United States v. Gregory James Freeman and David Lyle Boese, A/K/A Dennis Phillip Stevens and David Sterling

685 F.2d 942, 1982 U.S. App. LEXIS 26042
CourtCourt of Appeals for the Fifth Circuit
DecidedAugust 30, 1982
Docket81-1336
StatusPublished
Cited by185 cases

This text of 685 F.2d 942 (United States v. Gregory James Freeman and David Lyle Boese, A/K/A Dennis Phillip Stevens and David Sterling) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Gregory James Freeman and David Lyle Boese, A/K/A Dennis Phillip Stevens and David Sterling, 685 F.2d 942, 1982 U.S. App. LEXIS 26042 (5th Cir. 1982).

Opinions

RANDALL, Circuit Judge:

Defendants Gregory James Freeman and David Lyle Boese were indicted and convicted of violations of 21 U.S.C. §§ 841(a)(1), 846, 952, 960, and 963 for possession of and conspiracy to possess cocaine with intent to distribute and for importation of cocaine. On appeal, Freeman and Boese argue that evidence admitted against them at their joint trial was the result of illegal searches and seizures by DEA agents. This case demonstrates the value of cautious and methodical police work. The government agents involved in this case took time to obtain search warrants at every conceivable opportunity, and thus we hold that, even assuming for purposes of argument that one of the warrants was partly invalid, the perspicacity displayed by the agents saved the remaining searches from invalidity. Because we think that the vast majority of evidence admitted against Boese was properly seized, and admission of the remainder was harmless error even if improper, we affirm Boese’s conviction. We also hold there was no error in admitting any of the evidence against Freeman, and therefore affirm his conviction as well.

The evidence challenged by the defendants comes from a series of four searches conducted by DEA agents. Each search was made pursuant to a warrant obtained from a neutral and detached magistrate. The first search took place on November 21, 1980, and involved a search of Boese’s house at 256 Seadrift Road, Stinson Beach, California. A search of Boese’s Jeep was also made and produced two briefcases. A second warrant to search the briefcases was issued on November 24, 1980. This search led the agents to the Sound Genesis Warehouse at 2001 Bryant Street in San Francisco, California. A warrant was issued for this third search on November 25,1980, and a search of the warehouse was made the [946]*946same day. On December 4, 1980, a fourth warrant was issued and a safety deposit box belonging to Boese was searched. Each of these four searches produced evidence used against the two defendants at their trial.

We first consider the claims made by defendant Boese as to each of' the four warrants. Since Freeman’s claims depend on our resolution of these issues, we address his arguments afterwards.

I. The Search of the Seadrift Residence.

A. The Supporting Affidavit.

Boese argues that the affidavit accompanying the application for the first warrant did not state sufficient facts to justify a search of the Seadrift premises. The affidavit was made by DEA Agent Michael J. Fiorentino. A summary of it follows:

On April 24,1980, United States Customs Inspectors discovered that a shipment which had arrived at the Dallas-Fort Worth International Airport contained approximately twenty-eight pounds of cocaine. The cocaine was concealed inside of six scuba diving tanks which had false bottoms. Information available to U.S. Customs at the time showed that the shipment was sent from David Sterling, Lagos, Nigeria, to David Sterling, c/o U.S. Customs, Dallas-Fort Worth Airport, Texas. Preliminary investigations by U.S. Customs Inspector Larry Hoyle revealed that on April 23,1980, a man identifying himself as David Sterling had retained customs brokers D. J. Sekin and Company, Inc., of Dallas, Texas, to clear the shipment through customs and send it by Emery Air Freight to Sterling at the Fairmont Hotel in San Francisco. DEA Agents John Luger and Russell Pfeiffer discovered that a David Alan Sterling had checked into the Fairmont Hotel in Dallas, Texas, on April 23,1980, and checked out of the hotel on the same date. Luger and Pfeiffer replaced a small quantity of cocaine in the shipment and permitted it to be forwarded to San Francisco in an attempt to make a controlled delivery to Sterling. The shipment arrived at the San Francisco International Airport on April 28, 1980.

On April 30, 1980, a man identifying himself as David Sterling picked up the shipment at the Emery Air Freight Warehouse in South San Francisco. Sterling and an unidentified limousine driver placed the freight in a limousine which was followed by Sterling and an associate subsequently identified as defendant Gregory Freeman. The party then drove to the Fairmont Hotel in San Francisco.

At the Fairmont, Agent Fiorentino observed Sterling arrange for the baggage to be placed in a storage area of the hotel. Sterling left for the Mark Hopkins Hotel across the street. Shortly thereafter Sterling left the Mark Hopkins carrying a briefcase. He was not seen again.

From April 30, 1980, until May 2, 1980, DEA agents maintained a continuous surveillance of the Fairmont Hotel. On May 2, 1980, a representative of K & M Drayage picked up the freight consigned to Sterling and transported it to the K & M warehouse for storage. Fiorentino and another DEA Agent, Steven Wood, interviewed the owners of the warehouse, James and Dennis Eagan, and discovered that Sterling had retained the warehouse to store the freight until an undisclosed future date. Dennis Eagan also stated that Freeman was a former employee of the warehouse and a close personal friend of Eagan’s deceased brother. The freight was subsequently transported to the Drug Enforcement Administration Office at the San Francisco International Airport for storage.1

On May 12, 1980, Fiorentino learned from Edmund DeGange, a taxicab driver, that a man using the name Sterling hired him outside of the Chancellor Hotel, 433 Powell Street, San Francisco, to pick up some diving gear and a camera case that Sterling had stored in the K & M Warehouse. Mr. DeGange had gone to the warehouse and [947]*947attempted to pick up the freight with a money order that Sterling gave him for storage fees. Attempts to locate Sterling at the Chancellor Hotel were unsuccessful.

The affidavit then describes several months of investigations by Fiorentino and others in an attempt to identify Sterling and discover his whereabouts. Fiorentino learned that Sterling might also have the alias of Dennis Phillip Stevens. Subpoenaed telephone toll records of calls made at Freeman’s residence included a call to Stevens’ telephone number. The address listed for that number was 256 Seadrift Road, Stinson Beach, California. The phone call was made at 2:24 a.m. on May 1, 1980, approximately one hour after Freeman was last seen at the Fairmont Hotel by DEA agents. Agents Fiorentino and Woods identified a picture of Stevens taken from his California driver’s license as the subject using the name Sterling at the Fairmont. An employee of the D. J. Sekin customs brokerage firm in Dallas identified the picture of Stevens as that of the customer representing himself as Sterling on April 23, 1980.

Fiorentino learned that a 1977 report by Special Agent Dennis Petrotta from San Francisco had mentioned that Stevens was suspected of transporting cocaine from Peru to the United States using the commercial vessel the “Santa Mariana.” Chief Mate of the “Santa Mariana” was Mahlon Boese.

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Cite This Page — Counsel Stack

Bluebook (online)
685 F.2d 942, 1982 U.S. App. LEXIS 26042, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-gregory-james-freeman-and-david-lyle-boese-aka-dennis-ca5-1982.