William Harris Sharpe v. United States of America, Donald Davis Savage v. United States

660 F.2d 967, 1981 U.S. App. LEXIS 17972

• Court: Court of Appeals for the Fourth Circuit
• Decided: September 4, 1981
• Docket: 79-5314, 79-5315
• Status: Published

Opinions

ERVIN, Circuit Judge:

William Sharpe and Donald Savage were indicted for possession with intent to distribute a controlled substance (marijuana) under 21 U.S.C. § 841(a)(1) and 18 U.S.C. §2.¹ At the hearing on the motions to suppress, which was conducted during the bench trial of these charges, Sharpe and Savage challenged the admission of certain evidence as the fruit of unlawful searches and seizures in violation of the Fourth and Fourteenth Amendments. The district court denied the motions and consequently found them guilty under the above statutes. We find the denial of the motions to suppress to be error and reverse.

I.

On June 9, 1978, Luther Cooke, an agent with the Drug Enforcement Administration (DEA), on patrol in an unmarked car along the coast of North and South Carolina, an area under surveillance for suspected drug trafficking, spotted a pickup truck with an attached shell camper, followed by a Pontiac. Observing that the truck was riding low in the rear and appeared overloaded, and that a quilted material covered the rear window of the camper, Cooke proceeded to follow the vehicles south. After approximately twenty miles, Cooke determined that he would make an investigatory stop of the vehicles, and he dispatched a request for aid, to which South Carolina Highway Patrolman Thrasher responded.

Some time after Thrasher joined the procession, the Pontiac and the truck turned onto a loop road through a campground. At no time prior to the turn had the occupants of the truck or vehicle signalled to or communicated with each other, and they did not attempt to do so as they drove the loop road through the campground. Thrasher later testified, however, that the truck and Pontiac were speeding as they drove along that road. At the end of the loop, the vehicles turned back onto the main coastal highway and again proceeded south toward Myrtle Beach.

Shortly thereafter, Cooke stopped the Pontiac and Thrasher stopped the truck. Cooke approached the Pontiac’s occupants and identified himself. He requested and received an operator’s license from the driver, Sharpe; the license was in the name of Raymond J. Pavlovich. Sharpe and his passenger Davis (the charges against whom were later dropped) were not told why they had been stopped. Several minutes later, Cooke radioed the local police for assistance, and two officers from the Myrtle Beach Police Department eventually arrived, in uniform and armed. Asking the local police to “maintain the situation,” Cooke turned custody of Sharpe and Davis over to them and left to join Thrasher, who was with the truck a few blocks further south.

After stopping the truck, Thrasher had approached it with his revolver drawn, had ordered the driver to get out of the truck and to assume a spread-eagle position against its side, and had searched him. At Thrasher’s request, the driver had produced a Florida license identifying him as William Savage and a bill of sale for the truck in the name of Pavlovich. Thrasher gave Savage no reason for the stop but indicated that he would hold him there until Cooke arrived. Savage had then requested the return of his license and permission to leave. Thrasher had refused to return the license and told Savage that he was not free to leave, as he was under custodial arrest, and that he could detain Savage on speeding charges if necessary.

When Cooke arrived approximately fifteen minutes after the truck had been stopped, he identified himself as a DEA agent, and Thrasher handed him Savage’s license and the bill of sale. Cooke twice requested that he be allowed to search the camper and was refused both times. Cooke then stepped onto the rear bumper and observed that it did not lower appreciably. He leaned against the rear of the camper, breathed deeply, and announced that he detected the smell of marijuana. Cooke removed the keys from the ignition, unlocked the camper and searched it, finding a number of highly compressed, well-wrapped burlap bales but no marijuana residue.

After the search of the camper, Cooke placed Savage under arrest and left him in Thrasher’s custody while he returned to the Pontiac, where he placed Sharpe under arrest. By the time Sharpe was arrested, approximately thirty to forty minutes had elapsed since Cooke had first stopped the Pontiac.

Cooke then assembled the various parties and vehicles and led them to the Myrtle Beach police station. That evening the truck was driven to the Federal Building in Charleston, and two or three days later, Cooke supervised the unloading of the truck, which contained forty-three intact bales. Eight randomly selected bales were then searched, and analysis of samples taken from them revealed that the bales contained marijuana. No search warrant was obtained prior to the unloading and analyzing of the bales and their contents. Cooke retained two of the eight bales as evidence and stored them in a vault in his office; the rest were destroyed by fire, under the direction of the Assistant United States Attorney and without permission of the district court.

