Petition — Clark v. United States

Supreme Court, U. $4

} FILED

OCT 18 1977

{MICHAEL RODAK, JR., CLEF

In the

Supreme Court of the United States.

OcrosBer TERM, 1977.

T= 573 |

PATRICIA F. CLARK, WILLIAM S. MARTIN,

AND JOHN N. SATRE,

PETITIONERS,

v.

UNITED STATES OF AMERICA,

RESPONDENT.

Petition for Writ of Certiorari

to the United States Court of Appeals for the Fifth Circuit.

Joseru S. OTERI,

Attorney for Petitioner Martin,

MartTIn G. WEINBERG,

Attorney for Petitioner Satre,

James W. Lawson,

Attorney for Petitioner Clark,

Oren: & WEINBERG,

Ten Post Office Square,

Boston, Massachusetts 02109.

(617) 227-3700

BATEMAN & SLADE, INC., BOSTON, MASSACHUSETTS.

Table of Contents.

Opinions below

Jurisdiction

Questions presented

Constitutional and statutory provisions involved

Statement of the case

Reasons for granting the writ

I. The Court of Appeals erred in holding that

probable cause existed for a warrantless search

of petitioners’ automobile

II. The Court of Appeals erred in holding that

evidence was admissible even though the

warrant pursuant to which the contraband

was seized was issued pursuant to Ga. Code

Ann. § 24-1601, a statute which by virtue of

its monetary incentive provisions has been

held to operate unconstitutionally (see Con-

nally v. Georgia, 429 U.S. 245 (1977))

Conclusion

Appendix

Order and Opinion of United States District

Court for the Southern District of Georgia,

Brunswick Division

Opinion of United States Court of Appeals for

the Fifth Circuit

a wownsswn Ww

la

16a

ii TABLE OF AUTHORITIES CITED.

Table of Authorities Cited.

CAsEs.

Beck v. Ohio, 379 U.S. 89 (1964) 5

Connally v. Georgia, 429 U.S. 245 (1977) 2, 3n, 6

United States v. Whitlock, 418 F. Supp. 138 (E.D.

Mich. 1976) 5

CONSTITUTIONAL AND STATUTORY PROVISIONS.

United States Constitution

Fourth Amendment 3, 6

Fourteenth Amendment 6

21 U.S.C.

§ 841(a)(1) 4

§ 846 4

28 U.S.C. § 1254(1) 2

Ga. Code Ann. § 24-1601 2, 3, 6

In the

Supreme Court of the United States.

Ocroser TERM, 1977.

No.

PATRICIA F. CLARK, WILLIAM S. MARTIN,

AND JOHN N. SATRE,

PETITIONERS,

v.

UNITED STATES OF AMERICA,

RESPONDENT.

Petition for Writ of Certiorari

to the United States Court of Appeals for the Fifth Circuit.

Patricia F. Clark, William S. Martin, and John N. Satre

petition for a writ of certiorari to review the judgment of

the United States Court of Appeals for the Fifth Circuit

entered in this case on September 19, 1977.

2

Opinions Below.

The opinion of the Court of Appeals, not yet reported,

is reprinted in the appendix, infra, at 16a-28a. The

opinion of the United States District Court for the Southern

District of Georgia, Brunswick Division (Alaimo, D.J.), is

not reported and is reprinted in the appendix, infra, at

la-16a.

Jurisdiction.

The judgment of the Court of Appeals was entered on

September 19, 1977. The Court’s jurisdiction to review the

judgment of the Court of Appeals is invoked under 28

U.S.C. § 1254(1).

Questions Presented.

1. Whether the Court of Appeals erred in holding that

probable cause existed for a warrantless search of petition-

ers’ automobile?

2. Whether the Court of Appeals erred in holding that

evidence was admissible even though the warrant pursuant

to which the contraband was seized was issued pursuant to

Ga. Code Ann. § 24-1601, a statute which by virtue of its

monetary incentive provisions has been held to operate

unconstitutionally (see Connally v. Georgia, 429 U.S. 245

(1977)).

3

Constitutional and Statutory Provisions Involved.

The Fourth Amendment to the Constitution of the United

States provides:

The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated, and no

Warrants shall issue, but upon probable cause, sup-

ported by Oath or affirmation, and particularly de-

scribing the place to be searched, and the persons or

things to be seized.

Ga. Code Ann. § 24-1601 provided in pertinent part at

the time applicable to this case’:

The following shall be the fees for justices of the

peace of this State and it shall be lawful for said

justices of the peace to charge and collect the same:

Issuing each search warrant .............+.+5: $5.00

Statement of the Case.

Patricia F. Clark, William S. Martin, and John N. Satre

seek review in this Court of the September 19, 1977,

judgment of the United States Court of Appeals for the

'This statute was superseded by a new § 24-1601 providing for

payment to a justice of the peace for “[eJach application for a search

warrant” following this Court's decision in Connally v. Georgia, 429

U.S. 245 (1977).

4

Fifth Circuit affirming the judgments of conviction entered

against them on September 8, 1976, following a truncated

non-jury trial in the United States District Court for the

Southern District of Georgia, Brunswick Division (Alaimo,

D.J.).

Each has been convicted of one count of conspiracy to

possess with intent to distribute, and conspiracy to dis-

tribute marijuana in violation of 21 U.S.C. § 846. In

addition, Satre and Martin were convicted of one count of

possession with intent to distribute marijuana in violation of

21 U.S.C. § 841(a)(1) (App. 17a).?

The case against petitioners was based on contraband

seized during a warrantless search of a truck and

subsequent searches, pursuant to a warrant issued by a

Georgia justice of the peace, of a cabin, boat and station

wagon (App. 17a). Prior to trial petitioners moved to

suppress the evidence seized on the grounds that the

searches were unlawful. After a hearing, the District Court

issued a decision on July 16, 1976, denying the motions

(App. la-16a). At the truncated non-jury trial held on

July 26, 1976, the government introduced a stipulation of

facts supplemented by the brief testimony of one witness.

Petitioners were found guilty and appealed. Their convic-

tions were affirmed by the United States Court of Appeals

for the Fifth Circuit on September 19, 1977 (App. 16a-28a).

* Petitioners received the following sentences:

Clark — Six months imprisonment on the conspiracy count;

Satre — Five years imprisonment on the conspiracy count, and a

$5,000 fine on the possession count;

Martin — Eighteen months imprisonment on the conspiracy count, and

a $3,000 fine on the possession count.

5

Reasons for Granting the Writ.

