Conowal v. United States

• Court: Court of Appeals for the First Circuit
• Decided: September 30, 1993
• Docket: 93-1149
• Status: Published

Opinion

USCA1 Opinion

September 30, 1993      [NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ____________________

No. 93-1149

                                 THOMAS JOHN CONOWAL,

                                Plaintiff, Appellant,

                                          v.

                              UNITED STATES OF AMERICA,

                                 Defendant, Appellee.

____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF PUERTO RICO

[Hon. Gilberto Gierbolini, U.S. District Judge]
                                              ___________________

                                 ____________________

                                        Before

                               Selya, Boudin and Stahl,
                                   Circuit Judges.
                                   ______________

                                 ____________________

            Thomas John Conowal on brief pro se.
            ___________________
            Daniel F. Lopez Romo, United States  Attorney, and Jorge E.  Vega-
            ____________________                               _______________
        Pacheco, Assistant United States Attorney, on brief for appellee.
        _______

____________________

____________________

Per Curiam.  This  is an appeal from the  denial of
                      __________

            appellant Thomas John  Conowal's 28 U.S.C.    2255 motion  to

            vacate his sentence.

                                      BACKGROUND
                                      __________

                      Conowal  pleaded guilty to knowingly importing into

            the  Customs territory  of the  United States  from Colombia,

            South America,  481 kilograms of  cocaine in violation  of 21

            U.S.C.    952(a) and 18  U.S.C.    2.  At  the change-of-plea

            hearing, Conowal admitted  that he had  imported the  cocaine

            from Colombia into this country, indicated that his  plea was

            voluntary,  and  stated  that  he  was  satisfied  with   his

            attorney's  representation.   Based on  Conowal's substantial

            assistance,  the judge departed  downward from  the guideline

            sentencing range (188-235  months) and sentenced  him to  120

            months imprisonment,  a fine  of  $20,000, and  a  supervised

            release term of  five years.  Conowal  subsequently pursued a

            pro  se appeal  in  which  he  attempted  to  raise  a  Sixth
            ___  __

            Amendment issue.  In an  unpublished opinion, we decided that

            it would  be premature to  address such  a claim.   We, thus,

            affirmed   the  judgment  of   the  district  court,  without

            prejudice to the filing of a   2255 motion.

                      Accordingly,  Conowal  filed  the  instant     2255

            motion.    He  raised three  grounds  for  relief:   (1)  his

            confession was  obtained in violation of  his Miranda rights;
                                                          _______

            (2)  an  unconstitutional  search  of  suitcases  inside  the

            airplane  he  was piloting  resulted  in the  seizure  of the

            cocaine; and (3) his counsel provided  ineffective assistance

by failing to litigate  grounds one and two.   The magistrate

            judge  to  whom  the  motion had  been  referred  recommended

            denying  it.   The  district judge  adopted the  magistrate's

            report and  recommendation.  On appeal,  Conowal presses only

            his Sixth Amendment ineffective assistance of counsel claim.

                                      DISCUSSION
                                      __________

                      To prevail on a  Sixth Amendment challenge, Conowal

            must satisfy  the standards of Strickland  v. Washington, 466
                                           __________     __________

            U.S. 668  (1984) -- (1)  counsel's performance fell  below an

            objective  standard of  reasonableness;  and (2)  Conowal was

            prejudiced  as  a  result  of  his  attorney's  incompetence.

            Because  the  principal  basis of  Conowal's  Sixth Amendment

            claim  is the  alleged unlawful search  and seizure,  he must

            also show that his Fourth Amendment claim is meritorious, see
                                                                      ___

            Kimmelman v. Morrison, 477 U.S. 365, 374-75 (1986), and that,
            _________    ________

            but  for counsel's  failure  to file  a pretrial  suppression

            motion, there is a reasonable  probability that he would  not

            have  chosen to plead guilty but would have insisted on going

            to trial.  See Hill v. Lockhart, 474 U.S. 52, 59 (1985).
                       ___ ____    ________

                      We hold  that  the search  at  issue was  a  lawful

            warrantless one.  In so deciding, we first examine the nature

            of the encounter between Conowal and Ruiz, the Customs agent.

            We conclude that, at most,  it was a Terry stop.   To support
                                                 _____

            such  a  detention,  an   officer  must  have  a  "reasonable

            suspicion"   based   on  articulable   facts   (and  rational

-3-

inferences  from  the  facts)  that the  person  stopped  has

            committed or  is engaged in committing a crime.  See Terry v.
                                                             ___ _____

            Ohio,  392 U.S. 1, 21  (1968); United States  v. Maguire, 918
            ____                           _____________     _______

            F.2d 254, 258 (1st Cir. 1990), cert. denied, 111 S.  Ct. 1421
                                           ____________

            (1991).  To determine  whether reasonable suspicion  existed,

            we must look  at the  "totality of the  circumstances."   See
                                                                      ___

            Illinois v. Gates, 462 U.S. 213, 227 (1983).
            ________    _____

                      Here,  we are  not dealing  with the  more rigorous

            "probable  cause" standard  at issue  in Gates.   Rather, the
                                                     _____

            question is whether  the information in  the tip received  by

            the   Customs  officials   was  sufficient  to   support  the

            "reasonable suspicion"  required for  a Terry stop.   Keeping
                                                    _____

            this in mind, it is significant that the tip described future
                                                                   ______

            events  which   were  later   corroborated  by   the  Customs

            officials.   That  is,  a Piper  Navajo airplane  bearing the

            exact tail number  described in the  tip landed at  Mercedita

            when  the informant said  it would.   Given the corroboration

            described  above, along with the filing of what was plainly a

            phony flight plan  and the southerly  course of the  airplane

            after it  left Mercedita  Airport in the  direction of  South

            America,  a Terry stop was  warranted.  See  United States v.
                        _____                       ___  _____________

            Vargas, 931 F.2d 112, 114 (1st Cir. 1991) (where surveillance
            ______

            indicated  that  drug  transactions  were  taking   place  at

            defendant's  apartment  as  informant  had  stated  and  when

-4-

information in  tip was confirmed by  police, under "totality

            of the circumstances," probable cause existed). 

