United States v. Thrower, Crim. No. 76-488.
| Decision Date | 29 November 1977 |
| Docket Number | Crim. No. 76-488. |
| Citation | 442 F. Supp. 272 |
| Parties | UNITED STATES of America v. Emmett Floyd THROWER. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
COPYRIGHT MATERIAL OMITTED
David W. Marston, U. S. Atty., William Winning, Asst. U. S. Atty., Philadelphia, Pa., for plaintiff.
Nino V. Tinari, Philadelphia, Pa., for defendant.
Following a nonjury trial, this Court found defendant Emmett Thrower guilty of distribution of methamphetamine, possession with intent to distribute methamphetamine, and conspiracy to distribute methamphetamine, in violation of federal drug laws, 21 U.S.C. §§ 841(a)(1), 846. Thrower has appealed his conviction.
During the pretrial stages of this case, we denied without written opinion certain pretrial motions submitted by Thrower. Accordingly we will at this juncture fully set forth for the record the grounds for our denial of those motions.
Defendant Thrower and two other individuals, Charles Alexander and Vera Davis, were charged in a seven-count indictment with violations of federal statutes governing the distribution and possession of methamphetamine, a Schedule II non-narcotic controlled substance. Vera Davis pleaded guilty to Count I (charging her with distribution of methamphetamine, 21 U.S.C. § 841(a)(1)), and to Count VII (charging her with conspiracy to distribute methamphetamine, 21 U.S.C. §§ 846, 841). Both Thrower and the remaining co-defendant, Alexander, waived their right to a jury trial and were then tried by the Court.
We found defendant Thrower guilty of four counts: Count II, charging distribution of methamphetamine, 21 U.S.C. § 841(a)(1); Count III, charging distribution of methamphetamine, 21 U.S.C. § 841(a)(1); Count V, charging possession with intent to distribute methamphetamine, 21 U.S.C. § 841(a)(1); and Count VII, charging conspiracy to distribute methamphetamine, 21 U.S.C. §§ 841, 846.
Defendant Alexander was convicted on two counts: Count IV, charging him with aiding and abetting the distribution of methamphetamine, 18 U.S.C. § 2, 21 U.S.C. § 841; and Count VI, charging him with possession of methamphetamine, 21 U.S.C. § 844(a). On two other counts, Alexander was acquitted; namely, Count V, charging him with possession with intent to distribute methamphetamine, 21 U.S.C. § 841(a)(1), and Count VII, charging him with conspiracy to distribute methamphetamine, 21 U.S.C. §§ 841, 846.
During the trial, both counsel for Thrower and counsel for Alexander stated that they would not request specific findings of fact; therefore, our findings as to each defendant were general findings, in accordance with the requirements of F.R.Crim.P. 23(c).
Prior to trial, certain motions were filed by defendant Thrower and by the Government; no pretrial motions were submitted by defendant Alexander. Defendant Thrower filed three motions: (1) a Motion for a Bill of Particulars; (2) a Motion to Compel Election Between Substantive Counts and the Conspiracy Count; and (3) a Motion to Suppress Evidence. The Government filed only one motion: A Motion for the Use of Tape Recordings and Transcripts of Consensually Monitored Conversations.
On February 8, 1977, we heard argument in open court on the pending motions, and we conducted an evidentiary hearing as to the issues raised by defendant Thrower's Motion to Suppress Evidence. At that time we denied defendant Thrower's Motion for a Bill of Particulars;1 we also denied his Motion to Compel Election Between Substantive and Conspiracy Counts.2 After hearing testimony directed to the Motion to Suppress Evidence, we took that motion under advisement.
We also reserved our decision on the Government's Motion for the Use of Tape Recordings and Transcripts of Consensually Monitored Conversations; since that motion was subsequently withdrawn by the Government, a decision on the merits of the Government's Motion was never required.
On March 9, 1977, we made our findings of fact of record denying defendant Thrower's Motion to Suppress.
Following our adjudication of guilt, which we made on March 11, 1977, defendant Thrower filed a timely Motion for New Trial and/or Arrest of Judgment. We denied that Motion, for the reasons set forth in our Memorandum and Order of April 21, 1977,3 and then sentenced Thrower to four concurrent terms of imprisonment of ten years on each of the four counts, and to four concurrent four year special parole terms on each of the counts.
After the period for appeal had expired, defendant Thrower submitted a Motion to File an Appeal Out of Time. We granted that motion, for the reasons expressed in our Memorandum and Order of May 19, 1977, United States v. Thrower, 431 F.Supp. 892 (E.D.Pa.1977).
