Petition — Miller v. United States

if cupreme oust, U. & ry |

: '

4 o6FILED’ ¥I

DEC 151978 ||

In the {_MICUATL peneK, JR., CLERK |

Supreme Court of the United States.

OcroBer TERM, 1978.

No. . é ~ hg? oe

“OH

JACKIE DAVID MILLER,

PETITIONER,

v.

UNITED STATES OF AMERICA,

RESPONDENT.

Petition for a Writ of Certiorari to the United States

Court of Appeals for the First Circuit.

JosePH S. OTERI,

MartTIN G. WEINBERG,

JupITH Farris BowMAN,

Orer! & WEINBERG,

10 Post Office Square,

Boston, Massachusetts 02109.

(617) 227-3700

BATEMAN & SLADE, INC. BOSTON , MASSACHUSETTS.

Table of Contents.

Opinions below

Jurisdiction

Question presented

Constitutional provision involved

Statement of the case

Reasons why the writ should be granted

The question presented by petitioner’s case is a re-

current and important constitutional issue in

the administration of criminal justice and one

which has divided the Circuit Courts of Appeals

Conclusion

Appendix

Memorandum of opinion and order of United

States District Court for the District of Maine

on defendant’s motion to suppress

Opinion of United States Court of Appeals for

the First Circuit

Table of Authorities Cited.

CASES.

Bertrand v. United States, 467 F. 2d 901 (5th Cir.

1972)

Brooks v. Tennessee, 406 U.S. 605 (1972)

Gollaher v. United States, 419 F. 2d 520 (9th Cir.

“IO oS WO NO =

14

la

29a

14n

1969), cert. denied, 396 U.S. 960 (1969) 8, 9n, 10n

ii TABLE OF AUTHORITIES CITED.

Griffin v. California, 380 U.S. 609 (1965) 7

Haynes v. United States, 390 U.S. 85 (1968) 7

LeBlanc v. United States, 391 F. 2d 916 (Ist Cir. 1968) 8n

Linkletter v. Walker, 381 U.S. 618 (1965) 14

Scott v. United States, 419 F. 2d 264 (D.C. Cir.

1969) 8, 12n

Spevack v. Klein, 385 U.S. 511 (1967) 7

Thomas v. United States, 368 F. 2d 941 (5th Cir. 1966) 7,8

Townsend v. Burke, 334 U.S. 736 (1948) 13n

United States v. Chaidez-Castro, 430 F. 2d 766 (7th

Cir. 1970) 9n, 10n

United States v. Floyd, 477 F. 2d 217 (10th Cir. 1973),

cert. denied, 414 U.S. 1044 (1973) 14n

United States v. Floyd, 496 F. 2d 982 (2d Cir. 1974),

cert. denied sub nom. Miller v. United States, 419

U.S. 1069 (1974) 8

United States v. Garcia, 544 F. 2d 681 (3d Cir. 1976) 8

United States v. Grayson, ___._ U.S. ___., 98 S. Ct.

2610 (1978) 6, 9, 10, 12, 13, 14

United States v. Hopkins, 464 F. 2d 816 (D.C. Cir.

1972) 10, 13n

United States v. Jansen, 475 F. 2d 312 (7th Cir. 1973),

cert. denied, 414 U.S. 826 (1973) 13n, 14n

United States v. Kimbrell, 470 F. 2d 280 (5th Cir.

1972) 14n

United States v. Laca, 499 F. 2d 922 (5th Cir. 1974) 13n

United States v. Lehman, 468 F. 2d 93 (7th Cir. 1972),

cert. denied, 409 U.S. 967 (1972) 9n

United States v. Moore, 427 F. 2d 38 (5th Cir. 1970),

cert. denied, 400 U.S. 965 (1970) ]4n

TABLE OF AUTHORITIES CITED. ili

United States v. Rodriguez, 498 F. 2d 302 (5th Cir.

1974) 13n

United States v. Rogers, 504 F. 2d 1079 (5th Cir. 1974),

cert. denied, 422 U.S. 1042 (1975) 8n

United States v. Santiago, 582 F. 2d 1128 (7th Cir.

1978) 8, 9n, 10n

United States v. Thompson, 476 F. 2d 1196 (7th Cir.

1973) 9n

United States v. Tucker, 404 U.S. 443 (1972) 13n

United States v. Vermeulen, 436 F. 2d 72 (2d Cir.

1970), cert. denied, 402 U.S. 911 (1971) 9n

United States v. Wiley, 278 F. 2d 500 (7th Cir. 1960) l4n

United States v. Wright, 533 F. 2d 214 (5th Cir. 1976) 13n

Williams v. United States, 273 F. 2d 469 (10th Cir.

1959) 14n

CONSTITUTIONAL AND STATUTORY PROVISIONS.

United States Constitution

Fifth Amendment 2,6, 7, 8,9, 10, 11 et seq.

Sixth Amendment 12

18 U.S.C. § 2 4

$1 U.S.

§ 841(a)(1)

§ 844(a)

§ 952(a)

§ 960(a) (1)

28 U.S.C. § 1254(1)

non + + & >

In the

Supreme Court of the United States.

- Ocrosper Term, 1978.

No.

JACKIE DAVID MILLER,

PETITIONER,

v.

UNITED STATES OF AMERICA,

RESPONDENT.

Petition for a Writ of Certiorari to the United States

Court of Appeals for the First Circuit.

Jackie David Miller petitions for a writ of certiorari to re-

view the judgment of the United States Court of Appeals for

the First Circuit entered in this case on November 15, 1978.

Opinions Below.

The Court of Appeals issued an opinion, not yet reported,

on November 15, 1978. The opinion is reproduced in the Ap-

pendix at pp. 29a-68a. The District Court for the District of

Maine issued findings of fact and conclusions of law in denying

petitioner’s motion to suppress. That opinion is reproduced in

the Appendix at pp. la-28a.

2

Jurisdiction.

The judgment of the Court of Appeals was entered on No-

vember 15, 1978 (App. 29a). The jurisdiction of this Court is

invoked under 28 U.S.C. § 1254(1).

Question Presented.

Whether consideration of a defendant’s failure to confess or

to cooperate with the government, when determining the

length of sentence to be imposed, unjustifiably penalizes the

exercise of his rights under the Fifth Amendment to the Con-

stitution,

Constitutional Provision Involved.

The Fifth Amendment to the United States Constitution

provides:

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or in-

dictment of a Grand Jury, except in cases arising in the

land or naval forces, or in the Militia, when in actual

service in time of War or public danger; nor shall any

person be subject for the same offence to be twice put in

jeopardy of life or limb; nor shall be compelled in any

criminal case to be a witness against himself, nor be de-

prived of life, liberty, or property, without due process of

law; nor shall private property be taken for public use,

without just compensation,

3

Statement of the Case.

On May 13, 1977, employees of a marina in Arrowsic,

Maine, discovered a yacht fouled in one of the marina’s moor-

ings. Since the boat was unknown to them and apparently

abandoned, the marina employees notified the Coast Guard

who, in turn, notified local police (App. 30a-3la).! Concerned

about a possible drowning and suspecting a drug smuggling

operation, the police arranged for divers and called the Drug

Enforcement Administration (App. 3la). The next morning,

two local officers examined the interior of the boat and dis-

covered the remains of marijuana cigarettes and a chart with a

course pencilled in, leading toward a small, privately owned

peninsula known as Mill Isle (App. 3la-32a).

Petitioner arrived at the marina soon afterward and identi-

fied himself as the owner of the yacht to a marina employee,

but left the marina immediately without arranging to rent a

mooring. Police officers pursued him and brought him and

his truck back to the marina, where he was questioned by local

officers and agents of the Drug Enforcement Administration

(App. 32a-33a). Marijuana debris was observed in petitioner's

truck and a small cube of hashish was found in his luggage.

Petitioner was then formally arrested (App. 33a-34a).

Alerted by the chart found on the yacht, police officers and

Drug Enforcement Administration agents then went to the

Mill Isle property where they found marijuana debris on the

dock and a bale of marijuana under a tarpaulin near a drive

connecting the cottage with the main house (App. 35a). The

law enforcement officers then obtained and executed a search

warrant for the Mill Isle property and found sixty bales of

marijuana in the cottage (App. 36a).

' The summary of facts is drawn from the opinion of the Court of Appeals

for the First Circuit, App. 29a-68a.

4

Petitioner was charged with importing marijuana and

aiding and abetting its importation in violation of 21 U.S.C.

§§ 952(a), 960(a)(1), and 18 U.S.C. § 2, possession of mari-

juana with intent to distribute in violation of 21 U.S.C.

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

§ 844(a) (App. 29a-30a). After a trial by jury, petitioner was

found guilty on all counts and sentenced to concurrent maxi-

mum terms of five years, five years and one year, respectively

(App. 30a).

At sentencing, the trial court placed primary emphasis on

the fact that petitioner had not confessed his guilt and had not

cooperated with the government. The court’s remarks at sen-

tencing were, in full, as follows:

“In determining the sentences appropriate in this case,

this Court has considered with care the very comprehen-

sive and thorough presentence report prepared for its

consideration; it has considered the statement very ably

made by the United States Attorney as to the factors

which this Court should appropriately consider, and also

has, of course, considered the very able statement by the

defendant’s counsel, Mr. Petruccelli.

“The Court has also had the benefit of having per-

sonally presided at the trial of this defendant as a result of

which the Jury returned its unanimous verdict of guilty

under all three counts of the Indictment.

“At the outset, the Court is wholly convinced that the

Jury arrived at the only verdict which it could have ar-

rived in this case. There is not the slightest doubt in the

mind of this Court of this defendant's guilt of all three of

the charges in this Indictment. The Court is further con-

cerned because in light of all the information concerning

the defendant which has developed at the trial and in the

subsequent investigation, it is entirely evident that this

5

defendant is simply the tip of the iceberg; that he is one in

what unquestionably must have been and very possibly

may still be a very substantial criminal operation directed

toward the importation of Marijuana and very possibly

other elicit [sic] drugs into this country through the coast-

line of the State of Maine.

“This Court cannot in determining the sentence appro-

priate in this case close its eyes to the fact that the defend-

ant, despite the overwhelming evidence of his guilt, con-

tinues to deny guilt. The first step in rehabilitation,

whether it be in an institution or probationary sentence

setting, is, of course, the defendant's full, frank and com-

plete admission that he has done wrong and is prepared

to do better in the future.

“The Court also can’t close its eyes to the fact that the

defendant has consistently declined to co-operate in any

way with the prosecuting and investigating officials in

their efforts to bring into Court all of those who are in-

volved in this very substantial operation. The sums of

money involved in this operation, as disclosed at the trial,

[are] clearly beyond any capacity of this particular de-

fendant before the Court. He is undoubtedly aware of

the sources of those funds. He has consistently declined

and refused to co-operate in determining what that

source may be.

“The Court is, of course, aware that the defendant is

under no obligation to in any way incriminate himself.

He was entitled to a trial. He has had a fair trial. His

guilt has been determined. The Court feels compelled to

impose the maximum prison term provided by the stat-

utes for each of the three counts in this Indictment, in

two instances including the special parole term of at least

two years required by the applicable statute. The Court

has considered the possibility of a young adult sentence

6

under the Federal Youth Corrections Act, but in light of

the magnitude of this offense, the defendant’s evident

sophistication, including, if the Court has previously not

mentioned, his prior criminal record, the Court does not

feel he is an appropriate subject for treatment under the

Act.” (App. 64a-65a, n.18.)

On appeal, the Court of Appeals for the First Circuit ruled

that resentencing was not required in this case. The Court of

Appeals reaffirmed the principle that the exercise of the Fifth

Amendment rights to silence and to an appeal of a conviction

cannot be burdened by imposing longer sentences when those

rights are exercised (App. 66a), and also recognized that there

was a difference of opinion amongst the Circuit Courts of Ap-

peals “concerning the extent to which a trial court may rely

upon a defendant’s failure to ‘repent’ and ‘sing’ when fixing

sentence” (App. 66a). However, the Court of Appeals distin-

guished the case at bar on the grounds that the trial court had

not engaged in open bargaining with petitioner by expressly

conditioning a reduced sentence upon confession and coopera-

tion, that it could therefore be concluded that the trial court

had considered the lack of repentance and cooperation only as

indicative of a lack of rehabilitative potential rather than as a

basis for enhanced punishment, and that reliance on the failure

to confess was justified by its value as an indicator of nonreha-

bilitation, citing this Court’s opinion in United States v. Gray-

son, ___ U.S. ___, 98 S. Ct. 2610 (1978) (App. 6§a-67a).

The Court of Appeals also relied on the fact that the trial court

had articulated other reasons for the maximum sentence in ad-

dition to petitioner’s failure to confess (the magnitude of the

offense and petitioner’s previous conviction) which “allays any

fears we might have that the sentencing decision was tainted

by impermissible considerations” (App. 68a).

7

Reasons Why the Writ Should be Granted.

THE QUESTION PRESENTED BY PETITIONER'S CASE IS A RECURRENT

AND IMPORTANT CONSTITUTIONAL ISSUE IN THE ADMINISTRA-

TION OF CRIMINAL JUSTICE AND ONE WHICH HAS DIVIDED THE

Circuit Courts OF APPEALS.

To guarantee the rights conferred by the Constitution, the

exercise of those rights must be free of penalty or punishment.

In the context of the Fifth Amendment, this Court has been

quick to condemn any burden placed on the free exercise of the

citizen’s right not to be compelled to testify against himself,

whether the penalty for refusing to waive the Fifth Amend-

ment privilege be the loss of livelihood (Spevack v. Klein, 385

U.S. 511 (1967)), a procedural default at trial (Brooks v. Ten-

nessee, 406 U.S. 605 (1972)), adverse evidentiary presump-

tions (Griffin v. California, 380 U.S. 609 (1965)), or direct

criminal penalties (Haynes v. United States, 390 U.S. 85

(1968)). In this case, the trial court sentenced petitioner to the

maximum term on each count. A principal determining fac-

tor, indeed the critical factor, in the court’s decision to impose

the maximum penalties was the fact that petitioner had not

admitted his guilt or cooperated with the government by iden-

tifying others involved in the offense. Petitioner thus “paid a

judicially imposed penalty for exercising his constitutionally

guaranteed rights.” Thomas v. United States, 368 F. 2d 941,

946 (5th Cir. 1966). The question which requires resolution

by this Court is whether imposition of this penalty is consistent

with the mandate of the Fifth Amendment.

The Circuit Courts of Appeals have taken differing views of

the extent to which a sentencing court may rely upon a defend-

ant’s failure to confess or cooperate with the government in

reaching a sentencing determination. The Third, Fifth and

District of Columbia Circuits have ruled that when the de-

8

fendant’s refusal to waive his Fifth Amendment rights in-

fluences the length of the sentence, a constitutionally imper-

missible penalty has been imposed on the exercise of those

rights and resentencing is required. See, e.g., United States v.

Garcia, 544 F. 2d 681 (3d Cir. 1976); Thomas v. United

States, 368 F. 2d 941 (5th Cir. 1966); Scott v. United States,

419 F. 2d 264 (D.C. Cir. 1969).2 The Second, Seventh and

Ninth Circuits, on the other hand, have ruled that considera-

tion of a defendant’s lack of explicit repentance does not

penalize his exercise of Fifth Amendment rights, at least where

a sentence substantially less than the maximum has been im-

posed. These Circuits consequently have not required resen-

tencing when the lack of a confession influenced the senten-

cing decision. See, e.g., United States v. Floyd, 496 F. 2d 982

(2d Cir. 1974), cert. denied sub nom. Miller v. United States,

419 U.S. 1069 (1974); United States v. Santiago, 582 F. 2d

1128 (7th Cir. 1978); Gollaher v. United States, 419 F. 2d 520

(9th Cir. 1969), cert. denied, 396 U.S. 960 (1969).

In this case, the Court of Appeals for the First Circuit recog-

nized the threat to Fifth Amendment rights occasioned by im-

position of a longer sentence on a defendant who refuses to

confess his guilt, as well as the division in the Circuit Courts of

Appeals as to when an impermissible price for exercising those

rights has been paid. Nonetheless, the court below aligned it-

*Imposing a longer sentence based on the defendant's refusal to confess

guilt impinges upon both the privilege against compulsory self-incrimination

and the right to an unfettered appeal. Thomas v. United States, 368 F. 2d at

945. See also, LeBlanc v. United States, 391 F. 2d 916, 918 (1st Cir. 1968).

In addition, basing sentence on a lack of cooperation with the government in

identifying other participants in the offense also implicates the privilege

against self-incrimination, since identifying others necessarily includes ad-

mitting one’s own role in the offense. United States v. Rogers, 504 F, 2d

1079, 1085 (5th Cir. 1974), cert. denied, 422 U.S. 1042 (1975).

9

self with the Second, Seventh and Ninth Circuits and affirmed

petitioner's maximum sentences.°

The First Circuit justified the penalties imposed on peti-

tioner on the ground that when, as here, the sentencing court

does not engage in an express attempt to bargain with peti-

tioner or explicitly condition a lighter sentence on a confession,

a distinction can be drawn between imposing a longer sentence

because a defendant refuses to waive his Fifth Amendment

rights and imposing a longer sentence because a lack of reha-

bilitative potential is inferred from the refusal to waive Fifth

Amendment rights. The Court of Appeals concluded that

such evidence of nonrehabilitation is useful to an informed

sentencing decision, citing this Court’s recent decision in

United States v. Grayson, ___. U.S. ___.,, 98 S. Ct. 2610

(1978) (hereafter cited as Grayson).

