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United States v. Bush

decided: March 24, 1981.

UNITED STATES OF AMERICA
v.
BUSH, JAMES ROUSE, GENE GENE ROUSE, JAMES BUSH; UNITED STATES OF AMERICA V. ONE 1978 OLDSMOBILE CUTLASS VIN: 3M47F8M453413, GENE ROUSE AND VALINE ROUSE, APPELLANTS; UNITED STATES OF AMERICA V. $11,827.00 UNITED STATES CURRENCY GENE ROUSE, APPELLANT



ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

Before Adams and Sloviter, Circuit Judges and Brotman,*fn* District Judge.

Author: Brotman

Opinion OF THE COURT

This is a consolidated appeal from two judgments of conviction and sentence and two final orders of forfeiture, entered by the United States District Court for the Western District of Pennsylvania. The appeal raises several Fourth Amendment questions of interest: whether there was probable cause for the issuance of a search warrant with respect to one of the appellants and the arrest of the other appellant, both of which actions were based primarily on information supplied by an unidentified informant; whether the forfeiture seizure of appellant's automobile, without a warrant and in the absence of exigent circumstances, satisfied the requirements of 21 U.S.C. § 881 and the Fourth Amendment; and whether the subsequent inventory search of that automobile exceeded permissible bounds?

I.

Of necessity, a rather detailed account of the facts underlying this appeal must precede any discussion of the legal issues that are in controversy. On July 23, 1979, Pittsburgh based agents of the Drug Enforcement Administration (DEA) obtained a warrant for the search of appellant Gene Rouse and any luggage or containers in his possession. The warrant was issued by a United States Magistrate based upon an affidavit sworn to by DEA agent Richard Sye, which recounted the following facts. At approximately 9:00 a.m. on July 23, 1979, agent Sye received a telephone call from an unidentified male informant (I-1), who advised the agent that two men were traveling from Pittsburgh to New York City that day to obtain between one-half pound and a pound of cocaine. The informant indicated that he would obtain more detailed information and call back. When asked why he was providing this information to the DEA, the informant stated that he had a "vendetta" going and wanted to see six or eight drug dealers incarcerated; the informant also inquired whether he could be rewarded for the information he was furnishing.

At approximately 1:15 p.m. on the same day, the informant again telephoned the DEA. He advised agent Sye that one of the two persons traveling to New York was Gene Rouse and that they had flown to New York that morning and would be returning to Pittsburgh that evening. When asked whether the Gene Rouse was associated with Gene & Les' Bar, the informant responded "you know of him then". Agent Sye then asked the informant to name the other person who was traveling with Rouse, at which point the informant stated he would call back with that information. A few minutes later the informant called the agent and advised him that the other person was named Jim Bush and that he believed the two men had traveled to the airport in Rouse's black Oldsmobile.

The agent then attempted to verify the information he had received from the informant. He learned from the TWA floor supervisor at the Pittsburgh airport that a party of two, using the names J. Bush and G. Bush, had booked passage on TWA flight number 422, which had departed Pittsburgh that morning for LaGuardia airport in New York. The TWA supervisor also indicated that the Bush party had booked a rental car in New York and that they had return reservations for TWA flight number 219, scheduled to leave LaGuardia at 7:45 p.m. that evening and to arrive in Pittsburgh at 9:02 p.m. The airline tickets had been purchased with a TWA credit card issued to James Bush. The DEA agent also learned that the party had left a call-back telephone number of 243-5943. A Pennsylvania Bell security officer told the agent that the number was a non-published one listed to a James T. Bush of Pittsburgh.

Subsequently, the agent contacted the Commonwealth Department of Motor Vehicles and learned that a 1978 Oldsmobile coupe, bearing Pennsylvania license number OK9-611, was registered to Gene Rouse of Pittsburgh. He was also informed that there was neither a driver's license nor a vehicle registration in the name of James T. Bush. Later that afternoon, another DEA agent observed a black Oldsmobile, with Pennsylvania license number OK9-611, parked near an entrance to the TWA terminal at the Pittsburgh airport.

