team found itself in unfamiliar territory and, for that reason, their fears of losing the suspect increased. The pursuers decided to make an investigatory stop.
The agents placed magnetic red lights on top of their cars. Kean pulled ahead of Pillo in order to restrict forward movement, while his companions cut the defendant off from the rear. The suspect pulled to the side of the road, and the investigators followed. At the shoulder of the highway, Pillo threw his Trans Am into reverse. He was stopped when he hit the car operated by Fekete and Reed. Using a flashlight, Kean exhibited his badge and ordered the suspect to leave the Trans Am. The actual examination of the automobile was conducted by Fekete. Kean, however, did sense "a strong chemical odor emanating from inside (Pillo's) vehicle" which resembled methylamine, an ingredient used in the production of methamphetamine.
Fekete then made two observations which convinced him that he had probable cause to search the Trans Am. First, Rodriguez had said that Pillo would be armed with a pistol placed between the driver's seat and the console. Fekete could see the weapon as soon as the defendant emerged from the vehicle, because the whole end was exposed. The gun was seized.
Second, the agent smelled the same odor of methylamine sensed by Kean.
On the basis of these observations, he initiated a full-scale search.
Pillo had an opened leather carry-all in the back seat, and a sweater protruded from the case. Fekete seized the garment, which bore the odor of methylamine. The agent also discerned a small quantity of marijuana on the console between the seats. Fekete opened the trunk and found two boxes made of translucent white plastic.
The investigator noted that the packages were sealed with "duct" tape. Furthermore, he could see that they contained blue crystalline tablets. These latter two points were significant. Fekete knew from experience that traffickers in methamphetamine often used duct tape and blue crystalline tablets in transporting contraband, since these items tend to retard the smell of methylamine.
He opened the boxes and discovered approximately eight pounds of methamphetamine. Kean then placed Pillo under arrest. With the assistance of the Pennsylvania State Police, the federal agents took the defendants into custody.
A warrantless automobile search must have two attributes in order to satisfy the Fourth Amendment. Initially, the investigators need probable cause to believe that the vehicle carries evidence or contraband. Second, the exigencies of the situation must be such that the authorities are unable to obtain a warrant in time to effect the search. United States v. Walden, 578 F.2d 966, 971 (3d Cir. 1978); Williams v. Scranton City Police Department, Civil No. 80-0635, slip op. at 2 (M.D.Pa., May 14, 1981). See also United States v. Shaefer, Michael & Clairton Slag, Inc., 637 F.2d 200, 203 (3d Cir. 1980). In the present case, there is no question concerning the latter issue. Although the Government had been investigating the Hunter Mountain Ski Resort operation for about a month, both sides agree that probable cause to search the Trans Am did not arise before the day of the seizure.
The authorities had no reason to believe that Pillo's vehicle was carrying the anticipated methamphetamine shipment until they saw it drive away from the suspected laboratory. Probable cause, if it existed at all, developed after the vehicle was en route. Thus, the mere failure to obtain a warrant did not taint the search. Chambers v. Maroney, 399 U.S. 42, 48-52, 90 S. Ct. 1975, 1979-81, 26 L. Ed. 2d 419 (1970); United States v. Milhollan, 599 F.2d 518, 526 (3d Cir. 1979); United States v. Vento, 533 F.2d 838, 866-67 (3d Cir. 1976). The court shall turn to the question of probable cause.
II. PROBABLE CAUSE
In determining whether the agents had probable cause to search the Trans Am, the pivotal inquiry is whether they had "trustworthy information" which would lead a person of "reasonable caution" to conclude that an offense was being committed. Brinegar v. United States, 338 U.S. 160, 175-76, 69 S. Ct. 1302, 1310-11, 93 L. Ed. 1879 (1949). See also Dunaway v. New York, 442 U.S. 200, 208 n.9, 99 S. Ct. 2248, 2254 n.9, 60 L. Ed. 2d 824 (1979). Review of the relevant precedents demonstrates that this inquiry is not a simple matter. The Supreme Court and other federal tribunals have reached their decisions on a case-by-case basis. The facts of the particular situation must receive individual attention.
