United States v. David T. Lace, Roger R. Ducharme, Gary D. Butts, Patricia Eckman, and Glenn Pollack

669 F.2d 46, 1982 U.S. App. LEXIS 22855

• Court: Court of Appeals for the Second Circuit
• Decided: January 5, 1982
• Docket: 1560, 1561, 1563, 1562, 1542, Dockets 81-1098, 1099, 1102, 1100, 1103
• Status: Published

Opinions

VAN GRAAFEILAND, Circuit Judge:

On this appeal, we are confronted once again with a case in which every issue has been tried except that of guilt. On December 17, 1979, appellants were indicted for narcotics violations in the United States District Court for the District of Vermont. During the ensuing ten months, appellants presented Chief Judge Holden of the District Court of Vermont with more than eighty pre-trial motions. These were followed by a fourteen day hearing on appellants’ combined motions to suppress. When these motions were denied in substantial part, see United States v. Lace, 502 F.Supp. 1021 (D.Vt.1980), each defendant pleaded guilty to one count of the indictment, reserving, pursuant to stipulation, his or her right to appeal the district court’s suppression rulings. Appellants have now filed over 200 pages of briefs in our Court in which the word “innocent” is conspicuous only by its absence. Appellants’ sole arguments for reversal are that the Government, in a variety of ways, violated their constitutional rights.¹ Finding no merit in these arguments, we affirm the judgments of conviction. Although we can add but little to Chief Judge Holden’s thorough and scholarly opinion, some discussion may be appropriate in several areas where appellants strongly contend that error has occurred.

On May 15, 1979, Judge Charles Bristaw of the Vermont District Court issued a warrant authorizing a search for drugs in a house, a garage and a barn on Beaver Brook Road in the Town of Sharon, Vermont. The search authorized by this warrant uncovered, among other incriminating evidence, approximately 457 pounds of hashish and 100 pounds of marijuana. Because this evidence is the bedrock upon which the Government rests its case, appellants’ attack has been centered mainly on the legality of the search.

The affidavits upon which the warrant was based were executed by two members of the Vermont State Police, Corporal Val-lie and Trooper Holton. Corporal Vallie, a member of Vermont’s Special Investigation Unit, with specialized training and education in the narcotics field, swore that the Special Investigation Unit had received information concerning a major drug distribution organization. This information led them to appellant Lace, the proprietor of a restaurant in Jamaica, Vermont, known as the Bailey-Rawston House. There, the troopers became acquainted with both Lace and appellant Ducharme.

On one of Vallie’s visits to the Bailey-Rawston House, he was accompanied by a confidential informant who introduced him to David Southam. The informant told Vallie that Southam was Lace’s right-hand man, and the informant believed Lace and Southam to be the suppliers of cocaine to a previously convicted buyer named Steele. On April 23, 1978, Lace, injured in an automobile accident, was found to have $6,000 in cash on his person, which he stated was the day’s proceeds from his restaurant. At that time, however, the restaurant was closed for the season. Hospital personnel also heard Lace telephone a friend and instruct him to look under the car seat for additional money.

In March, 1979, Vallie received additional information from another unidentified informant. Vallie stated that the informant’s information was reliable because it was self-incriminating and much of it had been substantiated by independent investigation. It was this informant’s disclosures that led the police to appellants’ drug “warehouse” on Beaver Brook Road. The informant told Vallie that he had been doing business with Lace and Ducharme since 1975, and that they appeared to have an equal interest in the drug business. The informant coz-rectly described and located a house owned by Ducharme in Quechee, Vermont.

The informant stated that Lace and Du-charme had handled over 30,000 pounds of marijuana during 1975-76, and that during the ensuing four years they used various “stash houses” to warehouse the drugs. He described the location of the stash house then being used and stated that within the preceding three months he had purchased 500 pounds of marijuana at that location. The stash house thus described was the Beaver Brook Road property covered by the subsequently issued search warrant. The informant said that the stash house was run by Ducharme’s cousin whose first name was “Gary” and who drove a dark color Ford pick-up truck with a cap. The informant stated that the narcotics group used several pick-up trucks with caps to deliver marijuana, which was normally packaged in fifty pound bales, and that each truck would carry about 1,000 pounds; that during 1978, the group purchased, warehoused, and distributed about 30,000 pounds of marijuana. The informant was told by Ducharme on February 29, 1979, that the group was trafficking heavily in cocaine on a year-round basis and that marijuana shipments for the 1979 season would begin in April.

The informant told Vallie that the Du-charme-Lace organization had “personally sold him multiple pounds of marijuana” since 1975; that the group was operating a multiple pound cocaine distribution scheme on a year-round basis, while the marijuana operation went from April through the summer. He provided Vallie with the telephone numbers and location of the 1979 warehouse on Beaver Brook Road.