I. THe Courr or AppeALS ErrReD IN HOLDING THAT

PROBABLE CAUSE EXISTED FOR A WARRANTLESS SEARCH OF

PETITIONERS AUTOMOBILE.

Petitioners maintain that a review of the facts as reported

in the opinion of the Court of Appeals in no way supports a

finding of probable cause to justify the warrantless search of

the camper truck. Indeed, the very acts of the law

enforcement officers involved support a finding that

probable cause was absent. As the vehicle in question left

Crooked River State Park the officers who had begun

surveillance there radioed Agent Kennedy and, referring to

the truck, asked him to “check it out” (App. 20a). Thus,

the officers’ actions support the contention that they them-

selves felt that probable cause to stop and search the truck

was lacking, a factor erroneously denied its due significance

by the Court of Appeals. See United States v. Whitlock,

418 F. Supp. 138 (E.D. Mich. 1976).

With regard to the standard for determining the existence

of probable cause, this Court, in Beck v. Ohio, 379 U.S.

89, 91 (1964), stated that the validity of warrantless police

actions must be judged by whether:

the facts and circumstances within [the knowledge of

the arresting officers] and of which they had reasona-

bly trustworthy information were sufficient to warrant

a prudent man in believing that the petitioner had

committed or was committing an offense.

Applying this standard, petitioners submit that the Court of

Appeals erred in finding probable cause to search the truck

6

and, thus, this Court should grant the writ and reverse the

decision of the court below.

Il. THe Court or AppeALs ERRED IN HOLDING THAT

EvIpDENCE WAS ADMISSIBLE EvEN THOUGH THE WARRANT

PuRSUANT TO WHICH THE CONTRABAND WAS SEIZED WAS

IssuED PursuANT TO Ga. Cope ANN. § 24-1601, a

STATUTE WHICH BY VIRTUE OF ITS MONETARY INCENTIVE

PROVISIONS HAS BEEN HELD TO OPERATE UNCONSTITUTION-

ALLY (SEE CONNALLY v. Georcia, 429 U.S. 245 (1977)).

The searches of the cabin, boat, and station wagon were

conducted pursuant to a Georgia search warrant issued by a

state justice of the peace, who, under the Georgia law then

in effect (Ga. Code Ann. § 24-1601), received a fee of $5.00

each time he issued a warrant. If the warrant sought was

refused, however, the justice received nothing for reviewing

and denying the warrant application. °*

In Connally v. Georgia, 429 U.S. 245 (1977), this Court

held that this pecuniary interest precluded a Georgia justice

of the peace from being the “neutral and detached magi-

strate” required by the Constitution. As a result, this Court

found that a search warrant issued by a Georgia justice of

the peace necessarily infringed upon the right, secured by

the Fourth and Fourteenth Amendments to the Constitution

of the United States, to be free from unreasonable searches

and seizures. In the case at bar, the Fifth Circuit decided

to “reject the parties’ desire for us to expound upon the

application of Connally” (App. 27a). Petitioners submit

that in so doing the court erred; that the dictates of the

Connally decision are applicable here; and that this case

provides this Court with an opportunity to clarify the scope

of that decision.

* This statute has since been supplanted by a new § 24-1601 providing

for the payment of fees regardless of the action taken by the justice of

the peace.

¥

7

Conclusion.

For the foregoing reasons, the petition for a writ of

certiorari should be granted.

Respectfully submitted,

JOSEPH S. OTERI,

Attorney for Petitioner Martin,

MARTIN G. WEINBERG,

Attorney for Petitioner Satre,

JAMES W. LAWSON,

Attorney for Petitioner Clark,

OTERI & WEINBERG,

Ten Post Office Square,

Boston, Massachusetts 02109.

(617) 227-3700

la

Appendix.

IN THE UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF GEORGIA

BRUNSWICK DIVISION

UNITED STATES OF AMERICA

vs. INDICTMENT No. 276-4

JOHN NEIL SATRE;

WILLIAM SCOTT MARTIN;

PAULA LYNN PASCOE;

PATRICIA F. CLARK;

KEVIN M. BENNETT

Order

Defendants in this case have been indicted and charged

with violations of the Comprehensive Drug Abuse Preven-

tion and Control Act of 1970. The indictment is in four

counts. Count One charges defendants, Satre, Martin,

Pascoe, Clark, and Bennett, with conspiracy to possess with

intent to distribute, and conspiracy to distribute, some 1,225

pounds of marijuana in violation of 21 U.S.C. § 841(a)(1).

Count Two charges defendants, Satre, Martin, and Pascoe,

with conspiracy to import marijuana into the United States

in violation of 21 U.S.C. §§ 960(a)(1) and 952(a). Count

Three charges defendants, Satre, Martin, and Pascoe, with

unlawful importation of marijuana into the United States in

violation of 21 U.S.C. §§ 960(a)(1) and 952(a). Count Four

charges defendants, Satre, Martin, and Pascoe, with pos-

session with intent to distribute 1,225 pounds of marijuana

in violation of 21 U.S.C. § 841(a)(1).

2a

Defendants, Satre, Martin, Pascoe, and Clark, seek to

have suppressed all evidence seized during two searches

performed on January 14, 1976, at or near the Crooked

River State Park, Camden County, Georgia. The Court

heard evidence on these motions at Savannah, Georgia, on

May 31, 1976. For the reasons articulated below, the Court

must deny all of defendants’ motions to suppress.

THE Facts

The chain of events leading to the searches questioned by

these motions began when the suspicions of the Superin-

tendent of -the Crooked River State Park, Mr. Minchew,

were aroused by what he viewed as peculiar behavior on

the part of some of these defendants during a stay at the

park some two years before the incident here at issue. At

that time, Minchew recalled that defendant Satre had

rented a cabin from him and that he, Minchew, had re-

ceived complaints from other cabin renters regarding the

nocturnal activities of Mr. Satre and his companions.

Superintendent Minchew thus remembered Mr. Satre when,

on December 30, 1975, he and at least three other persons

rented two cabins from him for a term to end approximately

two weeks later on January 10, 1976.'

Superintendent Minchew’s suspicions were apparently

again aroused on January 11, 1976, when a car with Idaho

license plates carrying defendants, Martin and Pascoe, re-

turned to the park a day after the Satre group had checked

out and departed. These defendants explained to Minchew

that they had travelled some fifty miles down the road

‘Superintendent Minchew identified the three others with Satre at this

time to be defendants, Martin, Pascoe, and Clark.

3a

before discovering that they had forgotten a suitcase. They

retrieved the luggage from the cabin and again departed.