The Government does not argue that Kean, Fekete and Reed had probable cause to search the defendant's vehicle at the time they made the stop.
Rather the United States contends that when Pillo turned onto Route 115, the totality of the circumstances justified an "investigatory stop," i. e., a procedure less intrusive than a search in which the agents could interview the suspect, examine traits of the Trans Am in plain view, and determine if adequate probable cause existed for a full-scale search. The Government then reasons that developments during the course of the investigatory stop provided an adequate basis for the investigators' subsequent action. Assessment of this proposition requires separate inquiries into the validity of the initial stop, the reasonableness of the search, and the seizure of the methamphetamine.
A. Validity of the Stop and Search
The detention of Pillo's car at the side of the highway clearly had Fourth Amendment implications. Delaware v. Prouse, 440 U.S. 648, 653, 99 S. Ct. 1391, 1395, 59 L. Ed. 2d 660 (1979). Three factors must be weighed in determining if the agents' conduct conformed to constitutional standards: "(i) the public interest served by the seizure, (ii) the nature and scope of the intrusion, and (iii) the objective facts upon which the law enforcement officer relied in light of his knowledge and expertise." United States v. Mendenhall, 446 U.S. 544, 561, 100 S. Ct. 1870, 1881, 64 L. Ed. 2d 497 (1980) (Powell, J., concurring). After applying this rule on several occasions, the Supreme Court has established three axioms to guide trial courts in determining the type of justification necessary to authorize a particular unconsented intrusion upon Fourth Amendment interests. First, the authorities have no right to stop or search a person when they have no reason to believe that the individual poses a physical threat, is involved in wrongdoing, or possesses evidence. Ybarra v. Illinois, 444 U.S. 85, 92-96, 100 S. Ct. 338, 342-45, 62 L. Ed. 2d 238 (1979); Delaware v. Prouse, 440 U.S. at 663, 99 S. Ct. at 1401.
Second, the existence of full-blown probable cause authorizes a search, provided that the facts of the case are such that the warrant requirement is satisfied or excused. Chambers v. Maroney, 399 U.S. at 48-52, 90 S. Ct. at 1979-81. Finally, the Supreme Court has recognized an intermediate situation in which the law enforcement officer has an "articulable suspicion" that a search is appropriate. In such instances, the policeman or agent may briefly detain the suspect for questioning and, if the confrontation gives rise to probable cause, actually conduct a search. Brown v. Texas, 443 U.S. 47, 51, 99 S. Ct. 2637, 2640, 61 L. Ed. 2d 357 (1979); United States v. Brignoni-Ponce, 422 U.S. 873, 881-82, 95 S. Ct. 2574, 2580, 45 L. Ed. 2d 607 (1975). During the course of such "investigatory stops," moreover, a law enforcement officer may make a limited search for weapons whenever such action appears necessary to protect his safety. Terry v. Ohio, 392 U.S. 1, 27, 88 S. Ct. 1868, 1883, 20 L. Ed. 2d 889 (1968). For the Government to prevail in this case, the facts must demonstrate both an "articulable suspicion" at the time of the stop and a subsequent development of "probable cause."
Concededly, the Fourth Amendment embodies many flexible concepts. Terms such as "articulable suspicion" do not always lend themselves to ready definitions. A review of existing case law, nevertheless, establishes that the stop and search of Pillo's Trans Am fell within the bounds of police discretion already sanctioned by the judiciary. One major case is particularly instructive.
Adams v. Williams, 407 U.S. 143, 92 S. Ct. 1921, 32 L. Ed. 2d 612 (1972) concerned a policeman patrolling a high-crime urban area who, during the early morning hours, received a tip that the defendant was carrying narcotics and had a gun secreted at his waist. The officer approached the car in which the suspect was seated alone and requested that the door be opened. The defendant, however, rolled down the window. At this point, the policeman reached into the automobile and withdrew a loaded pistol from the defendant's belt. The officer then arrested the suspect and searched the vehicle; he discovered other weapons and a "substantial" quantity of heroin. The Supreme Court upheld the policeman's actions.