In effect, the Court of Appeals has ruled that the usefulness

of the evidence of nonrehabilitation derived from the lack of a

coufession outweighs the penalty which is necessarily inflicted

on a nonconfessing defendant's exercise of his rights if the sen-

tence is enhanced on this ground. The Court of Appeals’

reasoning thus raises significant questions concerning the logi-

*The Seventh and Ninth Circuits have affirmed sentences despite the in-

fluence of the defendant's refusal to confess only when the sentences imposed

were substantially less than the maximum. See, e.g., United States v. San-

tiago, 582 F. 2d 1128 (7th Cir. 1978) (sentence imposed only one-third of the

maximum); United States v. Thompson, 476 F. 2d 1196 (7th Cir. 1973) (five

year sentence, ten year maximum); United States v. Lehman, 468 F. 2d 93

(7th Cir. 1972), cert. denied, 409 U.S. 967 (1972) (three year sentence, five

year maximum); United States v. Chaidez-Castro, 430 F. 2d 766 (7th Cir.

1970) (three year sentence, five year maximum); Gollaher v. United States,

419 F. 2d 520 (9th Cir. 1969) (two year sentence, five year maximum).

Strictly speaking, only the Second Circuit has taken the position adopted by

the First Circuit here, that no penalty for exercising Fifth Amendment rights

has been imposed even though a maximum sentence has been imposed. See,

United States v. Vermeulen, 436 F. 2d 72 (2d Cir. 1970), cert. denied, 402

U.S. 911 (1971).

i0

cal and constitutional validity of the distinctions it has drawn

and whether this Court’s reasoning in Grayson can or should

be extended to require that the protections traditionally ac-

corded the privilege against self-incrimination give way to the

need for this type of evidence in determining sentence.

In ruling that no impermissible penalty on the exercise of

Fifth Amendment rights has been imposed when the senten-

cing court merely considers a defendant’s lack of repentance

and does not expressly bargain for a confession in return for le-

niency, the court below assumes that the implicit condition

imposed by a court’s statement of its policy or intent with

regard to unrepentant defendants exacts a lesser price from the

defendant than explicitly conditioning leniency on a confes-

sion of guilt. This assumption overlooks the logical fact that in

both instances the same condition has been imposed and that

the same penalty — a longer sentence — flows from the failure

to meet the condition. Since the longer sentence can be avoid-

ed only by relinquishing Fifth Amendment rights, the same

constitutional price has been paid for exercising those rights,

whether the sentencing court affords the defendant a new

locus poenitens or not. The maximum sentences which follow

such statements of policy or intent have, therefore, been con-

sidered just as damaging to the exercise of Fifth Amendment

rights as those following more overt requests for confessions.

See, e.g., United States v. Hopkins, 464 F. 2d 816, 822 (D.C.

Cir. 1972) (“My chief concern. . . is you don’t even have any

remorse for your actions. ... The first step to rehabilitation

is remorsefulness’’) .*

‘Conversely, those Circuits which have found no impermissible penalty in

sentences based upon the defendant's failure to confess have done so both in

cases of explicit bargaining and in cases where the sentencing court has

merely considered the lack of repentance in reaching a sentencing determina-

tion. Compare United States v. Chaidez-Castro, 430 F. 2d 766 (7th Cir.

1970) with Gollaher v. United States, 419 F. 2d at 529, and ('nited States v.

Santiago, 582 F. 2d at 1136-1137.

11

The First Circuit’s opinion also assumes that a distinction

can be drawn between imposing a longer sentence because the

defendant has refused to waive his Fifth Amendment rights

and imposing a longer sentence because the sentencing court

infers a lack of potential for rehabilitation from the refusal to

waive Fifth Amendment rights. However, for purposes of

assessing the impact of a sentence on the assertion of Fifth

Amendment rights, the distinction results in no practical or

logical difference. In both cases, the longer sentence is ulti-

mately predicated on the defendant’s refusal to waive his

rights and in both cases the same price is paid for that refusal.

The impact on the defendant’s Fifth Amendment rights is

therefore identical, whatever distinctions are drawn in the

mind of the sentencing judge.

The First Circuit’s reliance on the distinction between im-

posing a longer sentence for exercising Fifth Amendment rights

and imposing a longér sentence because the court infers a lack

of rehabilitation from the refusal to waive those rights rests

upon the assumption that a defendant’s refusal to confess has

as much evidentiary value as an indicator of his prognosis for

rehabilitation as an affirmative act of confession. However,

an inference of nonrepentance cannot be drawn from the fact

of nonconfession as easily as repentance can be inferred from

confession. Those, like petitioner, who refuse to confess or co-

operate after they have been found guilty at trial may be

thoroughly penitent, but justifiably determined not to incrimi-

nate themselves further — a right which is secured by the

Fifth Amendment to the Constitution to the guilty as well as

the innocent — or determined to secure review of a conviction

obtained in violation of other rights guaranteed by the Con-

12

stitution.’ In short, a refusal to confess is ambiguous and can-

not support an inference of nonrehabilitation.

The Court of Appeals’ reliance on this Court’s decision in

Grayson is therefore misplaced. In Grayson this Court found

that a defendant’s willingness to lie on the witness stand at

trial provided “precise and concrete” information about his

character (id, at 2616), which was of sufficient value to the

sentencing decision to outweigh the risk that the defendant

was being punished without due process for the crime of per-

jury. Id. at 2617. In this case, the refusal to confess does not,

in fact, provide any information about the defendant's state of

rehabilitation and therefore does not have sufficient eviden-

tiary value to outweigh the punitive effect which a sentencing

decision based on the lack of confession inevitably has on the

exercise of a defendant’s rights under the Fifth Amendment.

In any case, the First Circuit’s implicit assumption that the

reasoning in Grayson supports a ruling that the predictive

value of the refusal to confess justifies the corollary effect of

heavier punishment of those who exercise their Fifth Amend-

ment rights extends this Court’s reasoning in Grayson far

beyond its factual and constitutional premises. The right

which the defendant in Grayson claimed had been penalized

by the heavier sentence was not the Fifth Amendment privi-

lege, but a statutory right to testify on his own behalf or, at

best, a constitutional right inferred from the Sixth Amendment

right to present a defense. This Court found that there was

no statutory or constitutional right to testify falsely and conse-

quently that no impermissible penalty had been imposed. Id.

at 2618. There is thus no intimation in Grayson that the

balancing analysis employed in ruling on the due process viola-

* As Judge Bazelon pointed out in Scott v. United States, 419 F. 2d at 268, a

defendant “could reasonably have believed that he could show penitence —

real or affected — only at the price of prejudicing his appeal, if not worse.”

13

tion would be extended in general to penalties imposed on the

exercise of rights specifically guaranteed by the Constitution,

or that such an analysis would be extended to penalties im-

posed on the assertion of Fifth Amendment rights in particular.

Thus, the question of whether, as the First Circuit seems to

have assumed, the rationale of Grayson can or should be ex-

tended to the Fifth Amendment context remains a substantial

constitutional question which should be resolved by this

Court.°®

In view of the continuing divergence of views in the Circuit

Courts of Appeals concerning the constitutional propriety of

predicating sentence on a defendant’s refusal to waive his

rights under the Fifth Amendment,’ and in view of the need

*The Court of Appeals found additional justification for exempting this

case from the fundamental rule that a price tag may not be placed on the ex-

ercise of constitutional rights on the ground that other factors in addition to

petitioner's refusal to waive his Fifth Amendment rights influenced the sen-

tencing decision, even though the District Court’s remarks were concerned

almost exclusively with petitioner's failure to confess or implicate others as

well as himself. This position is also not supported by the decisions of this

Court, which have established that resentencing is required when it appears

that an improper consideration has influenced the sentencing decision, even

if only in part. In Townsend v, Burke, 334 U.S. 736 (1948), the Court ruled

that prior convictions obtained without benefit of counsel could not be con-

sidered in reaching a sentencing determination and remanded for resentenc-

ing, since “[wJe are not at liberty to assume that items given such emphasis

by the sentencing court did not influence the sentence. . ..” Id. at 740. This

Court also remanded for resentencing in United States v. Tucker, 404 U.S.

443 (1972), when it appeared that the sentence was based in part upon prior

unconstitutional convictions. See also, United States v. Hopkins, 464 F. 2d

816, 822 (D.C. Cir. 1972), and United States v. Rodriguez, 498 F. 2d 302,

313 (5th Cir. 1974), requiring resentencing where the appellate court was

unable to appraise the extent to which the defendant's failure to confess in-

fluenced the disposition.

7In addition to the numerous cases already cited, the question has reached

the Courts of Appeals on the following occasions (the list is not, however, ex-

haustive): United States v. Wright, 533 F. 2d 214 (5th Cir. 1976); United

States v. Laca, 499 F. 2d 922 (5th Cir. 1974); United States v. Jansen, 475

14

for clarification of the significance of this Court’s recent opin-

ion in United States v. Grayson in the Fifth Amendment con-

text, the petitioner's case presents a recurrent and troubling

constitutional issue in the administration of criminal justice

which requires definitive resolution by this Court. Cf. Link-

letter v. Walker, 381 U.S. 618, 620 (1965).

Conclusion,

The petition for certiorari should be granted.

Respectfully submitted,

JOSEPH S. OTER)J,

MARTIN G. WEINBERG,

JUDITH FARRIS BOWMAN,

OTERI & WEINBERG,

10 Post Office Square,

Boston, Massachusetts 02109.

(617) 227-3700

December 15, 1978.

F. 2d 312 (7th Cir. 1973), cert. denied, 414 U.S. $26 (1973); United States v.

Kimbrell, 470 F. 2d 280 (5th Cir. 1972); Bertrand v. United States, 467 F. 2d

901 (5th Cir. 1972); United States v. Moore, 427 F. 2d 38 (5th Cir. 1970),

cert, denied, 400 U.S. 965 (1970); United States v. Wiley, 278 F. 24 500 (7th

Cir. 1960); cf. United States v. Floyd, 477 F. 2d 217 (10th Cir. 1973), cert.

denied, 414 U.S. 1044 (1973); Williams v. United States, 273 F. 2d 469 (10th

Cir. 1959).

la

Appendix.

United States District Court

District of Maine

Crim. No. 77-37-SD

UNITED STATES OF AMERICA

JACKIE DAVID MILLER

December 13, 1977

George J. Mitchell, U. S. Atty., Portland, Me., for plaintiff.

Gerald F. Petruccelli, Portland, Me., for defendant.

| Memorandum of Opinion and Order on Defendants

Motion to Suppress

Gicnoux, District Judge.

Presently before the Court is defendant’s motion for return

of property and for suppression of evidence filed July 29, 1977

pursuant to Fed.R.Crim.P.12(b)(3) and 41. An evidentiary

hearing has been held, the issues have been comprehensively

briefed and argued by counsel, and the following memoran-

dum opinion contains the Court’s findings of fact and conclu-

sions of law as required by Fed.R.Crim.P.12(g).

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I

The Facts

A. Events of Friday, May 13, 1977

On Friday, May 13, 1977, at approximately 5:45 a.m.,

Willard Muise, an employee at the Robinhood Marina, in Ar-

rowsic, Maine, noticed a yacht, the Cold Duck, fouled in one

of the marina’s moorings approximately 250 yards offshore.

Muise had not previously seen the craft. At about 7:00 a.m.

on the same day, Muise conferred with Ralph Becker, the

marina owner, who also knew nothing about the boat. Later

in the day Robert Mansfield, an employee of the marina, and

Becker also conferred about the boat and decided to discover

the identify of the owner. To that end, Mansfield called the

home port of the Cold Duck, found the marina at which it

formerly had been based, and learned from personnel at the

marina the name and telephone number of the former owner,

Patrick Zecco. Mansfield later was able to reach Zecco, who

told Mansfield that he had sold the boat to a person named

Jackie Miller.

At approximately 2:45 p.m. William Muise rowed out to

and boarded the Cold Duck. No one was aboard, and Muise

returned to the marina. Because the boat was fouled in a

mooring, and since the rubber dinghy aboard the Cold Duck

used to ferry people from the boat to the shore had not been

used for some time, Muise told Mansfield he feared a drown-

ing might have occurred. At about 3:30 p.m. Mansfield tele-

phoned the United States Coast Guard station at Boothbay

Harbor and advised them of the events at the marina. Mans-

field then left work for the day.

Sometime thereafter, the Coast Guard arrived at the marina

to investigate the possibility of a nautical accident. The Coast

3a

Guard notified the Sagadahoc County Sheriff’s Office of the

incident. Pursuant to this notification, Sagadahoc County

Chief Deputy Sheriff Charles Brawn arrived at the marina at

approximately 5:30 p.m. No one was at the marina investi-

gating the reported drowning, sc Brawn departed. Brawn re-

turned to the marina around 8:00 p.m. that evennig. By that

time the Coast Guard, Maine State Police, Sagadahoc County

Sheriff Arthur Tainter, wardens from the Maine Department

of Sea and Shore Fisheries, and marina owner Becker were at

the scene probing the purported drowning.

Some two to two and one-half hours after he returned to the

marina (at 10:00 or 10:30 p.m.), Brawn and Coast Guard of-

ficers boarded the Cold Duck in order to discover evidence of

ownership. A search of the vessel was made, and the officers

found a bill of sale and registration papers for the boat listing

Jackie D. Miller as owner and Post Office Box 42 in Woolwich,

Maine as his address of record. Later during the evening,

after the search of the boat had been completed, Becker stated

to several law enforcement officers that he suspected there had

been some drug smuggling in the area, and he mentioned the

name “Purmont.”! Brawn, however, was not a party to these

conversations and did not hear any discussion of drugs or drug

smuggling or any mention of the name “Purmont.” The Coast

Guard later contacted the former owner, Patrick Zecco, and

learned that Miller had paid $19,500 cash for the boat, mostly

in small bills, which had been delivered in a brown paper bag.

Miller had requested a receipt listing the purchase price as

only $15,000.

Everyone left the marina toward midnight. Before depart-

ing, Sheriff Tainter informed the Coast Guard that he would

‘In 1974 Becker had cooperated with law enforcement officers in an in-

vestigation of suspected drug smuggling activities in the area by a man

named Purmont.

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arrange for divers to be at the marina the following morning.

The Sheriff's office ordered Deputy Sheriff Frederick J.

White, who went on duty at midnight, to check the boat once

an hour to make sure that the boat was secure and that no one

was tampering with her. White did so until his shift officially

ended at 8:00 a.m., May 14.

B. Events of Saturday, May 14, 1977

1. Prior to the Mill Isle Visit

Shortiy after midnight, Deputy Brawn attempted to tele-

phone Drug Enforcement Agency (hereinafter D.E.A.) Special

Agent Edward V. Drinan, Jr., the agent in charge of D.E.A,

operations in Maine. Brawn suspected that the Cold Duck

might be involved in drug operations allegedly taking place in

Westport, Lincoln County, Maine, Brawn was unable to

complete the call to Drinan.?

At 12:30 a.m., May 14, without knowledge of Brawn’s ac-

tions, a Coast Guard warrant officer, who had attended drug

“awareness” seminars conducted by Drinan for the Coast

Guard, also telephoned Drinan, The warrant officer reported

the peculiar facts thus far discovered about the Cold Duck and

said that he was “suspicious” of the situation, Drinan stated

that he would proceed to the marina the next day, Around

4:00 a.m. Drinan received a message from the Boston D.E.A,

office to call the Sagadahoc County Sheriff's Office, At 8:00

a.m., the Sheriff’s Office called Drinan, who replied that he

was aware of the purported drowning and was proceeding to

Robinhood Marina. Before heading to the marina, Drinan

stopped at his office to pick up his handcuffs and his field kit,

*Brawn’s information about drug operations in Lincoln County later

proved to be erroneous.

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which contained Miranda forms, evidence envelopes, and

similar matier. Drinan at this time and at all times subse-

quent was acting in his official capacity as a D.E.A. Special

Agent.

Toward 9:00 a.m, Deputy White returned to the marina to

learn of progress in the investigation of the accident, There

White met Deputy Sheriff Gordon E,. Kinney, the deputy in

charge of criminal investigation, The Sheriff's Office had

contacted Kinney in the event that foul play somehow had

been involved in the purported drowning. At this time divers

were working the waters beneath the boat and around the

marina, White and Kinney boarded the Cold Duck to help

Coast Guardsmen tow the boat back to the gas dock at the

marina, While aboard, the men noticed several thousand

dollars worth of new electronic navigational gear, which had

been installed in a sloppy, unprofessional fashion, White and

Kinney also noticed three to five partially burned marihuana

cigarettes in an ashtray on the deck and on the flying bridge.

Kinney noticed a navigational chart (Government Exhibit

8), folded so that the printed part of the chart was exposed,

lying on the floor of the main cabin between a table and a

bench. He spread the chart on the table and observed a pen-

ciled course line on the chart threading its way from Robin-

hood to a ledge located off Mill Isle. White and Kinney

discussed the course in general terms and did not specifically

refer to Mill Isle.? White and Kinney did not engage in a

general search of the boat, and the objects they spotted on the

Cold Duck were in plain view.

At 9:00 a.m., Deputy Brawn arrived at the marina, After

the Cold Duck was towed to the dock, while White and Kin-

* Kinney testified that he had previously been to Mill Isle on May 11, 1977

in an attempt to serve papers on a man and a woman in connection with a

check-cashing matter, He was unable to effect service, and the incident bore

no relation to the Cold Duck affair.

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ney were still aboard, Brawn boarded the boat. White and

Kinney showed him the chart with the course line. The three

speculated about possible involvement of the Cold Duck with

the purported drug activities in Lincoln County. While

Brawn, White and Kinney were conferring on the Cold Duck,

a young man later identified as the defendant, Jackie D,

Miller, drove into the marina parking lot. The time was ap-

proximately 10;00 a.m, Miller's vehicle was a late model,

black Chevrolet Blazer, Marina employee Muise was working

in the lot at the time, Miller approached Muise, gave his

name as Miller, and stated that he wished to lease a mooring

for his boat, When Muise asked the defendant what type of

boat he owned, the defendant pointed to the Cold Duck and

noticed the law enforcement officers on her, Defendant in-

quired about their presence, and Muise answered that the men

had taken the boat to the dock in order to free the mooring.