Then, on Tuesday, January 13, 1976, defendant Satre again

appeared at the park, seeking to rent the same cabin he had

earlier rented. He had a boat with him which was dripping

water as if recently used. Satre explained that he had been

skiing in Tampa, Florida, earlier that day, although the

temperature, it was noted, was quite cold and Tampa some

250 miles distant. When notified that the same cabin was

unavailable, he asked for another cabin, preferably sur-

rounded by bushes in a secluded area. He was given cabin

Number Six.

Minchew, at about 10:00 P.M., that evening, rode by the

Satre cabin and observed that the same car that had re-

turned on the preceding Sunday for the forgotten luggage

was parked in front of Cabin Number Six, along with two

other vehicles, a camper pick-up truck and a Chrysler sta-

tion wagon. The boat was also outside the cabin. Upon

seeing these familiar vehicles, Superintendent Minchew con-

tacted the Camden County Sheriff’s Office, asking that an

officer or officers be dispatched to check into what he con-

sidered the suspicious activities of the inhabitants of Number

Six.

Deputies Barber and Dudley of the Camden Sheriff's

Office arrived at approximately 11:00 P.M., and had secured

the license numbers of the vehicles parked outside Number

Six;* but before they could run a check on the tag numbers,

hammering noises were heard coming from the area in front

of the cabin. Officers Barber and Dudley placed the cabin

under surveillance, and, between 11:00 P.M., and 2:00

P.M., they observed defendants, Satre, Martin, and Pascoe,

*With the exception of the vehicle with the Idaho tags, which had

apparently departed before the deputies arrived.

4a

engaged in the process of building a wooden structure in the

back of the truck and carrying to and from the boat and the

cabin various plastic and burlap sacks which appeared to be

heavy, loading them into the truck and the wagon. During

this time the officers overheard the defendants speak of

“taking this load” and “letting them have the best ship-

ment.” The deputies also overheard one defendant ask

another whether the Park Superintendent had seen them

and whether or not he had gotten the “gun,” or the “shot-

gun.

At some point during this surveillance, the deputies radi-

oed for further assistance and contacted Officer J. R.

Kennedy, describing to him what had transpired and out-

lining their belief that these defendants were engaged in

drug trafficking. Shortly thereafter, defendants ceased

building and loading and two of them, defendants Satre

and Martin, departed in the camper pick-up. Officer

Kennedy, who was then en route to the park, was alerted

that the camper was coming in his direction, was given the

tag number, and told that he should “check it out.”

Officer Kennedy spotted the camper coming out of the

park and followed it, noting that it was weaving slightly

and appeared heavily loaded. He pulled it over after an-

other patrol car appeared on the scene. Defendant Martin,

the driver, and Satre emerged from the truck. Martin pro-

duced a valid driver’s license, but no vehicle registration.

When asked by Officer Kennedy if he could take a look in

the truck, Martin replied, “Go ahead.” Officer Kennedy

noted that Martin appeared “stoned,” or high on drugs,

and, indeed, Martin testified that he had smoked twelve

“joints,” or marijuana cigarettes, during the preceding day.

Officer Kennedy proceeded to inspect the truck. On the

floor of the truck, through a window, he saw a plastic con-

tainer with a substance in it that resembled marijuana. He

testified that he smelled a strong odor of marijuana around

5a

the truck. At this point he placed Martin and Satre, de-

fendants, under arrest for violating Georgia’s drug laws and

searched the truck thoroughly. This search revealed a false

bottom, partially completed, in the back of the truck,

wherein were concealed a number of burlap and plastic

bags containing a large quantity of hashish.

Following this arrest and search, a search warrant was

issued, on the affidavit of Deputy Barber, for Cabin Num-

ber Six at the park and for the station wagon and boat. A

search pursuant to the warrant resulted in the seizure of

more hashish and marijuana from the cabin and the station

wagon.’

Defendants challenge the search of the truck and the

search of the cabin, boat, and station wagon, under the

state warrant.

STANDING

Before confronting the question of the admissibility of the

evidence seized during the searches, it is necessary first to

examine the issue of standing. The government contends

that only defendants, Satre and Martin, have standing to

contest the legality of the search of the truck and then only

as to Count Four, the possessory offense. As will be seen,

the government’s application of the law as to standing is in

error.

An individual, in order to have standing to challenge the

legality of a search under the Fourth Amendment, must

ordinarily show himself to have been the victim of an in-

vasion of privacy. Jones v. United States, 362 U.S. 257,

*Some of the suspect bags were plainly visible through the windows of

the wagon.

6a

261 (1960). Whether or not an individual’s privacy has

been invaded, in turn, depends on whether

“he has an adequate possessory interest in the place or

object searched to give rise to a reasonable expectation

of privacy. Ownership usually constitutes such an

interest, United States v. Banks, 5 Cir. 1972, 465 F.2d

1235, cert. denied, 409 U.S. 1062, 93 S.Ct. 568, 34

L.Ed.2d 514, but a reasonable expectation of privacy

in the enjoyment of 2 place or object may attach where

there is little or no proprietary interest.” United States

v. Hunt, 505 F.2d 931 (5th Cir. 1974). See also

United States v. Nunn, 525 F.2d 958 (5th Cir. 1976).

Thus, presence on the premises searched will ordinarily be

sufficient, whereas mere ownership, as of a vehicle, may

not. Compare Jones v. United States, 362 U.S. 257 (1960)

with United States v. Nunn, 525 F.2d 958 (5th Cir. 1976).

In addition to this notion of invasion of privacy, the

Court, in Jones v. United States, supra, devised a rule of

“automatic” standing. Automatic standing arises in cases in

which possession of the seized evidence at the time of the

search is an essential element of the offense charged. See

Brown v. United States, 411 U.S. 223 (1973); United States

v. Hunt, 505 F.2d 931 (5th Cir. 1974).

Applying these basic standing rules to the case at bar, it is

clear that defendant, Patricia F. Clark, lacks standing to

challenge either of these searches. She was not present at

the time of either search and has shown no proprietary or

possessory interest in the premises or in the goods seized.

Furthermore, conspiracy to violate 21 U.S.C. § 841(a)(1),

the only offense with which she is charged, is not a pos-

sessory offense. See United States v. Foster, 506 F.2d 445

7a

(5th Cir. 1975); United States v. Valencia, 492 F.2d 1071

(9th Cir. 1974). Thus, as regards Ms. Clark, this statement

from Brown v. United States, 411 U.S. 223 (1973), is dis-

positive of her motion:

“In deciding this case, therefore, it is sufficient to

hold that there is no standing to contest a search and

seizure where, as here, the defendants: (a) were not on

the premises at the time of the contested search and

seizure; (b) alleged no proprietary or possessory interest

in the premises; and (c) were not charged with an of-

fense that includes, as an essential element of the of-

fense charged, possession of the seized evidence at the

time of the contested search and seizure.” Brown v.

