United States v. Ronald L. Korman , 614 F.2d 541 ( 1980 )

WEICK, Circuit Judge.

This case involves the interception by Customs Inspectors at the Miami International Airport of a courier arriving from Bolivia, Santa Cruz, South America, carrying a yellow suitcase with a false bottom secreting 982 grams (2.2 pounds) of cocaine destined for delivery in Detroit to the buyer, and the legality of proceedings which followed.

Defendant-Appellant Korman was charged in three counts of an indictment with (1) conspiracy with intent to distribute and to distribute approximately 1000 grams (2.2 pounds) of cocaine, a Schedule II Narcotic Drug Controlled Substance in violation of 21 U.S.C. § 846, (2) possession with intent to distribute approximately 29.6 grams of cocaine in violation of 21 U.S.C. § 841(a)(1), and possession with intent to distribute approximately 3.1 grams of cocaine in violation of 21 U.S.C. § 841(a)(1).

The district court after conducting an evidentiary hearing denied Korman’s motion to suppress evidence. Korman was then tried and convicted by a jury on all three counts of the indictment. He was sentenced to four years on each count to the custody of the Attorney General, the terms to be served concurrently.

On appeal to this court, Korman does not question the weight or sufficiency of the evidence supporting his conviction which was overwhelming. Instead, Korman asserts that the trial court erred in admitting evidence to the effect that after his arrest there was an alleged illegal entry into his residence which entry was for the purpose of securing the premises against destruction of evidence while the officers, after midnight, were engaged in obtaining a search warrant from a magistrate. During such entry to secure the premises, there was no seizure of any evidence by the officers.

Korman further complains that during the search of the residence authorized by the search warrant, a green ski jacket described in the affidavit for the warrant was seized, but inadvertently omitted from the warrant issued and was admitted into evidence. He also complains of error in the admission of testimony of the co-conspirators.

For the reasons hereinafter set forth, we find that no prejudicial error occurred in the proceedings and therefore affirm the judgment of conviction.

I

John Keith DeSmyter arranged for Jack Blanchard, the courier, to go to Bolivia and bring back to DeSmyter in Detroit a suitcase containing the narcotics. Blanchard was to receive $10,000 for his services.

In Bolivia, Blanchard met DeSmyter who handed to Blanchard a yellow suitcase containing the 982 grams of cocaine secreted in a false bottom in the suitcase and instructed Blanchard to take it to Detroit and contact Attorney Donald Turner in the event, he, DeSmyter, was not available.

When Blanchard arrived at the Miami International Airport he was arrested by Custom’s Inspectors who discovered the 982 grams of cocaine in the false bottom of the suitcase he was carrying. Shortly after his arrest, Blanchard agreed to cooperate with the authorities in making the delivery of 29.6 grams of cocaine (replaced in the suitcase) in order to apprehend the purchaser who turned out to be Korman and other conspirators. An electronic device (beeper) was implanted in the suitcase.

After his arrival in Detroit, Blanchard made five or six monitored telephone calls to Attorney Turner. A synopsis of the telephone calls made on March 26, 1978 indicated that:

“A) Donald Turner knew Keith DeSmyter and DeSmyter was a friend and client of his.

B) Turner referred to the Holiday Inn that Blanchard was to stay at in Detroit. (“The one on Telegraph”) (Corroborates Exhibit 4).

C) Jack Blanchard was a perfect stranger to Turner.

D) Turner advised Blanchard on some alternative motels close to the Holiday Inn he was to stay at and that if anyone called looking for Blanchard he would advise him.

E) Turner, based on the conversation, was advised by Blanchard that someone was to come to the hotel room and pick up a suitcase from Blanchard with “stuff” in it.

F) Turner advised Blanchard, “If you don’t get a room at any of the places, call me back.”

G) Turner informed Blanchard he doesn’t know of a way to get in touch with DeSmyter.

H) Turner asks twice what kind of phone Blanchard was calling on.

I) Turner tells Blanchard that he introduced Keith DeSmyter the last time he was in town to a friend of his, and that “they got along pretty well together.”

J) Blanchard advised Turner that he did business for Keith DeSmyter in Bolivia and that he was advised by De-Smyter that if he had any complications was to call Turner.

K) Turner stated that “certain people play with big things.”

L) Turner also stated that the kind of things that Keith likes to play with are “airplanes or whatever.”

M) Turner further advised Blanchard that “you’re talking about a lot of money.”

N) Turner also informed Blanchard that “people can . . . get hurt over” these things.

O) Turner told Keith DeSmyter that he did not want to know what was going on.

