Petition — Delgado v. United States

0 80-679 —

No. .

—MICHAEL RODAK, JR., CL

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

UNITED STATES OF AMERICA,

Respondent,

versus

RAPHAEL FELO DELGADO and

JORGE F. BUSTILLO,

Petitioners.

On Petition for a Writ of Certiorari to

The United States Court of Appeals

For the Fifth Circuit

PETITION FOR CERTIORARI

RAUL R. BENCOMO

604 Girod Street, 2nd Floor

New Orleans, Louisiana 70130

Telephone: (504) 525-0720

ATTORNEY OF RECORD

FOR PETITIONERS

October ___, 1980

SCOFIELDOS QUALITY PRINTERS. P. O. BOX 53096. N. O . LA. 70153 - 504 622-1611

QUESTIONS PRESENTED

Whether the trial court erred in denying petition-

ers’ Motion to Suppress the Evidence where law

enforcement agents conducted a _ warrantless

search of a private warehouse in violation of peti-

tioner’s right to protection against unreasonable

search and seizure guaranteed by the Fourth

Amendment of the United States Constitution?

See Payton vs. New York, U.S. + a oe

3033 (April 15, 1980).

Whether the trial court erred in denying petition-

ers’ Motion for Judgment of Acquittal based upon

insufficiency of evidence? 7

INDEX

Page

QUES TIGINS PRESEN TED: 865.6 cioic iwc sccecccs i

EEE 0 ovis Gace so viccvect netboevese 2

WEIN isd Svan WE dT MAb 400 US oe sav peeve 2

CONSTITUTIONAL AND STATUTORY

PROP VEIN PNVOG VED) oo inc ccc ccccccccesss 2

ieee meres OF THE CASE nooo ec cccccvcccce 3

REASONS FOR GRANTING

THE WRIT AND ARGUMENT ................ 6

1. The warrantless entry of law enforce-

ment agents into a private warehouse

to effect the arrest of unknown and,

ultimately, non-existent suspects, but

which resulted in the seizure of evi-

dence, violated the petitioners’ Fourth

Amendment Rights as guaranteed by

the United States Constitution .......... 6

2. The trial court erred in denying peti-

tioners’ motion for judgment of

acquittal based upon insufficiency of

NUE au cary PU Cacay Pee as ese coe «oie slpis 11

INE au cei £56 bo 4 i'd'n 2 ell ca 0 His tga cers s 13

Roe RON URLN OES GE GER VICE fics ccc cesccdeees 14

PRECEDING PAGE WAS BLANK I

iv

INDEX (Continued)

Page

Appendix A — Judgment of the Court of

Appeals, Fifth Circuit, Denying Petition for

ee EO OOM ROCA EAT years a RR EY la

Appendix B — Opinion of the Court of

Appeals, United States of America vs. Delgado, et

al (No. 79-5409, 5th Cir., 1980) .............. 2a

AUTHORITIES

CASES:

GLASSER vs. U.S., 315 U.S. 60 (1942) ............ 12

HARRIS vs. U.S., 390 U.S. 234 (1968) ...........4.. 6

PAYTON vs. NEW YORK, —__— U.S. —__, 27

Crib... DOSS LAE Oy ROO? cia ccecp coceeee’ i,7

U.S. vs. BRIGHT, 550 F.2d 240 (Sth Cir., 1977) ...12

U.S. vs. DELGADO, (No. 79-5409, Sth Cir.,

1000s i ee Ue eee. 2,11

U.S. vs. HIGGINS, 545 F.2d 1009 (Sth Cir.,

WII js tyke kodatinn Cosans hee bea

ULS. vs. PHILLIPS, 497 F.2d 1131 (9th Cir.,

VOPR in Fs or cast fae meee aan Vas ae ae 7

LLS. vs. WARNER, 441 F.2d 821 (Sth Cir.,

1971, cert. denied 404 U.S. 829 (1971) ........ 12

LIS. ws. WATSON, 423 U.S. 411 (1976) .........-. Z

Vv

AUTHORITIES (Continued)

OTHER:

BF Rh Mr ER AOMCAP US gWhkc a cg bites Whases ec ciation 2

U.S. Constitution, Fourth Amendment ....i,2,3,6,11

No.

