United States v. Tirinkian, C2-80-43

• Decision Date: 10 December 1980
• Docket Number: No. C2-80-43,C2-80-44.,C2-80-43
• Citation: 502 F. Supp. 620
• Parties: UNITED STATES of America, Plaintiff, v. Karouje TIRINKIAN, a/k/a Henry Tirinkian, Gregory J. Wentz, Trevor Davies Baird, and John Rodgers, Defendants. UNITED STATES of America, Plaintiff, v. Karouje TIRINKIAN, a/k/a Henry Tirinkian, Gregory J. Wentz, Defendants.
• Court: U.S. District Court — District of South Dakota

502 F. Supp. 620

UNITED STATES of America, Plaintiff, v. Karouje TIRINKIAN, a/k/a Henry Tirinkian, Gregory J. Wentz, Trevor Davies Baird, and John Rodgers, Defendants.

UNITED STATES of America, Plaintiff, v. Karouje TIRINKIAN, a/k/a Henry Tirinkian, Gregory J. Wentz, Defendants.

Nos. C2-80-43, C2-80-44.

United States District Court, D. North Dakota, Northeastern Division.

December 10, 1980.

COPYRIGHT MATERIAL OMITTED

Gary Annear, Asst. U. S. Atty., Fargo, N. D., for plaintiff.

Patrick W. Fisher, Shaft, McConn, Fisher & Thune, Grand Forks, N. D., for Tirinkian.

Alan J. Larivee, Murray, Olson, Larivee & Bohlman, Grand Forks, N. D., for Wentz.

Robert A. Alphson, Grand Forks, N. D., for Baird.

R. Lee Hamilton, Grand Forks, N. D., for Rodgers.

MEMORANDUM AND ORDER

BENSON, Chief Judge.

In the two above entitled criminal actions, defendants have been charged with, inter alia, violation of the federal narcotics laws, 21 U.S.C. §§ 841(a)(1) and 846. Defendants have now moved, pursuant to Fed. R.Crim.P. 41(f), to suppress certain evidence which was seized from them. Specifically, defendants Tirinkian and Wentz challenge the lawfulness of their arrest and the search incident thereto. Defendants Baird and Rodgers claim that the warrantless entry into Rodgers' dwelling was not accompanied by exigent circumstances, and was thus invalid. It is further claimed that the officers did not comply with the federal "knock and announce" statute, 18 U.S.C. § 3109, before they entered the house. All the defendants challenge the lawfulness of five search warrants which resulted in the seizure of contraband. On November 25, 1980, an evidentiary hearing was had on the motions. Again, on December 1, 1980, the parties were given the opportunity to argue their respective positions.

I. FINDINGS OF FACT

On September 17, 1980, agents from the Drug Enforcement Agency (DEA) in this area received a call from their counterparts in Blaine, Washington, advising them that they had received information that an individual named "Hemey" or "Henry," registered in Room 118 in the Holiday Inn in Grand Forks, would be involved in a large hashish transaction. Subsequent investigation by the local DEA revealed that the person registered in the room was one Henry Tirinkian, whose name also appeared in DEA records. Investigation by agents of DEA disclosed that he had checked in on September 16, and had indicated he was planning to stay about a week but was paying for his room on a day-to-day cash basis. Further, that at the time he checked in, he was accompanied by an unidentified male person. Investigation of the hotel phone record showed he had made several calls, including a call to Austria.

The local DEA agents learned later that the Royal Canadian Mounted Police (RCMP) was providing the information to the Blaine agents.

By September 19th local agents began a surveillance by stationing themselves in rooms adjacent to and across from Tirinkian's room. The local agents were continuously in contact with their counterparts in Blaine, and at some point it was learned that the RCMP was receiving its information through court authorized wiretaps conducted in Canada and Austria. The local agents were told of monitored conversations between Bruce Ervin of Victoria, British Columbia and Peter Newall of Salzburg, Austria, in which a sale of drugs in Grand Forks was discussed, with Mr. Newall telling Ervin that his contact would be one Henry in Room 118 of the Holiday Inn.

Around 2:00 a. m. on September 20, a male person was seen driving up to the Holiday Inn in a 1977 Datsun pickup. The person went to Tirinkian's room, stayed about an hour, and then left. A check of the vehicle registration revealed that the person was Gregory J. Wentz, now a defendant in this case. A DEA check of Wentz revealed that he was convicted of narcotic offenses in Denmark in 1974, was released from custody in 1978 and was deported from Denmark at that time.

Wentz returned to Tirinkian's room about 2:00 p. m. on that same day, left after awhile, later returned, and left again about 3:50 p. m. carrying a large grocery bag which he placed in his vehicle. He was then seen driving to Building E of the Gallery Apartments. He carried the grocery bag into the building. Shortly thereafter a man was seen walking out of Building E and towards a 1964 green Pontiac. He drove the car to the driveway area of the building where he was out of the sight of the surveillance officers. When he drove from the area, a large box was seen in the backseat of the car, which was not seen there before. Information which the agents acquired through a check on the registration caused them to believe that the car was not being driven by the registered owner.

