United States v. Robert Anthony Johnstone, Frank McRee Smith, Santiago Mendoza and Maria Yolanda Serrano

574 F.2d 1269, 1978 U.S. App. LEXIS 10741
Court of Appeals for the Fifth Circuit·Decided June 13, 1978·No. 77-5585·Published·Cited by 7 cases

Opinions

GEWIN, Circuit Judge:

Johnstone, Smith, Mendoza, and Serrano were charged, in a two-count indictment, with conspiracy to possess and distribute marijuana and with possession of marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and 846. At the hearing on the motions to suppress the evidence, they agreed to waive jury trial and stipulated that the substance seized by the officers was 307 pounds of marijuana. In response, the government dropped the conspiracy count. The district court denied the motions to suppress, and [1271] found each defendant guilty of possession of marijuana. We must reverse the convictions, because there was insufficient probable cause to justify the search which revealed the evidence.

According to his testimony at the preliminary hearing and at the hearing on the motions to suppress, special agent Robinson of the Drug Enforcement Administration received a midnight telephone call from an informant who identified himself but was unknown to Robinson. Robinson was told that there were some people staying in rooms 461 and 462 at the Rodeway Inn, that they were paying approximately $40 a day in cash per room, that they had checked in together, and that they were not allowing the maids to enter the rooms to clean them. Apparently the caller was suspicious that a drug deal was in the making. Later that night, around 4 a. m. on January 30, 1977, Robinson and another agent went to the El Paso Rodeway Inn and checked the register. One room was registered in the name “Frank Smith”, which, in the circumstances, aroused Officer Robinson’s suspicions; the other was rented to an individual named Lalonde or Yalonde from Pennsylvania. Surveillance was initiated at the hotel.

At 11:30 a. m. on January 30, a woman later identified as Frank Smith’s wife, Sidney Smith, drove one Joseph Lalonde to the International Airport in El Paso. Lalonde boarded a Continental airliner to Pennsylvania. Sidney Smith returned to the Rode-way Inn. Later that day Sidney returned to the airport with Frank Smith. Frank entered the airport, purchased an envelope and some paper, entered the men’s restroom, and addressed the envelope. The letter was sent by air freight to Albuquerque, New Mexico. Frank and Sidney then visited Frank’s parents in El Paso. The parents, Frank and Sidney, and their child went to a restaurant for lunch. On their way back to the motel, the Smiths and their child stopped for a few minutes at the residence of appellant Johnstone’s parents.

On the next day, February 1, around noon, Frank Smith was observed renting a truck with an 18 foot enclosed van. He and his wife drove the truck and their Chevrolet automobile to Frank’s parents’ house, where he transferred from the automobile to the truck some furniture purchased the previous day at an auction. They returned to the Rodeway Inn in the car and the rented truck. A couple of hours later appellant Johnstone, driving a rented Ford automobile, arrived at the motel and stayed approximately forty-five minutes in Frank Smith’s room. After leaving the Rodeway Inn, Johnstone stopped briefly at his parents’ house and then drove to Ornamental Iron Works, a business operated by appellant Mendoza, who was allegedly suspected of drug trafficking. Johnstone returned to the Rodeway Inn and met Smith in the parking lot. Together they left in the rented truck. They stopped briefly at a convenience store, then drove to a residence on Mazatlan Street. Johnstone got out of the truck and talked with Mendoza in the front yard. Johnstone and Mendoza then carried approximately twenty-five tape-sealed boxes from the house and loaded them into the back of the truck. When they had finished loading and had closed the truck door, they were approached by the agents. The truck was searched, one box was opened and found to contain marijuana, and Smith, Johnstone, and Mendoza were placed under arrest.

Appellant Serrano was arrested in the yard behind the house on Mazatlan Street. Following her arrest and after being advised of her rights, she admitted that she knew what was in the boxes. Later that afternoon, Sidney Smith was arrested at an antique store. The Magistrate determined at the preliminary hearing that there was no probable cause for the arrest of Sidney Smith, and she was discharged from further responsibility under the complaint.

Searches undertaken without a valid search warrant are per se unreasonable unless shown to fit within one of the recognized exceptions to the warrant requirement. Coolidge v. New Hampshire, 403 U.S. 443, 474-75, 91 S.Ct. 2022, 2042, 29 L.Ed.2d 564, 588 (1971). The government contends that the quantum of information [1272] known to the agents at the time of the search was sufficient to constitute probable cause, in light of the “less stringent warrant requirements [that] have been applied to vehicles.” Cardwell v. Lewis, 417 U.S. 583, 589-90, 94 S.Ct. 2464, 2469, 41 L.Ed.2d 325, 334 (1974). The potential mobility of the truck is alleged to provide the element of exigency requiring prompt police action.1

We notice initially that the Supreme Court has expressed a strong preference for the interposition of a neutral and detached magistrate between the citizen and the government’s agent,2 and that this preference has resulted in a subtle difference between the probable cause required when there is no warrant and that required when there is. According to United States v. Ventresca, 380 U.S. 102, 106, 85 S.Ct. 741, 744, 13 L.Ed.2d 684, 687 (1965), “in a doubtful or marginal case a search under a warrant may be sustainable where without one it would fall.” This court has stated that “the standards applicable to the factual basis supporting probable cause for a warrantless arrest and search are at least as stringent as those applied to a search warrant, Whiteley v. Warden of Wyoming Penitentiary, 401 U.S. 560, 566, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971), and may even be more stringent, see, e. g., United States v. Squella-Avendano, 447 F.2d 575, 579 (5th Cir. 1971).” United States v. Anderson, 500 F.2d 1311, 1315 n.8 (5th Cir. 1974).

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United States v. Robert Anthony Johnstone, Frank McRee Smith, Santiago Mendoza and Maria Yolanda Serrano, 574 F.2d 1269, 1978 U.S. App. LEXIS 10741 (5th Cir. 1978).

574 F.2d 1269 (United States v. Robert Anthony Johnstone, Frank McRee Smith, Santiago Mendoza and Maria Yolanda Serrano) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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