IN THE

: SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

UNITED STATES OF AMERICA,

Respondent,

versus

RAPHAEL FELO DELGADO and

JORGE F. BUSTILLO,

Petitioners.

On Petition for a Writ of Certiorari to

The United States Court of Appeals

For the Fifth Circuit

PETITION FOR CERTIORARI

TO THE HONORABLE, THE CHIEF JUSTICE OF

THE UNITED STATES AND THE ASSOCIATE JUS-

TICES OF THE SUPREME COURT OF THE UNIT-

ED STATES

|

2 7

The petitioners, RAPHAEL FELO DELGADO and

JORGE F.. BUSTILLO, through their undersigned

counsel, pray that a writ of certiorari issue to review

the opinion andjudgment of the United States Court of

Appeals for the Fifth Circuit, rendered in this proceed-

ing on April 9, 1980.

OPINIONS BELOW

The Judgment of the Court of Appeals for the Fifth

Circuit, denying the Petition for Rehearing, appears as

Appendix A hereto, pp. 1la-2a.

The opinion of the Court of Appeals for the Fifth

Circuit, affirming the conviction and sentence of the

petitioners herein, entitled Linited States of America vs.

Raphael Felo Delgado, et al, (No. 79-5409, Sth Cir., 1980)

appears as Appendix B hereto, pp. 2a-8a.

JURISDICTION

The judgment of the Court of Appeals for the Fifth

Circuit was entered April 9, 1980. A timely petition for

rehearing en banc was denied on June 17, 1980. This

Court’s jurisdiction is invoked under 28 U.S.C.

§1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISION INVOLVED

: The Fourth Amendment of the United States Con-

stitution provides:

3

“The right of the people to be secure in their

persons, houses, papers and effects, against

unreasonable searches and seizures, shall not

be violated, and no Warrants shall issue, but

upon probable cause, supported by oath or

affirmation and particularly describing the

place to be searched, and the persons or things

to be seized.”

STATEMENT OF THE CASE

A. Statement Of Facts

In December of 1978, Drug Enforcement Adminis-

tration (DEA) agents received information that a group

of individuals were involved in smuggling marijuana

into New Orleans from South America and that they

could be found at a residence on Elysian Fields Avenue

in New Orleans. The location was placed under sur-

veillance.

On the night of January 15, 1979, DEA and customs

officials observed several individuals at a marina un-

loading bales from a yellow boat, previously observed

at the above residence, into a silver pick-up truck. The

truck then proceeded to a private warehouse on Paris

Road, New Orleans, where the bales were unloaded.

This procedure was repeated twice that night. No

search warrant was obtained during this time, al-

though Agent Woodrow Wilson, the chief investigat-

ing officer, admitted that he discussed with other offi-

_- |

4

cials whether or not to obtain a search warrant. (Tr. 29-

30). As the silver pick-up exited the warehouse for the

last time, it turned away from the previous loading site.

The officers stopped it and arrested the three occu-

pants. On the pretext of searching for other suspects,

the private warehouse was then entered by law

enforcement agents without either arrest or search

warrants. Although no one. was found within the pri-

vate warehouse, the relevant evidence herein, mari-

juana, was seized.

SIGNIFICANTLY, the first delivery to the private

warehouse occurred at approximately 10:40 p.m. and

the above arrests were not made until 3:15 a.m.,

approximately 4% hours later.

The petitioners herein, Delgado and Bustillo, were

arrested as they were driving a red pick-up truck some

two miles from the marina where the yellow boat was

originally observed. Allegedly, a truck matching the de-

scription of the petitioners’ truck was seen departing

the marina, but the testimony revealed that this sur-

veillance was-broken. The petitioners were arrested

miles from where the surveillance was broken, as they

proceeded on a different highway. According to DEA

agent McCoy, the petitioners were wet, had gleanings

of marijuana on their clothing, and smelled of mari-

juana when arrested.

