The opinion of the court was delivered by: NEALON
Defendants in this three-count indictment 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.
Defendants are charged with conspiracy, importation of a controlled substance, and possession of a controlled substance (marijuana): all defendants are charged in the conspiracy and importation counts, see 18 U.S.C. § 2; 21 U.S.C. §§ 952, 960 & 963; only defendants Tussell and Sadowsky are charged in the possession count, see 21 U.S.C. § 955. These charges are the result of arrests, searches, and seizures made at or in the vicinity of an airport in Mount Pocono, Pa. after an unscheduled landing by a DC-6 in the early morning hours of December 13, 1976. Arrested at or in the vicinity of the airport were defendants Tussell, Sadowsky, Laurie, Whalen, Massaro, Cutler, Nils Nelson, and Powell. The aircraft was traced with the assistance of an electronic tracking device known as a "transponder" that had been surreptitiously installed in the plane by a Customs Agent. An evidentiary hearing was held on July 28, 1977 to consider the suppression motions.
Since the arrests, searches, and seizures were conducted without warrants, the government had the burden at the hearing of going forward with its proof. See Bumper v. North Carolina, 391 U.S. 543, 548, 20 L. Ed. 2d 797, 88 S. Ct. 1788 (1968); 5 L. ORFIELD, CRIMINAL PROCEDURE UNDER THE FEDERAL RULES § 41.54, at 744 & n.13.5 (Supp. 1976). The government's evidence consisted of three exhibits and the testimony of two Customs Agents (William Hamilton and Charles Wunder) and two Pennsylvania State Troopers assigned temporarily to Customs. The government did not produce, and was not required to produce, the informant who purportedly consented to the installation of the transponder and who piloted the plane. See McCray v. Illinois, 386 U.S. 300, 18 L. Ed. 2d 62, 87 S. Ct. 1056 (1967); United States v. Freund, 525 F.2d 873, 876-77 (5th Cir. 1976) (unidentified informant).
The testimony heard often contained elements of hearsay which might have been excluded at trial but which I allowed for whatever probative value that testimony had. This is permissible at a suppression hearing without regard to the matter in issue, although the court remains obligated to weigh the evidence and discount that which is less reliable.
See Fed. R. Evid. 104(a) & 1101(d)(1); United States v. Matlock, 415 U.S. 164, 172-75, 39 L. Ed. 2d 242, 94 S. Ct. 988 (1974); United States v. Lee, 541 F.2d 1145 (5th Cir. 1976). Defendants offered no testimony or evidence of their own.
Consent relating to the installation of the transponder was the primary issue that involved hearsay testimony. In this case neither the government nor the defendants called the aircraft's pilot, who had allegedly given consent.
Defendants argued at the hearing that the nature of consent requires first hand testimony from the person allegedly giving consent. The Federal Rules of Evidence, however, make no such distinction and permit the use of hearsay testimony without regard to the issue involved. See Fed. R. Evid. 104(a) & 1101(d)(1); Matlock, 415 U.S. at 172-75; Lee, 541 F.2d at 1146. Moreover, in cases where the consent of a defendant is in issue, it is obvious that, although the government cannot compel the defendant's testimony, the court is not disabled from nevertheless determining defendant's consent. The crucial question is not what the matter in issue is but rather what probative value the proffered testimony has.
The hearing consumed day and evening sessions on July 28, 1977; the hearing transcript consists of more than 400 pages of testimony. At the close of the hearing I set a schedule for the filing of post-hearing briefs supporting and opposing the motions to suppress. At defendants' request, a brief filed September 12, 1977 by counsel for defendant LaBate is being treated as an omnibus brief filed on behalf of all defendants. In addition, individual briefs were filed by defendants Tussell and Mike Nelson. The government sought and received an extension of time within which to respond; its opposing brief was filed October 13. Defendant LaBate sought and received an extension of time within which to file a reply brief; this brief was filed November 3. The suppression motions are now ripe for determination, and they will be denied for the reasons that follow.
