United States v. Arthuro Montano ( 1980 )

JOHN W. PECK, Senior Circuit Judge.

By indictment filed December 21, 1977, defendant-appellant Arthuro Montano and one Elroy Augustine Garcia were charged with unlawfully possessing with intent to distribute (and with aiding and abetting) a quantity of cocaine in violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 18. Both were found guilty as charged by a jury, and Montano perfected the appeal which is herein dealt with.

Montano’s arrest was the culmination of an extensive drug investigation. In July, 1977, an undercover Drug Enforcement Administration agent set up a sale with a drug dealer. At one point during their negotiation, the dealer pointed out a man in a nearby automobile to the agent, describing him as “my man, Artie.” Sometime later, the sale was consummated and in the course of the exchange, the dealer commented that “Artie” was at a nearby Holiday Inn. The dealer was followed to the Holiday Inn, where he met with a man later identified as Montano.

A few weeks l,ater, a confidential informant told the Detroit DEA that the dealer and “Artie” were going to Florida for a major heroin transaction. Contact was made with the dealer, and another sale was set up, this time in Pittsburgh. During the course of that sale, the dealer made a phone call to “Artie” in Room 229 of the Compton Village Motel, in Livonia, Michigan. The Pittsburgh DEA then contacted the Detroit DEA and informed them of the arrest, and further advised that a warrant was being sought for “Artie.”

Without waiting for the warrant, the Detroit DEA decided to go ahead with the arrest. Four agents went to the Compton Village Motel, where the desk clerk told them that Room 229 was registered to an “A. Montano” and that there were two other adults in the room. The registration slip showed that his car had Florida license plates. The agents proceeded to the motel room and knocked. A few moments later the door was opened a few inches (it was secured with a safety chain) by a man, and the agent testified that he immediately recognized him as one of the men the arrested dealer had met at the Holiday Inn. He asked, “Are you Artie?” and the man responded “Yes.” The lead agent applied pressure to the door, causing an end of the chain which was fastened into the molding or trim around the door to come free. He thereupon entered the room, announcing immediately thereafter that they were police officers, and he placed “Artie” (who was subsequently identified as Arthuro Montano) under arrest.

The room was a typical, rather small motel room (one witness estimated it to be 12' X 18', another as 14' X 18'), and contained two double beds. Montano’s wife was in one bed, while their infant son and Augustine Garcia were in the other. All of them had apparently been asleep in the darkened room, and the child remained asleep throughout the ensuing proceedings. One of the agents immediately turned on the lights, and the adults got out of bed. Montano was wearing undershorts only, Garcia undershorts and a T-shirt or undershirt, and the lady put on a robe or covering garment over a nightgown.

One of the agents then saw the end of a suitcase protruding from beneath one of the beds on the floor between the beds. He picked it up, and as he was opening it said to Montano, “Is this yours?”, to which Montano responded, “Yes.” The agent observed therein an open zipper shaving kit stuffed with large denomination currency (a subsequent count disclosed the amount to be approximately $40,000). Also in the suitcase was a brown paper bag containing eleven “baggies,” or plastic sandwich bags, which contained a white powder resembling (and later proven to be) cocaine. Simultaneously, another agent opened a flight bag also found in the room, which contained, along with some clothing, three “sifters” which testimony established were capable of being used in cutting, or adulterating, cocaine. The suitcase itself, the cocaine and the currency, as well as the sifters, were received in evidence.

Two of Montano’s contentions on appeal may be rather summarily dealt with. He first argues that his arrest was illegal because the agents did not have probable cause to believe that he had committed an offense. However, at that time the agents knew that the dealer arrested in Pittsburgh had an associate named “Artie,” that that dealer had made a call to the motel room to “Artie,” and that the motel room was let to someone with the first initial “A” who had Florida license plates. They also knew that a confidential informant had told them the dealer and Artie had recently made a trip to Florida for the purpose of purchasing drugs. Finally, when Montano answered the knock, he was recognized as a man who had been seen with the arrested dealer, and he verbally acknowledged that he was “Artie.” In response, the Government argues that the likelihood of immediate flight, and the fact that if “Artie” escaped he could never be captured since they did not know who he was, justified the immediate warrantless arrest. We hold that these circumstances constituted sufficient probable cause for the agents to believe that Montano had committed an offense, and that the arrest was accordingly legal.

Montano further contends that his statements concerning his ownership of the suitcase were improperly received, since he had not been read his rights. At about the time of his arrest, the agents were discussing among themselves the question as to whether the other adults should be placed under arrest, and if so, what was to be done with the infant. Montano said, in effect, “They don’t know anything about it. Leave them here. It’s my stuff.” We hold that this and whatever other contemporaneous statements were made were volunteered statements which do not fall within the purview of the Miranda guidelines, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and that his alleged fears for his wife and child do not alter the fact that the statements were not the product of a custodial interrogation. Similarly, with the two exceptions hereinafter discussed, we conclude that the further contentions of the appellant are without merit.

