the question now is whether this search, admittedly done without benefit of warrant, was a reasonable one, and, as a preliminary matter, whether each of the defendants has standing to contest the constitutionality of the search.
The standing of each defendant, individually determined,
is dependent upon whether he is charged with possession of an illegal substance at the time of the monitoring, was present in the aircraft at that time, or had a proprietary interest in the DC-6 which gave him a reasonable expectation of privacy. See Brown, 411 U.S. at 228-29. The record in this regard is again deficient: some of the defendants might have been able to establish the requisite proprietary interest;
and it is apparent that some might have been able to establish their presence in the aircraft at the time of the monitoring.
Defendants contend that standing is established because they are charged with possessory crimes at the time of the monitoring. Only defendants Tussell and Sadowsky are charged with actual possession; since the indictment charges possession on the day the monitoring occurred, defendants Tussell and Sadowsky have standing to contest the monitoring. See Brown, 411 U.S. at 228-29; Holmes, 537 F.2d at 231-33 (en banc dissent). As to the other defendants, it is contended that the charge of importation of a controlled substance is a possessory crime, entitling them to "automatic standing." If a conflict in the circuits ever existed,
it is clear now that the Courts of Appeals for both the Ninth and Fifth Circuits have adopted the same standard and rejected this position. See United States v. Guerrera, 554 F.2d 987 (9th Cir. 1977); United States v. Gramlich, 551 F.2d 1359 (5th Cir. 1977); United States v. Valencia, 492 F.2d 1071 (9th Cir. 1974).
I will assume standing for these additional defendants in order to reach the question of privacy expectations in the monitoring for all defendants.
The monitoring of the plane did not violate any reasonable expectations of privacy. See generally Katz v. United States, 389 U.S. 347, 19 L. Ed. 2d 576, 88 S. Ct. 507 (1967). See also United States v. White, 401 U.S. 745, 28 L. Ed. 2d 453, 91 S. Ct. 1122 (1971) (plurality opinion). FAA regulations, discussed supra, require that planes such as a DC-6 be equipped with transponders. In accordance with this regulation, the DC-6 was so equipped. The transponders ordinarily in use and the special transponder placed in the plane by Customs transmit essentially similar information and do not, for example, provide a means of overhearing conversations within the plane. The information supplied during monitoring is integral to the regulation of aircraft flight; the monitoring is an intrusion anticipated and, indeed, welcomed by aircraft passengers. Consequently, there is no reasonable
expectation of privacy disturbed by such governmental activities. Compare United States v. Hufford, 539 F.2d 32 (9th Cir.), cert. denied, 429 U.S. 1002, 50 L. Ed. 2d 614, 97 S. Ct. 533 (1976), with United States v. Holmes, 537 F.2d 227 (5th Cir. 1976) (per curiam), aff'g by an evenly divided court en banc, 521 F.2d 859 (5th Cir. 1975).
In addition since none of the defendants had rights violated during the entry to install the transponder, there was no infringement of Fourth Amendment rights by the monitoring. See Wong Sun v. United States, 371 U.S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963).
Interception of the DC-6 and Seizure of Marijuana
The interception of the DC-6, the detention and seizure of equipment and personnel in the immediate area, and the seizure of eight tons of marijuana clearly represent a "search and seizure" within the purview of the Fourth Amendment. The defendants present at the time and place of the seizure have obvious standing. See Brown, 411 U.S. at 228-29.
Those defendants not arrested in the immediate vicinity of the plane, i.e. those arrested some distance away or on the indictment, contend that the charge of importation gives them "automatic standing" to contest this seizure. Importation is not a crime for which possession is an essential element; these defendants are not afforded standing merely because they face charges of importation. See United States v. Guerrera, 554 F.2d 987 (9th Cir. 1977); United States v. Gramlich, 551 F.2d 1359 (5th Cir. 1977); United States v. Valencia, 492 F.2d 1071 (9th Cir. 1974); United States v. Felix, 474 F.2d 610 (9th Cir. 1973).
Again, these defendants, who could not establish standing because they were not present at the time of the seizure and have not been charged with a possessory crime, might have sought to show the requisite proprietary interest in the airplane.
Since there was insufficient evidence of a joint venture I hold that the three defendants arrested on the indictment and the three arrested in the guard shack and van have no standing to contest the seizure of the marijuana. I will assume arguendo standing for these six defendants in order to reach the question of the constitutionality of the interception for all.
The question of whether the interception and seizure are constitutional is dependent upon (1) whether the interception was made at the functional equivalent of the border; and (2) if so, whether there was reasonable suspicion that violations of the customs laws were taking place. Moreover, although I have found that neither the entry to install the transponder nor the monitoring of the plane in flight were violative of the Fourth Amendment, an otherwise permissible Customs inspection may be tainted by previous illegal governmental activity. See Wong Sun v. United States, 371 U.S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963). Thus, it must also be decided, assuming for the sake of argument that I had found either the entry or monitoring to be illegal, (1) whether the interception would still be considered to have been made at the functional equivalent of the border; and (2) whether there would still be reasonable grounds to believe customs laws were being violated. Obviously, the issues of functional equivalency and reasonable basis must be judged according to the information known to Customs Agent Wunder at the time he gave the signal for the interception and seizure. This information existed in five broad categories: (1) confidential information supplied by Mr. Nassauer, the manager of the Mount Pocono Airport both before and after November 12, 1976 -- the date of the entry into the DC-6; (2) confidential information, obtained by Customs Agents in Florida and relayed to Wunder after November 12 and before December 12, which resulted from their investigation but not as a consequence of the installation or operation of the transponder;
(3) information gained from the use of the transponder in monitoring the flight of the DC-6 on December 12 and 13; (4) information relayed by Customs Agents in Florida on December 12 from sources other than the transponder; and (5) information gained by Wunder's own observations.