United States, 411 U.S. 223, 229 (1973).

As for defendants, Martin, Satre, and Pascoe, all three

are charged with a possessory offense in Count Four and

thus, have automatic standing to challenge the legality of

both searches as to that count. See Jones v. United States,

362 U.S. 257 (1960).

On the other hand, Counts One, Two, and Three are all

non-possessory offenses. See United States v. Holmes, 521

F.2d 859 (5th Cir. 1975); United States v. Boston, 510 F.2d

35 (5th Cir. 1974); United States v. Valencia, 492 F.2d

1071 (9th Cir. 1974). Thus, none of these defendants has

automatic standing as to these counts.

Martin and Satre, who had just been occupants of the

truck at the time of its search, may challenge the search of

the truck as to all counts. Similarly, Ms. Pascoe may chal-

lenge the search of the cabin and the station wagon as to all

counts because she was in the cabin when it was searched.

She may not, however, challenge the search of the truck,

8a

nor may defendant Martin challenge the cabin search, since

he was not present and showed no proprietary or other

interest in the cabin, boat or wagon. The burden on this

issue is his. Brown ov. United States, 411 U.S. 223, 226-27

(1973). Satre, however, was the lessee of the cabin, and

this interest is sufficient to permit him to attack the cabin

search as well as the truck search. See United States v.

Parizo, 514 F.2d 52 (2d Cir. 1975).

Tue SEARCH OF THE TRUCK

The law is well-settled that a moving vehicle may be

stopped and searched without a warrant where there is

probable cause for the search. Carroll v. United States,

267 U.S. 132 (1925); Almeida-Sanchez v. United States, 413

U.S. 266 (1973); Coolidge v. New Hampshire, 403 U.S. 443

(1971); Chambers v. Maroney, 399 U.S. 42 (1970). Proba-

ble cause to search a vehicle for illegal drugs exists when the

facts and circumstances warrant a reasonably prudent man

to believe that the vehicle contains contraband. See e.g.,

United States v. Nieto, 510 F.2d 1118 (5th Cir. 1975). See

generally Brinegar v. United States, 338 U.S. 160 (1949).

Furthermore, “probable cause ... can rest upon the col-

lective knowledge of the police, rather than solely on that of

the officer who actually makes the arrest,” when there is

“some degree of communication between the two.” Mo-

reno-Vallejo v. United States, 414 F. 2d 901, 904 (5th Cir.

1969). See also United States v. Nieto, 510 F.2d 1118 (5th

Cir. 1975); United States v. Wells, 467 F.2d 65 (5th Cir.

1972).

In the present case, the facts and circumstances known to

Officers, Kennedy, Barber, and Dudley, were sufficient to

warrant a reasonably prudent man in believing that the

9a

camper truck driven by Martin and Satre contained contra-

band. Taken all together, the lateness of the hour, the

building activity, the inconsistencies in the stories they had

told Minchew, references to “shipments” and “loads,” the

heavy burlap sacks commonly used for transporting drugs,

these facts pointed to the likelihood and the probability that

defendants were trafficking in drugs.

But even assuming that the totality of the facts in this

case was insufficient to constitute probable cause to stop

and search the truck, the search can be justified on an

alternative ground. Officer Kennedy was authorized in this

situation to make a purely investigatory stop of this truck.

As the Court noted in Adams v. Williams, 407 U.S. 143,

145 (1972);

“The Fourth Amendment does not require a police-

man who lacks the precise level of information neces-

sary for probable cause to arrest to simply shrug his

shoulders and allow a crime to occur or a criminal to

escape. On the contrary, Terry recognizes that it may

be the essence of good police work to adopt an inter-

mediate response. See id., at 23, 20 L.Ed.2d at 907.

A brief stop of a suspicious individual, in order to

determine his identity or to maintain the status quo

momentarily while obtaining more information, may

be most reasonable in light of the facts known to the

officer at the time.”

In this case, the defendants were on the move, the hour was

late, the truck was moving erratically and appeared to be

heavily loaded. Under these circumstances, an investigatory

stop in order to determine the identity of the defendants “or

to maintain the status quo momentarily” while the officer's

10a

colleagues obtained more information, was reasonable, and

thus proper. See Adams v. Williams, supra; Terry v. Ohio,

392 U.S. 1 (1968); United States v. Rollerson, 491 F.2d

1209 (5th Cir. 1974).

When, after having made the stop, Officer Kennedy

smelled marijuana inside the truck, he was, at that time,

possessed of information giving him probable cause to search

the truck and to arrest the defendants. See United States v.

Walker, 522 F.2d 194 (5th Cir. 1975); United States v.

Santibanez, 517 F.2d 923 (5th Cir. 1975); United States v.

Harris, 404 F. Supp. 1117 (E.D. Pa. 1975).

Thus, whether the search is viewed as carried out pur-

suant to probable cause derived from the totality of circum-

stances surrounding the surveillance at Cabin Number Six,

or from probable cause derived from facts arising during an

investigatory stop, the seizure of the marijuana from the

truck was valid under the Fourth Amendment.

In view of this disposition of the motions, it is unnecessary

to determine the validity of Martin’s consent to the search.

It is also unnecessary to determine the exact point at which

defendants were placed under arrest for purposes of a search

incident thereto. See generally Schneckloth v. Bustamonte,

412 U.S. 218 (1973); Chambers v. Maroney, 399 U.S. 42,

46-47 (1970).

THe SEARCH OF CABIN NUMBER SIX, THE STATION WAGON,

AND THE BoaT

Based upon an affidavit submitted by Deputy Barber,‘ a

Justice of the Peace for Camden County issued a search

‘A copy of the affidavit and warrant is in the Appendix to this order.

lla

warrant authorizing the search of “Cabin # 6 Crooked River

State Park all autos and out buildings & boats.”

Defendants have attacked the validity of this warrant.

They contend, essentially, that the facts presented to the

magistrate were insufficient to support a findng of probable

cause. They argue that this insufficiency obtains whether

or not the search and seizure of marijuana from the truck is

upheld, although they nonetheless contend that the impro-

priety of the truck search taints certain crucial facts alleged

in Deputy Barber’s affidavit. In other words, defendants

contend that the affidavit is insufficient even considering

the evidence derived from the truck search; without that

evidence, they assert that the affidavit is even more inade-

quate.