Muise suggested that the defendant check with the office

about moorings and then walked away.

Shortly thereafter Muise went down to the Cold Duck and

asked if defendant had been there, Defendant had not. After

procuring a description of defendant and his vehicle, Deputy

White, in his Sheriff's Department automobile, and Deputies

Kinney and Brawn in a separate car, left the marina to locate

the defendant. In Georgetown Center White passed defend-

ant heading in the opposite direction. The two had eye con-

tact, and defendant accelerated rapidly, White turned around

and gave chase, To catch defendant White traveled at speeds

near 90 m.p.h, With his lights and siren operating, White

caught up with defendant after 14% to 2 miles and tailed de-

fendant for another mile at 70 m.p.h. before defendant

stopped his vehicle. The road was two lanes, narrow and

winding. The speed limit was unposted but was statutorily set

at 45 m.p.h, Detendant produced his license and the vehicle

registration for White, and in response to a question, defend-

Ta

ant told White that he owned the Cold Duck. Defendant

agreed to accompany White back to the marina. Brawn and

Kinney pulled their car in behind White on the way to the

marina.

At the marina parking lot, Brawn began to question defend-

ant. Defendant admitted that he owned the Cold Duck, but

refused to state why he had left the marina so abruptly.

Brawn then read defendant his Miranda rights from White's

Miranda warning card, Defendant agreed to speak without a

lawyer, Sheriff Tainter next arrived. Defendant said that

ownership papers were on the boat and voluntarily accom-

panied Brawn and Tainter aboard the Cold Duck. Within a

few minutes of their boarding the Cold Duck, shortly before

11:00 a.m., Agent Drinan arrived at the marina, was briefed

by Brawn, and also boarded the boat. Drinan identified him-

self to defendant by telling defendant his name, title, and

reason for being at the marina, Drinan said that he had

reason to believe that defendant and his boat had been en-

gaged in drug smuggling activity. Drinan observed two

burned marihuana cigarettes in an ashtray in the cabin.

While Drinan was talking with defendant aboard the Cold

Duck, White and Kinney were in the marina parking lot “ad-

miring” defendant's Blazer. Deputy Sheriff Bruce E. Settler

joined the two in the lot, and he too admired the vehicle. De-

fendant had left open the door on the driver's side of the

Blazer, As the three deputies peered in through the door to ex-

amine the instrument panel, they observed what they sus-

pected to be marihuana debris on the front floor of the Blazer.

Settler saw more debris in the back seat area, Settler gathered

debris from both parts of the Blazer, field-tested the sub-

stance, and learned that it was marihuana. White then locked

the automobile.

White and Settler went to the Cold Duck and informed

Drinan of their discovery. Drinan then told defendant he was

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suspected of marihuana smuggling, and at Drinan’s request,

Settler again read defendant his Miranda rights. Defendant

stated that he understood his rights, that he did not want a

lawyer at that time, and that he would be willing to answer

questions. The atmosphere at this time was relaxed and

casual. Defendant freely moved around the boat and pre-

pared a meal while talking with Drinan. Defendant showed

Drinan his bill of sale for the boat (Government Exhibit #1)

and denied that he and his boat had been engaged in any

wrongdoing. Drinan explained defendant’s probable sentence

if he were convicted of drug smuggling. Drinan suggest that

defendant could receive a lighter sentence if he cooperated

with authorities, but defendant declined to do so. Drinan

then told defendant that he, Drinan, was seizing the Cold

Duck.‘

Defendant, Drinan, and the County officers next left the

boat and returned to the locked Blazer. Although defendant

claimed he did not know who owned the vehicle, he did un-

lock the door and the trunk of the Blazer with his keys. In the

trunk were four suitcases, which Drinan removed and placed

on the ground. The first three suitcases were unlocked. With

each of the unlocked suitcases, Drinan asked defendant if he

owned it. When defendant replied in the negative, Drinan

then asked if defendant knew who was the owner. When de-

fendant again answered negatively, Drinan proceeded to

search the suitcases, without any objection by defendant. The

fourth piece of luggage (Government Exhibit #2) was locked

with a combination lock. Defendant denied ownership of this

bag as well, but agreed to work the combination and unlock it.

In the fourth suitcase Drinan found a checkbook bearing the

*Drinan admitted during his testimony that at the time the only basis upon

which he could have seized the Cold Duck was the marihuana debris which

he and the deputies had observed on board the boat. See United States v.

One Clipper Bow Ketch “NISKU,” 548 F.2d 8 (1st Cir. 1977).

9a

name of Jackie D. Miller, which defendant claimed belonged

to his father, and a cube of what appeared to be hashish.

Drinan field-tested the substance and found it to be hashish.

He then seized the hashish, placed defendant under arrest for

illegal possession of hashish, and seized the Blazer.®

Following the arrest, Settler frisked defendant and found a

sales receipt (Government Exhibit #3) for an industrial vacuum

cleaner purchased at Sears, Roebuck & Co. on May 13, 1977.

A “John Davis,” had signed the receipt as purchaser. Defend-

ant at first denied knowing “John Davis,” but later admitted

that he had signed the receipt. After the arrest the Blazer was

thoroughly searched and a key (Government Exhibit #5),

which later proved to fit the lock of the main house at Mill

Isle, was found. The party then left the Blazer and returned

to the Cold Duck. Pursuant to a request by Drinan, D.E.A.

Agent Wayne L. Steadman arrived at the Cold Duck about

2:00 p.m. Steadman told defendant he was under arrest and

had defendant read with him a Miranda rights form (Govern-

ment Exhibit #4). Although defendant refused to sign the

form, he stated that he understood his rights. He neither

asked for a lawyer nor demanded that all questioning cease.

Steadman gave defendant receipts for his boat and car and

took defendant’s history. Defendant then was transported to

a detention cell at the Sagadahoc County Sheriff’s Office in

Bath.

After defendant was taken to the detention cell, Drinan,

Brawn and Settler drove to Woolwich to investigate the post

office box address defendant had used. The officers obtained

the street address from a postal employee. They found the

house was empty and learned from neighbors that the occu-

pant, “Jackie,” had moved out several weeks before.

5 Under cross-examination Drinan conceded that he made it clear to de-

fendant that the suitcases eventually would be opened with or without de-

fendant’s assistance.

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2. The First Mill Isle Visit

On the way back from Woolwich, around 4:00 p.m., Depu-

ty Brawn suggested that, because of the course line on the

chart leading from the marina to Mill Isle, he, Drinan, and

Settler should to to Mill Isle to see if any of the residents could

add to information about the Cold Duck.® Drinan had not

seen the chart on the Cold Duck and this was the first time he

had heard of Mill Isle.” The officers decided to go to Mill Isle

to question the occupants of the houses there to see if they had

observed any unusual activity at the deep water dock located

there.

Upon arriving at Mill Isle the officers drove toward the

chalet to question the occupants. They parked between the

chalet and the dock. A telescope protruding from a trash bar-

rel on the dock immediately attracted their attention. As they

walked toward and onto the dock they observed substantial

amounts of marihuana debris spread over the boards of the

dock and in the cracks between the boards. The debris later

tested as marihuana. Fresh tire tracks in the road from the

dock bore distinctive markings similar to the criss-cross tread

of the oversize tires on the Blazer. At the chalet the curtains

were drawn and no one responded to the agents’ knocks. As

*At some tirne during the morning or early afternoon hours of May 14,

marina owner Becker had mentioned to Brawn his suspicions that the Cold

Duck may have been associated with alleged drug smuggling activity at Mill

Isle, which the D.E.A. had investigated in 1974. He also mentioned that a

man named Wayland Purmont had been the subject of the investigation.

Brawn testified that he paid little attention to Becker's comment, did nothing

about it, and did not mention the conversation to Drinan.

’ Mill Isle is a peninsula of land connected to the mainland by a causeway.

The parcel contains a dock, a chalet cottage near the dock, a main house one-

quarter mile from the chalet, a barn close to the main house, and assorted

outbuildings. The road across the causeway to the main house is a public

road, All other roads on Mill Isle are private.

lla

the officers prepared to go to the main house, Brawn suggested

that they take a shortcut on a woods road leading from the

chalet to the main house. On this road before they reached

the main house the officers spotted a large tarpaulin, which

covered a bulky object located at the side of the road. Scat-

tered around it were baggie twists, of the sort used to tie large

trash bags, and marihuana debris. The trail was beaten down

and bore tire marks matching those near the dock. Drinan

lifted the tarpaulin. Underneath was a burlap bag, weighing

40 lbs., measuring 2’ x 2.5’ x 1’, with the number “43” sten-

ciled in red on it. Drinan identified the object as a bale of

marihuana. The contents later tested to be marihuana.

Drinan placed the bale in the trunk of the car, and the agents

left Mill Isle and returned to the Sheriff’s office in Bath.

At Bath, Drinan showed the bale to defendant in his deten-

tion cell, stated that the “stakes” had gone up, and asked de-

fendant if he wished to cooperate. Defendant again declined.

Drinan then left the cell and joined Brawn at the Lincoln

County Courthouse, where Brawn and an assistant district at-

torney prepared an affidavit for a search warrant for the

premises at Mill Isle (Government Exhibit #10).° Around 8:00

p.m. Judge Paul MacDonald of the Maine District Court

issued the warrant (Government Exhibit #10) to Brawn.

3. The Second Mill Isle Visit

By 8:30 p.m. a search party consisting of Drinan, Brawn,

Settler and several other deputies and state police officers

assembled at Mill Isle. Drinan and Brawn led the search of

* Brawn attached to the affidavit two photographs of Mill Isle (Govern-

ment Exhibits #6 and #7) taken in conjunction with the 1974 Purmont in-

vestigation, which he had found in a file in his desk. The previous occupant

of Brawn’s desk at the Sheriff’s office had left the file, and Brawn had not

bothered to remove it.

12a

the main house. Settler and others went to the chalet. They

found that the chalet was stacked waist high with over 60

bales of marihuana. Testing later proved the substance to be

marihuana. There also were warehouse rollers and stands and

a new Sears industrial vacuum cleaner bearing the same model

number as that on the receipt which defendant had had on his

person. News of this find was conveyed to Drinan in the main

house. Drinan telephoned defendant at the Bath Police De-

partment jail, to which he had been moved, disclosed what

the authorities had found, and again asked defendant if he

wished to cooperate. Defendant again refused. Completing

the inventory and related matters of the search lasted until

12:30 a.m., May 15. Brawn executed the return on the war-

rant (Government Exhibit #10) and filed it with the Clerk of

the Maine District Court in Bath.

C. Events of Sunday, May 15, 1977

Drinan returned to defendant's cell at about 1:00 a.m. on

Sunday, May 15. With Drinan and defendant in one car and

Steadman following behind in a second vehicle, the party left

Bath to transfer defendant to the Cumberland County jail in

Portland pending his arraignment before the U.S. Magistrate.

During the ride Drinan and defendant engaged in small talk.

They and Steadman stopped for a snack at a diner before

reaching Portland. Defendant had a tuna fish sandwich and a

cup of hot chocolate. Shortly after they left the diner, defend-

ant spontaneously asked Drinan where he had found the first

bale. Drinan refused to answer, but remarked that defendant

had made a big mistake in jeopardizing a million dollar deal

by returning for a $20,000 boat. Drinan next said that he did

not think that law enforcement personnel had recovered all of

the marihuana. Defendant replied, “Exactly. But you got a

good piece of it, enough to destroy our profit.” There was a

13a

pause, and defendant then stated, “Funny thing was, this was

our first run.” Drinan expressed disbelief at this statement

and inquired as to the source of the marihuana. Defendant

said it was of good quality from Colombia. At about 10:30

a.m. defendant was checked into the Cumberland County jail.

D. Events of Monday, May 16, 1977

On Monday, May 16, defendant was arraigned, with his

present counsel, before the United States Magistrate in Port-

land. This date was the first time that defendant sought the

assistance of counsel. The arraignment proceedings were

postponed until the afternoon in order to give defendant the

opportunity to obtain counsel.

II

The Law

Defendant seeks to suppress all of the evidence taken from

the Cold Duck, the Blazer, the suitcase, his person and Mill

Isle prior to the issuance of the search warrant on the ground

that such evidence was the product of warrantless searches

and seizures which were not justified by a recognized excep-

tion to the Fourth Amendment warrant requirement. De-

fendant further argues that the evidence seized at Mill Isle

pursuant to the search warrant must be suppressed because

Brawn’s affidavit failed to set forth sufficient probable cause

to sustain its issuance, because the warrant was overbroad on

its face, and because the warrant failed to comply with the

terms of Fed.R.Crim.P. 41. Finally, defendant contends that

his statements to Drinan in the early hours of Sunday, May 15,

during their drive from Bath to Portland are inadmissible

l4a

under the doctrine of Miranda v. Arizona, 384 U.S. 436, 86

S.Ct. 1602, 16 L.Ed.2d 694 (1966) and its progeny.

The evidence at issue on this motion may be classified as

follows: (a) the marihuana debris, nautical chart, and bill of

sale taken from the yacht Cold Duck, (b) the marihuana

debris and the key taken from the Blazer, (c) the suitcase

secured by a combination lock and the hashish found therein,

(d) the receipt for the industrial vacuum cleaner found on de-

fendant’s person, (e) the bale of marihuana, the tarpaulin, the

baggie twists, and the marihuana debris discovered at Mill Isle

during the afternoon of Saturday, May 14, prior to the is-

suance of the search warrant, (f) the numerous bales of

marihuana, the warehouse rollers and stands, the industrial

vacum cleaner, and the various other items seized at Mill Isle

during the evening of Saturday, May 14, after the issuance of

the search warrant, and (g) defendant's statements to Drinan

in the early morning of Sunday, May 15. The Court will con-

sider each category of evidence seriatim.

A. Items Taken From the Yacht Cold Duck

At the outset, the Court reiterates the fundamental tenets of

the law of search and seizure, that warrantless searches or

seizures are impermissible unless justified by recognized ex-

igent circumstances and that the burden rests on the Govern-

ment to prove that such circumstances had existed when it at-

tempts to validate a warrantless search or seizure. E.g., Cool-

idge v. New Hampshire, 403 U.S. 443, 454-55, 91 S.Ct. 2022,

29 L.Ed.2d 564 (1971); Vale v. Louisiana, 399 U.S. 30, 34, 90

S.Ct. 1969, 26 L.Ed.2d 409 (1970).

It is settled that an intrusion by law enforcement officials

during the course of an emergency situation qualifies as an ex-

igent circumstance for which a warrant is not required. E.g.,

United States v. Jeffers, 342 U.S, 48, 52, 72 S.Ct. 93, 96 L.Ed.

l5a

59 (1951); McDonald v. United States, 335 U.S. 451, 454, 69

S.Ct. 191, 93 L.Ed. 153 (1948). That such an emergency ex-

isted on Friday, May 13, when Brawn and Coast Guard offi-

cers first boarded the Cold Duck is beyond dispute.’ A yacht

unknown to personnel at the Robinhood Marina and with no

one aboard was discovered fouled in one of the marina’s moor-

ings. It was entirely reasonable for law enforcement officials

to fear that a drowning or other nautical mishap may have oc-

curred, and it was equally reasonable for them to board the

boat in order to investigate the purported accident. That Kin-

ney and White were lawfully investigating the same emergency

when they boarded the Cold Duck on the morning of May 14

and observed the marihuana debris and the navigational chart

is clearly established by uncontradicted testimony.'® The evi-

dence is also uncontroverted that the two did not engage in a

general search of the vessel. The officers were lawfully aboard

the vessel, and the items they observed were in plain view and

discovered inadvertently. On these facts, the seizure of the

debris and the chart fall within the “plain view” exception to

the warrant requirement, the criteria for which were set forth

by the Supreme Court in Coolidge v. New Hampshire, supra

403 U.S. at 464-73, 91 S. Ct. 2022. Defendant's motion to

suppress these items is denied.

The bill of sale for the Cold Duck likewise is admissible.

Defendant voluntarily accompanied Tainter and Brawn

®Indeed, defendant so concedes in his Reply Memorandum in Suppor’ of

his Motion For Return of Property and for Suppression of Evidence, at 2.

'© Defendant attempts to make much of Kinney’s official designation as the

deputy in charge of criminal investigation. Defendant claims that Kinney’s

presence at the marina tranformed the investigation of the accident into a

narcotic probe. As Kinney himself testified, however, due to the small size of

the Sagadahoc County Sheriff's Department, he frequently was called upon

to investigate a range of matters, both criminal and noncriminal. On the

morning of May 14 Kinney was investigating a possible drowning.

l6a

aboard the boat, willingly furnished the bill of sale for

Drinan’s perusal, and had been read his Miranda rigfits twice

prior to producing the bill of sale. Defendant suggests, how-

ever, that he may have acted under duress. Whether his ac-

tion was in fact voluntary or was the product of duress or coer-

cion is “a question of fact to be determined from the totality of

all the circumstances,” including the maturity of the accused,

his educational background and intelligence, whether the ac-

cused was informed of his constitutional rights, the length of

the accused’s detention, and whether he was subject to physi-

cal punishment or other forms of coercion which overboar his

will. Schneckloth v. Bustamonte, 412 U.S. 218, 226-27, 93

S.Ct. 2041, 36 L.Ed.2d 854 (1973).

No evidence was introduced that defendant was under

duress when he produced the bill of sale. To the contrary, the

atmosphere aboard the Cold Duck during the episode was

relaxed and casual. Defendant is 4 mature, 25 year old high

school graduate who had been fully informed of his rights

prior to the seizure of the bill of sale. The undisputed evi-

dence establishes that his actions were completely voluntary.