5

B. Course Of Proceedings And Disposition

Below

Petitioners and four other defendants were indicted

on January 25, 1979 in a two count indictment with:

Count 1 — conspiracy to possess with intent to dis-

tribute and to distribute marijuana; Count 2 — posses-

sion with intent to distribute the same marijuana as in

Count 1, (R. 1-2).

On June 4, 1979, it was agreed that the case would be

tried to the court without a jury and that the evidence

on the Motion to Suppress would be submitted to the

court for the trial on the merits. On June 12, 1979, the

trial court denied the Motion to Suppress stating that

no search warrant was necessary because the seizures

were made pursuant to valid arrests. The court

specifically rejected the plain view doctrine as being a

“legal pigeon hole”. (Tr. 301-302). The evidence pre-

sented in the Motion to suppress was submitted to the

court for the trial on the merits. (R. 310). Petitioners

herein moved for a judgment of acquittal. (R. 311). The

court denied the motion. After the petitioners rested,

the court found each of the six defendants guilty as

charged on both counts.

The United States Court of Appeals for the Fifth Cir-

cuit affirmed the conviction and sentence of the peti-

tioners finding that: (1) the warrantless search of the

private warehouse herein was proper where officers

entered the warehouse on the pretext of arresting

°

6

additional suspects, and (2) that the evidence suffi-

ciently connected the petitioners with the crimes

charged.

REASONS FOR GRANTING THE

WRIT AND ARGUMENT

1. The warrantless entry of law. enforce-

ment agents into a private warehouse on

the pretext of arresting unknown and,

ultimately, non-existent suspects, but

which resulted in the seizure of evi-

dence, i.e., marijuana, violated the peti-

tioners’ Fourth Amendment Rights as

guaranteed by the United States Consti-

tution.

The United States Court of Appeals for the Fifth Cir-

cuit, in its opinion below, held that the evidence here-

in, i.e., marijuana, was legally seized because (1) the

agents entered the private warehouse to arrest sus-

pects (and not seize marijuana) and (2) once in the pri-

vate warehouse, the agents seized the evidence pursu-

ant to the “plain view doctrine”.

The “plain view doctrine” holds that “objects falling

in the plain view of an officer who has a right to be in the posi-

tion to have that view (emphasis added) are subject to seiz-

ure and may be introduced in evidence.” Harris vs. Unit-

ed States, 390 U.S. 234 (1968).

Petitioners respectfully submit that the officers

herein did not have the right to be in the private ware-

7

house in order to view and seize the evidence intro-

duced at trial. Accordingly, that evidence should be

suppressed.

This Court, in the recent decision of Payton vs. New

York, U.S. ,27 Cr. L. 3033 (April 15, 1980) held

that in order to justify an entry of a residence for the

purpose of effecting an arrest there must be: (1) prob-

able cause to arrest, (2) cause to believe the person

sought to be arrested is on the premises, and (3) exi-

gent circumstances. In reaching its conclusion about

residences, the Court distinguished U.S. vs. Watson, 423

U.S. 411 (1976) upholding warrantless arrests in public

places. However, the law of Payton is applicable to the

present case. The private warehouse herein is not a

public place. The expectation of privacy therein, if not

as great, is clearly nearer the expectation one would

have for his possessions stored at home than that ex-

pected in an area where the public is invited. Absent

some exigent circumstances there is no right of the

Government to make a warrantless entry upon the

premises of a business establishment not open to the

public to perfect an arrest. See U.S. vs. Phillips, 497 F.2d

1131 (9th Cir., 1974).