Through a Pittsburgh police detective who was working with him, Agent Sye then contacted a second informant (I-2), one who had previously made eight controlled buys from known drug traffickers. I-2 stated that he had purchased cocaine from Gene Rouse on numerous occasions during the preceding years, and indicated that during the preceding week he had purchased approximately one gram of cocaine from Rouse at Gene & Les' Bar. I-2 also stated that he was aware that Jim Bush was associated with Rouse. The informant further advised that he had gone to Gene & Les' Bar that day, where he was told by an employee of the bar that Gene Rouse was out of town but was expected to return that evening. Finally, I-2 provided a thorough description of Rouse's appearance. The affidavit contained the additional fact that Agent Sye had reviewed DEA records, which revealed that Gene Rouse had been listed with the agency since 1971 as a suspected cocaine trafficker.

Based on the above information, the Magistrate issued a warrant for the search of Rouse and of any luggage in his possession, but refused to issue a search warrant with respect to Bush because of the unavailability of a description of him. She indicated, however, that in her opinion the affidavit provided probable cause for the arrest of Bush. Invested with the warrant, DEA agents then proceeded to the Pittsburgh airport. One of the agents called the DEA office at LaGuardia airport and asked the New York agents to conduct a surveillance. Somewhat later the New York agents reported that they had observed Rouse and Bush in the boarding area for the Pittsburgh flight, and provided a thorough description of the two men, including the fact that Bush walked with a noticeable limp. They stated that Bush was carrying a white shopping bag and a brown leather attache case, that at one point Bush went to the lavatory, at which time he handed the attache case to Rouse, and that the two men boarded the plane together and were assigned adjacent seats.

Prior to the flight's arrival in Pittsburgh, the DEA agents staked out positions so that they could observe Rouse and Bush as the latter came off the plane. The two men left the plane together, with Rouse now carrying the briefcase, walking in the direction of Rouse's car, but slowly separating until Rouse was approximately sixty feet in front of Bush. The DEA agents stopped Rouse when he was approximately twenty yards from his car. Almost simultaneously, Bush changed direction and walked away from where Rouse was being detained. Other agents then stopped Bush and arrested him. Both men were taken to the Allegheny County police office, located at the airport, where they were searched. The brown attache case in Rouse's possession was also searched.

The search revealed that Bush had an "Ace" bandage wrapped around his knee. Under the bandage were approximately 100 grams of cocaine. Bush also had three dollars in cash and a TWA credit card on his person. Rouse had $127.00 in cash and the keys to his car on his person. A search of the attache case revealed $11,700.00 in cash.

On the following morning, DEA agents seized Rouse's car, which was still in the airport parking lot. An inventory search of the car was subsequently conducted, which revealed various narcotics paraphernalia in a partially covered but unsealed cardboard box found in the trunk of the car.

Prior to trial, the District Court conducted a suppression hearing. The court found that agent Sye's affidavit established probable cause and that the search warrant had therefore been properly issued. In addition, the court upheld the warrantless arrest of Bush and the search conducted incident to that arrest.*fn1 The trial court later upheld the seizure of Rouse's car and the introduction into evidence of the items found in the trunk of the car.

Following a jury trial, appellants were each convicted on two counts of the Indictment.*fn2 The court later imposed sentences, from which judgments Rouse and Bush now appeal.

On December 26, 1979, the Government filed a civil complaint seeking the forfeiture of Rouse's automobile and the currency found in the attache case, pursuant to 21 U.S.C. § 881. A non-jury trial was held on April 30, 1980, at the conclusion of which the District Court ordered the automobile and the currency forfeited to the United States. Rouse appeals from the final order of the forfeiture.

We conclude that the affidavit submitted to the Magistrate established probable cause for the issuance of the search warrant; that the arrest of Bush was supported by probable cause, and that the subsequent search of Bush was a legitimate search incident to arrest; that the seizure of Rouse's car comported with the requirements of 21 U.S.C. § 881 and of the Fourth Amendment; and that the inventory search of that automobile was ...


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