Under well settled principles, the bill of sale is clearly admissi-

ble. Schneckloth, supra at 219, 93 S.Ct. 2041; Davis v.

United States, 328 U.S. 582, 593-94, S.Ct. 1256, 90 L.Ed.

1453 (1946); Zap v. United States, 328 U.S. 624, 630, 66 S.Ct.

1277, 90 L.Ed. 1477 (1946). Defendant’s motion to suppress

the bill of sale is denied.

B. Items Taken From the Blazer

The two items found in the Blazer, the marihuana debris

and the key, were taken without warrant but at different

times and under different circumstances.

The marihuana debris was found in the vehicle after de-

fendant had returned to the marina parking lot with White

l7a

but before Drinan placed defendant under arrest. Defendant

had left open the door on the driver's side of the Blazer when

he boarded the Cold Duck with Tainter and Brawn. While

“admiring” the vehicle, White, Kinney and Settler spotted the

debris on the front floor through the open door. The discovery

of the debris was inadvertent and not the result of a search of

the car. See Harris v. United States, 390 U.S. 234, 236, 88

S.Ct. 992, 19 L.Ed.2d 1067 (1968). No privacy expectation of

the defendant was violated when the three deputies saw the

debris through the open door and removed a sample from the

Blazer. As the Supreme Court consistently has noted, an in-

dividual has a lesser expectation of privacy with respect to a

motor vehicle than he enjoys with regard to his person, his

home, or repositories of his personal effects. E.g., United

States v. Chadwick, 433 U.S. 1, 3, 97 S.Ct. 2476, 53 L.Ed.2d

538 (June 21, 1977); Cardwell v. Lewis, 417 U.S. 583, 590, 94

S.Ct. 2464, 41 L.Ed.2d 325 (1974) (plurality opinion); Cham-

bers v. Marroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419

(1970); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69

L.Ed. 543 (1925). Defendant further lessened this diminished

privacy expectation by leaving the vehicle unlocked and the

door open. The debris was in plain view to anyone standing in

the parking lot near the open door. The deputies’ presence in

the parking lot was permissible, and the officers’ discovery of

the marihuana debris was inadvertent. The debris is admissi-

ble under the plain view doctrine. Coolidge v. New Hamp-

shire, supra 403 U.S. at 464-73, 91 S.Ct. 2022; Harris v.

United States, supra.

The key to the lock of the main house at Mill Isle was found

in the Blazer after Drinan had arrested defendant for illegal

possession of hashish and after he had seized the vehicle. The

search of the vehicle was clearly proper as incident to the ar-

rest. Gorman v. United States, 380 F.2d 158, 162 (1st Cir.

1967), and cases there cited. See also Chambers v. Maroney,

18a

supra 399 U.S. at 46-52, 90 S.Ct. 1975. Moreover, as a

D.E.A. agent, Drinan possessed statutory authority to take the

Biazer into custody without a warrant because of its use in the

transportation of controlled substances — the marihuana

debris and the hashish which had been found therein. 21

U.S.C. §§ 878(4), 881(b)(1), (4); United States v. One 1972

Chevrolet Nova, 560 F.2d 464 (1st Cir. 1977). It has been

consistently held that warrantless searches of vehicles appro-

priately taken into custody are reasonable under the Fourth

Amendment. South Dakota v. Opperman, 428 U.S. 364,

367-76, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976); Cooper v.

California, 386 U.S. 58, 61-62, 87 S.Ct. 788, 17 L.Ed.2d 730

(1967). On either basis, the key is admissible in evidence.

Defendant’s motion to suppress the marihuana debris and

the key found in the Blazer is denied.

C. Combination-lock Suitcase and Hashish Therein

The admissibility of the locked suitcase and the hashish

discovered therein pivots on whether defendant validly con-

sented to Drinan’s removal of the suitcase from the Blazer and

his search of the contents. A locked piece of personal luggage

carries with it a high expectation of privacy, and a warrantless

intrusion into such a repository of personal effects must be

justified by consent or some similar circumstance. United

States v. Chadwick, supra, 433 U.S. at 11, 97 S.Ct. 2476.

The Court is satisfied that under the tests propounded in

Schneckloth v. Bustamonte, supra, defendant's behavior in

permitting Drinan to remove and examine the suitcase was

wholly voluntary. Defendant willingly unlocked the Blazer in

which the suitcase had been stored and worked the combina-

tion lock of the bag himself. He did so after twice being ap-

prised of his Miranda rights. The fact that Drinan indicated

to defendant that law enforcement officials eventually would

open the suitcase with or without defendant's consent cannot

19a

be viewed as interfering with defendant's free will in any way.

Both before and after this incident, defendant demonstrated

his capacity to exercise independent judgment through his

decisions not to answer various questions and not to comply

with certain requests of law enforcement officials. The suit-

case and the hashish are properly admissible as the product of

a valid consent search. United States v. Watson, 423 U.S.

411, 424-25, 96 S.Ct. 820, 46 L.Ed. 2d 598 (1976); Schneckloth

v. Bustamonte, supra; Davis v. United States, supra; Zap v.

United States, supra; Gorman v. United States, supra at

163-64, 165. Defendant's motion to suppress the suitcase and

hashish is denied.

D. Receipt Taken From Defendant's Person

The search of defendant's person and the seizure of the

receipt for the industrial vacuum cleaner found on his person

are justified as incident to a lawful arrest. Drinan’s arrest of

defendant after discovery of the hashish plainly was legal.

Drinan had sufficient probable cause to arrest defendant for il-

legal possession of hashish, and he obtained the evidence upon

which probable cause was based through a valid consent

search. The Supreme Court has thoroughly established the

authority of law enforcement officers to search a person inci-

dent to a lawful arrest. E.g., United States v. Robinson, 414

U.S, 218, 235, 94 S.Ct. 467 38 L.Ed.2d 427 (1973); Chimel v.

California, 395 U.S. 752, 763, 89 S.Ct. 2034, 23 L.Ed.2d 685

(1969). Defendant's motion to suppress the receipt is denied,

E. Items Taken From Mill Isle Prior to the Issuance of the

Search Warrant

The legality of the taking of the marihuana debris the tar-

paulin, the baggie twists, and the marihuana bale from Mill

20a

Isle prior to the issuance of the search warrant raises two ques-

tions, The first is whether Drinan, Brawn and Settler appro-

priately visited Mill Isle without a warrant and the second is, if

so, whether the items they found were discovered as the result

of an unlawful search and seizure.

The evidence presented at the hearing consistently demon-

strates that the three officers first went to Mill Isle in order to

question residents there about the Cold Duck. None of the

testimony suggests that the officers intended to conduct a

search of the premises or were operating under any other im-

proper motive, It is firmly established that a police officer

who in the performance of his duty enters upon private prop-

erty to ask preliminary questions of the occupants thereof does

not commit an illegal search. E.g., United States v. Hersh

464 F.2d 228, 229-30 (9th Cir. 1972); United States v. Knight,

451 F.2d 275, 278 (5th Cir. 1971), cert. denied, 405 U.S. 965,

92 S.Ct. 1171, 31 L.Ed.2d 240 (1972); Davis v. United States,

327 F.2d 301, 303 (9th Cir. 1964). Thus, the initial entry onto

the Mill Isle peninsula was for legitimate purposes and did not

constitute an illegal search.

Since the presence of the three officers at Mill Isle was legal,

the objects which they found are admissible provided that the

“plain view” standards of Coolidge v. New Hampshire, supra,

are met, There is no question that the marihuana debris scat-

tered between the boards on the dock falls within the ambit of

the plain view doctrine. Drinan, Brawn and Settler had just

parked their vehicle between the chalet cottage and the dock

when the telescope in the trash barrel reasonably drew their

attention to the dock, Their discovery of the marihuana

debris, in plain view on the dock, was completely accidental

and unplanned,

The discovery of the marihuana debris, the baggie twists,

the tarpaulin and the marihuana bale on the unpaved road

running between the chalet and the main dwelling was simi-

Qla

larly inadvertent. With the exception of the bale itself, all of

these latter items were in plain view. As for the marihuana

bale, the Supreme Court has consistently interpreted Fourth

Amendment questions in the context of privacy-oriented

standards, E.g., United States v. Chadwick, supra 433 U.S.

at 11, 97 S.Ct. 2476; Katz v. United States, 389 U.S. 347,

351-53, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Applying these

standards, the Court is persuaded that defendant suffered no

invasion of privacy when Drinan lifted the tarpaulin off the

bale. Unlike the double-locked foot-locker involved in United

States v. Chadwick, supra, a tarpaulin is not a repository of

personal effects enjoying a high degree of protection against

intrusion. Nor was the bale of marihuana found in a place,

such as a private dwelling, usually free from intrusion by indi-

viduals other than the owner of the property. It was dis-

covered lying by a woods road open for use by anyone passing

from the dock to the main house.'' Moreover, the bale was

not secured from intrusion in any meaningful way. It was not

locked in a trunk or stamped with labels warning unauthorized

people to keep away but merely was draped with a tarpaulin.

Clearly, the condition and location of the bale was such that

defendant could not have had a justifiable expectation of pri-

vacy with respect to its discovery by persons lawfully passing

along the woods road. Cf. United States v. Hanahan, 442

F.2d 649 (7th Cir. 1971).

The marihuana bale, as well as the tarpaulin, the baggie

twists, and the marihuana debris found by the officers at Mill

Isle on the afternoon of May 14 were reasonably seized and are

admissible in evidence. Defendant's motion to suppress these

items is denied.

''There is no evidence that “No Trespassing” signs were posted on the

premises at Mill Isle.

22a

F. Items Taken From Mill Isle Pursuant to the Warrant.

Defendant's objections to the admissibility of the items

taken from Mill Isle during the evening of May 14 pursuant to

the search warrant are threefold. None have merit.

(1) Defendant initially argues that the affidavit underlying

the search warrant failed to set forth sufficient probable cause

to sustain the issuance of a warrant authorizing a search of the

buildings at Mill Isle. Specifically, defendant contends that

Brawn’s affidavit does not allege facts to link the marihuana

bale found by the road with any of the buildings on the prem-

ises,

The courts have consistently compared the level of probable

cause necessary to support a warrant with a reasonable belief

standard and have not equated the existence of probable cause

with proof beyond a reasonable doubt. E.g., Brinegar v.

United States, 338 U.S. 160, 175-76, 69 S.Ct. 1302, 93 L.Ed.

1879 (1949); Vitali v. United States, 383 F.2d 121, 122 (1st

Cir. 1967); Rosencranz v. United States, 356 F.2d 310, 314

(1st Cir. 1966) (probable cause only means evidence sufficient

“to persuade a man of reasonable caution to believe a crime is

being committed”). Furthermore, the magistrate reviewing

the application for the warrant “is entitled to draw reasonabi.

inferences from the facts contained in the affidavit based on

his experience in such matters.” Rosencranz v. United States,

supra; United States v. Spearman, 532 F.2d 132, 133 (9th Cir.

1976).

Based on the facts alleged in the affidavit, on the photo-

graphs appended to the affidavit showing the relationship of

the road where the marihuana bale was found to the two

dwellings, and on the reasonable inference which the magis-

trate was entitled to draw that a smuggler would attempt both

to protect contraband from the elements and to hide it from

police authorities by placing it in » building, the affidavit

23a

clearly sets forth adequate probable cause to authorize is-

suance of the warrant to search the main house, the chalet, the

barn and the outbuildings at Mill Isle. As the Supreme Court

stated in United States v. Ventresca, 380 U.S. 102, 108, 85

S.Ct. 741, 746, 13 L.Ed.2d 684 (1965):

If the teachings of the Court’s cases are to be followed

and the constitutional policy served, affidavits for search

warrants, such as the one involved here, must be tested

and interpreted by magistrates and courts in a common-

sense and realistic fashion. They are normally drafted by

nonlawyers in the midst and haste of a criminal investiga-

tion. Technical requirements of elaborate specificity

once exacted under common law pleadings have no prop-

er place in this area. A grudging or negative attitude by

reviewing courts towards warrants will tend to discour-

age police officers from submitting their evidence to a

judicial officer before acting.

(2) Defendant also contends that the warrant was invalid

because it was overbroad on its face. Defendant relies prin-

cipally on United States v. Voteller, 544 F.2d 1355 (6th Cir.

1976), for the proposition that the warrant was too broad since

did not “particularly describe” the buildings at Mill Isle to

be searched and the probable cause for searching each struc-

ture, The Votteller opinion, however, is inapposite and clear-

ly distinguishable on its facts from the present case. The de-

fective warrant in Votteller pertained to a multi-use, three-

story building with apartments in the basement and on the

second and third floors. The affidavit linked possible criminal

activity only to the bar on the first floor. The Court held the

warrant invalid for failure to particularize the place to be

searched.

24a

The question of sufficient particularity turns on whether the

objects or buildings to be searched are described with the

degree of clarity necessary so that the investigating officer will

not search buildings, objects, persons or dwellings other than

those for which probable cause sustaining the search exists and

other than those which the magistrate contemplated when he

issued the warrant. The purpose of the particularity require-

ment is to curb a general search unsupported by probable

cause. E.g., Berger v. New York, 388 U.S. 41, 55-60, 87 S.Ct.

1873, 18 L.Ed.2d 1040 (1967); Stanford v. Texas, 379 U.S.

476, 480-86, 85 S.Ct. 506, 13 L.Ed.2d 431 (1965). In the in-

stant case, the warrant authorized a search of the buildings on

Mill Isle as described in Brawn’s affidavit: the main dwelling,

the barn, the chalet and several small outbuildings. Because

of the geographical isolation of Mill Isle, the common knowl-

edge that it was a single parcel of real estate, the proximity of

the buildings to be searched, the spatial relationship of the

marihuana bale and the debris found during the first visit to

those buildings, and the description of the buildings contained

in Brawn’s affidavit and shown in the accompanying photo-

graphs, it cannot be doubted that the warrant described with

sufficient precision the objects of the search. Cf. Houser v.

Geary, 465 F.2d 193, 196 (9th Cir. 1972), cert. denied, 409

U.S. 1113, 93 S.Ct. 927, 34 L.Ed.2d 696 (1973); United States

v. Hassell, 427 F.2d 348, 349 (6th Cir, 1970).'*

'? Defendant appears also to contend that the warrant was defective be-

cause it failed to specify the exact quantity of marihuana to be sought. This

argument borders on the frivolous. As the court stated in United States v.

Scharfman, 448 F.2d 1352, 1354 (2d Cir. 1971), “The Fourth Amendment

requirements do not impose a burden on the executing officer ‘beyond his

power to meet’.”” A requirement that the exact amount of contraband being

sought be specified in a warrant would impose an impossible burden on the

officers. Such a result is clearly not contemplated by the Fourth Amendment.

See United States v. Scharfman, supra; United States v. Fuller, 441 F.2d 755

(4th Cir.), cert. denied, 404 U.S. 830, 92 S.Ct. 73, 30 L.Ed.2d 59 (1971).

25a

(3) Defendant’s final challenge to the warrant stems from

the dual State-federal nature of the investigation. The war-

rant was issued as a State warrant by a State court judge to a

State law enforcement officer on State grounds and was re-

turned by a State officer to a State court, all in accordance

with State rules. See Me.R.Crim.P. 41. It is undisputed,

however, that the warrant aided a federal investigation, that

federal law enforcement officers actively participated both in

obtaining the warrant and in its execution, that no State prose-

cution has resulted, and that the evidence seized pursuant to

the warrant is being employed in a federal prosecution. The

search was therefore a “federal search,” see Lustig v. United

States, 338 U.S. 74, 69 S.Ct. 1372, 93 L.Ed. 1819 (1949);

Byars v. United States, 273 U.S. 28, 47 S.Ct. 248, 71 L.Ed.

520 (1927), and the Court will assume for purposes of the pres-

ent decision that, as defendant contends, the warrant was

governed by the federal standards embodied in Fed.R.Crim.P.

41. See United States v. Burke, 517 F.2d 377, 381-87 (2d Cir.

1975); United States v. Sellers, 483 F.2d 37, 41-44 (5th Cir.

1973), cert. denied, 417 U.S. 908, 94 S.Ct. 2604, 41 L.Ed.2d

212 (1974); United States v. Haywood, 150 U.S. App.D.C.

247, 251, 464 F.2d 765, 760 (1972); Navarro v. United States

(1), 400 F.2d 315 (5th Cir. 1968).

Defendant correctly notes that the search warrant did not

comply with the requirements of Rule 41(c) in three respects:

1) the warrant was not addressed to a federal officer; 2) the

warrant did not specify the time (not to exceed ten days) with-

in which the search was to be completed; 3) the warrant failed

to require that it be returned to a federal magistrate. Defend-

ant argues that the failure of the warrant to comply with the

requirements of Rule 41(c) in these respects renders inadmissi-

ble the evidence seized pursuant to the warrant.'* Defendant

'SDefendant also argues that the evidence obtained under the warrant

cannot be used in a federal prosecution because the affidavit did not allege

26a

does not contend, however, that the violations of Rule 41(c)

are of constitutional magnitude, and when a warrant in a joint

State-federal search has been issued under valid authority,"

the courts have refused to exclude evidence obtained under the

warrant, despite technical noncompliance with Rule 41(c).

United States v. Burke, supra; United States v. Sellers, supra.