Given the applicability of Payton tothe present case,

there is no doubt that the instant entry into the pri-

vate warehouse to effect arrests of unknown and non-

existent suspects was illegal. There was nocause to be-

lieve that there were any suspects in the warehouse

and, even if those suspects did exist, there were no exi-

gent circumstances to justify the intrusive entry.

There is no evidence or testimony in the record to

support the contention that the officers had “reason-

able grounds” to believe that anyone remained in the

warehouse. The door to the warehouse had been closed

by the three men who left in the silver pick-up truck.

The rear of the warehouse (where all the activity had

taken place) had been left in total darkness. (Tr. 227).

No sign of movement or activity was noticed inside the

warehouse by the two officers assigned to keep this

area under surveillance To the contrary, these offi-

cers left the rear of the warehouse completely unattended

and went to where the arrest was taking place some

distance to the front of the warehouse. Had these offi-

cers had any indication of the continued activity in the

rear of the warehouse after the departure of the pick-

up truck, they would never have left their assigned

position. There is no testimony from these officers or

any other officers of the slightest movement or activ-

ity once the pick-up truck leaves the scene. Noone was

found in the warehouse. Additionally, these two offi-

cers wholeft the rear of the warehouse were not sum-

moned to assist in the arrest. There were certainly suf-

ficient.officers at the front of the warehouse to secure

the arrest of any other individuais.

After the agents had arrested the three men in the

silver pick-up truck they had accounted for at least nine

9

persons who had been seen on the night in question.

The best estimates of the total number of individuals

seen at the landing site was seven. Upon their arrival

back at the rear of the warehouse no law enforcement

officer made any call whatsoever for anyone in the

warehouse to come out and surrender himself. This

lack of even a single announcement is shown in the

testimony of Officer Fuller who opened the door to the

warehouse. (Tr. 176-177). Although the use of the

canine is now portrayed as a safety precaution, the pro-

cedure used does not substantiate this allegation. In-

stead of announcing the dog and giving any individual a

chance to surrender, no announcement was made, as

previously mentioned. The dog was not sent in alone,

which is the method used to protect the lives of offi-

cers. One officer and maybe more accompanied the dog

into the warehouse. (Tr. 106). Officers also tried the

front door and the side door before opening the rear

door. (Tr. 114). By their actions, they obviously in-

tended to enter the premises with no apparent con-

cern for safety since the dog was not present at those

entry points.

The surveillance lasted over four and one-half hours.

There were so many agents, custom officers and sher-

iff’s deputies on the scene that no accurate number is

given. A minimum of fifteen officers were present. ‘7 r.

129). :

In spite of an abundance of time, four and one-half

hours, an excess of manpower, previous knowledge of

cn

10

the location and description of the warehouse, a series

of deliveries tothis warehouse, and no apparent danger

whatsoever of anyone escaping or destroying the con-

traband, a warrant was never even sought.

There were no exigent circumstances. The difficul-

ties of getting warrants signed is mentioned by both

the federal authorities (Tr. 125) and the St. Bernard

Sheriff Deputies (Tr. 204-205). However, these diffi-

culties are not particular ones encountered in this in-

stance but general problems from previous situations.

The problems, it turns out, were all apprehensions

rather than realities. Not even a single phone call was

made to any federal or state judge or magistrate to see

if they were available. (Tr. 225-226). It is obvious that it

was more convenient for the officers to radio for a

canine unit than to follow constitutional requirements

and get a valid search warrant. Additionally, the DEA

Report of Investigation ‘Defense Exhibit 1) page 4

states as follows:

‘.. . utilizing Customs Search Authority and

under the direction of Customs Patrol Offi-

cers, DEA Agents and St. Bernard Sheriff's

Officers entered the warehouse and searched

the warehouse.”

No mention is made in the DEA Report of any reason

whatsoever for the agents to have expected additional

individuals in the warehouse. It is obvious from the

11

facts that the officers felt it burdensome to obtain a

search warrant. Instead, what was first labeled a “cus-

toms search” by the officers (Defense Exhibit 1) be-

came a search for non-existent suspects.

