The opinion of the court was delivered by: NEALON
During the evening of January 14, 1981, agents of the United States Drug Enforcement Administration ("DEA") arrested Joseph James Pillo after they allegedly discovered an unregistered firearm and approximately eight pounds of methamphetamine in his automobile. Nine days later, the grand jury returned an indictment charging the defendant with the violation of three criminal statutes: (1) 21 U.S.C. § 841(a), possession of a controlled substance with an intent to distribute; (2) 26 U.S.C. § 5861(d), possession of an unregistered firearm; and (3) 18 U.S.C. § 924(c)(2), commission of a felony while carrying a firearm unlawfully. Pillo subsequently moved to suppress any evidence taken from his car on the ground that the search transgressed the Fourth Amendment. On April 7, 1981, this court held an evidentiary hearing on the question. Analysis of the facts and relevant case law requires that the motion be granted in part.
In December 1980, an individual named Rodriguez voluntarily approached the office of the United States Attorney in Philadelphia and offered information concerning a narcotics crime ring.
He explained that he was personally involved in a clandestine operation based in Hunter, New York, in which methamphetamine was produced and disseminated. Rodriguez named a number of his co-conspirators, including defendant Pillo, who supposedly acted as the "main distributor" of the enterprise.
The informant claimed that his group primarily marketed the drugs in Philadelphia. DEA Agent William B. Kean was assigned to the case, and he quickly investigated Rodriguez's story. These efforts soon yielded encouraging results.
On January 8, 1981 Kean traveled to New York in an attempt to discover the covert laboratory which produced the methamphetamine. Together with fellow Agent Richard A. Fekete, he approached the Hunter Mountain Ski Resort, which, according to Rodriguez, housed the illicit activity. The investigators, however, could not get close enough to the building to observe the operation through the windows.
Thus, the surveillance had to be delayed.
Subsequently, Kean received items of information which indicated that the narcotics ring was planning a major shipment in the near future. First, Rodriguez stated that Pillo, the "main distributor," intended to leave Hunter for Philadelphia around the middle of January. Other supposed members of the conspiracy, moreover, began shifting their locations.
Wadelich, Terrance, Duffy, and Gall, all of whom resided in Philadelphia, could not be located. Martin, another Philadelphian, appeared to be in Hunter. Kean also listened in on a phone conversation that Rodriguez placed on January 12th to Zagnojny, who controlled the rooms at the ski resort allegedly used to conceal the laboratory. The informant asked if he could use the premises on the subsequent weekend. Zagnojny responded that the lodgings were not available because "people would be working there." Kean then requested the New York Police to join in surveillance of the resort. The local authorities agreed and later informed him that they had observed an automobile registered to Wadelich at the premises.
Early in the morning of January 13th, Rodriguez, Fekete, Kean, and a support unit from the Philadelphia DEA office established an observation post near the suspected laboratory. They saw several parked vehicles, including a Trans Am registered to Pillo. At approximately 7 a.m., Wadelich and an unidentified individual drove up to the building and entered. The investigators could not see inside the building, because the windows were covered with blankets or sheets. No other activity occurred at the site throughout the following day. The agents maintained their watch throughout the remainder of the day.
The next morning, at 9:30 a.m., four individuals emerged from the resort, viz., Martin, Duffy, Terrance, and Pillo. Wadelich remained inside. This development corresponded with Rodriguez's information; he had claimed that during the production of methamphetamine, members of the combine who left the resort traveled in groups and one person stayed behind for security reasons. The four suspects went to a resort for breakfast, where they were observed by an agent at the adjacent table. They subsequently returned to the apartment. Kean then determined that the time had come to request a search warrant. He contacted the local police and requested them to initiate the proper procedures.
The warrant did not arrive during the afternoon of January 14th. At 3:30 p.m., three of the persons under observation again exited the building. Pillo stepped into his Trans Am and took off in one direction. The other two suspects headed toward a different route. A federal surveillance unit followed Pillo; the New York Police pursued the alternate group. The federal task force consisted of two vehicles, one manned by Agent Kean and another piloted by Agents Fekete and Reed. The two individuals followed by the state authorities soon returned to the resort. Pillo, on the other hand, proceeded across the New York border into New Jersey. Subsequently, he entered Pennsylvania and traveled westward on Route 80. Kean, Fekete, and Reed continued their pursuit, hoping to find a location at which they could complete their investigation and, if probable cause arose, search Pillo and any of his confederates they encountered en route.
After they had pursued the defendant for approximately three hours, the federal task force began to experience difficulties. First, Kean feared that the longer his contingent followed the suspect, the more difficult it would be to conceal their activity. This problem was magnified after nightfall, because one of the headlights on the Reed-Fekete vehicle burned out, thereby creating a real danger that Pillo would spot their continued presence in his rear view mirror. Kean believed that the Trans Am might be "souped up" and, thus, be able to evade the pursuers if they were noticed. Consequently, Fekete and Reed were directed to maintain a considerable distance behind Pillo and to apply their high beams occasionally. Second, the federal vehicles were running low on fuel, and the defendant showed no signs of stopping at a gas station. Finally, Pillo began to take the agents in an unanticipated direction. Initially, Kean believed that the suspect would head toward Philadelphia, the cabal's alleged market. In that event, the investigators could have called in support units from their home base. Pillo, however, turned off Route 80 and proceeded along Route 115. Kean surmised that the defendant might be traveling toward Lake Harmony, Pennsylvania, the home of Steve Zagnojny. At any rate, the federal 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. ...