By this time agents had received information from the Blaine office and the RCMP¹ that Mr. Ervin's representative in the drug transaction would be one Trevor Baird who would be flying from British Columbia to Grand Forks. The agents were provided with a general physical description of Baird. They were also told that Baird would be carrying a large sum of money. The agents called the Grand Forks Airport and from the various flight schedules determined the flight he would probably be on. Surveillance of the airport was arranged.

At about 7:45 p. m. on September 20, Baird was seen deplaning from a commercial carrier at the Grand Forks airport. The fact that he matched the physical description, and was travelling alone, led the agents to believe it was Baird. Baird used the Holiday Inn courtesy van to go to the Holiday Inn. There he checked in as "T. B. Davies" and was assigned to Room 103.

Defendant Wentz had returned to Tirinkian's room about 6:00 p. m. that evening. Later, Baird was seen going to the door of Tirinkian's room. He knocked and was heard to say, "Henry, I'm Trevor Baird. I was sent by Bruce Ervin." He was admitted to the room. The three remained in the room until about 10:00 p. m. Conversations, if any, in the room were not overheard. Wentz and Baird then left in the Datsun pickup, made a couple of stops, and about 1:00 a. m. on September 21, they drove to 1105 23rd Avenue South in Grand Forks. Also parked in the driveway of the residence was the same 1964 Pontiac seen earlier at the Gallery Apartments.

It was observed that lights were on in the residence upstairs and in the basement. The agents heard the sound of a power saw, ripping wood, and hammering, all loud enough so that it could be heard from the street. At about 3:30 a. m., Wentz left and returned. At about 5:00 a. m., Wentz and Baird drove in the Datsun to the Holiday Inn. Baird went to his room, and Wentz drove on to the Gallery Apartments.

Later in the day at about 10:00 a. m., the same unidentified individual seen at the Gallery Apartments left the residence at 1105 23rd Avenue South in the same 1964 Pontiac. At about the same time, Wentz was seen leaving the Gallery Apartments. He was observed driving his Datsun to the Holiday Inn, and going to Baird's room. Both Wentz and Baird then went to Tirinkian's room. Shortly afterwards, Wentz and Baird drove to the 1105 23rd Avenue South residence. The Datsun, which was equipped with a camper top, was backed into the driveway, and the agents observed that several large boxes and green garbage bags were loaded into the cargo area. They also observed that a gun case was placed in the cargo area. Wentz drove away and Baird went into the house.

In the meantime, officers had observed Tirinkian check out of his room at the Holiday Inn around 12:00 noon, and go into Baird's room. Wentz was seen arriving in his pickup near the outside entrance to Room 103 at about 2:15 p. m. He entered the room carrying a white cloth satchel type bag. A short time later, both Tirinkian and Wentz emerged from the room. Wentz still carried the white bag. Tirinkian was carrying a brown suitcase and a briefcase. Both got into the Datsun pickup, and were followed to the Grand Forks Airport. When they pulled up to the curb close to the terminal, the agents blocked the pickup with their own vehicle and arrested both Tirinkian and Wentz.

On their approach to the Wentz vehicle after they made the decision to arrest, the agents detected a strong hashish odor emanating from the vehicle. Tirinkian's person was searched and approximately $26,000 in Canadian and American currency was seized from his pockets. A cursory search for weapons was made in the cab area of the pickup. None were found. Tirinkian was advised of his rights and stated that he found all but about $2,000 of the money in a motel room. The officers were in close proximity to the vehicle and could see broken pieces of inlaid wood through the windows of the camper. The DEA agent in charge, Lee Wayne Nicks, recalled something he had heard from the RCMP. In either the late evening hours of September 19, or the early morning hours of the 20th, Agent Nicks had received information that while Mr. Ervin and Mr. Newall were talking during a phone conversation, Newall was asked how the drugs were sent. In reply, Newall had said something to the effect that "if you cut it carefully, you could make a nice Chinese room." Agent Nicks had not placed importance on the conversation until he saw the broken inlaid wood in the back of the Wentz vehicle. Airport customs officials at the airport informed the DEA agents that a number of days earlier, fifteen boxes described in the packing slips as containing about 180 backgammon boards constructed of inlaid mother of pearl wood, sent by air freight from Syria, were picked up by the consignee, one John Rodgers. The broken pieces of inlaid wood visible in the Wentz vehicle were similar to the description in the packing slips. Agent Nicks was familiar with the fact that Syria is a well known outlet for drugs, and he attached significance to the fact that backgammon boards of a low declared value would be shipped by air freight.

Shortly after the arrest, Agent Nicks...