P) Turner acknowledged to _ Blanchard that another close friend of his was interested in meeting Keith De-Smyter and that DeSmyter had called him before he went to Bolivia.

Q) That Turner’s close friend and Keith wanted to get together, “let’s put it that way,” and that this friend had passed up talking to some other friends.

R) Turner advised Blanchard that a friend of Keith’s got busted at the Florida airport with “4 pounds of something.” Blanchard advised Turner “he’s the only one that came in.”

S) Turner informed Blanchard that he will call this friend of his to see if he knows anything.

T) Turner advised Blanchard that if this friend had previously contacted Keith and that “if he wants to talk to you I’ll tell him where you’re at.” “The guy is straight.”

U) That Turner advised Blanchard that he called this guy — that he apparently knew about “this” and he had talked to Keith “Before he left.”

V) Turner described this man’s physical appearance; that the guy will use a fictitious name “Sonny” and that he’s been waiting and will come to your room.” (Government’s Brief pp. 6-8)

Shortly after these telephone calls were made by Blanchard to Turner, Sonny (Korman) arrived at the hotel room of Blanchard in Southfield, Michigan wearing the green ski jacket. Blanchard delivered the suitcase to Korman containing the beeper and 29.6 grams of cocaine secreted inside and the key for the suitcase. Korman left the hotel and met an unidentified male and proceeded to his 1978 Oldsmobile placing the suitcase in the trunk of the car. At the same time a 1978 Lincoln driven by the unidentified male followed Korman in what appeared to be counter-surveillance. The agents also followed Korman to his place of residence where at least three and possibly four automobiles including Korman’s were parked in front of his house.

Korman then left his place of residence driving at a high rate of speed and was arrested by the agents about 400 feet away.

The district judge in finding an emergency and that exigent circumstances existed which permitted the securing of the premises in the manner which was done by the agents stated:

“Notwithstanding that, however, the court still finds that the agents were possessed of knowledge, and that we had the type of situation present here, the type of exigent circumstances, which allows the securing of premises in this manner as was done by the agents in this case. The court will not repeat at length matters that we have gone over in this case earlier concerning the surveillance of the narcotics in question, the implanting of the electronic device in the suitcase, the substitution for the original product of some cocaine plus some neutral substance to simulate the cocaine. Those factors are all significant because of what they would reasonably leave the agents to conclude might be happening. As the surveillance was recounted again today, they were following the individual who ultimately turned out to be Defendant Korman in this matter both visually and also by the use of this electronic beeping device. In the course of that surveillance, they also observed another car, described as a Lincoln, which the agents in their opinion concluded was in proximity to the automobile being specifically surveilled for the express purpose of serving as a counter-surveillance vehicle. Upon ultimately following the beeper, after losing contact for awhile, to what they ultimately learned to be the Sherwood address in Huntington Woods of the defendant, they continued to surveil the house and observed, among other things, the presence of — counting the defendant’s car — at least three automobiles and, depending upon which version you credit of the testimony given earlier today, possible four automobiles. Insofar as which version to credit is concerned, the court would have no reason to discredit the agent’s version because Mrs. Korman’s version is not really contrary thereto. It merely states that at an earlier point in time, she was aware of only two Cadillacs and one Oldsmobile being — the latter being the car that her husband ultimately exited the premises in.

At or about one o’clock in the morning, the agents observed the Defendant Korman exit in a hurried manner, quickly get in his car and depart the scene. And at that time, the decision was made and, as defense counsel said, as far as he is concerned for the purposes of this motion anyway, legitimately, to arrest the defendant at that time. The defendant at the point was not cooperative with the officers in any way, not to suggest there is. any requirement that he be such. But it is an ingredient in the subsequent decisions made by the officers. The officers has ascertained that the suitcase was not in the car and that none of the contraband was in the car or on the person of the Defendant Korman. And they also, the testimony indicates today, were not able initially to determine by their electronic tracking devices whether the suitcase had been in the car at the time that it left. But a subsequent search of the car revealed that it wasn’t.

At that point, the totality of the circumstances reasonably suggested to the agents that some emergency had occurred, that the defendant had either become aware of the implanted beeper, had become aware that there had been a substitution for some of the cocaine that had been in the suitcase; and that, coupled with what they thought to be or could have been at least the presence of other individuals back at the residence, led them to reasonably conclude that evidence and contraband was in immediate danger of being destroyed, and led them to secure the premises in the manner that was testified to.

In that regard, it should be further noted that the substance cocaine that was being dealt with here was in a relatively limited quantity and is a substance that is extremely easy to dispose of. Additionally, the beeper itself is a small electronic device which is easily destroyed or disposed of.