The two exceptions are, first, the “no-knock” entry into the motel room, and, second, the search of the suitcase. On these two issues, as their opinions filed herein indicate, "the members of the panel are not in agreement. This writer, while recognizing the serious problems arising from the manner in which the entry into the motel room was effected, would not reach that issue, because it is my conclusion that no such exigent circumstances existed as would justify the search of the suitcase.

The following excerpt from the testimony of one of the agents sets the scene:

Q. You did secure the persons so that you knew exactly where everybody was and what they were doing?

A. Immediately when we walked in, we secured them. We advised them not to move. That was our initial instruction.

Q. That was for your safety, as you have indicated, as well as those persons in the room?

A. Yes.

Q. And did you at that point make any cursory search for weapons on the persons that were in the room?

A. Our immediate response was for everyone to freeze. Then one by one or simultaneously an agent would take each person and get them out of bed, have them get out very slowly for everyone’s protection.

Another agent testified, “Our first priority was to get the individuals and their hands in plain sight, and [we] had no difficulty getting the men in plain view so that they' couldn’t in any way secretly grab any weapon or anything else. . . . [We wanted] to make sure it was safe to proceed further. At that' point, everyone remained still.” Only then, with security assured, did one of the agents pull the suitcase from under one of the beds, place it on the bed, and open it. With reference to such a situation, the Supreme Court in Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685 (1969), held:

There is no . . . justification . for routinely searching any room other than that in which an arrest occurs — or, for that matter, for searching through all the desk drawers or other closed or concealed areas in that room itself. Such searches, in the absence of well-recognized exceptions, may be made only under the authority of a search warrant. The “adherence to judicial processes” mandated by the Fourth Amendment requires no less. (Footnote omitted; emphasis added.)

One of the “well recognized exceptions,” permits the opening of luggage where exigent circumstances exist. United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977). Keeping in mind that four agents had three suspects at bay in a well lighted room it is difficult to see how at that moment in time exigent circumstances existed which could have justified the opening of the suitcase. I cannot believe that the remote possibility of one of the adult’s opening the suitcase and procuring either a weapon or destructible evidence constituted such an exigency, and thereby provided such justification. Incidentally, a thorough search of the entire room and bathroom failed to produce any weapon.

Although it is not the stated basis of the dissenting opinion in this regard, it seems to rely at least in part on the fact that drug oriented offenses were involved, observing that the defendant “was known to be involved in the narcotics trade at a level where the use of weapons is common,” and that he “has a long history of arrests and convictions for crimes involving violence and narcotics, so he might well have been a good deal more dangerous than the agents even believed.” However, while in the common good a different set of rules might appropriately govern searches and seizures made in connection with drug offenses than in situations concerning less monstrous and invidious crime, if such distinctions are to be made, they must be the product of the legislature. In the present state of the law, no such distinction is permissible.

Indeed, not even murder can be placed in a different category by the courts, the Supreme Court held in Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978). Therein police conducted a thorough and intrusive but warrantless search of the defendant’s home in the course of a murder investigation. He went to trial under a five-count indictment and his subsequent murder and assault convictions were vacated by the Supreme Court of Arizona. The Supreme. Court granted certiorari to consider the validity of conviction of three counts of narcotics violations based largely on the drugs seized in the search. In the opinion reversing the narcotics convictions, in response to the State’s argument concerning “the vital public interest in the prompt investigation of the extremely serious crime of murder,” Mr. Justice Stewart stated, “No one can doubt the importance of this goal. But the public interest in the investigation of other serious crimes is comparable. If the warrantless search of a homicide scene is reasonable, why not the warrantless search of the scene of a rape, a robbery, or a burglary? ‘No consideration relevant to the Fourth Amendment suggests any point of rational limitation’ of such a doctrine. Chimel v. California, supra, 395 U.S. at 766, 89 S.Ct. at 2041.” Justice Stewart further stated, “We decline to hold that the seriousness of the offense under investigation itself creates exigent circumstances of the kind that under the Fourth Amendment justify a warrantless search.” Mincey, supra, 437 U.S. at 393-394, 98 S.Ct. at 2414-15.

As not infrequently occurs in cases concerning search and seizure, the line between good police work and a violation of rights is a very thin one. I am forced to the conclusion that in this instance, given the present state of the law, zealous officers crossed that line. See California v. Minjares,-U.S.-, 100 S.Ct. 181, 62 L.Ed.2d 117, 1979.

It follows that I would vacate the judgment of conviction and remand the cause to the district court for further proceedings, and since one of my colleagues, albeit on a different ground, concurs in this result, the case is so reversed and remanded.