In summary, the law enforcement agents herein had

no legal grounds to enter the private warehouse, as the

record clearly demonstrates that: (1) there was no

cause to believe that there were any suspects in the

warehouse, and (2) even if such suspects existed, there

were no exigent circumstances to justify the intrusive

entry. The entry into the private warehouse was il-

legal. All evidence seized in the private warehouse

should be suppressed as violative of the petitioners’

rights under the Fourth Amendment of the United

States Constitution.

The violation of the petitioners’ Fourth Amend-

ment rights justifies the grart of certiorari to review

the judgment below.

2. The trial court erred in denying petition-

ers’ Motion for Judgment of Acquittal

based upon insufficiency of evidence.

As admitted by the Government, the evidence in

this case against the petitioners was, at best, circum-

stantial. See Brief for the United States, p. 43, U.S. vs.

Delgado, supra. On a motion for a judgment of acquit-

tal, the test is whether, taking the views most favor-

able to the Government, a reasonably minded jury

12

could accept relevant evidence as adequate and suffi-

cient to support the conclusion of the defendant's guilt

beyond a reasonable doubt. United States vs. Warner, 441

F.2d 821 (Sth Cir., 1971), cert. denied 404 U.S. 829

(1971); Glasser vs. United States, 315 U.S. 60 (1942).

The standard to be applied. by a trial judge in testing

the sufficiency of the evidence is whether a reasonable

minded jury must necessarily entertain a reasonable

doubt about the evidence. United States vs. Bright, 550

F.2d 240 (Sth Cir., 1977); United States vs. Higgins, 545

F.2d 1009 (Sth Cir., 1977).

Petitioners, Delgado and Bustillo, were arrested sev-

eral miles from the private warehouse. They were

never identified on the boat or inthe marina. Acar and

a trailer matching their description was seen leaving

the marina. However, surveillance was not continu-

ous. Moreover, the petitioners were arrested as they

proceeded on a different highway miles from where the

surveillance was conducted. An agent testified that

they were wet and had marijuana gleanings on their

clothes.

Suspicious circumstances are not a substitute for evi-

dence of guilt beyond a reasonable doubt. The evi-

dence herein was insufficient to establish that the peti-

tioners were involved in aconspiracy with intent todis-

tribute marijuana.

13

CONCLUSION

For these reasons, a writ of certiorari should issue to

review the judgment and opinion of the Fifth Circuit.

Respectfully Submitted,

RAUL R. BENCOMO

Attorney of Record

for Petitioners

Capitelli & Bencomo

604 Girod Street, 2nd Floor

New Orleans, Louisiana 70130

Telephone: (504) 525-0720

|

14

CERTIFICATE OF SERVICE

| hereby certify that a copy of this Petition has

been served upon counsel for respondent, John Volz,

United States Attorney, Eastern District of Louisiana,

Hale Boggs Federal Building, 500 Camp Street, New

Orleans, Louisiana 70130, and that three (3) copies

have been served upon Wade H. McCree, Solicitor

General, Department of Justice, Washington, D.C.

20530 by placing said copies in the United States mails,

postage prepaid.

I further certify that all parties required to be served

have been served.

This day of October, 1980.

RAUL BENCOMO

i |

la

APPENDIX A

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 79-5409

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RAPHEL FELO DELGADO, JORGE F. BUSTILLO,

JOSE GUEVARA, RUGELIO SILVA,

SILVIO CASTRO and JESUS A. HERNANDEZ,

Defendants-Appellants.

Appeal from the United States District Court for the

| Eastern District of Louisiana

ON PETITION FOR REHEARING

June 17, 1980

Before RONEY, KRAVITCH and TATE, Circuit

Judges.

PER CURIAM:

IT IS ORDERED that the petition for rehearing filed

on behalf of Appellants DELGADO and BUSTILLO, in

the above entitled and numbered cause be and the same

is hereby denied.