Furthermore, not that the conduct of the agents thereafter would justify what would be an otherwise illegal action, it should be noted that there is no suggestion, particularly from the testimony offered by the wife of the defendant here, that the agents were knocking down doors or otherwise conducting themselves in a manner other than was minimally necessary to secure the premises.

It is also to be noted in this regard that the case law is clear that the agents, in reaching a decision of the nature that they did here, need only have sufficient information to justify the warrantless entry to reasonably conclude that evidence would be destroyed or removed. A hindsight, Monday-morning quarterback position, which might show that in fact that was not about to happen, is not the standard by which their conduct is to be judged, but rather the situation as it appeared to them at the time.

So the court accordingly concludes that there was sufficient information and that the totality of circumstances in the possession of the agents at that time led them to reasonably conclude that it was necessary to secure the premises in question, that they did so with a minimum of intrusion, and they subsequently secured as the court has ruled, a proper search warrant which ultimately resulted in the seizure of the other items that we are here connected with.

So, for those reasons, the court is denying the motion to suppress.” (App. pp. 93-97)

In discussing the admissibility in evidence of the green ski jacket, the district judge stated:

“The search warrant and affidavit in question were issued in connection with a narcotics investigation subsequent to an arrest of one of the alleged principals and subsequent to the securing of the residential premises at which resided Mr. Korman, who was the alleged arrested principal in regard to this case.

It is significant to note that the warrant was obtained in effect in the middle of the night, and that the agents, after securing the premises, had to call and get out of bed an assistant United States attorney, who helped them formulate the preparation of the affidavit, put it in appropriate language, which was then taken to a magistrate, also in the middle of the night, and was reviewed and a search warrant issued.

All of the papers that the court has before it — and presumably they are what was presented to the magistrate, or photocopies thereof — are handwritten, is that correct, Mr. Andreoff?

MR. ANDREOFF: That is correct, with the exception of the beeper warrant, your Honor, which was attached.

THE COURT: The handwritten affidavit is relatively lengthy and also in part relatively difficult to read. But insofar as it is pertinent to the matter under discussion here, it does indicate, in what appears to be paragraph 1 thereof, that the agents, in the course of securing the residence observed in open view an Oldhouse triple-beam scale, commonly used in the weighing of controlled-substance, the green ski jacket worn by — is the reference to “Sonny”? Is that the—

MR. ANDREOFF: (Interposing.) That is correct.

THE COURT: (Continuing) — the name that the individual was known by at that time in the state of knowledge — the green jacket worn by Sonny when the suitcase was obtained at the hotel.

That language is somewhat out of context and is more meaningful when the other affidavit that was involved with the other search warrant and was earlier issued and attached hereto is read, in which it explains the circumstances leading to the pick-up of the narcotics at the hotel and the description therein of another unknown person coming to the hotel. This was the person who was wearing the green ski jacket.

Pursuant to that type of representation, the warrant ultimately issued in language that reads as follows relative to what could be seized. And I quote: “. . . a yellow Oshkosh suitcase, eighteen inches high, twenty-six inches long, eight inches deep with chrome fasteners on top with no markings and a yellow plastic handle containing 28 grams of cocaine, said article being utilized for purposes described in affidavit, scales, paraphernalia, monies, firearms and other instrumentalities also utilized for said purposes.”

There is no doubt that the ski jacket was specifically referenced in the affidavit and could have specifically referenced in that portion of the search warrant itself which enumerates those items to be seized.

However,-viewing the totality of the circumstances here and all of the allegations of the affidavit, and the language that was actually used, it is the ruling of the court that the phraseology “other instrumentalities and/or paraphernalia” is broad enough and properly includes the green jacket which was specifically referenced in the affidavit for the search warrant.

The court reaches that conclusion primarily for two reasons. First of all, there is no doubt that based upon what was presented to the magistrate, he had sufficient before him to find probable cause for the seizing of the green ski jacket. The fact that it isn’t mentioned specifically should not cause the warrant to be viewed as defective in that aspect in the opinion of this court, however, because to do that would be to engage in the type of hypertechnicalities and literal-mindedness which the Supreme Court of the United States has criticized in such cases as Vantreska, again remembering that the underlying thrust of those cases is to encourage officers to stop and take the time to get the warrant in question. Here we have a middle-of-the-night situation, we have an assistant United States attorney being reached by telephone, we have a magistrate being gotten out of bed in the middle of the night, we have a handwritten affidavit. And it appears clear that the green ski jacket was within the purview of the knowledge of the magistrate when he issued this, and the fact that they chose at that hour of the night to use some relatively broad language in describing that which was to be seized is not enough to defeat the warrant in this particular.