II.

We consider first whether the vehicle stops and the detentions of Sharpe and Savage were unlawful seizures under the Fourth and Fourteenth Amendments.

The Fourth Amendment, applicable to the states through the Fourteenth Amendment, Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), provides that “[t]he right of the people to be secure in their persons . . . and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause . . . . ” U.S.Const. amend. IV. The amendment has been construed generally to allow a law enforcement official to stop a moving vehicle without a warrant and for less than probable cause, if he has an articulable, reasonable suspicion that either the vehicle or any of its occupants is subject to seizure for violation of the law, see Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 1401, 59 L.Ed.2d 660 (1979), and has been read in particular to allow investigatory field stops of vehicles suspected of drug trafficking, see, e. g., United States v. Jimenez, 602 F.2d 139, 142 (7th Cir. 1979); United States v. Soto, 591 Fi2d 1091, 1099 (5th Cir.), cert. denied, 442 U.S. 930, 99 S.Ct. 2862, 61 L.Ed.2d 298 (1979); United States v. Montgomery, 561 (D.C.Cir. 1977); United States v. Garcia-Rodriguez, 558 F.2d 956, 964 (9th Cir. 1977), cert. denied, 434 U.S. 1050, 98 S.Ct. 900, 54 L.Ed.2d 802 (1978).

Even though the reasonable suspicion standard requires less evidence of wrongdoing than does a showing of probable cause, the law does not free law enforcement officials from all restrictions concerning vehicle stops. Rather, it imposes upon them two significant requirements: first, the reasonable suspicion of illegality must not be based simply on subjective belief but must be supported by articulable and objective facts, and second, the stop must be brief. See, e. g., United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981); United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975); see also Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979).

We can assume without deciding that Cooke had an articulable and reasonable suspicion that Sharpe and Savage were engaged in marijuana trafficking when he and Thrasher stopped the Pontiac and the truck. We conclude, however, that the stops failed to meet the requirement of brevity.

We cannot overemphasize the importance of the brevity requirement for investigatory stops predicated upon less than probable cause; indeed, it is the transitory nature of the stop that justifies the elimination of the probable cause requirement. We note that the Supreme Court in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), heavily relied upon the short length of a stop on the street and a frisk for weapons in fashioning an exception to the probable cause requirement. Furthermore* when the Court transposed the Terry stop and frisk rationale to the vehicle stop situation, it was careful to emphasize the de minimis nature of such stops in justifying the intrusion under the Fourth Amendment. In Brignoni-Ponce, for instance, the Court noted that the Fourth Amendment required a weighing of the public interest against the interference with individual liberty that a stop causes, and it justified the border patrol investigatory stop in that case on the ground that the intrusion was “modest,” usually “consumfing] no more than one minute,” and involving only “a brief question or two.” 422 U.S. at 880, 95 S.Ct. at 2579-80. The Court further cautioned that “any further detention or search must be based on consent or probable cause.” Id. at 882, 95 S.Ct. at 2580; see also United States v. Cortez, 449 U.S. at 416, 101 S.Ct. at 694 (denominating investigatory stops as brief).

The stops and detention in this case cannot be described as brief: Sharpe was detained without probable cause for arrest for thirty to forty minutes before Cooke returned to the Pontiac to arrest him, and Savage was held under custodial arrest without probable cause by Thrasher for at least fifteen minutes before being questioned and finally arrested by Cooke. Indeed, the length of the detentions effectively transformed them into de facto arrests without bases in probable cause, unreasonable seizures under the Fourth Amendment. The teaching of the recent case Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979), is enlightening here. In Dunaway, the Court held that police violated the Fourth Amendment when, without probable cause but with a reasonable suspicion of illegal conduct, they seized an individual and transported him to the police station for interrogation. In so holding, the Court noted that Dunaway was not merely questioned briefly but was instead transported to the station for interrogation and would have been restrained if he had tried to leave; in sum, the detention “was in important respects indistinguishable from a traditional arrest,” id. at 212, 99 S.Ct. at 2256, and, not being grounded on probable cause, it was an unconstitutional seizure.