This information, standing alone, provided sufficient probable cause to justify a court-authorized search of the Beaver Brook Road buildings. Mapp v. Warden, New York State Correctional Institution for Women, 531 F.2d 1167, 1171-72 (2d Cir. 1976). “Although the informant did not have a previous track record of reliability, this is not the only means whereby an informant’s trustworthiness can be established.” Id. at 1171. The fact that the informant, himself, was a confessed participant in the criminal activities taking place on Beaver Brook Road was, by itself, sufficient to establish the trustworthiness of his disclosures. United States v. Dunloy, 584 F.2d 6, 10 (2d Cir. 1978); United States v. Rueda, 549 F.2d 865, 869 (2d Cir. 1977); United States v. Burke, 517 F.2d 377, 380 (2d Cir. 1975); United States v. Miley, 513 F.2d 1191, 1204 (2d Cir.), cert. denied, 423 U.S. 842, 96 S.Ct. 74, 46 L.Ed.2d 62 (1975).

However, the Vermont police did not rest on this evidence alone; they gave Judge Bristaw additional facts to corroborate the informant’s story. Vallie’s affidavit states that during several random surveillances he and Trooper Holton saw a dark blue pick-up truck with a white cap at the Beaver Brook Road premises. The truck was owned by appellant Butts, whose first name is “Gary”. On several occasions, vehicles owned by Lace, Ducharme and Southam were also seen at that address. Appellant Butts’ truck was also seen at Ducharme’s residence in Quechee, as was that of a known drug peddler. This combination of corroborating evidence and the informant’s admitted participation in appellants’ criminal activities was sufficient to satisfy a prudent judge such as Judge Bristaw that the informant’s story was credible and that there was probable cause for a search warrant to be issued. Mapp v. Warden, supra, 531 F.2d at 1171; United States v. Sultan, 463 F.2d 1066, 1068-69 (2d Cir. 1972). This being so, appellants’ argument that the affidavits submitted to Judge Bristaw referred to other evidence allegedly obtained in violation of appellants’ constitutional rights is of little consequence.

The ultimate inquiry on a motion to suppress evidence seized pursuant to a warrant is not whether the underlying affidavit contained allegations based on illegally obtained evidence, but whether, putting aside all tainted allegations, the independent and lawful information stated in the affidavit suffices to show probable cause.

United States v. Giordano, 416 U.S. 505, 555, 94 S.Ct. 1820, 1845, 40 L.Ed.2d 341 (1974) (Powell, J. concurring and dissenting).

Justice Powell has summarized in the above quote what has been the established law of this Circuit for many years. See, e.g., United States v. Vasquez, 634 F.2d 41, 44-45 (2d Cir. 1980); United States v. Jackstadt, 617 F.2d 12, 14 (2d Cir.), cert. denied, 445 U.S. 966, 100 S.Ct. 1656, 64 L.Ed.2d 242 (1980); United States v. Marchand, 564 F.2d 983, 991-94 (2d Cir. 1977), cert. denied, 434 U.S. 1015, 98 S.Ct. 732, 54 L.Ed.2d 760 (1978); Parts Mfg. Corp. v. Lynch, 129 F.2d 841 (2d Cir.), cert. denied, 317 U.S. 674, 63 S.Ct. 79, 87 L.Ed. 541 (1942). Other Circuits are in accord. See United States v. Williams, 633 F.2d 742, 745 (8th Cir. 1980).

Examining the evidence of surveillance referred to in the troopers’ affidavits and explored at length during the suppression hearings, we agree with the holdings of Chief Judge Holden concerning its admissibility on the trial. Judge Holden found that the Beaver Brook Road property consisted of the house, barn, and garage, and approximately 70 acres of land. It was owned jointly by two couples named Heine and Berkman. They rented the house and garage to Butts for his exclusive use for one year beginning September, 1978, with the understanding, however, that Butts would share the use of the remaining property with the owners. The owners could use the remainder of the property for recreation as they desired, and permission for such use had also been given to the neighbors. The property was not posted and was used freely by hunters. “Outsiders could enter the open property at will.” 502 F.Supp. at 1038.

Although the yard, the garage, the barn, and much of the house were visible from the public highway, a good deal of the police surveillance which occurred after April 24, 1979, took place on the property itself. On occasion, binoculars and a spotting scope were used. Other more sophisticated optical instruments were also tried but with little success.