The argument here anade by defendant was raised and re-

jected by the court in United States v. Burke, supra. Burke in-

volved a State warrant issued by a State court judge in aid of a

federal investigation. The warrant failed to conform to the re-

quirements of Rule 41(c) in precisely the same three respects as

the warrant in the instant case. Although the court found that

the three provisions which had been violated reflected “‘a

Rule-embodied policy designed to protect the integrity of the

federal courts or to govern the conduct of federal officers’”

(emphasis in original), id. at 385, the court held that the

defects in the warrant were not of sufficient consequence to

justify exclusion of the evidence. The court noted that, despite

the technical defects in the warrant, a federal officer in fact

assisted in its execution, the search was made on the same day

probable cause to believe that a federal crime had been committed, This

argument was specifically rejected by the court in United States v. Sellers,

supra, which emphasized that federal and State officers acting jointly

“should be free to make a considered choice based on the best available infor-

mation and unencumbered by merely technical procedural rules.” Jd. at 44.

'* Defendant cites Navarro v. United States (1), supra, and United States v.

Haywood, supra, for the proposition that violation of Rule 41 triggers the ex-

clusionary rule, Navarro held that the failure of law enforcement officers to

obtain a warrant from “a judge of a state court of record,” as required by

Rule 41 (a), required exclusion of the evidence obtained pursuant to the war-

rant. See also United States v. Haywood, supra (dictum). As Judge Friendly

observed in Burke, however, “the defect [in Navarro] was basic; since the

issuing judge was not of ‘a state court of record’, there was in effect no war-

rant at all for federal purposes.” /d. at 385. In the present case, it is uncon-

troverted that the warrant was issued by a judge of a court of record of the

State of Maine.

27a

as the warrant was issued, and the return was made on the fol-

lowing day to the issuing court by the State officer. Judge

Friendly, writing for the court, concluded that, except in a

case like Navarre, where the violation was found to be of con-

stitutional dimensions, “violations of Rule 41 alone should not

lead to exclusion unless (1) there was ‘prejudice’ in the sense

that the search might not have occurred or would not have

been so abrasive if the Rule had been followed, or (2) there is

evidence of intentional and deliberate disregard of a provision

in the Rule.” Jd. at 386-87 (footnotes omitted). See also

United States v. Sellers, supra.

The facts in the instant case precisely parallel those of

Burke. The Rule 41 violations are plainly not of constitutional *

magnitude, and this Court agrees with Burke that they were

not of sufficient consequence to justify the use of the exclu-

sionary rule. Defendant has introduced no evidence to suggest

that the failure to comply with the requirements of Rule 41(c)

prejudiced him in the sense that the search might not have oc-

curred or would not have been so abrasive if the Rule had been

followed. Nor is there any evidence of an intentional and

deliberate disregard of a provision in the Rule. The Court

concludes that the warrant was valid despite the technical

violations of Rule 41(c).

Defendant's motion to suppress the bales of marihuana, the

warehouse rollers and stands, the industrial vacuum cleaner

and the other evidence seized at Mill Isle during the evening of

Saturday, May 14, pursuant to the search warrant is denied.

G. Defendant's Statements to Drinan on Sunday, May 15

The admissibility of defendant’s inculpatory statements to

Drinan in the early morning hours of Sunday, May 15, during

the trip from Bath to Portland, depends wholly on the volun-

tariness of defendant's waiver of his right to remain silent.

28a

Miranda v. Arizona, supra 384 U.S. at 444-45, 86 S.Ct. 1602.

At no time during the events of Saturday, May 14, or in the

course of the ride from Bath to Portland early the next morning

did defendant ask that he be allowed to consult with counsel

or request that all interrogation of him cease. The evidence

produced at the hearing revealed that defendant willingly

made the statements to Drinan and that he had not been sub-

ject to coercion or duress of any sort. Law enforcement of-

ficials treated defendant in an exemplary manner throughout.

Defendant had not been threatened or physically abused. He

was not suffering from prolonged lack of sleep when he spoke

with Drinan, and he had eaten a light meal which Steadman

had bought him just prior to talking to Drinan. Tellingly, it

was defendant, not Drinan, who initiated the conversation.

Prior to defendant’s departing Bath with Drinan, law en-

forcement officers on three separate occasions had informed

defendant of his Miranda rights. Neither the fact that defend-

ant was last read his rights several hours prior to the drive to

Portland nor the fact that defendant refused to sign a written

waiver of his rights taint the voluntariness of defendant's

waiver. United States v. Rogers, 504 F.2d 1079 (5th Cir.

1974); United States v. Osterburg, 423 F.2d 704, 705 (9th

Cir.), cert. denied, 399 U.S. 914, 90 S.Ct. 2166, 26 L.Ed.2d

571 (1970); United States v. Speaks, 453 F.2d 966, 968-69 (1st

Cir.), cert. denied, 405 U.S. 1071, 92 S.Ct. 1522, 31 L.Ed.2d

804 (1972); United States ». Van Dusen, 431 F.2d 1278 (1st

Cir. 1970). Defendant’s waiver of his right to remain silent

was a knowing, intelligent and voluntary decision. The state-

ments he made to Drinan are admissible. Defendant's motion

to suppress the statements is denied.

Defendant's motion for return of property and for suppres-

sion of evidence is in all respects denied.

IT IS SO ORDERED.

29a

United States Court of Appeals

for the First Circuit

No. 78-1093

UNITED STATES OF AMERICA,

APPELLEE,

v.

JACKIE DAVID MILLER,

DEFENDANT, APPELLANT.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

{[Hon. Edward T. Gignoux, U.S. District Judge]

Before Coffin, Chief Judge, Kunzig,* Judge, U.S. Court of

Claims, Dumbauld,** Senior District Judge.

Martin G. Weinberg, with whom Joseph S. Oteri, Judith F. Bowman,

Oteri & Weinberg, Jeanne Baker, David J. Fine, and Rosenberg, Baker &

Fine, were on brief, for appellant.

George J. Mitchell, United States Attorney, with whom Paula D. Silsby,

Assistant United States Attorney, was on brief, for appellee.

November 15, 1978

Corrin, Chief Judge. A jury found appellant guilty of im-

porting and possessing with intent to distribute more than

* Sitting by designation.

** Of the Western District of Pennsylvania, sitting by designation.

30a

3000 pounds of marijuana. 21 U.S.C. §§ 841(a)(1), 952(a),

960(a)(1); 18 U.S.C. § 2. The jury also convicted him of

possession of 2 grams of hashish. 21 U.S.C. § 844(a). The

district judge sentenced appellant to the maximum term in

prison for each of the three offenses, 5 years for each of the

first two offenses and one year for the third, the sentences to

run concurrently. Appellant now challenges some aspect of

virtually every stage of official interference with his enter-

prise: the searches of his boat, car, and land; the use at trial of

his admissions of guilt; the admission of evidence of the size of

his enterprise; the sufficiency of the evidence supporting his

conviction for importation; the charge to the jury explaining

reasonable doubt; and the considerations supporting the trial

court’s imposition of maximum sentences. The relevant facts

add up to a substantial narrative. Each cluster of facts pro-

vides one or more occasions for an exercise of judgment by one

or more of several law enforcement agencies. All such deci-

sions are attacked on appeal. Some issues were not preserved;

some are close questions. We conclude our necessarily lengthy

analysis by affirming.

THE Facts

We set forth in this preliminary statement the events neces-

sary to put each of appellant’s arguments in context. Elabora-

tion essential for the disposition of particular issues appears

subsequently.

On Friday, May 13, 1977, at approximately 5:45 a.m., an

employee of the Robinhood Marina in Arrowsic, Maine, no-

ticed a yacht, the COLD DUCK, fouled in one of the marina’s

moorings about 250 yards offshore. The boat had never been

seen in Arrowsic before and no one had arranged to rent the

mooring. By mid-afternoon employees of the marina decided

3la

to investigate. One employee rowed out and boarded the

boat. He found no one on board, the rubber dinghy, used to

ferry mariners ashore, still in the cockpit, and a partially eaten

meal on the stove. Meanwhile, another employee called the

boat’s home port and learned that the boat had recently been

sold to one Jackie Miller. After conferring, the employees

called the Coast Guard to report a suspected drowning.

The Coast Guard visited the marina and notified the Saga-

dahoc County Sheriff's Office. By 8:00 p.m. the Coast

Guard, Maine State Police, Sheriff's Office, Maine State De-

partment of Sea and Shore Fisheries and the owner of the ma-

rina had all arrived to investigate. At approximately 10:30

p.m. Chief Deputy Sheriff Charles Brawn and Coast Guard

officers boarded the COLD DUCK. They found a bill of sale

and registration made out to Jackie D. Miller, P. O. Box 42,

Woolwich, Maine. They left the boat. The Coast Guard then

called the former owner of the boat and learned that Miller

had paid $19,500 cash in small bills for the boat and had asked

for a receipt showing a price of $15,000.

The Sheriff's Office assumed responsibility for hiring divers

to search the area for bodies at first light, and all officials left

the area around midnight. Deputy Frederick White was as-

signed to make an hourly visual check on the boat during the

night. Shortly after midnight, Deputy Brawn tried to tele-

phone Drug Enforcement Agency (DEA) Special Agent Ed-

ward Drinan, who heads DEA operations in Maine. Brawn

suspected the COLD DUCK might be involved in drug smug-

gling operations being investigated in Lincoln County. In-

dependent of Deputy Brawn, a Coast Guard warrant officer

who had attended “drug awareness” seminars conducted by

Drinan succeeded in reaching the agent and informed him

about the COLD DUCK.

At 9:00 a.m. Deputy White and Deputy Gordon Kinney

met at the marina. Divers were already searching the waters

32a

around the boat. Kinney and White boarded the COLD

DUCK to help the Coast Guard in clearing the boat from its

fouled mooring lines and towing it to a marina slip. While

aboard, the deputies noticed several thousand dollars worth of

new electronic navigational equipment which had been in-

stalled in a sloppy, unprofessional manner. They also noticed

a number of roaches (partially burned marijuana cigarettes) in

ashtrays on the deck and the flying bridge. Perusing the main

cabin for more information about where the owner might

have gone, Kinney noticed a navigational chart lying on the

floor, folded so that the printed part of the chart was exposed.

He spread the chart on the table and observed a penciled

course threading its way from the marina to a ledge located off

of Mill Isle, a secluded peninsula located in Arrowsic near the

confluence of the Sasanoa and Back rivers. White and Kinney

did not engage in a general search of the boat.

When the boat was secured to the dock, Deputy Brawn

boarded it to discuss the situation with White and Kinney.

They showed him the chart and the three discussed the possi-

bility that the boat was involved in drug smuggling in the

area. At about the same time, appellant drove into the ma-

rina parking lot in a late model, black Chevrolet Blazer. Ap-

pellant approached Willard Muise, a marina employee work-

ing in the lot, identified himself, and stated that he wished to

lease a mooring for his boat. When Muise asked what type of

boat Miller owned, appellant pointed to the COLD DUCK

and noticed law enforcement officers on her. Appellant in-

quired about their presence and Muise explained that the men

had brought the boat to the dock in order to free the mooring.

Muise then suggested that appellant check with the main of-

fice about renting a mooring and left the lot.

A few minutes later Muise went down to the COLD DUCK

and asked if appellant had been there. He had not. Muise

provided a description of appellant and his vehicle, and wit-

33a

nesses in the lot reported that he had recently departed, ap-

parently in a hurry, The three deputies set out in two cars to

locate appellant. Deputy White proceeded alone to George-

town Center where he passed appellant going in the opposite

direction. The two had eye contact and appellant accelerated

rapidly.! White immediately turned and gave chase, at speeds

in excess of 90 miles per hour. White caught up with ap-

pellant in about two miles and, with lights and siren

operating, tailed appellant for another two miles before ap-

pellant stopped his vehicle. Appellant produced his license

and registration upon request and admitted that he owned the

COLD DUCK. White then escorted appellant back to the

marina, driving his police car behind the Blazer.

At the marina parking lot, Brawn began to question appel-

lant, and, after appellant again admitted owning the COLD

DUCK, Brawn read him his Miranda rights. Appellant

agreed to speak without a lawyer. Appellant then stated that

his ownership papers were on the boat and voluntarily accom-

panied Brawn and Sheriff Tainter in boarding her. Agent

Drinan arrived a few minutes later and, after being briefed by

Brawn, boarded the COLD DUCK. Drinan identified him-

self to appellant and explained that he suspected appellant had

been engaged in drug smuggling. He observed two roaches in

an ashtray on the boat and proceeded to discuss the situation

with appellant.

Meanwhile, back in the parking lot, Deputies White, Kin-

ney, and Setlar were standing around “admiring” appellant’s

Blazer through the door that appellant had left open. They

noticed marijuana debris on the floor of the vehicle, field

‘As further detail may be relevant, we note that although the Deputy’s

vehicle was unmarked, it did possess a flashing light, Deputy White was in

uniform, and appellant, sitting high in the Blaze. , could look down and into

the Deputy’s car.

34a

tested the substance, locked the vehicle, and apprised Drinan

of their discovery. Drinan informed appellant that his suspi-

cions were growing, and appellant was again informed of his

Miranda rights. Appellant remained relaxed and casual, mov-

ing freely about the boat preparing a meal, answering general

questions and refusing to answer when he so willed. Drinan

suggested that appellant cooperate and explained maximum

sentences for the crimes appellant might have committed. Ap-

pellant remained calm and denied any involvement with

smuggling. Drinan then seized the COLD DUCK.

The parties then returned to the locked Blazer in the lot. Al-

though appellant claimed he did not know who owned the

vehicle, he unlocked it with his keys. Drinan removed four

suitcases from the vehicle. When Drinan asked about the lug-

gage, appellant disclaimed any ownership or knowledge of the

suitcases. Drinan then searched the luggage, without any ob-

jection from appellant. The fourth piece was locked with a

combination lock. Although appellant denied ownership of

the suitcase, he stated that he knew the combination and un-

locked it. In the case was a cube that a field test proved to be

two grams of hashish. Drinan placed appellant under arrest

for possession and seized the drug and the Blazer.

Deputy Setlar then frisked the appellant and found a sales

receipt for an industrial vacuum cleaner, sold on May 13 (the

day before) to a John Davis. Appellant later admitted he had

signed the receipt using the false name. The Blazer was then

thoroughly searched and a key, which later proved to fit the

lock of the main house at Mill Isle, was found. Officers then

went over a Miranda rights form with appellant, who stated

that he understood his rights but would not sign the form. Ap-

pellant was then transported to a holding cell at the Sagadahoc

County Sheriff's Office in Bath.

Drinan, Brawn, and Setlar then drove to Woolwich and,

having obtained the street address that corresponded with ap-

35a

pellant’s post office box, found an empty house and neighbors

who reported that “Jackie” had moved out several weeks

before. Brawn then suggested that, based upon the course

marked on the chart, appellant might be connected with Mill

Isle. The officers decided to go to Mill Isle® to question the oc-

cupants of the houses there to see if they had observed any

unusual activity at the deep water dock located there.

Upon arriving at Mill Isle the officers drove toward the

chalet to question the occupants. They parked between the

chalet and the dock. A telescope protruding from a trash bar-

rel on the dock immediately attracted their attention. As they

walked toward and onto the dock they observed substantial

amounts of marijuana debris spread over the boards of the

dock and in the cracks between the boards. The debris later

tested as marijuana. Fresh tire tracks in the road from the

dock bore distinctive markings similar to the criss-cross tread

of the oversize tires on the Blazer. At the chalet the curtains

were drawn and no one responded to the officers’ knocks. As

they prepared to go to the main house, Brawn suggested that

they take a shortcut on a woods road leacing from the chalet to

the main house. On this road before tuey reached the main

house the officers spotted a large tarpaulin, which covered a

bulky object located at the side of the road. Scattered around

it were baggie twists, of the sort used to tie large trash bags,

and marijuana debris. The trail was beaten down and bore

tire marks matching those near the dock. Drinan lifted the

tarpaulin and found a forty pound bale of marijuana. Drinan

seized the bale.

*Mill Isle is a peninsula of land connected to the mainland by a causeway.

The parcel contains a dock, a chalet cottage near the dock, a main house one-

quarter mile from the chalet, a barn close to the main house, and assorted

outbuildings. The road across the causeway to the main house is a public

road. All other roads on Mill Isle are private.

36a

The officers then returned to Bath. Drinan again ques-

tioned appellant, telling him that the “stakes had gone up”.

Appellant declined to cooperate. Drinan then obtained and,

with the help of local officers, executed a warrant to search the

buildings on Mill Isle, In the chalet the officers found 60 bales

of marijuana, a set of warehouse rollers and stands, and a new

industrial vacuum cleaner matching the one bought by appel-

lant the day before.

Drinan telephoned appellant from Mill Isle, explaining

what had been found, and again asked appellant’s coopera-

tion. Appellant declined. After completing the search,

Drinan returned to Bath to transport appellant to Portland for

arraignment. On the way, the two stopped and had a light

meal. Shortly after they left the diner, appellant spontaneous-

ly asked Drinan where he had found the first bale. Drinan

refused to answer, but remarked that defendant had made a

big mistake in jeopardizing a million dollar deal by returning

for a $20,000 boat. Drinan next said that he did not think that

law enforcement personnel had recovered all of the mari-

juana. Defendant replied, “Exactly. But you got a good

piece of it, enough to destroy our profit.” There was a pause,

and defendant then stated, “Fun thing was, this was our

first run.” Drinan expressed dish ..ef at this statement and in-

quired as to the source of the marijuana. Defendant said it

was of good quality from Colombia.

Subsequent investigation revealed that appellant had leased

the Mill Isle property for $26,000, signing the lease on behalf

of a fictitious organization named Carlisle Estate Ventures

Ltd. Appellant, again in the name of Carlisle, had paid

$15,000 to exercise an option to purchase the property for

$260,000. Within two weeks prior to his arrest appellant had

purchased a 48 foot ocean-going vessel named the HARVARD

for $17,400. A bill of sale for the HARVARD was found in the

main house at Mill Isle. Appellant was a 25 year old unem-

37a

ployed high school graduate with no ascertainable capital

resources.