Like the detention in Dunaway, the lengthy detentions of Sharpe and Savage by law enforcement officers who had no intention of allowing them to leave custody closely resembled traditional arrests. Because probable cause did not exist prior to the detentions, we must view them as illegal seizures under the Fourth and Fourteenth Amendments. See United States v. Chamberlin, 644 F.2d 1262 (9th Cir. 1980) (twenty minute detention of individual in back of parked car, on the basis of a reasonable suspicion that criminality was afoot but without probable cause, was unlawful); United States v. Perez-Esparza, 609 F.2d 1284 (9th Cir. 1979) (three hour detention at border checkpoint station, including two and one-half hour delay pending the arrival of DEA agents, following valid investigatory field stop of a vehicle, constituted an illegal arrest); see also United States v. Miller, 546 F.2d 251 (8th Cir. 1976) (frisk for weapons following ten to fifteen minute house search pursuant to valid search warrant not valid under Terry, because individual was detained longer than necessary); cf. United States v. Vasquez-Santiago, 602 F.2d 1069 (2d Cir. 1979), cert. denied, 447 U.S. 911, 100 S.Ct. 2998, 64 L.Ed.2d 861 (1980) (relatively brief detention of individual in an airport on the basis of a reasonable suspicion of narcotics violation, was not an unconstitutional intrusion, the detention involving only a couple of minutes of questioning).

III.

Having determined that Sharpe and Savage were illegally detained, we must next inquire whether the bales of marijuana Cooke uncovered during his search of the truck should have been suppressed as fruits of the illegality. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), provides the standard by which we test the admissibility of the incriminating evidence, the appropriate inquiry being “whether, granting establishment of the primary illegality, the evidence to which the instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” 371 U.S. at 488, 83 S.Ct. at 417 (quoting Maguire, Evidence of Guilt, 221 (1959)).

We conclude that this case falls within the first category. Cooke obviously would not have had the opportunity to smell the raw marijuana, and thus would have had no reason to search the truck, had Savage not been detained for longer than constitutionally permissible under an investigatory stop. Clearly a product of Cooke’s “exploitation of [the] illegality,” evidence of the discovery of the bales should have been suppressed.

The government’s argument that the smell of the marijuana supplied probable cause for Cooke to search the truck and thus that the evidence was properly admitted fails to persuade us that the search was constitutional. While we acknowledge that the odor of raw marijuana may provide probable cause to search a vehicle legitimately stopped, see, e. g., United States v. Dien, 609 F.2d 1038 (2d Cir. 1979), aff’d on rehearing, 615 F.2d 10 (1980); United States v. Rivera, 595 F.2d 1095 (5th Cir. 1979), it could not have done so in this case: Cooke’s smelling the marijuana was so intertwined with the circumstances of the unlawful detentions that it could not have purged the illegal taint of those detentions and could therefore not have served as probable cause for a search. The bales thus were illegally seized, and the district court erred when it denied the motion to suppress.²

IV.

The bales of marijuana should have been suppressed for another, equally compelling, reason: even if there had been no illegality to taint the discovery of the bales, Cooke should have obtained a warrant before allowing a search and analysis of the bales to proceed in Charleston two or three days after the stops and detentions; We find authority for our conclusion in the Supreme Court’s recent decision in Robbins v. California,-U.S.-, 101 S.Ct. 2841, 69 L.Ed.2d 744 (1981).

The Robbins Court reversed a conviction for drug offenses on the ground that a warrantless search of packages of marijuana wrapped in opaque green plastic and stored in the recessed luggage compartment of a station wagon was unconstitutional. Justice Stewart, in a plurality opinion joined by Justices Brennan, White, and Marshall, set forth a bright line rule that any closed, opaque container found in a vehicle during a lawful search may not be opened without a warrant. Relying on the Court’s decisions in United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977), in which a warrantless search of a footlocker filled with marijuana and seized from the open trunk of a parked automobile was held unconstitutional, and in Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979), in which the Court held that the warrant requirement applied to the search of a suitcase filled with marijuana and found in the trunk of a stopped vehicle, • the plurality rejected the government’s argument that a closed container in a vehicle may be subject to a warrantless search under the automobile exception. It furthermore rejected a “worthy container” rule, concluding that there is no constitutional distinction to be made among various closed containers such as suitcases, briefcases, portfolios, duffle bags, and boxes: all closed containers manifest an individual’s reasonable expectation of privacy in their contents, unless a container by its very appearance betrays an illegal purpose or its contents are exposed to plain view. See Arkansas v. Sanders, 442 U.S. at 764-65 n.13, 99 S.Ct. at 2593-94 n.13. The plurality stressed, moreover, that the Fourth Amendment does not draw a distinction between personal and impersonal effects; as it succinctly stated, “Once placed within [a closed, opaque container], a diary and a dishpan are equally protected by the Fourth Amendment.” - U.S. at -, 101 S.Ct. at 2846.