On or about November 3, 1976, Charles Wunder, an Agent for the United States Customs Service working on various investigations in the Mount Pocono, Pa. area, was approached by the manager of the Mount Pocono Airport. The manager, a Mr. Carl Nassauer, advised Wunder that he had been contacted by certain persons in an effort to enlist his cooperation for illegal activities. Throughout early November, Wunder testified, Nassauer was in frequent communication with him on a confidential basis. Nassauer had been told by these persons that a large plane would require a landing place in an isolated area of the airport, that 600 gallons of fuel would be needed,
that the plane would be involved in some unloading described as being a "little bit illegal" because of the lack of federally required unloading certificates, and that he would be well taken care of for his help. The money for the purchase of the fuel was brought to Nassauer by a person who flew in specially from Florida for that purpose. (N.T. 188, 193, 226, 236-38, 274-75, 326-28). Sometime after November 12, 1976, Nassauer communicated to Wunder his belief that the unloading might involve marijuana. (N.T. 239, 334). The financial backing the operation was receiving caused Wunder to believe also that narcotics were likely to be involved. (N.T. 238).
At about the same time a separate investigation was underway in Florida. William Hamilton, an Air Officer for the Custom Service assigned to the Miami Air Support Branch, testified that, on November 12, 1976, he was called to the office of his supervisor, a Mr. Ragan, who is Chief of the Law Enforcement Section in Miami, and introduced to a Mr. Reds Mettrick. The witness, Mr. Hamilton, had not seen Mettrick arrive, and had no idea of what transpired during earlier portions of the meeting between Mettrick and Ragan. Ragan indicated that Mettrick was a pilot who had leased an aircraft,
and that Mettrick had consented to the installation of a special transponder in that craft.
Mettrick was not under arrest; there is no proof in the record as to whether Mettrick appeared voluntarily or was requested to appear at the Customs Office. When Ragan asked Mettrick to confirm his willingness to have the transponder installed, Mettrick replied something to the effect, "Yes. Go ahead and install the transponder." (N.T. 15, 69, 72-73, 78-79, 100, 109). Mettrick mentioned the possibility that the plane's cargo would be marijuana, destined for transport to northeastern Pennsylvania. (N.T. 82, 97, 135). A rather detailed discussion between the witness, Mr. Hamilton, and the pilot, Mr. Mettrick, ensued during which technical questions relating to the mechanics of installing the transponder in the craft were discussed. Mettrick answered most to Hamilton's satisfaction. After the meeting Hamilton confirmed that Mettrick was a licensed pilot by checking "microfiche" files near the conference room. That evening, at about 9 P.M., Hamilton surreptitiously installed the transponder in the DC-6. While transponders are normally located in plain view, he installed the special transponder in such a fashion as to make it difficult to locate visually. This method of installation left unaffected the operation of the existing "primary" and "backup" transponders that are required by Federal Aviation Administration regulations.
(N.T. 11, 32, 43, 95-96, 109).
FAA regulations require that planes above a certain size, such as a DC-6, carry both primary and backup transponders in order to provide information from which the plane's location, groundspeed, airspeed, and direction can be determined. In ordinary operation, a pilot is instructed by ground control to set the transponder being used to a specific identifying frequency. An automatic signal from ground control "interrogates" the transponder to obtain the desired information. The special transponders in use by the Customs Service emit a preset frequency, common to all such transponders, that cannot be adjusted while in use. A special transponder was installed in the DC-6 because of the belief that, should the plane be used in smuggling operations, the persons involved might turn off the primary and backup transponders. (N.T., 8-9, 12, 29, 36, 120, 152).
After the installation of the transponder on November 12, 1976, the DC-6 remained in the Miami vicinity for about one month. One brief flight was taken during this time with the pilot-lessee, Mr. Mettrick, at the controls. Although described by the witness Hamilton as a "test flight," presumably to permit certain persons to assure themselves of the aircraft's operability, the flight also enabled the Customs Agents to confirm that the transponder was functioning correctly. (N.T. 142-43).