SEARCH AND SEIZURE ISSUES

We begin our discussion of Fourth Amendment issues with

the fundamental premise that warrantless intrusions violating

reasonable expectations of personal security and privacy are

per se unreasonable. Katz v. United States, 389 U.S. 347, 357

(1967). Several of the searches involved in this case raise ques-

tions about the definition of “reasonable expectations of

privacy”. Others are defended as being within the few excep-

tions to the protection provided to reasonable expectations of

privacy, which exceptions are “jealously and carefully

drawn”. Coolidge v. New Hampshire, 403 U.S. 443, 455

(1971). Some of these searches give us no pause; others merit

close analysis.

A. The Navigational Chart

Appellant first challenges the boardings and examinations of

his boat, the COLD DUCK, that led to the seizure of a navi-

gational chart. We have no difficulty approving the first

boarding on the evening of May 13. At that point, a boat of

unknown origin had been abandoned at a mooring belonging

to another person, where it remained for over twelve hours,

fouled in its lines. A boat, like an automobile, carries with it a

lesser expectation of privacy than a home or an office. Cham-

bers v. Maroney, 399 U.S. 42 (1970); Carroll v. United States,

267 U.S. 132 (1925).? A boat, even more than an automobile,

By so saying, we do not intend to imply that all of the doctrinal gloss ap-

plicable to automobiles is also applicable to boats. Nor do we purport to

38a

becomes a matter of legitimate concern to public safety of-

ficials when it is found abandoned, 250 yards from shore, its

dinghy still on board. The responsibility of state officials for

the safety of property was triggered by these circumstances.

See Cady v. Dombrowski, 413 U.S. 433, 441 (1973) (state of-

ficials’ “community caretaking functions” for vehicles involved

in accidents). More important, the circumstances justified a

reasonable fear of injury to life and limb, specifically a drown-

ing. Such a combination of “community caretaking

functions” and possibly exigent circumstances amply justified

intruding upon the limited privacy expectations surrounding

an abandoned vessel in order to determine ownership of the

boat and the safety of its mariners. Cf. Michigan v. Tyler,

U.S. ___, 46 U.S.L.W. 4533 (May 31, 1978) (exigent cir-

cumstances allow warrantless intrusion to perform ad-

ministrative function).

The following morning, Deputies White and Kinney board-

ed the COLD DUCK for what developed into a more exten-

sive search. Because the officers had a duty to deal with aban-

doned property, see Cady v. Dombrowski, supra, the board-

ing itself was justified by the need to clear the vessel of its

fouled moorings and secure it to a nearby dock, as the owner

of the mooring desired. The search that took place during and

deal with such specialized craft as houseboats or vessels obviously used as

homes. But it has long been recognized that boats, like automobiles, are sub-

ject to frequent limited intrusions by regulatory and safety officials. Such

limited intrusions as warrantless safety and document checks of vessels are

undoubtedly constitutional, United States v. Warren, (No. 75-4368, 5th Cir.

1978) (slip op. 6596) (en banc); and the mobility of an ocean vessel in many

ways exceeds that of a car, justifying warrantless intrusion without probable

cause for customs inspection far from the technical borders of the United

States. United States v. Ingham, 502 F. 2d 1287 (5th Cir. 1974), cert.

denied, 421 U.S. 911 (1975). Given such characteristics, the privacy expec-

tations of a boat owner are necessarily limited. See Cady v. Dombrowski,

413 U.S. 433, 441 (1973).

39a

after the securing of the vessel, however, presents a more

substantial question.‘ It was this search that yielded the chart

that led the officers to Mill Isle and the marijuana. Hours

before this search, both the sheriff's department and the Coast

Guard had each called in the DEA. The deputies noticed

marijuana cigarettes and poorly installed electronic equip-

ment soon after boarding the boat. We find it hard to believe

that they did not smell a smuggler soon after, if not before,

they boarded the boat. If these facts, and no others, were

presented to us, we would be hard pressed to approve the sei-

zure and use of the chart. The Fourth Amendment does not

countenance warrantless “exploratory rummaging” on every

unattended vessel that smells of smuggling. See Coolidge v.

New Hampshire, supra, 403 U.S. at 467.

We are not, however, faced with a clear case of exploratory

rummaging. Rather, three factors enable us to say that the

search by White and Kinney was constitutional, despite the

lack of a warrant. First, the district court found as a fact that

a legitimate non-criminal purpose, investigation of a drown-

ing, motivated White and Kinney’s search. Second, the court

found that the search was limited in scope to that purpose. Ap-

pellant argues that we must reject these findings as clearly er-

roneous, in the main because the sheriff's department had an

address for the owner of the boat. We cannot agree that

where there is an emergency need to obtain information in a

non-criminal investigation the authorities are limited to pur-

suing one clue.> Moreover, divers in the employ of the sheriff's

‘Appellant argues at length that the trial court was clearly erroneous in

finding that the deputies seized the chart before the boat was towed in. The

record is admittedly unclear as to when the chart was found, but in view of

our decision concerning the legality of the search as a whole, we find it un-

necessary to decide exactly when the chart was discovered.

5Indeed, had the authorities restricted their search to investigating the

Woolwich post office box address, they would have found themselves with

40a

department were searching for bodies in the waters around the

COLD DUCK at the same time that White and Kinney con-

ducted their search. Such is clear evidence that a drowning

investigation was being conducted.

The third factor is the Court’s teaching in Michigan v.

Tyler, supra. In Tyler, the Supreme Court sanctioned the ini-

tial warrantless, non-criminal search for evidence of the cause

of a fire. Just as fire officials have a duty to seek the cause of a

fire, the deputies in this case had a duty to seek the explanation

for, and possible victims of, an apparent nautical mishap. In

Tyler, such a search was permissible without a warrant for so

long as the possible rekindling of the fire created an exigent

situation. The circumstances of this case were equally, if not

more exigent. Even more than the possible resurgence of the

fire in Tyler, the tides of Maine made it likely that the object of

the search, a body, would disappear if the search were de-

layed. Moreover, if exigent circumstances justify warrantless

entry and seizure of evidence of arson, which evidence is in-

evitably criminal, then an emergency certainly justifies entry

and seizure of a navigational chart, relevant to a possible

drowning, which by happenstance later proves to be incrim-

inating.® Cf. United States v. Warren, (No. 75-4368, 5th Cir.

1978) (slip op. at 6596) (en banc) (permissible for Coast

Guard inspection boarding to develop into criminal search).

an empty house, no further information on the apparently lost mariners, and

several hours lost.

®Nothing in Mincey v. Arizona, US. , 46 U.S.L.W. 4737 (No.

77-5353, June 21, 1978) is to the contrary. Mincey dealt with a proffered

“homicide scene” exception to the warrant requirement where there was no

possibility that injured victims still needed aid and where all victims of the

incident had been located. Mincey expressly distinguished the situation in

the instant case. Finally, Mincey dealt with a four-day, minute search of a

dwelling; we deal with a brief examination of a vessel constantly subjected to

official contact.

4la

To summarize, appellant’s limited expectations of privacy

in the COLD DUCK, already minimized by its abandonment

at an unauthorized mooring, were not violated by entry pur-

suant to a reasonable belief that an emergency required an im-

mediate search. The owner of the vessel had been missing

long enough to trigger a reasonable belief of danger to life and

limb and not so long as to make the proffered emergency a

mere pretext. The resulting search was “strictly circum-

scribed by the exigencies that justif[ied] its initiation.” Terry

v. Ohio, 392 U.S. 1, 25-26 (1968). The chart was in plain

view on the floor of the cabin. Its discovery was inadvertent.

Opening it up was not exploratory rummaging, but rather

went directly to the purpose of the officers’ presence. See

Marron v. United States, 275 U.S. 192 (1927). Asin Michigan

v. Tyler, it was self-evidently relevant to the non-criminal

purpose of the investigation (finding the mariners) and there-

fore need not be self-evidently incriminating in order to fit

squarely within the plain view exception articulated in

Coolidge v. New Hampshire, supra.

B. Detention of Appellant for Questioning

As noted above, Deputy White apprehended appellant after

a high speed chase beginning in Georgetown Center and end-

ing some four miles later. Appellant now claims that when he

drove his Blazer back to the marina, with Deputy White es-

corting from behind, he was already subject to arrest and that

the arrest was made without probable cause. Appellant also

argues that the events at the marina, which led to appellant’s

formal arrest, are tainted as the fruit of an illegal arrest.

As a preliminary matter, we lack, perhaps understandably,

a ful! analysis below of the facts and law pertaining to the ini-

42a

tial detention of appellant.’ We note that appellant did

preserve the issue in his suppression argument. At oral argu-

ment on the suppression motion, the government took the po-

sition that the precise nature of the initial detention (inves-

tigative stop or full arrest) was irrelevant since Deputy White

had probable cause for arrest. At oral argument on appeal the

government refused to concede that Deputy White needed

probable cause for arrest to justify the detention under the

Fourth Amendment, but failed to offer us an alternative

standard for evaluating what was clearly more than a brief in-

vestigatory stop under Terry v. Ohio, 392 U.S. 1 (1968).

We therefore rely on the record and the few facts found con-

cerning the initial stop. The record reveals that after stopping

appellant, Deputy White asked for and received his license

and registration. After appellant, in response to questioning,

identified himself as the owner of the COLD DUCK, Deputy

White asked him to return to the marina for questioning.

There is no evidence that appellant objected. Nevertheless,

the deputy retained appellant's license and registration during

the drive back to the marina. This testimony was uncontra-

dicted.®

Given this testimony, the trial court stated in its finding of

facts that the appellant “agreed” to accompany the deputy

back to the marina. Because appellant was most cooperative

with the authorities in the ensuing discussions at the dock, we

could easily credit this finding of consent, had the deputy not

retained the license and registration. Appellant could not

"Given the number of challenges made by the appellant and the limited

argument addressed to the original stop, we are not surprised by and cannot

fault this single omission.

*The record does not support the government's contention at oral argu-

ment that appellant may have consented prior to seizure of his license and

registration. Deputy White's testimony on the sequence of events is to the

contrary.

43a

lawfully operate his vehicle without those papers. He was not

free to go. Although the line between an investigatory stop

and an arrest has yet to be fully defined (see, e.g., United

States v. Worthington, 544 F. 2d 1275, 1281-88 (5th Cir. 1977)

(Goldberg, J., dissenting)), when appellant was so significant-

ly deprived of his liberty of movement for a substantial time,

this was, if not an arrest, closer along the detention spectrum

to an arrest than to an investigatory stop. See Davis v.

Mississippi, 394 U.S. 721 (1969); United States v. McCaleb,

552 F. 2d 717, 720 (6th Cir. 1977); United States v. McDevitt,

508 F. 2d 8, 11 (10th Cir. 1974); United States v. Maslanka,

501 F. 2d 208, 213 n. 10 (5th Cir. 1974), cert. denied sub nom.

Knight v. United States, 421 U.S. 912 (1975). Such in-

vestigatory detention requires more justification than the

founded suspicion underlying a brief stop. Davis v. Mississip-

pi, supra, 394 U.S. at 726-27; see United States v. Brignoni-

Ponce, 422 U.S. 873 (1975). In the absence of any argument

that an intermediate procedure falling between a stop and an

arrest was either intended or authorized here, we must reject

the government’s position that probable cause for arrest was

not required to justify the detention.

The government also argues that Deputy White had prob-

able cause to arrest appellant for either of two crimes,

speeding and unlawfully furnishing a scheduled drug. Al-

though Maine statutes provide the usual plethora of regu-

lations relating to the operation of motor vehicles, 29

M.R.S.A. § 1252(4) (West 1978) does not make speeding

criminal until the operator exceeds the statutory limit by thirty

miles per hour or more. As we have noted, appellant accelera-

ted rapidly as soon as he saw Deputy White driving in the op-

posite direction in Georgetown Center. The speed limit at

that point was 35 miles per hour. Deputy White immediately

turned around and gave chase. The trial court found that the

deputy travelled two miles at 90 miles per hour in order to

44a

catch up with appellant and then paced appellant at 70 miles

per hour for another two miles. The unposted statutory speed

was 45 miles per hour. Thus, appellant argues that on the

face of the record, Deputy White lacked 5 miles per hour to

justify a speeding arrest.

We think the matter is not so simple. The statute author-

izing warrantless arrests in these circumstances, 15 M.R.S.A.

§ 70 (West 1965 & Supp. 1978), directs a deputy to “arrest and

detain persons found violating any law of the State... .”

The word “found” has been interpreted to require that the of-

fense be committed in the presence of the officer. United

States v. O'Donnell, 209 F. Supp. 332 (D. Me. 1962). In State

v. Cowperthwaite, 354 A. 2d 173 (Me. 1976), the Maine

Supreme Judicial Court has interpreted the presence require-

ment as allowing arrest where the facts confronting an officer

give him probable cause to believe that the offense is being

committed. An officer may draw reasonable inferences from

the immediate observations of his senses. Id. Applying this

rule to the facts in this case, we find that Deputy White was

statutorily and constitutionally authorized to arrest the ap-

pellant for speeding. Although the deputy never clocked the

appellant at speeds 30 miles per hour in excess of the statutory

limit, the deputy did know how much head start the appellant

had and did know that speeds of 90 miles per hour, at first in a

35 miles per hour zone, were needed to catch the appellant.

Probable cause for arrest does not require the quantum of

proof necessary to convict. United States v. Ventresca, 380

U.S. 102 (1965). Under the standards governing Deputy

White’s conduct, “the facts and circumstances within the

knowledge of the officer. . . were sufficient to warrant a pru-

dent and cautious man in believing that the arrested person

had committed” the offense of speeding. State v. Fletcher,

288 A. 2d 92, 97 (Me. 1972) (quoting State v. Smith, 277 A. 2d

481, 488 (Me. 1971)).

45a

Appellant next argues that even if Deputy White had prob-

able cause to arrest for speeding that such an arrest would be

patently pretextual. This court has stated in the context of

traffic arrests that lead to information about more serious

crimes:

“[W]hile we do not say that there could never be an

egregious situation where an arrest on purely colorable

grounds might be held invalid as ‘pretextual’, cf. Tag-

lavore v. United States, 291 F. 2d 262, 265 (9th Cir.

1961), the validity of an arrest is normally gauged by an

objective standard rather than by inquiry into the

officer's presumed motives. If this were not so, an

arrest’s validity could not be settled until long after the

event; it would depend not only on the psychology of the

arresting officer but the psychology of the judge.” United

States v. McCambridge, 551 F. 2d 865, 870 (lst Cir.

1977).

We acknowledge that McCambridge is distinguishable from

the instant case insofar as the arresting officer in McCam-

bridge had no suspicions about more serious crimes at the time

of the traffic arrest. Nevertheless, we feel that founded suspi-

cions that a person has committed one crime do not disable an

officer from making a probable cause arrest based upon the

operation of a vehicle during guilty flight from the officer's

reasonable attempts to question that person. The Fifth Cir-

cuit has upheld a traffic arrest on facts very similar to those in

the present case. United States v. Maslanka, 501 F. 2d 208,

213 n. 10 (5th Cir. 1974). We agree with its reasoning that a

traffic arrest after a high speed chase, even where the cause of

the chase is founded suspicion of a more serious crime, is clear-

ly distinguishable from the case of officers having mere suspi-

46a

cions who carefully lie in wait until a minor traffic infraction

gives them a pretext to confirm their suspicions. In the same

vein, the cases cited by appellant to support his “pretext” argu-

ment (e.g., United States v. Montgomery, 561 F. 2d 875 (D.C.

Cir. 1977) involved officers acting without articulable facts to

support any suspicion and using registration checks (not arrests

for crimes) as pretexts for searches. As explained more fully

below, Deputy White had nunierous facts to support his suspi-

cions, had every reason to give chase, and in the process was

presented with completely independent probable cause to ar-

rest for speeding.

Even if our construction of Maine traffic statutes should

prove faulty, we think that Deputy White nevertheless had

probable cause to arrest appellant — for drug trafficking.

Viewed in isolation, the individual facts known to the deputy

may have been consistent with innocent explanations, but

taken as a rapidly-developing whole, the facts justifying ap-

pellant’s apprehension were consistent with good, constitu-

tional police work.® The deputy knew that a large yacht had

recently been purchased, for cash in small denominations, by

a man who had asked for two receipts showing different prices

for the boat. He could reasonably infer that not only did the

new owner not want to be traced but also that the new owner

wanted to deceive someone about the amount of cash he had

available. White knew that the new owner had recently in-

stalled expensive long range navigation equipment in a sloppy

fashion. He could reasonably infer that the owner planned to

or had made an ocean voyage and was in a hurry. On that

*We note in passing that, unlike the state law relating to most warrantless

arrests, the special statute then governing warrantless arrests for drug posses-

sion and trafficking did nm require the offense to be committed in the

presence of an officer. See i17-A M.R.S.A. § 1113 (West Supp. 1978) (re-

pealed by P.L. 1978 ch. 671 § 26). State law governing Deputy White's

authority to arrest without a warrant expressly required only probable cause.

47a

boat was a chart showing a course approaching Mill Isle, a

secluded location with a deep water harbor suitable for smug-

gling and located near an area already under investigation as a

smuggler’s port, plus evidence of recent use of small amounts

of marijuana, not in and of itself a crime but grounds to sup-

port an inference that the boat was involved with drug traffic.

This suspicious craft had been abandoned at night at an

unauthorized mooring and had been unclaimed for more than

24 hours. Then the owner arrived. Rather than investigate

the presence of uniformed officers on the vessel he had so

caresessly left behind, the owner sped away in what can only

be characterized as guilty flight. Finally, upon seeing a

uniformed officer observing him in Georgetown Center, the

owner once again fled the authorities, speeding down a wind-

ing road past the entrance to the marina. At this point, Depu-

ty White had not seen more than 1% ounces of marijuana

associated with the defendant,'° but these facts were sufficient

to warrant a reasonable and prudent man’s belief that ap-

pellant had been engaged in “furnishing” under 17-A

M.R.S.A. § 1106(3), if not a more serious crime.

