Appeal from judgments of conviction for the distribution of and possession with intent to distribute a controlled substance, entered after plea of guilty before Judge Charles L. Brieant, Jr., Judge United States District Court for the Southern District of New York. Held, warrantless search of sealed cartons in vehicle and warrantless search of the partitioned portion of the room in which arrest was made violated the Fourth Amendment. Appellant convictions vacated and case remanded for further proceedings.
Before Oakes and Meskill, Circuit Judges and Stewart, District Judge.*fn*
Donald J. Dien, Sanford S. Gendler and Michael E. Dakota appeal from judgments of convictions entered in the United States District Court for the Southern District of New York following the acceptance by District Judge Charles L. Brieant, Jr. of their pleas of guilty to the second count of a three-count indictment. Count one charged the appellants with conspiring to distribute and to possess with intent to distribute marihuana, 21 U.S.C. § 846 and Count two with the distribution of and possession with intent to distribute 158 pounds of marihuana on June 27, 1978, 21 U.S.C. §§ 812, 841(a)(1) and 841(b)(1)(B) and 18 U.S.C. § 2. Count three charged appellant Dakota with the possession with intent to distribute an additional 142 pounds of marihuana on June 27, 1978, 21 U.S.C. §§ 812, 841(a)(1) and 841(b)(1)(B). The government consented to the preservation of each of the defendant's right to appeal the denial of his suppression motions and the denial of the motion to dismiss the indictment. See, United States v. Isom, 588 F.2d 858 (2d Cir. 1978). On appeal, appellants also challenge the sentences imposed upon them by Judge Brieant.
Following the return of the indictment and prior to the entry of the guilty pleas, each defendant moved for an order suppressing the physical evidence seized, and the statements made, at the time of his arrest. A suppression hearing was held on September 5, 6, 11 and 12, 1978 and from the evidence adduced at that hearing Judge Brieant found that the following series of events took place. Beginning in mid-May 1978, Agent John DiGravio of the United States Drug Enforcement Agency ("DEA"), directly and through two informants with whom he had worked previously, Louis Soper and Carol Clifford, received information from Betty Dien, wife of appellant Donald Dien, that her husband was involved in a large scale marihuana distribution operation in Manhattan, the merchandise being transported in rented vans. DiGravio independently verified some of the information he received from Mrs. Dien. On June 27, 1978 DiGravio was informed by Soper that Donald Dien and another individual, at that time unidentified, would be proceeding from Dien's residence to pick up a large quantity of marihuana. The source of Soper's information was Betty Dien. DiGravio went to Dien's address about mid-day where he observed Dien "pacing" on the sidewalk in front of his apartment building. DiGravio observed a rented Hertz van, driven by a person later identified as Sanford Gendler, stop and pick up Dien. DiGravio followed the truck to the vicinity of 262 Fifth Avenue, where he observed an unidentified male, later determined to be defendant Michael Dakota, assist in carrying three large cardboard cartons from 262 Fifth Avenue to the van. The van then proceeded downtown in what DiGravio considered to be an evasive manner. Although DiGravio radioed for assistance from his back-up team in the area, he decided to stop the van at a busy intersection by himself, fearing that he would otherwise lose the van in the traffic. DiGravio testified that as he walked to the van and as he asked for identification, he smelled the odor of raw marihuana emanating from inside the van and he noticed that both occupants appeared visibly shaken. At that point DiGravio told Dien and Gendler that they were under arrest. The rear of the van was locked and its contents were not visible to DiGravio. Using a key found when the defendants were searched, DiGravio opened the door and saw three large cardboard boxes each partially sealed with gray plastic tape. Other agents arrived and after questioning the defendants and photographing the van, DiGravio opened one of the cartons and found marihuana wrapped in brown paper and secured with brown tape, surrounded by a layer of clear plastic. Later that afternoon DiGravio, accompanied by two other agents, returned to 262 Fifth Avenue, entered a loft identified as "Dakota Studios", and questioned Dakota. DiGravio, having learned from Dien that the unidentified third person who had helped in the loading of the cartons wore a gold neck chain and a pierced gold earring in his left ear, noticed that Dakota wore such a chain, and brushing back Dakota's hair he observed that Dakota was wearing the earring. A small plastic transparent bag of marihuana was visible on a work bench behind Dakota. DiGravio also noticed some gray tape and brown wrapping paper on the work bench similar to that found in the cartons in the van. DiGravio proceeded down the room past a partitioned area. Behind the partition DiGravio observed several burlap sacks which he recognized as the type commonly used for transporting marihuana. DiGravio, as he approached the sacks, could smell the odor of raw marihuana. He then ordered the arrest of Dakota and Dakota's partner Shea who had arrived during the questioning.