The events in Florida and Pennsylvania were linked together by Wunder's discovery, on November 12, that the name of one of the defendants (Tussell) had surfaced in both investigations. Thereafter, Wunder kept in close contact with the Customs Agents conducting the Florida investigation. From those Agents he learned that international smuggling of a controlled substance could be involved and that a DC-6 was intended for use in the operation. (N.T. 188-89, 191-92, 223-24, 234, 240-41).
The cooperative arrangement between Wunder and his confidential informant Nassauer also continued. Nassauer alerted Wunder to a "trial run" which was to be conducted at night during the Thanksgiving weekend. The trial run (personally monitored by Wunder) and the many conversations Nassauer had with several persons connected with the planning for the landing enabled Wunder to develop a list of persons by name or description and a list of vehicles and license plate numbers. In this manner Wunder also learned that these persons were equipping themselves with flares and citizens' band radios. The trial run involved the landing of a small private plane, and the coordinated movement of various vehicles to the isolated area of the Airport where the plane set down. During the trial run a "guard shack" was manned by one of the participants, apparently as a lookout. On a "half dozen" other occasions, Wunder secretly observed the airport in hopes that he could be present during the actual landing of the DC-6. On December 12, Nassauer informed him that the landing was scheduled for that evening. (N.T. 186-88, 197-98, 207, 273, 277, 360-69, 372, 376-77). Thereafter, Wunder heard from the Customs Agents in Florida that the plant had indeed departed.
After the filing of a general declaration by the pilot Mettrick indicating a destination of South Caicos, Bahamas,
the DC-6 left Miami on December 12, 1976 in the anticipated southeasterly direction. The flight was monitored until the plane was beyond the 300-mile range of the Miami air traffic control equipment; South Caicos is located outside the United States, about 520 miles from Miami.
There was testimony that Miami Customs confirmed by phone the arrival of the DC-6 in South Caicos. The general declaration filed there showed a destination of "St. Lucia" on its next flight.
(N.T. 18-21, 64, 79-80, 243).
Wunder began final work on assembling a team to intercept the DC-6 upon its arrival at the Mount Pocono Airport. His team consisted of Customs Agents, Agents of the Drug Enforcement Administration, and members of the Pennsylvania State Police assigned specially to the Customs Service. A meeting was held at Wunder's home in Mount Pocono at 6 P.M., December 12 to disseminate descriptions of persons and vehicles expected to be involved in the operation and to make assignments of responsibilities for the interception. (N.T. 86-88, 207, 297). The plan formulated at the meeting involved seizing and inspecting the contents of the aircraft, and holding persons found at the airport or in vehicles or places thought to be connected with the operation.
To that end, some of the seventeen members of the interception team positioned themselves around the isolated area of the airport that was expected to be used in the landing and had been used in the "dry run" over Thanksgiving. Others were assigned patrols on the adjacent access highway (Route 611) or in other airport areas. All remained hidden from view and maintained radio silence except for certain prearranged signals. There was no other air traffic because of the size of the airport
and the lateness of the hour. At least by the time the DC-6 arrived, the airport was under a heavy snowstorm with high winds. (N.T. 202, 205, 207, 210-11).
After loss of the plane's transponder signal 300 miles from Miami and telephonic confirmation of arrival in South Caicos, the DC-6 was not monitored again until it reached a point 20 miles east of Charleston, S.C. The Traffic Control Center in Washington, D.C. reported to the Customs Service the monitoring of a plane with the distinctive signal of the special transponder. The plane was observed heading in the general direction of Mount Pocono Airport; it made no other stops en route. The monitoring of the craft gave the Customs Agents, and in particular Mr. Wunder, reason to believe the DC-6 was returning to the United States and would make its first stop within the borders of the United States at the Mount Pocono Airport. The monitoring also enabled the Customs Agents to determine an estimated time of arrival. But it is equally clear that, had the transponder malfunctioned after its installation in Miami, because of the tip received from Nassauer on December 12 and because of separate information developed by the Florida investigation, Customs Agents would have been in position at Mount Pocono Airport on that night to intercept the DC-6 in the ...