The United States Customs Service, as part of its broad authority, may make investigatory stops and searches at the international borders and at locations that are the "functional equivalent" of the border. See Almeida-Sanchez v. United States, 413 U.S. 266, 272-73, 93 S. Ct. 2535, 37 L. Ed. 2d 596 (1973); United States v. Beck, 483 F.2d 203, 207-08 (3d Cir. 1973), cert. denied, 414 U.S. 1132, 38 L. Ed. 2d 757, 94 S. Ct. 873 (1974); United States v. Glaziou, 402 F.2d 8, 12 (2d Cir. 1968) (border area elastic; dependent upon factual context), cert. denied, 393 U.S. 1121, 22 L. Ed. 2d 126, 89 S. Ct. 999 (1969). See also United States v. Diaz, 503 F.2d 1025 (3d Cir. 1974) (per curiam).
Since the Customs Agent in charge of intercepting the plane, Agent Wunder, had a reasonable basis for believing that the flight was international, the interception was made at the functional equivalent of the border. See United States v. Ivey, 546 F.2d 139, 143 (5th Cir. 1977). In the fourth category of information, viz., that obtained on December 12 from sources other than the monitoring of the DC-6 in flight, Agent Wunder knew that a general declaration had been filed in Miami indicating an intention to fly to South Caicos, that the DC-6 had landed in South Caicos (the phone conversation), and that a second general declaration had been filed there indicating another foreign destination. In the second category of information, viz., that obtained from the Florida investigation and connected with the Pennsylvania operation through the name "Tussell", Wunder knew that Mettrick had been hired to fly contraband from a foreign destination to northeastern Pennsylvania. In the third category of information, it was known from the monitoring of the DC-6 that the plane flew 300 miles from Miami toward South Caicos and from South Carolina to Mount Pocono. Clearly, there was a reasonable basis from which Wunder could conclude that an international flight had occurred. There was no information that the DC-6 had cleared customs elsewhere; a customs inspection was clearly called for.
See Ivey, 546 F.2d at 143; Brennan v. United States, 538 F.2d 711 (5th Cir. 1976), cert. denied, 429 U.S. 1092, 97 S. Ct. 1104, 51 L. Ed. 2d 538, 45 U.S.L.W. 3570 (1977). See also, United States v. Mirmelli, 421 F. Supp. 684, 687 (D.N.J. 1976), aff'd mem., 556 F.2d 569 (3d Cir.), cert. denied, 434 U.S. 832, 98 S. Ct. 115, 54 L. Ed. 2d 92, 46 U.S.L.W. 3216 (1977).
Even if the third category of information, viz., that gained by monitoring, were excluded, there was an independent basis, amply supplied by information from the second and fourth categories, for believing that an international flight had occurred. Thus, any taint, were the entry or the monitoring found to be illegal, would be attenuated, and the suppression of the marijuana seized would not be justified. See Wong Sun v. United States, 371 U.S. 471, 484-91, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963).
Since the interception took place at the functional equivalent of the border, the investigatory stop and seizure of the marijuana need only be supported by a reasonable suspicion (or reasonable basis to believe) that a violation of the customs laws was taking place. See Beck, 483 F.2d at 207.
Since a border interception is involved, there is no requirement that a warrant be obtained or that probable cause exist. See United States v. Ramsey, 431 U.S. 606, 97 S. Ct. 1972, 52 L. Ed. 2d 617, 45 U.S.L.W. 4577, 4579-80 (1977); United States v. Glaziou, 402 F.2d 8, 12 (2d Cir. 1968), cert. denied, 393 U.S. 1121, 22 L. Ed. 2d 126, 89 S. Ct. 999 (1969).
Agent Wunder had reasonable suspicion from which he could readily conclude that violations of the customs laws were taking place and on which he could order an investigatory stop and seizure in the immediate vicinity of the plane. In the first category of information, Nassauer made Wunder aware of the significant financial backing the operation had, and provided Wunder with information that extensive preparations were being made for the landing and that the plane was to arrive on the night of December 12. From Florida Customs Agents prior to December 12 (second category), Wunder heard that the plane trip would involve international transporting of marijuana. On December 12 from nontransponder sources (fourth category) Wunder knew that general declarations had been filed in Florida and South Caicos and that the plane had actually landed in and taken off from South Caicos. In the the fifth category Agent Wunder personally observed some of the activities connected with the Thanksgiving "trial run" and personally monitored the highly suspicious landing and unloading operations, conducted in a remote area of a small, generally noncommercial airport in the middle of the night during a severe snowstorm. No arrangements had been made for a special customs check at Mount Pocono, and Agent Wunder had no information that the DC-6 had cleared Customs elsewhere. Finally, by virtue of the monitoring of the DC-6 in flight, (the third category), Agent Wunder knew that the plane had flown 300 miles from Miami toward South Caicos and from South Carolina to Mount Pocono. With or without this third category of information, see Wong Sun, 371 U.S. at 484-91, Wunder had reasonable suspicion that violations of the customs laws had occurred. See Diaz, 503 F.2d at 1026 n.1; Beck, 483 F.2d at 208.