In essence, the Adams majority held that the facts which confronted the patrolman permitted him to escalate gradually his intrusions upon the defendant's privacy until a full search was appropriate. The sequence began with the tip. By itself, the information did not constitute probable cause.
The tip, however, did permit the officer to make a "forcible stop" of the suspect. Justice Rehnquist, author of the Adams opinion, wrote that "(the) Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape." Id. at 145, 92 S. Ct. at 1923. The second step occurred when the officer approached the defendant. The majority held that the totality of the circumstances justified the policeman to conclude that his safety was in danger.
Thus, the policeman was permitted to make a limited Terry search designed to uncover weapons. This conclusion justified removal of the pistol. Third, Justice Rehnquist reasoned that discovery of the revolver sufficiently corroborated the informant's story to authorize arrest of the suspect for unlawful possession of a weapon. Id. at 148-49, 92 S. Ct. at 1924. Finally, the search of the vehicle was upheld as incidental to the arrest. Id. at 149, 92 S. Ct. at 1924.
The Adams rationale extends to the present litigation. Kean, Fekete, and Reed had the right to conduct an investigatory stop. Rodriguez's tips all indicated that Pillo carried a gun and was engaged in the drug trade as a distributor. The agents had dealt with the informant for a month during which time they investigated various portions of his story. Nothing contradicted Rodriguez. Indeed, many observations made throughout the surveillance coincided with the substance of the tip. Even more importantly, when Rodriguez came forward with his information, he admitted that he himself was involved in the methamphetamine venture. His story, therefore, amounted to a declaration against penal interest. In Adams, the Supreme Court held that the circumstances of the situation determine the degree of reliance that may be placed on a particular tip. 407 U.S. at 147, 92 S. Ct. at 1923. The dependability of a story is increased when the informant has exposed himself to criminal liability in contacting the authorities. United States v. Harris, 403 U.S. at 583-85, 91 S. Ct. at 2081-82 (plurality opinion); United States v. Davis, 199 U.S. App. D.C. 95, 617 F.2d 677, 693 (D.C.Cir.1979). In short, all the facts known to the agents on the evening of January 14, 1981 justified an inference that Pillo was transporting methamphetamine that had just been produced in the resort. The court concludes that the circumstances justified the investigators to suspect that the defendant was violating the law. Consequently, the agents had the right to stop the Trans Am. United States v. Cortez, 101 S. Ct. at 694-95.
Probable cause, moreover, developed when Kean, Fekete, and Reed approached the car. Their order that Pillo leave the vehicle was reasonable. See Pennsylvania v. Mimms, 434 U.S. 106, 108-11, 98 S. Ct. 330, 332-33, 54 L. Ed. 2d 331 (1977). Two grounds existed for taking custody of the gun. Initially, the weapon was in plain view between the seat and console and, thus, could be seized. Colorado v. Bannister, 449 U.S. 1, 101 S. Ct. 42, 43-44, 66 L. Ed. 2d 1 (1980).
Second, Rodriguez's assertion that Pillo was armed justified the agents in carrying out a Terry search for safety purposes. The scope of this probe could include any place within the reach of the driver. Accordingly, the investigators could have searched the console even if the pistol had not been exposed. United States v. Rainone, 586 F.2d 1132, 1135-36 (7th Cir. 1978).
Finally, Fekete's decision to search the trunk comported with the Fourth Amendment. The discovery of the pistol exactly where Rodriguez predicted it would be lent additional credibility to the informant's assertions. Adams v. Williams, 407 U.S. at 148-49, 92 S. Ct. at 1924. Furthermore, the odor of methylamine was another powerful indicia of the illicit drug trade. Johnson v. United States, 333 U.S. 10, 13, 68 S. Ct. 367, 368, 92 L. Ed. 436 (1948). Judged as a whole, the observations and findings available to the agents at the time of the investigatory stop justified the overall search. Chambers v. Maroney, 399 U.S. at 50-52, 90 S. Ct. at 1980-81; United States v. Moschetta, 646 F.2d 955, 957-62 (5th Cir. 1981) (trunk search).