ENTERED FOR THE COURT:

ls} Paul H. Roney

Paul H. Roney

United States Circuit Judge

APPENDIX B

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

Raphel Felo DELGADO, Jorge F. Bustillo,

Jose Guevara, Rugelio Silva,

Silvio Castro and Jesus A. Hernandez,

Defendants-Appellants.

No. 79-5409

Summary Calendar.*

United States Court of Appeals,

Fifth Circuit.

April 9, 1980.

* Fed.R.App.P. 34(a); Sth Cir. R. 18.

3a

Appeals from the United States District Court for

the Eastern District of Louisiana.

Before RONEY, KRAVITCH and TATE, Circuit

Judges.

PER CURIAM:

Defendants were convicted of possession of mari-

juana with intent to distribute and conspiracy, 21

U.S.C.A. §§841(a)(1), 846. Their major contention on

appeal is that evidence of the warrantless seizure of

several thousand pounds of marijuana was wrongfully

admitted. Some defendants contend there was insuffi-

cient evidence to sustain their convictions. Finding

these arguments to be without merit, we affirm the

convictions.

A sketchy review of the facts is sufficient to set the

scene for the search and seizure issue. In December

1978, Drug Enforcement Administration (DEA) offi-

cers received information from a confidential inform-

_ant that a group of people would be importing 50,000

pounds of marijuana into New Orleans from South

America, and they could be found at a residence on

Elysian Fields Avenue in New Orleans. The location

was placed under surveillance by both Customs agents

and agents of the DEA.

On the night of January 15, 1979, DEA and Cus-

toms officials saw a yellow boat, previously observed at

4a.

the residence, returning from the Mississippi River

Gulf Outlet, which is directly connected to the Gulf of

Mexico. The boat was heavily laden and riding low in

the water. The boat pulled into a marina where several

vehicles that had also been observed at the residence

were parked. These vehicles included a silver pick-up

with a camper top and a red pick-up pulling a boat trail-

er. Anumber of people were observed off-loading bales

of what appeared to be marijuana from the boat into

the silver pick-up truck. The truck then proceeded to a

warehouse on Paris Road, where the bales were un-

loaded. This procedure was repeated two more times

that night. Another rental van was also observed leav-

ing the warehouse. As the door was opened to allow

these trucks in and out, one of the Customs officers

was able to see several bales of marijuana inside the

well-lighted warehouse.

After the last load, several officers met to discuss

strategy, leaving Customs officers to watch the ware-

house and marina. Before they could agree on a plan,

the Customs officers at the warehouse reported the

silver pick-up was leaving. The Customs officers and

the others stopped the vehicle less than 100 yards from

the warehouse, and the occupants, defendants Her-

nandez, Guevara and Silva, were arrested. Because of

_ the noise of the arrest and the presence of a CB radio in

the truck, and because the warehouse had been left un-

watched during the arrest, the officers ran back to the

warehouse to prevent the escape of other suspects they

believed were still inside. Small lights in the office area

5a

were on but the building was otherwise dark. The rear

door, through which the pick-up had driven, was open

slightly at the bottom. After the building was sur-

rounded, one of the Customs officers opened the door

and a police dog and its handler were sent in to search

for other suspects. None were found but the bales of

marijuana in the warehouse were seized.

The district court correctly held the evidence seized

in the warehouse was not the fruit of an illegal search.

In United States v. Diezel, 608 F.2d 204 (Sth Cir. 1979), this

Court held that Customs officials have the power,

under 26 U.S.C.A. §7606, to make arrests when viola-

tions of drug and marijuana laws are committed in their

presence or where there are reasonable grounds to sus-

pect a violation. In Diezel, Customs agents had received

information that an illegal off-loading of marijuana

would occur in Key West. The pier was kept under sur-

veillance. Bales were observed being unloaded from a

vessel into motor vehicles. The vehicles were stopped

and the occupants arrested. When other persons ran

into a nearby warehouse, Customs agents followed

them there and arrested them. The arrests were held to

be legal.