At the suppression hearing the defendants claimed that the arrest of Dien and Gendler had been made without probable cause and that therefore all statements and evidence obtained as a result of the arrest were inadmissible. Dakota further claimed that the seizure of the bales of marihuana and other evidence from his photo studio had been unlawful, and that the false exculpatory statements he made to the agents before his arrest were inadmissible because he had not been advised of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
After the first day of the suppression hearing, September 5, 1978, while DiGravio was still on cross-examination, Betty Dien disclosed to her husband outside the courthouse that she had been the informant in the case. This conversation was overheard by the Assistant United States Attorney assigned to this case who, fearing for the continued physical safety of Betty Dien, sought to ascertain through agent DiGravio whether Mrs. Dien's informant status had been disclosed. He was later informed, incorrectly, that it had not been disclosed. Following the suppression hearing, but before a decision, Dien moved to dismiss the indictment. A hearing was held before Judge Brieant. Dien alleged that his wife, on her own and on the instructions of the government, passed information to the government not only as to whether or not she had disclosed her informant status to her husband but also concerning trial tactics and strategy, including information that Donald Dien would not be taking the stand, that the defense intended to dispute DiGravio's testimony with respect to the claimed evasive and circuitous driving of the van by the use of photographs and videotape and that Dakota had three witnesses available to testify at the suppression hearing. Dien also alleged that the government transmitted false information through Betty Dien to defense counsel to the effect that Dakota had decided to cooperate and testify for the government. Defense counsel contended that the government, by obtaining the information, was able to modify its strategy, and by planting the information, was able to sow discord between the defendants, and that they were prejudiced thereby and suffered a violation of their Sixth Amendment rights.
Judge Brieant held that probable cause to arrest Dien and Gendler existed when DiGravio stopped the van at the intersection even before he perceived the odor of raw marihuana emanating from the van and even before he observed the apparent nervousness of the occupants. Judge Brieant held the warrantless search of the van proper under the "automobile exception", and the warrantless search of Dakota Studios as a permissible cursory security search incident to arrest. The Court suppressed Dien's false exculpatory statements. The Court also denied the motion to dismiss the indictment finding that defendants had failed to prove that Betty Dien had transmitted any information to the government, that the prosecutor was not responsible for planting false leads in the defense camp and that in any event defendants failed to demonstrate any prejudice. Judge Brieant concluded that, under the guidelines established in Weatherford v. Bursey, 429 U.S. 545, 97 S. Ct. 837, 51 L. Ed. 2d 30 (1977), appellants had not been denied their right to counsel.
Appellants' claims related to the motion to dismiss the indictment can be disposed of summarily. In Weatherford v. Bursey, supra, the Supreme Court held that to establish a Sixth Amendment violation where an informant sat in on defense strategy sessions defendants were required to establish that privileged information had been passed to the government or that the government had intentionally invaded the attorney client relationship, and resulting prejudice. Applying these standards appellants' Sixth Amendment rights were not violated even though Mrs. Dien sat in on defense meetings. Judge Brieant found, and his findings are not clearly erroneous, that the conversations alleged to have been passed on to the government were not confidential, that there was no evidence that they were in fact passed on to the government, that in the single instance where the government requested information as to Dien's knowledge of Mrs. Dien's informant status there was no improper motive nor was there any prejudice in light of the fact that Mrs. Dien gave the government false information, and that there was no evidence that the government instigated any attempt to mislead the defense in the nature of indicating that Dakota was "turning state's evidence".
Appellant Dien, on appeal, has also alleged that his Sixth Amendment right to counsel was violated because the government and the district court knew, but he did not, that there was a potential conflict of interest between him and his attorney. Dien's claim is belied by the record which indicates that on at least three occasions Dien was informed as to the potential conflict of interest yet declined to seek new counsel.
Appellants' Fourth Amendment claims are based upon their contentions that the arrests of Dien and Gendler were made without probable cause, that the warrantless search of the van and of the cartons in the van was unlawful, and that the warrantless ...