After carefully reviewing the entire record in this case we believe that only one of our rulings requires any further comment at this stage; namely, our denial of Thrower's Motion to Suppress Evidence.
In his pretrial Motion to Suppress Evidence, defendant Thrower requested the suppression of the following evidence: first, the methamphetamine and drug paraphernalia found by government agents in the trunk of a Cadillac automobile; and second, the envelope containing $1800, seized from Thrower during a search of his person following his arrest conducted at the Federal Drug Enforcement Administration (D.E.A.) Headquarters, in Philadelphia. As to each type of evidence, Thrower claimed that the evidence was obtained in violation of the Fourth Amendment's ban on unreasonable searches and seizures. No other issues were raised by the motion to suppress.
Following the factual hearing held on February 8, 1977, we took the motion under advisement, and we made our findings of fact, pursuant to F.R.Crim.P. 12(e), on March 9, 1977. Those findings were detailed and extensive, and are set forth at pages I-4 through I-12 of the notes of testimony of March 9, 1977. We see no need to restate them; a brief reference to the essential factual context within which the motion was considered and decided suffices.
We found that defendant Thrower had engaged in a series of methamphetamine transactions with a federal undercover officer, on May 25, 1976, and May 26, 1976. During the course of those two days, Thrower used a certain Cadillac automobile for transportation of the methamphetamine; on several occasions, including one, just moments before his arrest on May 26, at the 30th Street Amtrak Railroad station in Philadelphia, federal agents observed Thrower depositing methamphetamine in the trunk of the Cadillac. Thrower was arrested inside the main building, where he was expecting payment for methamphetamine previously distributed to the federal undercover officer. At the time of Thrower's arrest, the Cadillac — occupied by defendant Alexander — was illegally parked outside the station, in broad daylight, in a traffic lane in which parking was forbidden; other vehicles and pedestrians were in the immediate vicinity.
Federal agents, with knowledge that: (a) the trunk of the Cadillac contained methamphetamine and (b) the car had been used by Thrower in connection with the methamphetamine transactions of May 25 and May 26, 1976, promptly arrested Alexander and seized the Cadillac. Testimony at the suppression hearing established that the agents believed that the Cadillac was subject to forfeiture under federal law. Agents then took the Cadillac to D.E.A. headquarters; the car was searched later the same afternoon; the fruits of that search yielded the methamphetamine and drug paraphernalia which Thrower sought to have suppressed on Fourth Amendment grounds.
Thrower, following his arrest, was transported to D.E.A. headquarters, where federal agents searched his person, as a matter of standard procedure, as soon as he arrived in the cellblock. This search occurred approximately one half hour to forty-five minutes after Thrower's arrest at the train station. During the search, agents found a manilla-type envelope in Thrower's pants pocket; this envelope contained approximately $2500 in cash, of which $1800 matched certain D.E.A. advance money the undercover agent had paid to Thrower on May 25, 1977.
No warrant was obtained prior to seizing the Cadillac automobile, nor was any warrant obtained prior to searching that car, once it had been transported to D.E.A. Headquarters. The search of Thrower's person, conducted upon his arrival at D.E.A. headquarters, was also performed without any search warrant.
Based upon the findings of fact which we made of record on March 9, 1977, we concluded that the Motion to Suppress should be denied. An extensive discussion of the legal issues raised by defendant's motion can be found in the record, pages I-12 through I-20, Notes of Testimony, March 9, 1977. We have re-examined our ruling, and we have concluded that the result is a proper one. The reasons in support of our denial of Thrower's Motion to Suppress may be briefly summarized as follows:
A. The Seizure, and Subsequent Search, of the Cadillac Automobile Were Lawful and Constitutional.
The initial seizure of the Cadillac was authorized by 21 U.S.C. § 881, the forfeiture provision contained in the federal drug laws.4 Vehicles used in any manner to facilitate the transportation, sale, receipt, possession or concealment of controlled substances — such as methamphetamine, a Schedule II controlled substance — are subject to forfeiture. 21 U.S.C. § 881(a)(4). Federal agents may seize such vehicles, 21 U.S.C. § 881(b), and the seizures can be made without a warrant, when the seizure is incident to an arrest, 21 U.S.C. § 881(b)(1), or when there is probable cause to believe that the vehicle has been used in violation of the federal drug laws, 21 U.S.C. § 881(b)(4).
In this case, the findings of fact show that there was probable cause to justify the seizure of the Cadillac. The...
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