Now, an argument could be made that that language is broad enough to include the seizure of all kinds of things. But we are' not dealing with that kind of speculative situation. We are talking at this time only about the green ski jacket. And the court’s ruling is limited in that regard.

This brings us then to the question of whether the entire procedure met the requirements of the Fourth Amendment and other constitutional protections to be afforded to the defendant in this regard. It is the conclusion of the court that proper procedures were followed; and, accordingly, the motion to suppress is denied.” (App. pp. 88-92)

In our opinion, there was substantial evidence to support the factual findings of the district court with respect to the emergency and exigent circumstances and they are not clearly erroneous. Its conclusions of law were correct. The district court did not err in denying the motion to suppress.

In the present case, the DEA agents were confronted with dealers in narcotics and conspirators caught red-handed. The narcotics were worth a large sum of money when processed for sale at destination. The dealers in narcotics are well known to be dangerous criminals usually carrying weapons. The officers are risking their lives in confronting and arresting them. The case was tried before Judge Ralph Guy, of the Eastern District of Michigan. Judge Guy was a former United States Attorney who has tried cases involving narcotics violations both as an United States attorney and as a judge. He was familiar with the applicable law which he properly applied in the present case. Michigan v. Tyler, 436 U.S. 499, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978); United States v. McLaughlin, 525 F.2d 517 (9th Cir. 1975), cert. denied, 427 U.S. 904, 96 S.Ct. 3190, 49 L.Ed.2d 1198 (1975) followed in United States v. Grummel, 542 F.2d 789 (9th Cir. 1976) cert. denied, 429 U.S. 1051, 97 S.Ct. 763, 50 L.Ed.2d 767 (1979) and United States v. Fulton, 549 F.2d 1325 (9th Cir. 1977). See also United States v. Guidry, 534 F.2d 1220 (6th Cir. 1976).

As appellate judges, we ought not to engage in hypertechnicalities which will hamstring capable and conscientious officers of the law endeavoring to properly perform their duties in protecting the public from harmful drugs. The airports have been used extensively by narcotics dealers to transport huge quantities of dangerous drugs from the seaports to inland cities like Detroit. This court has reviewed many of these cases. One of them is presently pending in the Supreme Court awaiting decision after oral argument. United States v. Mendenhall, — U.S. —, 100 S.Ct. 42, 62 L.Ed.2d 29, on writ of certiorari to review United States Court of Appeals for the Sixth Circuit en banc decision reported at 596 F.2d 706.

II

Irrespective of the legality of the initial entry into the residence to secure the premises, we can nevertheless examine the balance of the underlying search warrant affidavit for probable cause in order to determine whether the evidence lawfully obtained was sufficient to determine that the search and seizure should be upheld.

We agree with the district court that probable cause existed. We are also of the opinion that disregarding any alleged information illegally obtained set forth in the affidavit for search warrant, that the independent and legitimately obtained evidence established probable cause.

The decision of the Supreme Court in Franks v. Delaware, 438 U.S. 154, 170-171, 98 S.Ct. 2674, 2684-2685, 57 L.Ed.2d 667 (1978) is controlling.

When paragraph 15 of the affidavit for the search warrant is excluded, the facts asserted in the balance of the affidavit certainly established probable cause to believe that evidence of a crime was located on the premises of Korman’s residence and that the premises was the site of the suitcase containing the cocaine.

We are further convinced beyond a reasonable doubt that any error in the proceedings was harmless, Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). This is true particularly with respect to the conspiracy count. The sentences on the remaining counts, which involved cocaine found in the suitcase after its seizure and cocaine found in the residence, were concurrent.

Ill

The green ski jacket although seen in plain view and subject to seizure at the entry to secure the premises, was not seized or searched until the search warrant was issued and executed. It was seized pursuant to a lawfully executed search warrant. United States v. McLaughlin, supra, United States v. Guidry, supra. It constituted evidence of the commission of a criminal offense and was an instrumentality of a crime. It could be seized although not specifically listed in the search warrant. United States v. Alloway, 397 F.2d 105, 110-111 (6th Cir. 1968).

We are of the opinion for the reasons stated by the district court that it did not err in admitting in evidence telephone conversations of Donald Turner, a co-conspirator pursuant to Rules 104(A) and 801(d)(2)(E) of the Federal Rules of Evidence. United States v. Enright, 579 F.2d 980 (6th Cir. 1978).

The judgment of conviction is affirmed.