Contrary to defendants’ contentions, however, this Court

has determined that the search of the truck and the seizure

of the marijuana found therein were permissible under the

Fourth Amendment. Furthermore, this Court holds that

the facts presented to the magistrate in Deputy Barber's

affidavit were sufficient to authorize a finding of probable

cause to issue the warrant and that the warrant was not

otherwise invalid.

Under the Fourth Amendment, a judicial officer issuing a

search warrant may not properly do so unless he can find

probable cause for the search from the facts and circum-

stances presented to him under oath or affirmation. See

Spinelli v. United States, 393 U.S. 410 (1969); United States

v. Ventresca, 380 U.S. 102, 107 (1965); Aguilar v. Texas,

378 U.S. 108 (1964).

“Probable cause exists where ‘the facts and circum-

stances within their [the officers’] knowledge, and of

which they had responably trustworthy information,

12a

[are] sufficient in themselves to warrant a man of

reasonable caution in the belief that’ an offense has

been or is being committed. Carrol v. United States,

267 U.S. 132, 162, 69 L. Ed. 543, 555, 45 S.Ct. 280,

39 ALR 790.” Brinegar v. United States, 338 U.S. 160,

175 (1949).

But in reviewing a magistrate’s finding of probable cause

“the reviewing court will accept evidence of a less ‘judicially

competent or persuasive character than would have justified

an officer acting on his own without a warrant’... and

will sustain the determination so long as ‘there was sub-

stantial basis for [the magistrate] to conclude that narcotics

were probably present ....'” Aguilar v. Texas, 378 U.S.

108 (1964). Affidavits must be tested and interpreted by

magistrates and courts in a commonsense and realistic

fashion. United States v. Ventresca, 380 U.S. 102 (1965);

Spinelli v. United States, 393 U.S. 410 (1969). But in deter-

mining whether a finding of probable cause was warranted,

a reviewing court may consider only information brought to

the attention of the issuing officer. Aguilar v. Texas, 378

U.S. 108, 109 n.1 (1964); Giordenello v. United States, 357

U.S. 480 (1958).

In light of these standards, a consideration of the warrant

issued for the search of Cabin Number Six, the boat and the

station wagon, makes it apparent that the finding of prob-

able cause must be upheld. The affidavit of Deputy Barber

revealed the following facts: deputies had observed the

loading of a number of heavy parcels from a boat and car

into a truck parked outside Cabin Number Six; this truck

was later stopped and searched, revealing that the heavy

parcels contained marijuana; other heavy parcels seemingly

identical to those in the truck remained in the area of the

l3a

cabin and were not placed in the truck. These facts au-

thorized an inference that these other parcels were either in

the cabin or in the wagon or in the boat, and, further, that

it was highly probable that these parcels also contained

contraband. Such facts and the reasonable inferences there-

from are sufficient to justify the issuance of the search war-

rant in this case, keeping in mind that:

“[Ojnly the probability, and not a prima facie

showing, of criminal activity is the standard of probable

cause, Beck v. Ohio, 379 U.S. 89, 96, 13 L.Ed.2d, 147,

85 S.Ct. 223 (1964); that affidavits of probable cause

are tested by much less rigorous standards than those

governing the admissibility of evidence at trial, McCray

v. Illinois, 386 U.S. 300, 311, 18 L. Ed. 2d 62, 70, 87

S.Ct. 1056 (1967); that in judging probable cause is-

suing magistrates are not to be confined by niggardly

limitations or by restrictions on the use of their common

sense, United States v. Ventresca, 380 U.S. 102, 108,

13 L.Ed.2d 684, 688, 85 S.Ct. 741 (1965); and that

their determination of probable cause should be paid

great deference by reviewing courts, Jones v. United

States, 362 U.S. 257, 270-271, 4 L.Ed.2d 697, 707,

708, 80 S.Ct. 725, 78 ALR 2d 233 (1960).” Spinelli v.

United States, 393 U.S. 410, 419 (1969).

The argument that the warrant was overly broad is with-

out merit. The warrant, clearly specifying that marijuana

was the object of the search, is not objectionable for failure

to specify the items to be seized. And the designation of

“Cabin No. 6 Crooked River State Park, all autos and out-

buildings & boats” is also not objectionable.

l4a

“It is enough if the description is such that the offi-

cers with a search warrant can with reasonable effort,

ascertain and identify the place intended.” Stelle v.

United States, 267 U.S. 498, 503 (1925).

Here, there was no reasonable probability that other prem-

ises not intended to be searched might be mistakenly

searched under the warrant. See United States v. Melan-

con, 462 F.2d 82 (5th Cir. 1972).

CONCLUSION.

In sum, the motion to suppress the evidence seized during

the warrantless search of the camper truck is denied. The

attack on the validity of the warrant issued for the search of

Cabin Number Six is determined to be without merit and

the motion to suppress with regard to the evidence seized

during the search of the cabin, boat, and station wagon is

also denied.

THE REMAINING MOTIONS

None of the remaining motions merits its being sustained

at this time. Clark, named in the conspiracy count only,

asks for relief from prejudicial joinder by moving for sever-

ance of counts and from the other defendants. The joinder

of counts in which a defendant is omitted from some of the

counts is clearly permissible under Rule 8(b), Fed. R. Crim.

P. As to joinder of defendants, see generally 8 J. Moore,

Federal Practice { 1404[1] and following. If a Bruton v.

l5a

United States 391 U.S. 123 (1968) question arises, appropri-

ate remedial action can be taken at such time.

_Clark’s motion for change of venue upon the ground that

it is not alleged she committed any overt act in this district

or that the conspiracy arose here is clearly without merit.

See Rule 18, Fed. R. Crim. P., and Bellard v. United States,

356 F.2d 437, 438 (5th Cir. 1966).

Clark challenges the sufficiency of Count One insofar as

her participation in the conspiracy is concerned but the law

is to the contrary. See United States v. Mendoza, 473 F.2d

692, 695 (5th Cir. 1972); and United States v. Nims, 524

F.2d 123 (5th Cir. 1975).

Satre, Martin and Clark have attacked on various grounds

the validity of the statute upon which the indictment is

based. 21 U.S.C. §§ 841(a)(1), 952, 846; but the attack is

unavailing. See United States v. Perry, 480 F.2d 147 (5th

Cir. 1973); United States v. Simpson, 481 F.2d 582 (5th

Cir. 1973); United States v. Sawyer, 483 F.2d 663 (5th Cir.