Arrests Made at or in the Vicinity of the Landing Site
The Customs Agents participating in the interception made what, under the circumstances of the unusual landing, would be the ordinary course of conduct for the Customs stop and search. See, e.g., Ivey, 546 F.2d at 141; Brennan, 538 F.2d at 714. All persons at the point of interception, either in the plane or the plane's immediate vicinity, were detained. Whether there is any practical difference between this detention and an arrest is of no concern. Just as persons disembarking at a port following an international voyage must be held during a customs inspection of their baggage, see, e.g., Beck, 483 F.2d at 208, so must persons found with the plane await completion of the stop and search. That search disclosed the presence of a large quantity of a controlled substance. At that point at least there was probable cause to arrest the persons who from appearances were engaged in the actual unloading operation.
The arrests of the two persons in the van on the access highway and the arrest of the person in the guard shack are cast in a somewhat different light.
Continuing with the analogy to Beck involving the dock in an international port, the situation of these three defendants, arrested near the landing site but not in its immediate vicinity, is more closely akin to persons, standing some distance from a dock area, thought to be confederates of the persons whose baggage is being inspected, but who are not international travellers and are not themselves carrying customs goods. In such a case Customs Agents are entitled to make an investigatory stop, but arrests would have to be made with probable cause. See United States v. Brignoni-Ponce, 422 U.S. 873, 882, 45 L. Ed. 2d 607, 95 S. Ct. 2574 (1975) (dictum) (further detention after investigatory stop must be made with probable cause). I find probable cause for the arrests, notwithstanding the fact that they were not personally engaged in the unloading operation.
The arrests of these three defendants was signaled by Agent Wunder when he told the members of the interception team to "close in." With regards to the two defendants in the van on the access highway (Powell and Nils Nelson), Nassauer had provided to Wunder, on the basis of Nassauer's contacts with persons making arrangements for the plane's landing, a description and license number for the van. This van was spotted driving along the access highway at 2:30 A.M. at about the same time the unloading was in progress nearby. It was equipped with CB radio and made several passes at the entrance to the airport. There was probable cause for the arrests of the occupants of the van. See United States ex rel. Wright v. Cuyler, 563 F.2d 627 (3d Cir. 1977) (slip op. at 5).
Similarly, with respect to the third defendant (Cutler), Nassauer provided critical information to Wunder to the effect that the guard shack located on airport property between the landing site and the access highway had been used during the trial run over Thanksgiving. At nearly 3 A.M. in the middle of a snowstorm, it would be most unusual to find such a shack occupied. As the officer approached, the defendant began running from the shack. The fact that the shack was occupied by a person at the time the unloading was in progress nearby supplied probable cause for the arrest. See United States ex rel. Wright v. Cuyler, 563 F.2d 627 (3d Cir., 1977).
None of the defendants established standing to contest the entry into the DC-6. Assuming standing, I find that the entry was based upon valid consent. Only defendants Tussell and Sadowsky established standing to contest the monitoring of the DC-6 in flight. Assuming standing for the other defendants as well, I hold that this monitoring did not violate any reasonable expectations of privacy. Consequently, the motions to suppress the fruits of "electronic surveillance" will be denied.
The defendants arrested in the immediate vicinity of the plane established standing to contest the interception. Since the stop and search of the plane was conducted at the functional equivalent of the border on a reasonable suspicion that violations of the customs laws had occurred, and since the arrests of the defendants (including those not in the immediate vicinity of the plane) were conducted with probable cause, the motions to suppress the fruits of arrests, searches, and seizures will be denied.
Trial will be set for Monday, December 5, 1977, and for the reasons set forth in the memorandum of July 19, 1977, I will order a further period of exclusion under the Speedy Trial Act from November 12 to December 4, 1977.
WILLIAM J. NEALON / Chief Judge Middle District of Pennsylvania
Now, this 11th day of November, 1977, in accordance with the memorandum this day filed, it is hereby ordered that the motions to suppress the fruits of illegal electronic surveillance and to suppress the product of unlawful arrests, searches, and seizures are denied. And further, with regards to periods of exclusion under the Speedy Trial Act, it is ordered that the period of time beginning November 12 and ending December 4, 1977 is excluded under 18 U.S.C. § 3161(h)(8). And finally it is ordered that jury trial in this matter will commence at 10:00 A.M. on Monday, December 5, 1977 in the United States Courthouse, Scranton, Pa.
WILLIAM J. NEALON / Chief Judge Middle District of Pennsylvania