Appellants contend that all observations made during such surveillance violated their constitutional right of privacy and must be suppressed. The district court agreed that, while appellants were inside the house, they had a legitimate expectation of privacy from telescopic observation. See United States v. Taborda, 635 F.2d 131, 136-38 (2d Cir. 1980). However, because the area between the house, the garage, and the barn was clearly visible from the road and could easily be observed by outsiders who “could enter the open property at will”, the district court held that none of the appellants had a legitimate expectation of privacy while in that open area. We agree.

In Hester v. United States, 265 U.S. 57, 59, 44 S.Ct. 445, 446, 68 L.Ed. 898 (1924), Justice Holmes enunciated for the Court what has since become to be known as the “open fields” doctrine. There, two revenue officers were approaching a farmhouse in which the defendant lived, when they saw another person drive near the house. The officers concealed themselves from 50 to 100 yards away and saw the defendant come out of the house and hand the arrival a bottle which contained moonshine whiskey. The Court held that, even if the revenue officers were trespassers, there was no illegal search or seizure, stating that “the special prohibition accorded by the Fourth Amendment ... is not extended to the open fields.” Id. at 59, 44 S.Ct. at 446.

Although the emphasis on Fourth Amendment protections has shifted from places to people, Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967), the “open fields” doctrine continues to receive judicial recognition. This is because people generally do not have a legitimate expectation of privacy in open and accessible areas that the public is prepared to recognize as reasonable. United States v. Freie, 545 F.2d 1217, 1223 (9th Cir.), cert. denied, 430 U.S. 966, 97 S.Ct. 1645, 52 L.Ed.2d 356 (1976). Thus, in Air Pollution Variance Board v. Western Alfalfa Corp., 416 U.S. 861, 94 S.Ct. 2114, 40 L.Ed.2d 607 (1974), the Court held that a state health inspector’s warrantless entry onto defendant’s outdoor premises to make an opacity test of smoke coming from the defendant’s chimneys was not an unreasonable search. Justice Douglas, speaking for the Court said that the inspector was “well within the ‘open fields’ exception to the Fourth Amendment approved in Hester." Id. at 865, 94 S.Ct. at 2115.

In United States v. Santana, 427 U.S. 38, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976), the defendant, when first observed by the police, was standing in the doorway of a house. The police arrested her in the vestibule, to which she had retreated. The Court, distinguishing between private property under the common law and public places under the Fourth Amendment, held, citing Hester, that, when first seen, the defendant was “as exposed to public view, speech, hearing, and touch as if she had been standing completely outside her house.” Id. at 42, 96 S.Ct. at 2409.

Chief Judge Holden’s factual findings that outsiders could enter the Heine and Berkman property at will and that the area between the house and barn was readily observable from the highway were not clearly erroneous and must therefore be accepted by this Court.² What was observable by the general public was observable without a warrant by the police as well. Marshall v. Barlows, Inc., 436 U.S. 307, 315, 98 S.Ct. 1816, 1821, 56 L.Ed.2d 305 (1978); see United States v. Dionisio, 410 U.S. 1, 14, 93 S.Ct. 764, 771, 35 L.Ed.2d 67 (1973), (citing United States v. Doe, 457 F.2d 895, 898-99 (2d Cir. 1972), cert. denied, 410 U.S. 941, 93 S.Ct. 1376, 35 L.Ed.2d 608 (1973)); United States v. Miller, 589 F.2d 1117, 1133-34 (1st Cir. 1978), cert. denied, 440 U.S. 958, 99 S.Ct. 1499, 59 L.Ed.2d 771 (1979); United States v. Knight, 451 F.2d 275, 278 (5th Cir. 1971), cert. denied, 405 U.S. 965, 92 S.Ct. 1171, 31 L.Ed.2d 240 (1972).

Among the lower court decisions adopting the Hester-Katz rationale, the following are illustrative:

United States v. Varkonyi, 645 F.2d 453 (5th Cir. 1981).

View from roadway of illegal aliens working in delivery area of defendant’s fenced scrap metal yard.

Patterson v. National Transportation Safety Board, 638 F.2d 144 (10th Cir. 1980).

Examination of exterior of plane parked at private airport.

United States v. Magana, 512 F.2d 1169 (9th Cir.), cert. denied, 423 U.S. 826, 96 S.Ct. 42, 46 L.Ed.2d 43 (1975).

View of defendant in front of garage from police car driven into private residential driveway.

United States v. Hensel, 509 F.Supp. 1376 (D.Me.1981).

Surveillance of outdoor premises with a telescope, a spotting scope, binoculars, and a nightscope, plus aerial surveillance and physical entry onto driveway.