1973); United States v. Kiffer, 477 F.2d 349 (2d Cir. 1973);

United States v. Rodriguez-Camacho, 468 F.2d 1220 (9th

Cir. 1972).

The defendants’ due process claims stemming from the

lack of a stenographic transcript of the grand jury pro-

ceedings and because of excessive hearsay are similarly with-

out merit. See United States v. Tucker, 526 F.2d 279, 282

(5th Cir. 1976); Baker v. United States, 412 F.2d 1069 (5th

Cir. 1969).

Defendants claim double jeopardy in that there are state

indictments for the same transactions. Such a “defense is

available only when the accused is placed in jeopardy again

by the same government for the same offense.” 1B J.

Moore, Federal Practice { 0.418[2] at 2753.

Satre and Martin urge that Counts one and two are du-

plicitous in that they arbitrarily divide a single offense into

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two counts. This Court believes, however, that the test set

forth in Perkins v. United States, 526 F.2d 688, 690 (5th

Cir. 1976) has been met with the result that this objection is

without merit.

Defendant Bennett’s motions incorporating and adopting

all other defendants’ motions are similarly denied.

In sum, each and all of the pending motions are over-

ruled.

So Ordered, this 16 day of July, 1976.

ANTHONY A. ALAIMO,

United States District Judge

United States Court of Appeals

for the Fifth Circuit

No. 76-3575

UNITED STATES OF AMERICA,

PLAINTIFF-APPELLEE,

v

PATRICIA F. CLARK, Er At.,

DEFENDANTS-APPELLANTS.

September 19, 1977.

Appeals from the United States District Court for the

Southern District of Georgia.

Before Gew1n, Roney and Hii, Circuit Judges.

James C. Hit, Circuit Judge:

17a

John Satre, William Martin and Patricia Clark appeal

from judgments of conviction entered against them after a

non-jury trial in the District Court for the Southern District

of Georgia. Each was convicted of one count of conspiracy

to possess, with intent to distribute, approximately 1,225

pounds of marijuana (hashish) in violation of 21 U.S.C.

§ 846. Defendants Satre and Martin were also convicted of

one count of possession with intent to distribute marijuana

(hashish) in violation of 21 U.S.C. § 841(a)(1).

All the issues raised focus upon the legality of a warrant-

less search of a pickup truck with an attached camper top

(camper truck) and a subsequent search, pursuant to a

warrant, of another automobile, a boat, and a dwelling.

Specifically, the question for decision is whether or not the

district judge committed error in denying the defendants’

motions to suppress the contraband. We affirm.

This type of case must stand or fall on its particular facts.

We examine the facts derived from the transcript and the

findings of fact of the trial court. Almost all the facts are

uncontested. Those that are contested are immaterial to

the result we reach.

Our inquiry begins at a time two years prior to the chal-

lenged searches and seizures. At this early date, Jerry Min-

chew, the Park Superintendent of Crooked River State Park,

Camden County, Georgia became suspicious of the activities

of defendant Satre. Satre had been one of a number of

individuals who had rented a cabin at the Crooked River

State Park. During this earlier stay, he had purchased an

expensive boat from a local resident and a few days later

had left the boat with another local resident to sell “for

what he could get out of it.” Minchew testified that while

he felt the boat was worth over $1,500, the boat was sold

for only $600. Minchew speculated that Satre was involved

in the trafficking of drugs.

18a

Minchew remembered Satre when he and four other

persons returned to the State Park on December 30, 1975.

On this visit, the group rented two cabins from December

30, 1975, to January 10, 1976. Minchew testified that

during this period he received complaints from other cabin

occupants concerning the noise and late night activities of

the group. Minchew’s attention was directed towards the

vehicles driven by the group. One car bore Idaho license

plates; the other vehicles bore Florida tags. Minchew

thought this to be suspicious since all the group except de-

fendant Martin had stated that they were from Colorado.

Martin stated he was from Boston, Massachusetts. Min-

chew testified that the Florida license tags did not bear an

“E” signifying a rental vehicle.

On January 10, 1976, the group checked out of the cabins

and left the park. Yet, on the evening of January 11, 1976,

the car bearing the Idaho license plates returned to the

Park. Defendants Martin and Pascoe’ were the occupants

of the car. Martin told the Superintendent that he had

driven about 50 miles down the road when he discovered

that he had forgotten a piece of luggage for which he was

returning. Minchew stated that he thought it strange that

Martin had left the Park over 24 hours earlier yet stated

that he had traveled only 50 miles. Martin retrieved the

suitcase and departed.

On the evening of January 13, 1976, defendant Satre re-

appeared and asked if he could rent one of the cabins the

group had previously occupied. When informed that the

cabins were unavailable, Satre stated that “he would rather -

have one down in the bushes.”

Before Satre departed for the secluded Cabin Number Six,

Minchew observed water pouring from the stern of the boat

‘Defendant Paula Lynn Pascoe is not a party to this appeal.

19a

being towed by Satre. Satre told Minchew that he had just

returned from water skiing in Tampa, Florida. Minchew

testified that his suspicions were aroused since it was “real

cold weather” and it would be unusual for a boat to be

dripping water after a 250 mile drive.

The critical facts which led to the seizure of the contra-

band occurred later on the evening of January 13, 1976.

At approximately 10:00 p.m., Minchew drove by Cabin

Number Six and observed that the car with the Idaho plates,

the car that had returned for the forgotten luggage, had

again returned to the Park. Minchew then contacted the

Camden County Sheriff’s Office and requested that an offi-

cer be dispatched to check into the activities of the occu-

pants of Cabin Number Six.

At approximately 11:00 p.m., Officers Barber and Dudley

arrived and ascertained the license numbers of the vehicles

so that they could be checked for irregularities. Shortly

thereafter, the three officers heard hammering noises in the

area of the cabin. From a distance of 35-40 yards, they

placed the cabin under surveillance. During this observa-

tion period, defendants Satre, Martin and Pascoe were ob-

served building a wooden structure in the back of a camper

pickup truck. Shortly after the structure was completed,

the officers observed the defendants carrying various large

plastic and burlap sacks. The defendants were removing

these bags from the boat and loading them into the truck

and the station wagon. The bags appeared to be quite

heavy.

In conjunction with their visual observations, the officers

overheard the defendants make the following comments:

Female Voice: “Bill, did the Park Superintendent see

both of you?”

Female Voice: “Are you going to give them the best

load now or wait and give them the best load later?”

20a

Male Voice: “Did you get the shotgun? Be sure and

get the gun, get the shotgun”.