III. SEIZURE OF THE NARCOTICS
Pillo's final argument concerns the opening of the plastic boxes containing the methamphetamine. Essentially, he contends that the probing of these packages involved an entirely new search for Fourth Amendment purposes and, thus, gave rise to a separate requirement for probable cause and a warrant. The record conclusively demonstrates that the agents did not obtain a warrant before they opened the boxes. Also, apparently nothing would have prevented them from assuming custody of the parcels and then seeking out a magistrate to gain permission for examination of the interiors. Therefore, the evidence must be suppressed if the viewing of the contents did in fact amount to a new search. Assessment of this argument demands an understanding of two important Supreme Court precedents.
In United States v. Chadwick, 433 U.S. 1, 97 S. Ct. 2476, 53 L. Ed. 2d 538 (1977), the defendants attempted to transport marijuana in a large footlocker which two of their number carried as they traveled the Amtrak system. Railroad officials became alarmed by both the size of the locker and the fact that it leaked talcum powder, a substance commonly used to conceal the smell of narcotics. The federal authorities were informed and agents were present when the suspects exited the train in Boston. A specially trained dog indicated that the footlocker contained a controlled substance. The investigators arrested the defendants just as they placed the luggage into the trunk of a waiting automobile. The locker was opened at the stationhouse, and the agents discovered marijuana. The lower judiciary suppressed the evidence and the Supreme Court affirmed. Chadwick began with the observation that the Fourth Amendment extends to movable luggage. Id. at 6-11, 97 S. Ct. at 2480-83. The majority then explained that an individual's justifiable expectation of privacy in such items is greater than that in an automobile. Thus, a probe of the footlocker required probable cause and a new satisfaction of the Warrant Clause. The agents had never obtained a warrant to open the luggage, and no exigency excused their obligation to do so, since the locker could have been impounded temporarily. On this basis, the search was invalid. Id. at 11, 97 S. Ct. at 2483. Finally, the Court ruled that the investigators' conduct could not be sanctioned as a search incidental to arrest. Id. at 11-16, 97 S. Ct. at 2483-86.
The Chadwick rationale received a significant amplification in Arkansas v. Sanders, 442 U.S. 753, 99 S. Ct. 2586, 61 L. Ed. 2d 235 (1979). In the latter case, several municipal policemen received a tip from a normally reliable informant that the defendant would soon arrive at the city airport with a green suitcase containing marijuana. At the designated time and place, the officers observed the suspect and a companion appear, place a piece of green luggage in the trunk of a taxicab, and drive off. The police followed. After several blocks, the officers stopped the cab, opened the green suitcase, and seized the marijuana. The defendant was found guilty of violating the state narcotics laws. An Arkansas appellate tribunal reversed the conviction. Before the United States Supreme Court, the prosecution maintained that the normal warrant requirement was inapplicable, because the suitcase had been taken from a moving car which would have sped away if the police had sought out a magistrate. The majority disagreed. Speaking for the Court, Justice Powell reaffirmed the basic holding of Chadwick, i. e., a luggage probe is itself a search. He went on to explain that the exigencies arising from mobility disappeared once the officers seized the suitcase. At that point, the warrant requirement attached. Consequently, the lack of a warrant invalidated the search. Arkansas v. Sanders, 442 U.S. at 761-66, 99 S. Ct. at 2591-94. Justice Powell's opinion, however, also contained the following significant passage in footnote 13:
Not all containers and packages found by police during the course of a search will deserve the full protection of the Fourth Amendment. Thus, some containers (for example, a kit of burglar tools or a gun case) by their very nature cannot support any reasonable expectation of privacy because their contents can be inferred from their outward appearance. Similarly, in some cases the contents of a package will be open to "plain view," thereby obviating the need for a warrant. There will be difficulties in determining which parcels taken from an automobile require a warrant for their search and which do not. Our decision in this case means only that a warrant generally is required before personal luggage can be searched and that the extent to which the Fourth Amendment applies to containers and other parcels depends not at all upon whether they are seized from an automobile.
Id. at 764-65 & n.13, 99 S. Ct. at 2593-94 & n.13 (citation and footnote omitted).
