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UNITED STATES v. TUSSELL

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA


July 19, 1977

UNITED STATES OF AMERICA
v.
JACOB F. TUSSELL, JR., JONATHAN SADOWSKY, SAL. LA BATE, GRANT DAVIS, MIKE NELSON, WILLIAM J. LAURIE, JR., ROBERT G. WHALEN, CHARLES T. MASSARO, ROBERT I. CUTLER, NILS CARY NELSON, EUGENE H. POWELL, III, ELIZABETH PORTO

The opinion of the court was delivered by: NEALON

MEMORANDUM AND ORDER

 Defendants have filed individual and omnibus motions to suppress the fruits of "electronic surveillance" and to suppress the fruits of allegedly illegal arrests, searches, and seizures. Deadlines for trial of these defendants fall at various times this month and in early August. See Speedy Trial Act of 1974, 18 U.S.C.A. § 3161 et seq. (Supp. 1977). *fn1" Presently before the Court are these suppression motions, and the question of whether continuances should be granted in trial deadlines by the Court sua sponte. See id. § 3161(h).

 The deadline for trial of Mike Nelson was July 5, 1977. Among the defendants on the indictment, this is the earliest deadline, and, while defendant Nelson has moved for a severance, no severance has been granted. Most of the codefendants have trial deadlines of July 18, 1977. The Court will exclude the period beginning July 6, 1977 and ending July 18, 1977, for defendant Nelson in accordance with 18 U.S.C.A. § 3161(h)(7).

 Eight of the defendants have trial deadlines of July 18, 1977, *fn2" and one of the two remaining defendants has a deadline of July 20. *fn3" Consideration of the suppression motions will require a hearing, which will commence on Thursday, July 28, 1977, at 10:00 A.M. The period of time beginning with these deadlines and ending on July 27, the day before the hearing, will be excluded in accordance with 18 U.S.C.A. § 3161(h)(8). The number of defendants involved in this matter, along with a proliferation of joint and individual pretrial motions, has complicated management of this case. When a case is made especially complex by the "number of defendants, or the nature of the prosecution, or otherwise," Congress has provided for additional periods of excludable time. See id. § 3161(h)(8)(B)(ii). Therefore, I find that the "ends of justice . .. outweigh the best interest of the public and the defendant in a speedy trial," id. § 3161(h)(8), and will order periods of exclusion up until the day of the hearing, and additional periods if thereafter necessary and appropriate.

 Chief Judge, Middle District of Pennsylvania [EDITOR'S NOTE: The following court-provided text does not appear at this cite in 445 F. Supp.]

 ORDER

 Now, this 19th day of July 1977, in accordance with the memorandum this day filed, it is hereby ordered:

 (1) that, in Criminal No. 76-158-5, the period of time beginning July 6 and ending July 18, 1977, be excluded under 18 U.S.C. § 3161(h)(7);

 (2) that, in Criminal Nos. 76-158-1, -2, -5, -6, -7, -8, -9, -10, -11, the period of time beginning July 19 and ending July 27, 1977, be excluded under 18 U.S.C. § 3161(h)(8);

 (3) that, in Criminal No. 76-158-3, the period of time beginning July 21 and ending July 27, 1977, be excluded under 18 U.S.C. § 3161(h)(8); and

 (4) that a consolidated evidentiary hearing on the individual and omnibus motions to suppress the fruits of "electronic surveillance" and to suppress the fruits of arrests, searches, and seizures will be held on Thursday, July 28, 1977, at 10:00 A.M., in Courtroom #2 of the United States Courthouse in Scranton, Pa. to consider all pertinent issues including the following questions:

 I.A.1. Was the installation of a transponder a search?

 2. If so, was there consent for the search?

 3. If not, can the warrantless search be otherwise supported by probable cause and exigent circumstances, and who has standing to suppress any fruits of such a search?

 B.1. Was the use of a transponder in monitoring the flight of the aircraft an intrusion against which any of the defendants is protected by the Fourth Amendment?

 2. If so, was the warrantless intrusion supported by probable cause and exigent circumstances?

 II.A.1. Was the airport, for the purposes of the arrival of the plane in question, the functional equivalent of the border?

 2. Was the appropriate standard (of reasonable suspicion or probable cause with exigent circumstances) met by circumstances as known at the time of the searches, and seizures and was there probable cause for the arrests?

 Chief Judge, Middle District of Pennsylvania


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