As a result of the above observations, Deputy Barber

radioed Chief Deputy Kennedy of the Camden County

Sheriff's Office for additional assistance. Officer Kennedy

was en route to the Park when the pickup truck, occupied

by defendants Martin and Satre and containing the wooden

structure and the large plastic and burlap bags, departed

from the area of Cabin Six.

The officers relayed the events they had witnessed and

their suspicions to Officer Kennedy. Officer Kennedy, who

was en route to the Park, was alerted that the pickup truck

was proceeding in his direction and was requested to “check

it out.”

Kennedy spotted the truck coming out of the Park, turned

around, and followed it for a distance of 2-3 miles. He

testified that it appeared heavily loaded and was weaving.

Having been advised to use caution because of the possibility

that the occupants were armed, Kennedy radioed Officer

Carter of the St. Mary’s Police Department for assistance.

After Officer Carter came into sight, Kennedy pulled over

the truck.

Martin, the driver, and Satre emerged from the truck.

Officer Kennedy advised the defendants to keep their hands

out of their pockets and asked Martin for his driver's license

and the motor vehicle registration certificate. Officer Ken-

nedy testified, and the District Court found that Martin

produced a driver's license but no vehicle registration.

Kennedy then asked Martin if he could take a look in the

truck. Martin replied, “Go Ahead.” Kennedy shined his

flashlight through a window of the truck. He observed on

the floorboard of the vehicle a plastic bag containing a

marijuana-like substance. He also testified that he smelled

a strong odor of marijuana coming from the truck and that

Martin appeared to be “stoned” or intoxicated on drugs.

2la

Martin and Satre were placed under arrest and the truck

was thoroughly searched. The search revealed that the

wooden platform the defendants had constructed was de-

signed to be a false bottom. Underneath the platform, the

large burlap and plastic bags were found. Over 700 pounds

of hashish was found in these bags.

Shortly after the arrest of Martin and Satre, Officer Bar-

ber appeared before a Camden County Justice of the Peace

who, based upon the affidavit of Officer Barber, issued a

search warrant for Cabin Number Six and the boat and

station wagon, which had remained at the Park.

In executing the search warrant, over 500 pounds of

hashish was found in the station wagon and a small quantity

of the contraband, approximately 5-6 pounds, was found in

the cabin.

Prior to trial, the trial judge held a hearing and after

taking evidence, denied the motions to suppress.

With respect to the search of the camper pickup truck,

the trial judge held the legality of the search had been

established under two theories. First, the Court held that

from the totality of the facts and circumstances, the officers

had probable cause to stop and search the truck. Carroll o.

United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543

(1925); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975,

26 L.Ed.2d 419 (1970); Almeida-Sanchez v. United States,

413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed. 2d 596 (1973).

Alternatively, the Court held, assuming arguendo, that

probable cause was lacking, the officers had a reasonable

suspicion. Having such reasonable suspicion, the initial

stop of the truck was lawful under the “investigative

stop” theory. Adams wv. Williams, 407 U.S. 143, 92

S.Ct. 1921, 32 L.Ed.2d 612 (1972); United States v. Rol-

lerson, 491 F.2d 1209 (5th Cir. 1974); United States v.

Worthington, 544 F. 2d 1275 (5th Cir. 1977). While main-

a

22a

taining the status quo pending further investigation, Officer

Kennedy then smelled the odor of marijuana and in plain

view sighted a clear plastic bag containing a marijuana-like

substance on the floorboard of the truck. The officer then

possessed probable cause to search the truck. United States

v. Worthington, supra.

In view of his findings, the trial judge considered it un-

necessary to determine the validity of Martin’s purported

consent to search the truck and to determine the precise

moment when the arrest of defendants Martin and Satre

occurred. The trial judge also rejected numerous attacks on

the legality of the subsequent search warrant and the search

of the station wagon and the cabin.

On appeal, the defendants challenge each of the theories

supporting the stop and search of the truck. First, they

argue that probable cause was lacking and hence the auto-

mobile exception to the search warrant requirement does

not apply. In attacking the investigative stop theory, the

defendants argue that an arrest was made prior to the offi-

cer’s plain view observation of the contraband and since

probable cause to arrest was lacking, the seizure resulted

from the exploitation of an illegal arrest.

In this case, while the search of the truck fits clearly

within the investigative stop and the plain view theories, we

go further and hold that prior to the initial stopping of the

truck, probable cause was present.

It has often been held that probable cause to search an

automobile exists when the facts and circumstances would

lead a reasonably prudent man to believe that the vehicle

contains contraband. United States v. Worthington, supra;

United States v. Nieto, 510 F.2d 1118 (5th Cir. 1975);

Williams v. United States, 404 F.2d 493 (5th Cir. 1968).

In determining whether there was reasonable cause to

believe the vehicle contained contraband, we look to the

<< Pete +

23a

totality of the circumstances and the inferences that flow

therefrom. United States v. Olivares, 496 F.2d 657 (5th

Cir. 1974). While the defendants have stressed how in-

nocuous and unsupportive of probable cause each fact is if

taken alone, we do not view the evidence in that manner.

As now Chief Justice Burger has stated, “[p }robable cause is

the sum total of layers of information and the synthesis of

what the police have heard, what they know, and what

they observe as trained officers. We weigh not individual

layers but the ‘laminated’ total.” Smith vo. United States,

123 U.S.App.D.C. 202, 358 F.2d 833, 837 (1966). Viewing

the evidence in this manner it may truly be said that the

total may be a sum greater than its parts.

In addition to examining the totality of the circumstances,

in view of the degree of communication between them, we

look to the collective knowledge of the police officers, rather

than the sole knowledge of Officer Kennedy, who performed

the search of the truck. Moreno-Vallejo v. United States,

414 F.2d 901 (5th Cir. 1969).

We also take into account, the individual experience of

the law enforcement officials. United States v. Chapman,

413 F.2d 440 (5th Cir. 1969). “Conduct innocent in the

eyes of the untrained may carry entirely different ‘messages’

to the experienced or trained observer.” United States v.

Davis, 147 U.S.App.D.C. 400, 458 F.2d 819 (1972). We

think it clear from application of the above principles that

the officers had probable cause to stc and search the truck.

Superintendent Minchew had ample cause to be suspicious

of the activities of the group and to investigate these activi-

ties further. The return of the “Idaho car” on January 11

was unusual in view of Martin’s explanation that he had

only driven 50 miles away in a 24 hour period. The vehicle

had then departed. Yet, two days later, on the night of

January 13, it had again appeared within the Park. The

24a

later reappearance strongly cut across the grain of the repre-

sentations made to Minchew that the group had departed

from the area. The divergence between the residences of

the defendants and the states in which the vehicles were

registered was likewise suspicious since Minchew knew the

cars bearing Florida license plates were not rented vehicles.