Attempting to minimize the cumulative impact of these

facts, appellant cites cases holding that arrest at an airport of

persons meeting the DEA’s “drug courier profile” is not sup-

ported by probable cause. See United States v. McCaleb, 552

F. 2d 717 (6th Cir. 1977). The simple answer to appellant's

contention is that this case presents “profile plus”. “The ele-

ment missing in McCaleb and present in the case at bar is a

reasonably inferred tie-in with unlawful trading in narcotics.”

United States v. Canales, 572 F. 2d 1182, 1186 (6th Cir. 1978)

(finding founded suspicion for Terry stop). Had the defend-

ants in McCaleb been associated with a suspected smuggling

'© Possession of less than 1% ounces of marijuana is not a criminal offense

under Maine statutes. 22 M.R.S.A. § 2381.

48a

operation and then twice fled from the authorities, we feel

certain that the resolution on the probable cause issue would

have been different. The importance of flight or other

behavior signifying guilt as a final link in a chain of probable

cause is underscored in a number of cases. See United States

v. Maslanka, supra; Defino Martone v. United States, 396

F, 2d 229 (1st Cir. 1968); United States v. Brown, 457 F. 2d

731 (ist Cir. 1972); United States v. Berkowitz, 429 F. 2d 921

(1st Cir. 1970).

C. The Fruits of the Blazer

Appellant next objects to the admission of evidence seized

from his vehicle while it was parked at the marina. As ex-

plained above, upon reaching the marina in the company of

Deputy White, appellant left his truck and boarded the

COLD DUCK. There he had a lengthy conversation with

DEA Agent Drinan. Deputies White, Kinney, and Setlar re-

mained in the lot, admiring the truck. Appellant had left the

door open on the driver's side. The deputies observed mari-

juana debris on the carpeting. The deputies closed and locked

the truck and apprised Agent Drinan of their observations.

After discussing the possible penalties for smuggling with ap-

pellant, Drinan seized the COLD DUCK. Drinan and ap-

pellant then left the boat and appellant unlocked the truck.

Drinan searched four suitcases found in the back of the vehi-

cle. Having discovered hashish in one of the suitcases, Drinan

placed appellant under formal arrest and seized the vehicle. A

thorough search of the vehicle ensued and yielded a key,

which was later found to fit one of the locks on Mill Isle. Ap-

pellant objects to the admission of the debris, the hashish

found in the suitcase, and the key. We treat each item

separately.

49a

1. The Marijuana Debris

Appellant’s arguments on this issue give us little difficulty.

Appellant had a very limited expectation of privacy in his

truck. Chambers v. Maroney, 399 U.S. 42 (1970). Appellant

completely eliminated any such expectation by leaving the

door open. Any passerby could have seen the marijuana on

the floor of his truck. The trial court expressly found that the

deputies were not attempting to search the vehicle. Appellant

does not contend that the deputies were not lawfully present

outside his vehicle. Therefore, the discovery of the marijuana

debris falls squarely within the plain view exception. See

Coolidge v. New Hampshire, supra.

2. The Suitcases

The Supreme Court’s decision in United States v. Chad-

wick, 433 U.S. 1 (1977), establishes that the presence of lug-

gage in an automobile does not necessarily vitiate expectations

of privacy that attach to the contents of the luggage. Accord-

ingly, the government has not argued that the search of ap-

pellant’s luggage was permissible under either the “search inci-

dent” or the “automobile” exception. Rather, the government

argues, and the trial court found, that appellant consented to

the search of the luggage.

The existence of consent and the voluntariness thereof are

questions of fact to be determined from all the circumstances

surrounding the search. Schneckloth v. Bustamonte, 412 U.S.

218, 246-47 (1973). A trial court’s finding of voluntary con-

sent will not be reversed unless it is clearly erroneous. United

States v. Cepulonis, 530 F. 2d 238, 243 (1st Cir.), cert. denied,

426 U.S. 908 (1976). Although we find the issue of consent-in-

fact, as opposed to the voluntariness thereof, to be a close one,

we find no clear error here.

50a

As discussed more fully below, the circumstances surround-

ing the search of the suitcases had few, if any, of the inherently

coercive characteristics that negate a finding of voluntariness.

See United States v. Watson, 423 U.S. 411 (1976); Schneckloth

v. Bustamonte, supra, Because appellant never expressly con-

sented to the search, however, we are faced with the more dif-

ficult question of when consent may be inferred from action.

Appellant urges us to adopt the standard espoused in United

States v. Abbott, 546 F. 2d 883 (10th Cir. 1976). Abbott held

that the acts from which consent is inferred must be “une-

quivocal and specific”. Jd. at 885. Because the Abbott court

selected this evidentiary standard while characterizing consent

to search as .a “waiver of a fundamental right” (id.), a

characterization and a mode of analysis expressly rejected in

Schneckloth v. Bustamonte, supra, we are not convinced that

the trial court’s conclusion should be subjected to such close

scrutiny. Indeed, in United States v. Cepulonis, supra, 530

F. 2d at 244, we deferred to the trial court’s resolution of

equivocal evidence of consent. Nevertheless, even if we ap-

ply, arguendo, the “unequivocal and specific” standard, we

think that the inference of consent was proper on the facts of

this case. Appeliant’s conversation with Drinan aboard the

COLD DUCK was relaxed and casual. Appellant was cooper-

ative, and when he did not wish to be helpful he clearly drew

the line. Upon returning to the parking lot, appellant un-

locked the truck for Drinan.'' Simply unlocking a vehicle,

"Defendant argues at length that the trial court was clearly erroneous in

finding that appellant unlocked both the door and the trunk of the vehicle.

We note that the record supports appellant's contention that appellant

unlocked the door and Drinan the rear hatch of the Blazer. Appellant's

arguments are irrelevant, however, for two reasons. First, appellant's vehi-

cle, a van without a separate trunk, was opened from stem to stern when he

unlocked one door. More important, cooperation in opening any one of the

routes into the vehicle is, in our view, just one piece of evidence amongst

many that support an inference of consent-in-fact.

5la

without saying a word, has been held sufficient to support an

inference of consent-in-fact. United States v. Almand, 565

F, 2d 927 (Sth Cir.), cert. denied, _.. U.S. —., 47

U.S.L.W. 3199 (1978). Even if, however, the act of unlocking

a vehicle, without more, might not support an inference of

consent to search luggage contained therein, appellant's act in

this case does support the ultimate finding of consent-in-fact.

More important than the foregoing prelude to the search of

the suitcases is appellant’s behavior at the time of the search.

Agent Drinan first removed the four suitcases from the Blazer.

Then, before attempting to open each one, the agent asked ap-

pellant if he owned the bag. In each case, appellant denied

both ownership and any knowledge of the owner of the bag.

The first three bags were unlocked and their contents unin-

criminating. The fourth had a combination lock. Although

denying ownership, the appellant stated that he thought he

could unlock it and proceeded to do so. Given appellant's

demonstrated ability to choose whether or not to cooperate,

we think that the disclaimer of any knowledge or interest in

the luggage together with the unlocking of the incriminating

bag clearly support an inference of consent-in-fact. We find

support for this holding in the rule adopted by the Fifth and

Ninth Circuits that one who denies any interest in luggage has

abandoned the property and thereby loses any standing to

challenge an ensuing search. See United States v. Jackson, 544

F. 2d 407 (9th Cir. 1976); United States v. Anderson, 500

F, 2d 1311 (5th Cir. 1974); United States v. Colbert, 474 F. 2d

174 (5th Cir. 1973) (en banc). Although we are not convinced

that the property law analysis of abandonment ought to be ap-

plied where the issue is a reasonable expectation of privacy (see

Katz v. United States, supra), we reach the same result by

reasoning that one who disclaims any interest in luggage

thereby disclaims any concern about whether or not the con-

tents of the luggage remain private. See United States v.

52a

Berkowitz, 429 F. 2d 921, 925 (1st Cir. 1971) (disclaimer of in-

terest in allegedly stolen goods vitiates any Fourth Amendment

interest in goods).

Finally, we find support in our holding in Robbins v. Mac-

Kenzie, 364 F. 2d 45 (lst Cir.), cert. denied, 385 U.S. 913

(1966), that opening and stepping away from the door to an

apartment is implied consent to entry and observation by a

police officer who knocks.'? Nor does appellant's citation of

United States v. McCaleb, supra, persuade us to the contrary.

McCaleb held that the act of unlocking a suitcase will not sup-

port an inference of consent. McCaleb involved an illegal stop

based upon a “drug courier profile” and an illegal detention

for questioning in unfamiliar surroundings. Moreover, the

agents in McCaleb misrepresented their authority to obtain a

warrant to open the suitcase. Such circumstances are in-

herently coercive (see Watson v. United States, supra). Such

are not the circumstances of this case. The finding of consent-

in-fact was not clearly erroneous.

Many of the factors that support an inference of consent also

support the finding of voluntariness. Accordingly, we discuss

them only briefly here. Appellant is a man of average educa-

tion and intelligence. He demonstrated his ability to use that

intelligence to avoid incriminating himself in his discussions

with Drinan. Appellant had been informed of, and indicated

his understanding of, his Miranda rights twice before the suit-

case search. No lengthy detention or physical abuse was in-

volved. Rather, although we have held that appellant was

technically under arrest when asked to return to the marina,

'? Indeed, the evidence supporting an inference of consent is stronger in this

case than it was in Robbins, In Robbins the officer and the occupant ex-

changed no words, In this case, Agent Drinan asked appellant if he could

open the combination lock and appellant replied that he would try. Such a

response is closely akin to the express permission to enter that the dissent felt

should be required in Robbins. 364 F. 2d at 52-54 (Coffin, J., dissenting).

53a

the atmosphere of his “detention” had none of the coercive

aspects involved in questioning at the stationhouse. See

Watson v. United States, supra, 423 U.S. at 424. In short, all

of the criteria of voluntariness set forth in Schneckloth v.

Bustamonte, supra, were met here.'®

3. The Key

Having arrested appellant for possession of the hashish

found in the locked suitcase, Agent Drinan seized the Blazer

under the authority of the forfeiture statues, 21 U.S.C.

§§ 878(4) & 881(b)(1)(4). The Blazer was then immediately

searched. We think that the key found in the Blazer was ap-

propriately seized as evidence revealed during an inventory

search.

In South Dakota v. Opperman, 428 U.S. 364 (1976), the

Supreme Court reaffirmed the right of the authorities to

search the interior of a seized vehicle in order to secure per-

sonal property contained therein. Such a search protects both

the owner and the police. If such a search reveals evidence,

the police may seize it. Harris v. United States, 390 U.S. 234

(1968); United States v. McCambridge, supra, 551 F. 2d at

870-71. Appellant objects, however, that the seizure of the

key transmutes the inventory search into an investigatory

search.'* Appellant reasons that because the key was not obvi-

'? We are not convinced by appellant's argument that Drinan coerced con-

sent by asking appellant to cooperate and by pointing out the possible max-

imum sentences for smuggling. In United States v. Race, 529 F. 2d 12 (1st

Cir. 1976), we held that an hour-long negotiation with the prosecutor prior

to consenting to search did not eliminate the voluntariness of that consent.

Nor did Drinan’s assertion that he would seek a warrant if appellant did not

consent to make consent involuntary. “Bowing to events, even if one is not

happy about them, is not the same thing as being coerced.” Robbins v.

MacKenzie, supra, 364 F, 2d at 50.

'4 Appellant does not object to the method of the search and we therefore

need not reach the government's argument that seizure pursuant to a

54a

ously criminal evidence and became evidence only when the

officers found that it fit the door to the main house at Mill Isle

ten days iater, the use of the key was investigatory and

therefore exceeded the bounds of the caretaking function

countenanced by South Dakota v. Opperman, supra.

In our view, appellant is quibbling with Agent Drinan’s

decision that the key might be relevant to prove the charge for

which appellant was arrested — possession and transportation

of drugs. We think Cooper v. California, 386 U.S. 58 (1967),

is dispositive of this claim. In Cooper, the defendant was ar-

rested for selling heroin and his car forfeited for transporting

contraband. A warrantless search of the glove compartment

of the seized auto revealed a scrap of brown paper similar to,

but larger than, scraps used to wrap heroin allegedly sold by

the defendant. The Supreme Court approved the seizure of

the paper as reasonably related to the arrest and the purpose of

the forfeiture. In other words, the scrap of paper could be

probative of the charge against the defendant and the vehicle.

In a similar vein, appellant in this case was arrested for

possession and his two vehicles seized for transporting contra-

band. Unlike the paper in Cooper, the key may not have been

obviously evidence when agent Drinan first took it into

custody. Nevertheless, it became obvious evidence before the

reasonable process of an inventory search was completed.

Pursuant to DEA regulations, Drinan removed all personal

property not a part of the seized vehicle. Long before he had

an opportunity to write out an inventory of the vehicle’s con-

tents and return them, the discovery of the cache at Mill Isle

made it highly likely that the key was evidence. Marijuana

debris on the floor of the seized vehicle indicated a likelihood

that appellant had carried more contraband than was found in

forfeiture statute permits a full-blown investigatory search of a vehicle. See

United States v. Johnson, 572 F. 2d 227 (9th Cir. 1978).

55a

the Blazer. The vacuum cleaner and the tire tracks indicated

that appellant and the Blazer were associated with Mill Isle.

Even before the discovery of the cache, Drinan learned that

appellant was not living at his stated address. If a man falsely

states his address and other evidence indicates he is living at

the scene of a crime for which he had been arrested, his house

key is obviously evidence. Were the law to require that offi-

cers, legitimately in possession and legitimately made aware of

the evidentiary value of such an item, go through the motions

of obtaining a warrant, it would, we think, be a purely ritual-

istic deference to formality. We see no increased protection

which would thereby be assured a suspect’s rights. We

therefore hold that the key was properly seized as evidence

discovered during an inventory search.

D. The Warrantless Search of Mill Isle

With appellant securely ensconced in a cell in the

Sagadahoc County Sheriff's Office, Agent Drinan and

Deputies Brawn and Setlar drove to appellant’s Woolwich ad-

dress. They found an empty house and neighbors who told

them that “Jackie” had moved out several weeks earlier.

Recalling the course marked on the chart found on the COLD

DUCK, the officers then proceeded to Mill Isle to question the

inhabitants about any suspicious activities they might have

observed. The officers went first to a chalet, the smaller and

more remote of two dwellings on the island, and observed

marijuana debris covering the dock adjacent to the chalet.

After finding no one in at the chalet, the officers then proceed-

ed via a dirt road across the island toward the main house. On

the way, they observed tire tracks leading off the road toward

a tarpaulin. Twist ties for plastic bags and marijuana debris

surrounded the tarpualin. Under it was a bale of marijuana.

56a

Appellant’s attack upon the warrantless seizures involved

here is based upon an assertion that a privacy expectation sur-

rounded the entire Mill Isle property and that the authorities

violated that interest by going to the farthest reaches of the

property to search. Our first problem with this argument is

that not only was the property not posted, but the trial court

expressly found that the officers entered the property to in-

quire of the residents about the COLD DUCK, not to search.

This finding was based upon uncontroverted testimony. Given

the trial court’s unique opportunity to evaluate the credibility

of witnesses, we cannot upset the finding of the intent of the

officers.

Where an owner has not attempted to secure open fields and

woods from “invasion” by a casual, or an official, visitor, a

police officer may cross private land in order to question the

inhabitants of dwellings theron. United States v. Hersh, 464

F, 2d 228 (9th Cir.), cert. denied, 409 U.S. 1008 (1972);

United States v. Knight, 451 F. 2d 275 (5th Cir. 1971); see

Patler v. Slayton, 503 F, 2d 472 (4th Cir. 1972) (no privacy in-

terest in unposted target range behind farm). The land in-

volved here was not posted; there was no fence or chain to im-

pede visitors; the officers approached openly in broad

daylight. Thus, the entry was permissible. See United States

v. Hersh, supra; United States v. Brown, 457 F. 2d 731, 733

(1st Cir. 1972) (entry upon land to investigate reports of aban-

doned vehicles in woods and to inquire of inhabitants per-

missible). The cases cited by appellant to the contrary all in-

volved an impermissible initial intent to search. E.g., United

States v. Holmes, 521 F. 2d 859 (5th Cir. 1975).

The trial court also credited testimony and physical

evidence showing that the approach to the chalet put the dock

in plain view and that the discovery of the marijuana debris on

the dock was inadvertent. We have no basis to overturn these

findings. The trial court also found that despite the officers’

57a

attempts to look in the windows of the chalet, the officers’ con-

tinued observations did not become a search. Although as an

original matter we might be quite suspicious of continued

wanderings that revealed more evidence in “plain view” (cf.

Coolidge v. New Hampshire, supra), there is ample evidence

to support the trial court’s finding that the officers crossed the

island solely to inquire at the main house.

Assuming, as we must, that the trip across the island was

permissible, the bale of marijuana discovered in plain view

beside the road was properly seized. As in Patler v. Slayton,

supra, (spent bullets dug out of target range in open field), the

appellant could not reasonably expect privacy when he left a

bale of marijuana in the open, even under a tarpaulin. If no

expectation of privacy was reasonably involved, there was no

search. See Air Pollution Variance Bd. v. Western Alfalfa

Corp., 416 U.S. 861 (1974); United States v. Freie, 545 F. 2d

1217 (9th Cir. 1976), cert. denied sub nom. Gangadean v.