                      Ruiz's  conduct was  consistent  with this  kind of

            detention.   He identified himself to Conowal as soon as they

            met.   Further,  he did not  show a  gun or act  in any other

            manner  which could be deemed  coercive.  The  stop was brief

            and  obviously  directed  at  confirming  or  dispelling  the

            suspicion  that  Conowal  was  engaged   in  drug  smuggling.

            Indeed, Conowal rapidly confirmed the officer's suspicions by

            stating that there  was cocaine  in the  aircraft.1   Conowal

            was not "in  custody" at this time and, thus,  the Terry stop
                                                               _____

            did  not require  Miranda  warnings.   See  United States  v.
                              _______              ___  _____________

            Quinn,  815  F.2d  153,  160-61  (1st  Cir.  1987).    Hence,
            _____

            Conowal's  statement  that there  was  cocaine  on board  the

            airplane would have been admissible at trial.

                      This statement alone  provided probable cause  both

            for  Conowal's arrest and  for the  search of  the suitcases.

            Probable  cause  exists where  "the  facts and  circumstances

            within  [an   agent's]  knowledge  and  of   which  [he]  had

            reasonably trustworthy information were sufficient to warrant

            a prudent man in believing that the [defendant] had committed

____________________

            1.  This response  may even  have been consensual  in nature.
            See United  States v. Rodriguez-Rosario, 845 F.2d 27, 29 (1st
            ___ ______________    _________________
            Cir. 1988) (where defendant's  "very first" answer was freely
            given and alerted  the inspector  to possibility  of a  crime
            being committed,  the situation  "rapidly escalated  from one
            involving  a   minimal  level  of  suspicion   to  one  fully
            justifying arrest upon probable cause").

                                         -5-

or was committing an offense."  Beck v. Ohio, 379 U.S. 89, 91
                                            ____    ____

            (1964); see also Maguire, 918  F.2d at 258.  We can  think of
                    ___ ____ _______

            no more "trustworthy" source of this kind of information than

            Conowal  himself.    We thus  turn  to  the  validity of  the

            warrantless search.

                      First,  we note  that  an individual  has a  lesser

            expectation  of privacy  in an  aircraft than  in his  or her

            home.   See United States v. Zurosky,  614 F.2d 779, 789 (1st
                    ___ _____________    _______

            Cir. 1979) (discussing search  of a boat), cert. denied,  446
                                                       ____________

            U.S.  967 (1980).    Second, an  airplane  by its  nature  is

            mobile.  See United States v. Brennan, 538 F.2d 711, 721 (5th
                     ___ _____________    _______

            Cir. 1976) (although an airplane is not the "legal equivalent

            of  an automobile  for purposes of  search and  seizure," the

            fact that it  is more difficult to abscond in  an airplane is

            offset by greater range of escape routes), cert.  denied, 429
                                                       _____________

            U.S. 1092 (1977).   Because both  probable cause and  exigent

            circumstances  existed, the warrantless  search was justified

            under  the automobile  exception to the  warrant requirement.

            See United States v.  Rollins, 699 F.2d 530, 534  (11th Cir.)
            ___ _____________     _______

            (holding  that  search  of aircraft  fell  within  automobile

            exception to warrant requirement), cert. denied, 464 U.S. 933
                                               ____________

            (1983); Brennan, 538 F.2d at 721-22 (same); cf. Zurosky,  614
                    _______                             ___ _______

            F.2d at 789-90 (same regarding boat).

-6-

CONCLUSION
                                      __________

                      Given the  fact that the cocaine  most likely would

            have  been  admissible at  trial,  combined  with the  almost

            certain admissibility of  Conowal's pre-arrest statement,  we

            do not think that counsel was  remiss in not filing a  motion

            to  suppress.  Indeed, in pursuing  a plea agreement instead,

            counsel secured  for Conowal  a sentence  significantly below

            the guideline range.

                      We  need  go  no   further.2    For  the  foregoing

            reasons,  the judgment of the district court is affirmed.  We
                                                            ________

            also deny, as  moot, Conowal's petition for writ  of mandamus
                 ____

            requesting that we decide his appeal forthwith.

____________________

            2.  We  need not  address  the issue  concerning the  alleged
            violation  of   Conowal's  Miranda  rights.     Even  if  the
                                       _______
            confession  had been  suppressed, Conowal  cannot demonstrate
            prejudice since the evidentiary value of the  cocaine and the
            pre-arrest statement seal his  fate.  By like token,  we need
            not address  the government's contention that  the search can
            be upheld as  a lawful  "border search."   See, e.g.,  United
                                                       ___  ____   ______
            States v. Victoria-Peguero, 920  F.2d 77, 80 (1st  Cir. 1990)
            ______    ________________
            (explaining  that a border search is valid on the ground that
            the  item  has  entered  this country  from  outside),  cert.
                                                                    _____
            denied, 111 S. Ct. 2053 (1991). 
            ______

                                         -7-