Joining in the judgment but not the opinion of the plurality, Justice Powell in a concurring opinion rejected the bright line rule, instead premising his conclusion that the search was unlawful on the ground that the defendant had a reasonable expectation of privacy in the carefully wrapped and sealed packages. While acknowledging the benefits of a bright line rule, Justice Powell reasoned that the plurality’s rule in this case placed an unduly heavy burden on law enforcement officers to obtain warrants for the search of trivial containers.

Applying Robbins, we think that under either the plurality’s bright line rule or Justice Powell’s reasoning in concurrence, the warrantless search of the bales in the back of the truck was unconstitutional. The well-packaged bales³ were located in the equivalent of a luggage compartment and were “closed containers” within the meaning of the plurality opinion, and, as their appearance did not manifest their contents,⁴ the warrantless search was unconstitutional under the bright line rule. Sharpe and Savage, moreover, had a reasonable expectation of privacy in the bales, as evidenced by the careful packaging and sealing of the bales and the placing of them inside the curtained camper.

Cooke therefore should have obtained a warrant prior to searching the bales. Because he did not do so, the marijuana should have been suppressed on this ground, as well as on the ground that the initial seizure of the bales was unlawful.⁵

V.

Having concluded that the marijuana should have been suppressed either because its discovery was the fruit of an illegal detention, or because the warrantless search of the bales was unlawful, we reverse Sharpe’s and Savage’s convictions.

REVERSED.

1 . 21 U.S.C. § 841(a)(1) states that “[e]xcept as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally — (1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance.”

18 U.S.C. § 2(a) directs that “[w]hoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission is punishable as a principal,” and § 2(b) states that “[w]hoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.”

2 . Because we have determined that the bales of marijuana should have been suppressed, we do not find it necessary to reach the question whether the district court improperly refused to suppress Sharpe’s license and the bill of sale for the truck.

3 . Each bale consisted of a tube of marijuana wrapped first in paper bags, then in a taped plastic bag, and finally in burlap tied with twine. Cooke acknowledged in his testimony that the marijuana was extremely well packaged.

4 . Sharpe and Savage produced ample evidence of the virtual identity in appearance of the marijuana bales and bales of tobacco, cotton goods, and hemp.

5 . Another ground upon which Sharpe and Savage challenge the admission of the marijuana into evidence was the prejudicial effect of the destruction of the marijuana. Because we conclude that the marijuana should have been suppressed, we do not find it necessary to decide this question. The procedure that the government followed in destroying the evidence— without defense counsel’s knowledge and without leave from the district court — nevertheless seriously concerns us, as it did the district court, and compels comment.

We note that the claim of prejudice in this instance is colorable. Sharpe and Savage argue that Cooke could not have smelled the tightly packaged marijuana through the closed and well-sealed camper door. They further submit that, had forty-one of the forty-three bales not been destroyed, it would have been possible to reconstruct the conditions of the stop and then to show by scientific proof the difficulty or impossibility of smelling the marijuana under those circumstances. By this means, they could have attacked Cooke’s credibility and the existence of probable cause to search the truck. The destruction, of course, made the simulation impossible.

The better procedure would have been for the government to have petitioned the district court for an order allowing the destruction, and for the defendants to have received notice of the impending destruction and to have had access to the seized evidence prior to the destruction. Such a procedure ensures that defendants are not prejudiced by the government’s handling of evidence. See United States v. Heiden, 508 F.2d 898 (9th Cir. 1974) (concurring opinion).