United States, 430 U.S. 966 (1977) (stack of cartons containing

marijuana under tarpaulin in plain view from airfield; no

search); United S.ates v. Pruitt, 464 F. 2d 494 (9th Cir. 1972).

In Pruitt, the appellants had no reasonable expectation of

privacy in marijuana stuffed in duffel bags and hidden under

bushes. The court noted: “Any casual passerby would feel

perfectly free to ascertain what it was that he had found. The

only justified expectation of those who had secreted the mari-

juana was that the cache would remain secure against intru-

sion only so long as it remained undiscovered.” Id. at 496.

Pruitt did not involve a private road across private land.

Nevertheless, because the appellant made no attempt to secure

his open land from unwanted visitors, we find that the same

analysis applies to these facts where the marijuana lay beside a

58a

road, a quarter mile from any habitation, and surrounded by

twist ties and marijuana debris.'®

ADMISSION OF APPELLANT'S STATEMENTS

Appellant objects to the admission of two statements as

violative of his Fifth Amendment rights.'* He first objects to

the admission of his colloquy with Agent Drinan during the

drive from Bath to Portland. The trial court found a number

of facts supporting its conclusion that appellant’s admissions

were voluntary. Such facts stand unless clearly erroneous.

United States v. Jobin, 535 F. 2d 154, 156 (1st Cir. 1976). Ap-

pellant had been advised of his right to remain silent three

times before he made incriminating statements. He had in-

dicated his understanding of those rights. Although appellant

refused to sign the printed waiver form, there are no facts

tending to show that he had the misimpression that failure to

sign immunized his statements. Thus, the concerns we ex-

pressed in United States v. Van Dusen, 431 F. 2d 1278 (1st Cir.

1970), are not present here.

Appellant argues that his statements could not have been

voluntary because he was repeatedly questioned. We note

from the record, however, that Agent Drinan ceased question-

'® Appellant's last search and seizure argument does not merit discussion in

the text. Few of appellant's minute objections to allegations in the affidavit

seeking a warrant to search Mill Isle were properly preserved below. Those

few objections properly raised below involve allegations that were neither in-

tentional nor material misstatements. See Franks v. Delaware, U.S.

46 U.S.L.W. 4829 (1978).

'°We need not address appellant's arguments that his admissions were the

tainted fruit of illegal searches and seizures (see Wong Sun v. United States,

371 U.S. 471 (1963)) because we have found the evidence involved was legal-

ly obtained,

59a

ing whenever appellant indicated he did not want to answer.

Moreover, Drinan renewed his questioning only when new

evidence revealed that there was a large scale operation afoot

and that appellant was the key to that operation. Such is good

police practice, not impermissible coercion. The trial court

found on an ample record that appellant never asked that all

questions cease or that he be represented by counsel. Rather,

he picked those questions he wanted to answer and declined

others. Such evidence not only demonstrates a knowledge of

the right to remain silent but also the intelligence and will to

vindicate that right. Appellant was not subjected to physical

abuse or deprivation of food or nourishment. Indeed, it was

just after a light meal that appellant himself initiated the con-

versation in which he incriminated himself. There was no er-

ror in the trial court’s finding of voluntary waiver.

Appellant next objects to the use at trial of his statement at

his bail hearing that his residence was Mill Isle. Appellant's

theory is that he was forced to make an unconstitutional

choice between two fundamental rights, the right to remain

silent when admission of any connection with Mill Isle would

incriminate him and the Eighth Amendment right to release

on bail under reasonable conditions. Our answer is threefold.

First, appellant did not have an unconditional constitutional

right to release on bail. United States v. Abrahams, 575 F. 2d 3

(1st Cir.), cert. denied, U.S. ,47U.S.L.W. 3198 (1978).

Thus, the right he places in balance here is different from

the Fifth and Fourth Amendment rights held in balance in

Simmons v. United States, 390 U.S. 377 (1968) (Fifth Amend-

ment requires exclusion of testimony at supression hearing to

establish standing to raise Fourth Amendment challenge).

Second, the appellant has not shown us that exercise of his

Fifth Amendment rights at the bail hearing would have re-

60a

sulted in denial of release.'? The length of residence in the

community is only one of many factors taken into considera-

tion in establishing the terms of release in the discretion of the

magistrate. 18 U.S.C. § 3146(b).

Finally, “(t}he criminal process, like the rest of the legal

system, is replete with situations requiring the making of diffi-

cult judgments as to which course to follow . . ..” McGautha

v. California, 402 U.S. 183, 213 (1971). Given the limited

nature of the Eighth Amendment “right” the appellant feared

he might lose by remaining silent, we can say, as we have said

on very similar facts: “the right not to speak embodied in the

Fifth Amendment is not equivalent to a right to volunteer in-

formation to the government under a grant of immunity.”

Flint v. Mullen, 490 F. 2d 100, 102 (lst Cir. 1974). See

Spinelli v. United States, 382 F. 2d 871, 891-92 (8th Cir.

1967), rev'd on other grounds, 393 U.S. 410 (1969) (no exclu-

sion of bail-hearing testimony on residence even though infor-

mation on residence both essential to bail and incriminating).

OTHER CRIMES EVIDENCE

Appellant lists under this general heading three separate

challenges to the admission of evidence and prosecutorial

argument based thereon. The only challenge fully preserved

by objections in the district court is to the admission of testi-

mony about his purchase of another yacht, the HARVARD,

four days before his arrest. Appellant claims such testimony

was impermissible other crimes evidence. F. R. Evid. 404(b).

' We reject as untenable appellant's argument that he did not knowingly

waive his right to remain silent at the bail hearing. He was represented by

counsel and the magistrate warned him that anything he said could be used

against him.

6la

The government argues that appellant’s purchase of the HAR-

VARD, a boat admittedly not involved ir. importing mari-

juana found at Mill Isle, was probative of his modus operandi

and therefore of his identity as the smuggler at work at Mill

Isle. We are not convinced that buying boats is a sufficiently

unique act to counterbalance the prejudice arising from the

government’s inference that appellant was in the business of

smuggling, a crime with which he was not charged. See

United States v. Myers, 550 F. 2d 1036, 1045 (5th Cir. 1977)

(analyzing the uniqueness and similarity of uncharged offenses

necessary to make them probative of the identity of the

perpetrator of the act charged); United States v. Eatherton,

519 F. 2d 603, 611 (1st Cir. 1975); United States v. Barrett,

539 F. 2d 244, 248 (Ist Cir. 1976). Although the balancing of

prejudice and probative value is primarily the task of the trial

court, United States v. Eatherton, supra, 519 F. 2d at 611, we

would be sorely pressed if the HARVARD were relevant only

to method of operation. Such is not the case. A receipt for the

HARVARD, showing appellant’s name along with two others

as purchasers, was found at Mill Isle. Given the proximity in

time of the purchase and the importation (a few days apart at

most) and given the necessity of marshalling evidence to link

appellant with Mill Isle, see United States v. Byrd, 352 F. 2d

570, 574 (2nd Cir. 1965), the trial court did not abuse its

discretion.

Appellant next challenges the admission of evidence of the

street value of the marijuana seized at Mill Isle. We note that

street value is relevant to prove intent to distribute. United

States v. DiNovio, 523 F. 2d 197, 202 (7th Cir. 1975); United

States v. Hollman, 541 F. 2d 196, 200 (8th Cir. 1976). Ap-

pellant’s argument that such proof was unnecessary given the

tonnage involved and was therefore excludable because of its

prejudicial impact (see United States v. Hollman, supra)

might stir us if appellant had given the trial court an oppor-

62a

tunity to balance prejudice and probative value. F. R. Evid.

403. Appellant’s stated objection, however, was to the

relevance of street value and the hearsay nature of Agent

Drinan’s testimony on the subject. Appellant did not assert

that any potential probative value of street value evidence

might. be outweighed by its prejudicial impact. Moreover,

having failed to alert the trial court to the task at hand, ap-

pellant now declines to favor us with an argument concerning

plain error. We see no plain error and reject this challenge.

Appellant’s final evidentiary challenge, to prosecutorial

argument based upon evidence of appellant’s financial trans-

actions prior to his arrest, merits even less consideration.

Although appellant made one objection to “other crimes” in-

ferences in the government’s opening statement, he did not ob-

ject to the admission of the evidence nor did he request a

curative charge. Again, appellant’s counsel knows that we

must apply a plain error standard here, but argues as if his

present position had been fully preserved below. There is no

plain error. |

SUFFICIENCY OF THE EVIDENCE OF IMPORTATION

We have recently restated the law and the authorities

relating to the sufficiency of the evidence supporting a jury

verdict in a criminal case. We evaluate the evidence in the

light most favorable to the prosecution, with all inferences

that may legitimately be drawn; the evidence need not exclude

every reasonable hypothesis of innocence so long as the total

evidence permits a conclusion of guilt beyond a reasonable

doubt. United States v. Gabriner, 571 F. 2d 48, 50 (1st Cir.

1978). We think the prosecution has met this standard.

Appellant argues at length thet three decisions overturning

jury verdicts on importation cha ‘ges require that we reverse.

63a

The cases, United States v. Maslanka, 501 F. 2d 208 (5th Cir.

1974), United States v. Carrion, 457 F. 2d 200 (9th Cir. 1972),

and United States v. Meyer, 432 F. 2d 1000 (9th Cir. 1970),

clearly stand for the proposition that mere possession of im-

ported cuntraband is not sufficient to support a conviction for

importation. Indeed, in Carrion the court held that a pilot

who lands in Los Angeles with a plane load of marijuana in

packages marked with Spanish writing cannot be convicted of

importation, even though he had burned enough fuel for a

round trip to Mexico and had a matchbook from a Mexican

restaurant in his pocket. Without commenting on the severity

of this review of a jury’s findings, we hold that Carrion and

the other cases cited by appellant are distinguishable. In none

of the cited cases did the defendant confess to importation. In

the case at bar, appellant admitted that the marijuana at Mill

Isle represented his “first run” and that what he had run was

high quality marijuana from Colombia. Moreover, appellant

was found in possession of Colombian-packaged marijuana on

the coast of Maine, unlike the southwesterners found in posses-

sion of foreign items common within their area of the United

States. Finally, the government presented evidence of long

range planning in the form of boat and land purchases by the

defendant. These facts, together with the size of the operation

at Mill Isle and appellant’s admission that the cache at Mill

Isle was only part of his “run” permit a conclusion of guilt

beyond a reasonable doubt.

THE CHARGE ON REASONABLE DousBT

Fueled by our recent decision in Dunn v. Perrin, 570 F. 2d

21 (Ist Cir. 1978), appellant vigorously challenges the trial

court’s explanation of the concept of reasonable doubt. Un-

fortunately, appellant failed to include any mention of this

64a

portion of the charge when raising a plethora of exceptions

before the trial court. Given the marginal merit of appellant's

challenges to specific language drawn out of context and the

correctness of the charge taken as a whole, we have no dif-

ficulty concluding there is no plain error here.

SENTENCING

Appellant’s last claim is that the trial court based its decision

to impose maximum sentences on all counts upon legally im-

permissible considerations. The court was candid about its

reasoning, which we set out in full in the margin.'®

'*“In determining the sentences appropriate in this case, this Court has

considered with care the very comprehensive and thorough presentence

report prepared for its consideration; it has considered the statement very

ably made by the United States Attorney as to the factors which this Court

should appropriately consider, and also has, of course, considered the very

able statement by the defendant's counsel, Mr. Petruccelli.

“The Court has also had the benefit of having personally presided at the

trial of this defendant as a result of which the Jury returned its unanimous

verdict of guilty under all three counts of the Indictment.

“At the outset, the Court is wholly convinced that the Jury arrived at the

only verdict which it could have arrived in this case. There is not the

slightest doubt in the mind of this Court of this defendant's guilt of all three

of the charges in this Indictment. The Court is further concerned because in

light of all the information concerning the defendant which has developed at

the trial and in the subsequent investigation, it is entirely evident that this

defendant is simply the tip of the iceberg; that he is one in what unques-

tionably must have been and very possibly may still be a very substantial

criminal operation directed toward the importation of Marijuana and very

possibly other elicit [sic] drugs into this country through the coastline of the

State of Maine.

“This Court cannot in determining the sentence appropriate in this case

close its eyes to the fact that the defendant, despite the overwhelming

evidence of his guilt, continues to deny guilt. The first step in rehabilitation,

whether it be in an institution or probationary sentence setting, is, of course,

the defendant's full, frank and complete admission that he has done wrong

and is prepared to do better in the future.

65a

Appellant concedes that as a general rule sentencing deci-

sions are within the exclusive discretion of the trial court.

Marano v. United States, 374 F. 2d 583, 586 (1st Cir. 1967).

There are, however, two established exceptions to this rule,

where the trial court employs impermissible considerations in

fixing sentence (see Id., LeBlanc v. United States, 391 F. 2d

916 (1st Cir. 1968)) and where the trial court refuses to “in-

dividualize” the sentence, basing it instead upon mechanistic

application of rules unrelated to the defendant’s character.

See United States v. Wardlaw, 576 F. 2d 932 (1st Cir. 1978);

United States v. Foss, 501 F. 2d 522, 527 (Ist Cir. 1974). Ap-

pellant claims that the trial court’s focus upon his failure to

confess and cooperate in apprehending his confederates placed

an impermissible “price tag” upon his exercise of his rights to

not to incriminate himself and to appeal his conviction. See

United States v. Rogers, 504 F. 2d 1079, 1084 (5th Cir. 1974).

We do not agree.

“The Court also can’t close its eyes to the fact that the defendant has con-

sistently declined to co-operate in any way with the prosecuting and in-

vestigating officials in their efforts to bring into Court all of those who are in-

volved in this very substantial operation. The sums of money involved in this

operation, as disclosed at the trial, [are] clearly beyond any capacity of this

particular defendant before the Court. He is undoubtedly aware of the

sources of those funds. He has consistently declined and refused to co-

operate in determining what that source may be.

“The Court is, of course, aware that the defendant is under no obligation

to in any way incriminate himself. He was entitled to a trial. He has had a

fair trial. His guilt has been determined. The Court feels compelled to im-

pose the maximum prison term provided by the statutes for each of the three

counts in this Indictment, in two instances including the special parole term

of at least two years required by the applicable statue. The Court has con-

sidered the possibility of a young adult sentence under the Federal Youth

Corrections Act, but in light of the magnitude of this offense, the defendant's

evident sophistication, including, if the Court has previously not mentioned,

his prior criminal record, the Court does not feel he is an appropriate subject

for treatment under the Act.”

66a

As an initial matter, we recognize that there is a difference

of opinion amongst the circuits concerning the extent to which

a trial court may rely upon a defendant’s failure to “repent”

and “sing” when fixing sentence. Compare United States v.

Rogers, supra, and United States v. Garcia, 544 F., 2d 681 (3d

Cir. 1976), and Scott v. United States, 419 F. 2d 264 (D.C.

Cir. 1969), with United States v. Vermeulen, 436 F. 2d 72, 76

(2nd Cir. 1970), and United States v. Chaidez-Castro, 430

F, 2d 766, 770 (7th Cir. 1970), and Gollaher v. United States,

419 F. 2d 520, 530 (9th Cir. 1970). We note, however, that

many of the cases aligned on either sideof the divide involved

a sentencing court’s attempt to bargain with the defendant,

expressly conditioning a reduced sentence upon confession or

cooperation. See, e.g., United States v. Rogers, supra; United

States v. Chaidez-Castro, supra. We need not and do not

reach the question of the permissibility of such open bargain-

ing.

We have, however, recognized that open bargaining with

the defendant may indicate that the trial court is punishing the

defendant for failing to confess his misdeeds and have found

such punishment grounds to vacate sentence. See LeBlanc v.

United States, supra. Moreover, we have expressed concern in

another context that a defendant’s utilization of his right to

appeal and retrial cannot carry the “price tag” of the risk of in-

creased sentence based upon a reevaluation of the culpability

of his acts. Marano v. United States, supra, 374 F. 2d at 585.

We perceive a distinction, however, betwen punishing a de-

fendant for maintaining his innocence and preserving his right

to appeal — whether that punishment be expressly or subtly

imposed — and merely considering a defendant's failure to re-

cant when evaluating his prospects for rehabilitation without

incarceration. The trial court in the case at bar expressly

recognized the appellant’s right to remain silent and framed its

remark about appellant’s failure to confess in the context of

evaluating his prospects for rehabilitation. We think the con-

ae

67a

sideration of defendant’s attitude was permissible (see

Gollaher v. United States, supra) and represented the sort of

individual consideration we found lacking in United States v.

Wardlaw, supra.

We recognize that it may be difficult if not impossible in

some cases to distinguish between permissible evaluation of

the defendant’s character and impermissible punishment for

failure to confess. In United States v. Grayson, __. U.S. ___

46 U.S.L.W. 4840, 4843 (June 26, 1978), the Supreme Court

faced a similar dilemma, whether to allow a sentencing judge

to consider a defendant’s prevarication at trial when that con-

sideration might disguise an impermissible punishment for the

uncharged crime of perjury. The Court decided that the trial

judge’s need and responsibility “to consider the defendant’s

whole person and personality” at sentencing should prevail.

Id. We think the same consideration applies here.

Appellant’s challenge to consideration of his failure to

cooperate follows from and falls with the confession issue.

Consideration of failure to cooperate with authorities is cer-

tainly germane to an evaluation of a defendant’s attitude

toward society. It is only objectionable insofar as cooperation

entails admitting the crime charged. As with the confession

issue, we think the sentencing court in the case at bar per-

missibly considered failure to cooperate as an element of

character and was not punishing defendant for exercising his

Fifth Amendment rights.

In addition to the general context of the allegedly objec-

tionable statements, i.e., the prospects for rehabilitation, two

aspects of the trial court’s statement support our conclusion

th

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