The opinion of the court was delivered by: LASKER
Defendants McGrath, Schaller, Buckle and de la Cova move, prior to indictment, under Rule 41(e) of the Federal Rules of Criminal Procedure to suppress evidence which they claim was seized from them illegally. For the following reasons, the motion is denied.
On January 30, 1978, agents of the Drug Enforcement Agency (DEA) arrested a man who was found to possess approximately 20 pounds of marijuana. The man agreed to cooperate with the agents and informed them that he could lead them to a huge cache of marijuana. He advised the agents that a certain Jack Schaller was about to transport 1100 pounds of marijuana from Hurley, New York, into New York City. He provided the agents with a detailed description of the vehicle Schaller would be driving, including its year, make and registration number, and of the route which he would follow.
On the afternoon of January 31, at 2:00 P.M., the agents, who together with the New York State police, had stationed themselves on the New York Thruway, observed a pickup truck which fit the description supplied by the informant. They began to follow it along the route described to them, at one point stopping at a Volkswagen dealership where the truck was joined by a Volkswagen automobile. Having checked the registration numbers, the agents discovered that the automobile was registered to John H. Schaller and the pickup truck to James McGrath.
The police continued to follow both vehicles until they disappeared up a private road, and came to the dead end at which his residence was located. The time was 5:00 P.M. At this point, the two vehicles continued to be observed by police hovering above the area in aircraft, while the ground policemen and DEA agents stationed themselves at the foot of the private driveway to await departure of the pickup truck, which they expected to be loaded with marijuana, for New York City.
At about 9:00 P.M., the truck left the Schaller residence and was stopped by the assembled police as soon as it reached the public road. According to John Schaller, the agents then forced him and the driver out of the truck at gunpoint and searched them on the road. (Schaller Affidavit, para. 4) The police then broke into the locked camper loaded onto the back of the pickup truck where they discovered almost 700 pounds of marijuana. The police also seized Schaller's attache case, which was placed under the passenger seat in the front of the truck, in which they discovered various books and records.
Following the search of the truck, the officers secured a warrant from a local magistrate which authorized them to search Schaller's property, including his house, barn and any vehicles on the land. As a basis for the search warrant, the police offered affidavits which were largely prepared while waiting for the truck to leave Schaller's property.
The search of Schaller's property uncovered approximately 3300 pounds of marijuana, along with notebooks, ledgers and other records of a drug operation, currency and illegally possessed guns.*
The defendants now move to suppress this evidence, prior to the issuance of any indictment against them, and to have the property returned. They argue that the search of the pickup truck was unconstitutional since the police had adequate opportunity to obtain a warrant from the time they first spotted the pickup truck at 2:00 P.M. until the time of the search at 9:00 P.M.
Since the warrant to search the house was obtained on the basis of the evidence found in the truck, they assert that all items seized from Schaller's property must also be suppressed as the fruit of the prior illegal search. The government responds that, because probable cause existed to believe that the truck contained marijuana, the search was justified under the "automobile exception" to the Fourth Amendment's warrant requirement, and the ensuing search of the property was therefore valid.
The defendants place their primary reliance on Coolidge v. New Hampshire, 403 U.S. 443, 29 L. Ed. 2d 564, 91 S. Ct. 2022 (1971). While recognizing the special rules regulating searches of automobiles, they argue that here, as in Coolidge, the police knew so far in advance that evidence was contained in the truck that they cannot now claim that exigent circumstances prevented them from obtaining a warrant.
The facts in Coolidge are, however, significantly different from those involved here. In Coolidge, the police had suspected for a matter of weeks that Coolidge's car might contain evidence of a crime. Moreover, at any time during this extended period after the crime was committed and before his arrest, Coolidge could have tampered with the evidence. Nevertheless, immediately after the arrest, the automobile was seized from Coolidge's driveway and thoroughly searched, without a warrant, at the police station. This procedure was followed even though Coolidge had been taken away, his wife, the only other person with access to the car, had been sent to stay with relatives, and an around-the-clock police guard was set up around Coolidge's house. Under these circumstances, the Supreme Court held that no exigent circumstances, such as fear of flight or the presence of contraband, would justify a warrantless search of the vehicle.
While it is true that the police in this case were aware for an extended period of time of the possible presence of contraband in the truck, what happened here does not amount to a "planned warrantless search", within the meaning of Coolidge. Unlike the police in Coolidge, the officers here were not confronted with a stationary automobile but one which was actually being used (and which they had good reason to believe was being used) to transport contraband.
At most, they had from 2:00 P.M., when they first spotted the pickup truck on the Thruway, until 9:00 P.M., when they stopped the truck, to obtain a search warrant. However, the police could reasonably have believed that they did not have sufficient corroboration of the informant's story to support the issuance of a warrant until 5:00 P.M. when the truck pulled into Schaller's driveway.
And, by then, they had no way of knowing how long it would be before the truck left for New York City. They could well have concluded that the truck would pull out in a matter of minutes.
While in hindsight it appears that the police would have had enough time to dispatch one of their number to secure a warrant while they waited outside Schaller's residence, the facts here do not bear out the defendants' contention that the police deliberately flouted the warrant requirement. Indeed, the defendants' position is inconsistent in this respect since, on the one hand, they assert that the police had probable cause to obtain a warrant at 2:00 P.M. and, on the other, they demand a hearing to determine whether probable cause existed to search the truck at 9:00 P.M.
We agree with the government that the facts here resemble more closely those of the classic "automobile exception" cases, Chambers v. Maroney, 399 U.S. 42, 26 L. Ed. 2d 419, 90 S. Ct. 1975 (1970); Carroll v. United States, 267 U.S. 132, 69 L. Ed. 543, 45 S. Ct. 280 (1925). In those cases, the Supreme Court held that when police officers have probable cause to believe that contraband is being transported in a vehicle on the ...