See also United States v. Arboleda, 633 F.2d 985, 991-92 (2d Cir. 1980); United States v. Mullinex, 508 F.Supp. 512 (E.D.Ky.1980); United States v. DeBacker, 493 F.Supp. 1078 (W.D.Mich.1980).

Although some of the observations of the outdoor area were made with binoculars or other visual aids, this did not make such observations unlawful. United States v. Allen, 633 F.2d 1282, 1290-91 (9th Cir. 1980); United States v. Minton, 488 F.2d 37 (4th Cir. 1973), cert. denied, 416 U.S. 936, 94 S.Ct. 1936, 40 L.Ed.2d 287 (1974). In United States v. Taborda, supra, 635 F.2d 131, we held that the Fourth Amendment proscribed the use of a telescope by a policeman only so far as it enhanced his view into the interior of a home. Id. at 139. Its use is not proscribed in places where the defendant otherwise has exposed himself to public view. United States v. Allen, supra, 633 F.2d at 1289; United States v. Hensel, supra, 509 F.Supp. at 1384 n.9; United States v. Bifield, 498 F.Supp. 497, 506-08 (D.Conn.1980).

Judge Newman’s reference to nude sunbathers is a felicitous one because it brings the issue of reasonable expectations of privacy into sharp focus. If one were asked whether a person, strolling stark naked around an open yard such as the one on Beaver Brook Road, reasonably could expect to do so in privacy, we suggest that the answer would have to be “No”. If this is so, there is no reason why the judiciary should clothe similarly located drug traffickers in cloaks of invisibility.

The only other issue meriting comment involves the search of appellant Lace’s automobile. The search warrant for the Beaver Brook Road premises was executed during the evening of May 16, 1980. While the search was in process, Lace arrived in his car with Ducharme as a passenger. Both were promptly arrested. Lace was given his Miranda warnings but made no request for an attorney at that time.

Sometime after midnight, both Lace and his automobile were taken to the Bethel Police Barracks. Around 4:00 a. m., the police asked Lace if he would permit them to search his car. The district court’s findings relative to this conversation were as follows:

Corporal LeClair referred to the lateness of the hour and pointed out that Lace’s consent to a search would save a lot of time that would be required to obtain a search warrant. Lace replied he would be willing to permit a search on one condition — to the effect that whatever was found in the search of the vehicle, he (Lace) didn’t know anything about.

Lace then executed a written consent which is set forth at full in the margin.³ In the search that followed, the police found and seized $185,000.

Lace’s contention that his consent was not voluntarily given was rejected by the district court, a factual finding which should not be overturned unless clearly erroneous. United States v. Price, 599 F.2d 494, 503-04 (2d Cir. 1979). The district court found Lace to be a “mature”, “well informed”, “enlightened” person with four years of college education, who was not under duress during his detention and who “conveyed the impression of being self-possessed and self-confident despite his predicament.” The district court also found no persuasive evidence of police overbearing, deprivation of physical needs, or deception. Having seen and heard the witnesses, the district court was in a far better position to make these findings than is this Court.

The district court found that Lace’s consent was not in response to police interrogation. It was instead a “practical accommodation to a consequence that the witness understood would be inevitable by way of a search warrant”, and was accompanied by an imposed condition that the property uncovered would not be considered to be his. In the absence of any deception, coercion, or other overreaching on the part of the police. Lace’s belief in the inevitability of a search warrant, a justifiable belief under the circumstances, did not preclude a finding that his consent was voluntary. United States v. Price, 599 F.2d 494, 503 (2d Cir. 1979); United States v. Tortorello, 533 F.2d 809, 814 (2d Cir.), cert. denied, 429 U.S. 894, 97 S.Ct. 254, 50 L.Ed.2d 177 (1976); United States v. Miley, 513 F.2d 1191, 1199 n.4 (2d Cir.), cert. denied, 423 U.S. 842, 96 S.Ct. 75, 46 L.Ed.2d 62 (1975); United States v. Faruolo, 506 F.2d 490, 493-94 (2d Cir. 1974); United States v. Curiale, 414 F.2d 744, 746-47 (2d Cir.), cert. denied, 396 U.S. 959, 90 S.Ct. 433, 24 L.Ed.2d 424 (1969); United States v. Jordan, 399 F.2d 610, 614 (2d Cir.), cert. denied, 393 U.S. 1005, 89 S.Ct. 496, 21 L.Ed.2d 469 (1968); United States v. Flores, 462 F.Supp. 702, 708-10 (E.D.N.Y.1978), aff’d sub nom. United States v. Vasquez, 612 F.2d 1338, 1346-47 (2d Cir. 1979), cert. denied, 447 U.S. 907, 100 S.Ct. 2991, 64 L.Ed.2d 857 (1980); United States v. Manarite, 314 F.Supp. 607, 613 (S.D.N.Y.1970), aff’d, 448 F.2d 583 (2d Cir.), cert. denied, 404 U.S. 947, 92 S.Ct. 281, 30 L.Ed.2d 264 (1971).⁴

