "Tampa, Florida."

Davis, a "vacation relief" airfreight agent during four or five weeks of the year, considered it unusual for a Christmas package to be sent by Delta Dash, rather than by regular airfreight which is considerably less expensive.¹ Delta Dash from Bangor International Airport is customarily used to transport priority documents, machine parts and small pets. Davis also noted the unusual name of the consignee: "Prince D. Beach."

While overseeing airfreight counter operations, Johnson observed the defendant as he waited to present the package for shipment. After the defendant departed, Davis called Johnson's attention to the package, noting in particular the unusual name of the consignee. Upon examining the pertinent paperwork, Johnson's suspicions as to the contents of the package were aroused by: (1) the absence of a business address for the sender; (2) the unusual nature of the alleged contents, "watches," which he had never before known to have been shipped either by Delta Dash or by airfreight during his entire 14-year tenure with Delta Airlines at Bangor International Airport; and (3) the fact that the shipping charge was paid in cash, which Johnson considered unusual for a business shipment. Johnson took the package to his desk, in the immediate area of the airfreight counter, where he noticed the "Do not open until Christmas" instruction on the package. Johnson considered it highly unusual that a package, not to be opened "until Christmas," would be shipped on November 17 by Delta Dash for guaranteed, scheduled delivery the same day. Johnson explained that in his long experience Christmas packages are not shipped by airfreight or Delta Dash so long before Christmas, except to remote overseas destinations not serviced by reliable local delivery systems.

Johnson was particularly concerned about the contents of the package because of a rumored report of an incident, two days earlier, involving the appearance at Bangor International Airport of a recently released Bangor Mental Health Institute patient who asked many questions of airline personnel concerning flight departures and shipping.

His suspicions aroused, Johnson consulted the telephone listings and directory assistance for the telephone number of "Sentry Associates." Finding none, he promptly summoned Bangor Police Lieutenant Medford Seabrease, who is in charge of the Bangor International Airport security detail. Johnson informed Seabrease of his concern that the package might not contain "watches," as indicated by the sender, and asked Seabrease to put the package through the airport x-ray scanner used for passenger luggage.

Seabrease, who is trained in the use of the x-ray scanner, viewed the package under the scanner, but could not make out the configuration of its contents; he considered the results of the scan inconsistent with the suggested presence of metallic contents. There were no nongovernmental operators of the x-ray scanner immediately available and Seabrease did not attempt to obtain their assistance. Seabrease promptly advised Johnson that the package did not contain "watch parts." Johnson subjected the package to a Geiger-count reading, in his own office and in the presence of Seabrease, with negative results.²

By this time both Seabrease and Johnson were concerned about the contents of the package. Johnson was concerned that there might be an explosive in the package and Seabrease was concerned that it might contain either explosives or contraband. Seabrease could not rule out the presence of explosives despite the negative results of the x-ray scan and the Geiger count. On the basis of his experience and training, which includes training in the detection of explosives by x-ray, Seabrease believed that the package could contain a plastic explosive and either a nonmetallic detonation device or a metallic detonation device so small as to be undetectable by the available x-ray and Geiger equipment.

Seabrease contacted the Bangor Police Department in an effort to obtain the assistance of its two-man bomb squad, but both officers were off duty. Johnson stated that the package would have to be opened before it could be allowed aboard an aircraft. Seabrease told Johnson that he felt qualified to open the package. Before he began opening the package, Seabrease saw to it that no one, except Johnson and Davis, remained with him in the vicinity of the airfreight service counter.

The decision by Johnson and Seabrease to open the package was predicated on their common belief that the package could not be placed aboard an aircraft, nor be safely stored or transported due to the unavailability of suitable bomb storage facilities or transportation equipment. Seabrease believed it necessary for the protection of persons and property that the package be opened, although he considered that there was no more than a 50-50 chance that the package contained an explosive.³

At the time the package was opened, Seabrease and Johnson were in possession of the following facts: (1) the sender had appeared "nervous;" (2) the use of Delta airfreight service for the shipment of watches was unusual; (3) the use of the relatively expensive Delta Dash service, with guaranteed, same-day delivery, for a mid-November shipment of a package not to be opened until Christmas appeared highly incongruous; (4) there was no telephone listing for the sender "Sentry Associates"; (5) cash payment of the shipping charge by a business shipper was unusual; (6) Lieutenant Seabrease was the only person immediately available having any expertise in dealing with explosives; (7) there were no suitable facilities available for the safe storage or removal of explosives; (8) the contents of the package had been incorrectly identified by the sender; and (9) the x-ray scan and the Geiger count had not ruled out the presence of explosives.

With the permission and assistance of Johnson, Seabrease proceeded to open the package, using a knife to cut a portion of the tape, with Johnson doing likewise. Upon opening the inner container Seabrease and Johnson discovered a dark blue sock, on the outside of which there appeared a white, powder-like substance. Inside the sock there was a small, transparent bag containing a white powder. Seabrease promptly requested the assistance of police personnel more familiar with what Seabrease strongly suspected was an illegal substance. Shortly thereafter, Detective John Welch, a Bangor Police Department investigator, arrived. After consulting with Johnson and Seabrease, Welch took possession of the bag containing the powder and took it to an expert for chemical analysis, which revealed that the white powder was cocaine.

The next day Welch was notified by Johnson that a person identifying himself as Stan Sullivan had telephoned the Delta airfreight office to ask what had happened to the package. Sullivan left his name and a telephone number. Welch checked with the telephone company to determine in whose name the number was listed. Welch called the number Sullivan had provided to Johnson, which was listed to Osborn Realty, Belfast, Maine, and asked to speak with Sullivan. Welch represented himself as Michael Johnson, a Delta airfreight office employee, and asked for the number appearing on the Delta Dash airbill in order to locate the package. Sullivan recited the number twice.

On November 21, 1981, DEA Special Agent Michael Cunniff and Sgt. Harry W. Bailey of the Maine State Police, having obtained an arrest warrant, waited for Sullivan to leave his place of employment in Bucksport, Maine. They followed the Sullivan car and pulled in behind it after it came to a stop behind a local bar. After Sullivan exited from his car and while it was still running, the officers approached Sullivan on foot. The...