Satre’s specific request for a cabin in a secluded area along

with his improbable story explaining the recent use of the

boat clearly called for further investigation.

Surveillance was begun and the critical facts giving rise to

probable cause were observed. At the outset, the officers

knew that the defendants wished to avoid detection in

carrying out their activities. They had specifically requested

Minchew to rent them a cabin in a secluded area. They

commenced their construction activities in the darkness of

the night and at a late hour. The officers overheard one of

the defendants express concern over being detected. The

officers overheard one of the group make reference to a fire-

arm.

The transfer of the heavy rubber and burlap bags from

the boat, recently removed from the sea, to the truck and

the station wagon narrowed the focus of suspicious clan-

destine, armed activity to that of drug trafficking. Officer

Dudley testified that he had been employed in the Narcotics

Division of the South Carolina Law Enforcement Division

for six years prior to joining the Camden County Sheriff's

Office. He testified that he had witnessed coastal drug

smuggling operations similar to this one and had seen mari-

juana or hashish packaged and transported in the manner

observed at the Park. The comments of the defendants in

reference to the “best load” or “best shipment” gave audible

support to the officers’ visual observations.

Briefly summarizing, the unusual appearances of the

group, their request for a secluded cabin, their desire to

25a

avoid detection, their unusual construction activities, the

lateness of the hour, the removal of a large cargo from a

boat recently pulled from the sea; the similarity of the pack-

ages to those which the officers in their extensive experience

knew to be a common method of packaging and trans-

porting hashish; the reference to a firearm for the protection

of the defendants and their cargo; the comments concerning

the “best shipment or load,” and the concealment of the

packages within the wooden structure fully supported a

reasonable belief that drug trafficking was being observed.

Thus from the totality of the circumstances, we hold that

the District Court correctly determined that probable cause

was present.

The defendants stress the fact that the officers at the Park

allowed the truck to leave the cabin site, and only radioed

to Kennedy to “check it [the truck] out.” Defendants also

argue that the actions of Officer Kennedy after stopping the

truck only comport with a general license check. The in-

ference compelled by the facts, they contend, is that the

officers subjectively felt that probable cause to stop and

search the truck was lacking. The defendants seem to

argue that if probable cause had been present, the officers

would have performed the search at the exact moment such

cause arose.

In this case, we find scant support for the argument that

the officers believed probable cause to have been absent.

Yet, even if the officers felt that probable cause was lacking,

an objective standard would still be applicable.

In United States v. Resnick, 455 F.2d 1127 (5th Cir.

1972) this Court held that even though a police officer be-

lieved that probable cause was lacking, the Court still had

the duty to objectively determine if probable cause was

present. This Court in finding that probable cause was

present held that “the scope of the Fourth Amendment is

26a

not determined by the subjective conclusion of the law en-

forcement officer.” United States v. Resnick, supra, at

1132. Of course, police officers are not required to search

or arrest at the exact moment probable cause arises. See

United States v. Lovasco, ___. U.S. ____, 97 S.Ct. 2044,

52 L.Ed.2d 752 (1977), 21 Cr.L. 3102.

The remaining allegations of error raised by appellants

center upon the issuance of the search warrant and the sub-

sequent search of the station wagon and the cabin. The

District Court rejected the contentions that the warrant was

overbroad and insufficient to establish probable cause.

After the trial of this case and prior to oral argument in

this Court, the Supreme Court decided the case of Connally

v. Georgia, 429 U.S. 245, 97 S.Ct. 546, 50 L.Ed.2d 444

(decided January 10, 1977). In Connally, the defendant

challenged the Georgia fee system for the issuance of search

warrants by justices of the peace. Ga. Code Ann. § 24-601

provided for a fee of $5.00 if a warrant was issued and no

fee if the warrant application was refused. The Supreme

Court held that the justice of the peace who issued the

warrant was not “a neutral and detached magistrate,” in

view of his pecuniary interest in the warrant and further

held “that the issuance of the search warrant by the justice

of the peace in Connally’s case effected a violation of the

protections afforded him by the Fourth and Fourteenth

Amendments of the United States Constitution.” At 251, 97

S.Ct. at 549.

On appeal, appellants argue that the holding in Connally

applies to their case as well since the search warrant for the

station wagon and dwelling was issued by a justice of the

peace. The Government contends that Connally is to be

applied on a case-by-case basis, determining in each instance

whether or not the justice of the peace had the forbidden

pecuniary interest in the issuance of the warrant. The

BS ee ee ee

27a

Government has supplemented the record with an affidavit

by the justice of the peace who issued the warrant which

states that no fee was received. Neither party addresses the

issue of the retroactive application of the Connally decision.

On the facts of this case, we reject the parties desire for

us to expound upon the application of Connally. Rather,

we pretermit decision on this issue and all other issues raised

concerning the validity of the search warrant.

It is well established that evidence gained by a search

conducted under authority of a defective search warrant

may still be admissible if an exception to the warrant re-

quirement is present. Coolidge v. New Hampshire, 403

U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). In the

instant case, there is no doubt that after searching the truck,

the officers had probable cause of the highest degree to

search the station wagon. They had personally observed

the loading of similar burlap bags into the station wagon.

Furthermore, it is clear that exigent circumstances were

present due to the potential mobility of the vehicle. Thus,

the well established automobile exception to the warrant

requirement applies and no warrant was required to sustain

the legality of the station wagon search in which over 550

pounds of hashish were found. Carroll v. United. States,

supra; Chambers v. Maroney, supra.

The search of the cabin under the authority of the war-

rant resulted in the seizure of 5-6 pounds of hashish, a mi-

nute amount in comparison with the approximately 1220

pounds legally seized. The evidence of the guilt of the

defendants was overwhelming and there was a bench trial

rather than a trial by jury. Thus, even if we assume ar-

guendo that the search of the cabin was illegal because the

warrant was defective due to a defective affidavit or because

of the application of Connally, we conclude without hesita-

tion that the error, if any, was harmless beyond a reasonable

28a

doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824,

17 L.Ed.2d 705 (1967); Harrington v. California, 395 U.S.

250, 89 S.Ct 1726, 23 L.Ed.2d 284 (1969).

Having so held, we also need not determine whether de-

fendant Clark had standing to urge the suppression of the

contraband. A finding that she had standing, would be of

no avail to her since the evidence was legally obtained.

AFFIRMED.