The consent to a search by one who realizes that the jig is up and a search warrant will issue in any event is similar to a plea of guilty by one who believes that he will be convicted if he stands trial. Robbins v. MacKenzie, supra, 364 F.2d at 50. His act does not become involuntary simply because the consequences would have been the same if he refused. See United States v. Gorman, 355 F.2d 151, 159 (2d Cir. 1965), cert. denied, 384 U.S. 1024, 86 S.Ct. 1962, 16 L.Ed.2d 1027 (1966). Like the defendant who pleads guilty, Lace was attempting to make the best deal he could under the circumstances.

A judge who accepts a guilty plea makes careful inquiry to ascertain that the plea is voluntary and not the result of Governmental overreaching. That is exactly what the district court did when considering Lace’s consent to the search of his car. There was no clear error in the district court’s factual finding that consent was voluntarily given.

We have reviewed all of appellants’ remaining arguments.⁵ Most of them were considered and rejected by the district court in its well reasoned opinion. None of them merits discussion here.

The suppression orders and the judgments of conviction are affirmed.

1 . Appellant Pollack also asserts that his sentence was excessive, a contention which we find to be without merit.

2 . Judge Newman states that when Chief Judge Holden found that “[o]utsiders could enter the open property at will”, he was not referring to the public at large but only to a narrow segment. We disagree. Inasmuch as Chief Judge Holden relied upon the quoted finding in reaching a conclusion diametrically opposed to that of our colleague, we believe that Chief Judge Holden meant exactly what he said, not what Judge Newman contends that he meant to say. The surveillance in question took place in April and early May, and the district court’s finding would be pointless unless directed to that period. When the court found that “outsiders” could enter at will, it obviously was not referring to summertime swimmers or fall hunters. The district court said:

The land was not posted. Outsiders could enter the open property at will. Therefore, Butts’ actions outside the buildings could easily be observed by any person going on the land, (emphasis supplied)

We suggest that, as used by Chief Judge Holden, the phrases “any person” and “outsiders” are synonymous.

3 . I, DAVID LACE, having been informed of my constitutional right not to have a search made of my premises hereinafter mentioned without a search warrant and of my right to refuse to consent to such a search voluntarily authorize M. LeClair and N. Ruggiero, Officers of the Vermont State Police to conduct a complete search of my (car) located at Bethel, Vermont. These officers are authorized by me to take from my (car) any letters, papers, materials or other property which they desire in connection with a pending investigation being made by them. This written permission is being given by me to the above mentioned Officers voluntarily and without threats of promises of any king [sic].

4 . Other Circuits are in accord. See, e.g., United States v. Miller, 589 F.2d 1117, 1132 n.13 (1st Cir. 1978), cert. denied, 440 U.S. 958, 99 S.Ct. 1499, 59 L.Ed.2d 771 (1979); United States v. Agosto, 502 F.2d 612, 614 (9th Cir. 1974); United States v. Culp, 472 F.2d 459, 461 (8th Cir.), cert. denied, 411 U.S. 970, 93 S.Ct. 2161, 36 L.Ed.2d 692 (1973); United States v. Savage, 459 F.2d 60, 61 (5th Cir. 1972); United States v. Myers, 378 F.2d 398, 399 (3d Cir. 1967), cert. denied, 396 U.S. 847, 90 S.Ct. 96, 24 L.Ed.2d 96 (1969); Robbins v. MacKenzie, 364 F.2d 45, 50 (1st Cir.), cert. denied, 385 U.S. 913, 87 S.Ct. 215, 17 L.Ed.2d 140 (1966); Gatterdam v. United States, 5 F.2d 673, 674 (6th Cir. 1925).

5 . We agree with Judge Newman’s comments urging caution in accepting guilty pleas that are subject to the number and variety of conditions found in the instant case. This Circuit’s rule on conditional guilty pleas has not been adopted in all Circuits. See United States v. DePoli, 628 F.2d 779, 781 n.1 (2d Cir. 1980). The reasons for its rejection in other Circuits, as set forth in United States v. Cox, 464 F.2d 937, 944-45 (6th Cir. 1972), are peculiarly applicable where the plea is not conditioned upon the resolution of a single clear-cut legal issue which plays a pivotal role in the case. If a plea is tendered upon condition that more than one issue is reserved for appeal, the district court should satisfy itself that the reserved issues are significant to the outcome of the case.