Cases following Sanders have attempted to provide a principled basis for distinguishing those containers which "deserve the full protection of the Fourth Amendment" from those which do not. The Court of Appeals for the Second Circuit, for example, has developed a fairly complex test in which the decision depends on the existence of "some objective external evidence of an expectation of privacy." United States v. Mannino, 635 F.2d 110, 114 (2d Cir. 1980). In applying this rationale, the reviewing court must pay close attention to the extent that "the owner may have signaled an expectation of privacy by taking special precautions to secure and secrete the contents of a container." Id. On the basis of this test, the Second Circuit has held that the Fourth Amendment applies to taped cartons, but not to partially opened plastic bags. Compare United States v. Dien, 615 F.2d 10, 11 (2d Cir. 1980) with United States v. Mannino, 635 F.2d at 114-15.
The Court of Appeals for the District of Columbia Circuit, conversely, has rejected any test keying on the "objective" nature of the container. United States v. Ross, 210 U.S. App. D.C. 342, 655 F.2d 1159 (D.C.Cir. 1981) (en banc ) concerned the right of the police to search a paper bag found in the trunk of a car. Many previous decisions from other jurisdictions had held that such parcels normally do not give rise to an "expectation of privacy" because of their outward appearance. See, e.g., United States v. Brown, 635 F.2d 1207, 1211 (6th Cir. 1980); United States v. Honigman, 633 F.2d 1336, 1337-38 (9th Cir. 1980); United States v. Mackey, 626 F.2d 684, 686-88 (9th Cir. 1980); United States v. Jimenez, 626 F.2d 39, 40-41 (7th Cir. 1980).
The Ross court refused to define a "worthy container" for constitutional purposes. The majority reasoned that such a rule would prove unmanageable.
On that basis, Ross limited the exceptions to the warrant requirement to those expressly recognized in Arkansas v. Sanders, viz., where the criminal nature of the package is immediately apparent or the contents are in plain view. United States v. Ross, 655 F.2d at 1170.
The Supreme Court granted certiorari in Robbins v. California, 453 U.S. 420, 101 S. Ct. 2841, 69 L. Ed. 2d 744 (1981), apparently in an attempt to alleviate some of the confusion which had arisen among the circuits in the wake of Sanders and Chadwick. Unfortunately, the ruling that resulted was somewhat inconclusive, because there was no majority position. A close analysis of the various opinions, however, indicates that at least five members of the Court would have voted to suppress the evidence seized in Pillo's trunk.
Robbins concerned the driver of a station wagon who was stopped by the California state police for driving erratically. A number of factors, particularly the odor of marijuana smoke, prompted the officers to search the vehicle. They discovered two packages wrapped in opaque green plastic and hidden in a recessed luggage compartment. Upon opening these containers, they found thirty pounds of marijuana. The state judiciary upheld the search of the parcels on the ground that their contents could be inferred from their outward appearance. The Supreme Court reversed. Id. at -- , 101 S. Ct. at 2841.
Writing for a plurality of four, Justice Stewart adopted the Ross holding that the Fourth Amendment protection appropriate to a particular container does not hinge on physical criteria, such as sturdiness or security precautions. He explained that the "objective" theory espoused by Mannino and other precedents has no support in constitutional jurisprudence and threatened to cause confusion, since there were no reliable standards for applying the test. Id. at -- , 101 S. Ct. at 2844. Even more importantly, Justice Stewart explained that the situations in which containers seized from automobile trunks could be searched without a warrant or exigency were limited. One such exception, "plain view," only exists when "the contents of the package" are "open" to examination from the outside. Id. The second, which concerns packages that "by their very nature cannot support any reasonable expectation of privacy," is:
likewise little more than another variation of the "plain view' exception, since, if the distinctive configuration of a container proclaims its contents, the contents cannot fairly be said to have been removed from a searching officer's view. The same would be true, of course, if the container were transparent, or otherwise clearly revealed its contents. In short, the negative implication of footnote 13 of the Sanders opinion is that unless the container is such that its contents may be said to be in plain view, those contents are fully protected by the Fourth Amendment.