The Customs agents here were authorized to arrest

the occupants of the truck leaving the warehouse and

to enter the warehouse to arrest other suspects they

reasonably believed to be present. A number of people

were involved in the operation, in the middle of the

night, and a number had gone and come at the ware-

6a

house. The door was partially open. A few lights were

on in parts of the building. The fact that suspects were

not found does not vitiate the reasonableness of the

officers’ entry.

Vale v. Louisiana, 399 U.S. 30, 90S.Ct. 1969, 26 L.Ed.2d

409 (1970), relied on by defendants, is inapposite. That

case held that an arrest on the street outside the house

does not justify a warrantless search of the house. The

entry into the warehouse is not justified on the ground

that an arrest was made nearby. The entry was proper

because the agents had probable cause to arrest the

participants in the operation and reasonable grounds to

believe that some of them were in the warehouse.

Having legally entered the warehouse for the pur-

pose of apprehending additional suspects, the Cus-

toms officers could seize the bales of marijuana that

were then in plain view.

It has long heen settled that objects falling in

the plain view of an officer who has a right to

be in the position to have that view are sub-

ject to seizure and may be introduced in evi-

dence.

Harris v, United States, 390 U.S. 234, 236, 88 S.Ct. 992,

993, 19 L.Ed.2d 1067 (1968).

Defendants argue that since the agents knew mari-

juana was in the warehouse, it was not discovered in-

7.

7%

7a

advertently and therefore may not come in under the

plain view doctrine, citing Coolidge v. New Hampshire, 403

U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1970). The “in-

advertent discovery” requirement in Coolidge does not

prohibit the admission of the evidence here. Coolidge

was “not acase involving contraband or stolen goods or

objects dangerous in themselves.” Id. at 472, 915.Ct. at

2041. The seizure here was of contraband. The Coolidge

opinion cites Ker v. California, 374 U.S. 23, 83S.Ct. 1623,

10 L.Ed.2d 726 (1963), as the proper test for determin-

ing the validity of the seizure of contraband. The Court

held in Ker that, while an arrest may not be used mere-

ly as a pretext for a search without a warrant, the seiz-

ure of marijuana in plain view is proper when the entry

is based on constitutionally permissible grounds and

when the purpose for the entry is to arrest the sus-

pect. Id. at 42-43, 83 S.Ct. at 1634-1635. Here the dis-

trict court specifically found that the officers entered

the warehouse to arrest additional suspects and not to’

search for and seize the marijuana.

Our cases fully support the refusal to suppress evi-

dence of contraband under such circumstances. Linited

States v. Worthington, 544 F.2d 1275, 1280 (Sth Cir.), cert.

denied, 434 U.S. 817, 98 S.Ct. 55, 54 L.Ed.2d 72 (1977);

United States v. Cushnie, 488 F.2d 81 (Sth Cir, 1973), cert. de-

nied, 419 U.S. 968, 95 S.Ct. 233, 42 L.Ed.2d 184 (1974).

See also United States v, Bolts, 558 F.2d 316 (Sth Cir.), cert. de-

nied sub nom. Hicks v. United States, 434 U.S. 930, 98 S.Ct.

417, 54 L.Ed.2d 290 (1977).

8a

Delgado and Bustillo argue there was insufficient

evidence to connect them with the conspiracy. After

the third load, the boat was observed by a surveillance

aircraft and Customs agents at the marina to make one

more run to the area where a 65-foot shrimper was

seized the next day. Shortly after the boat returned to

the marina, the red pick-up with a boat trailer attached

was seen driving away. It was followed, stopped, and its

occupants, defendants Delgado and Bustillo, were

arrested. At the time of their arrest they were wet and

had gleanings of marijuana on their clothing and they

smelled of marijuana. Evidence of such activity in a re-

mote area in the middle of the night is clearly suffi-

cient to support the verdict of the district court as to

Delgado and Bustillo.

AFFIRMED.