Defendants appeal from judgments of conviction entered in the United States District Court for the District of Vermont (Holden, C.J.) following their plea of guilty to narcotics violations, with stipulations reserving their right to appeal the denial of motions to suppress. Affirmed.
Before Van Graafeiland and Newman, Circuit Judges, and Dumbauld, District Judge*fn* .
On this appeal, we are confronted once again with a case in which every issue has been tried except that of guilt. On December 17, 1979, appellants were indicted for narcotics violations in the United States District Court for the District of Vermont. During the ensuing ten months, appellants presented Chief Judge Holden of the District Court of Vermont with more than eighty pre-trial motions. These were followed by a fourteen day hearing on appellants' combined motions to suppress. When these motions were denied in substantial part, see United States v. Lace, 502 F. Supp. 1021 (D.Vt.1980), each defendant pleaded guilty to one count of the indictment, reserving, pursuant to stipulation, his or her right to appeal the district court's suppression rulings. Appellants have now filed over 200 pages of briefs in our Court in which the word "innocent" is conspicuous only by its absence. Appellants' sole arguments for reversal are that the Government, in a variety of ways, violated their constitutional rights.*fn1 Finding no merit in these arguments, we affirm the judgments of conviction. Although we can add but little to Chief Judge Holden's thorough and scholarly opinion, some discussion may be appropriate in several areas where appellants strongly contend that error has occurred.
On May 15, 1979, Judge Charles Bristaw of the Vermont District Court issued a warrant authorizing a search for drugs in a house, a garage and a barn on Beaver Brook Road in the Town of Sharon, Vermont. The search authorized by this warrant uncovered, among other incriminating evidence, approximately 457 pounds of hashish and 100 pounds of marijuana. Because this evidence is the bedrock upon which the Government rests its case, appellants' attack has been centered mainly on the legality of the search.
The affidavits upon which the warrant was based were executed by two members of the Vermont State Police, Corporal Vallie and Trooper Holton. Corporal Vallie, a member of Vermont's Special Investigation Unit, with specialized training and education in the narcotics field, swore that the Special Investigation Unit had received information concerning a major drug distribution organization. This information led them to appellant Lace, the proprietor of a restaurant in Jamica, Vermont, known as the Bailey-Rawston House. There, the troopers became acquainted with both Lace and appellant Ducharme.
On one of Vallie's visits to the Bailey-Rawston House, he was accompanied by a confidential informant who introduced him to David Southam. The informant told Vallie that Southam was Lace's right-hand man, and the informant believed Lace and Southam to be the suppliers of cocaine to a previously convicted buyer named Steele. On April 23, 1978, Lace, injured in an automobile accident, was found to have $6,000 in cash on his person, which he stated was the day's proceeds from his restaurant. At that time, however, the restaurant was closed for the season. Hospital personnel also heard Lace telephone a friend and instruct him to look under the car seat for additional money.
In March, 1979, Vallie received additional information from another unidentified informant. Vallie stated that the informant's information was reliable because it was self-incriminating and much of it had been substantiated by independent investigation. It was this informant's disclosures that led the police to appellants' drug "warehouse" on Beaver Brook Road. The informant told Vallie that he had been doing business with Lace and Ducharme since 1975, and that they appeared to have an equal interest in the drug business. The informant correctly described and located a house owned by Ducharme in Quechee, Vermont.
The informant stated that Lace and Ducharme had handled over 30,000 pounds of marijuana during 1975-76, and that during the ensuing four years they used various "stash houses" to warehouse the drugs. He described the location of the stash house then being used and stated that within the preceding three months he had purchased 500 pounds of marijuana at that location. The stash house thus described was the Beaver Brook Road property covered by the subsequently issued search warrant. The informant said that the stash house was run by Ducharme's cousin whose first name was "Gary" and who drove a dark color Ford pick-up truck with a cap. The informant stated that the narcotics group used several pick-up trucks with caps to deliver marijuana, which was normally packaged in fifty pound bales, and that each truck would carry about 1,000 pounds; that during 1978, the group purchased, warehoused, and distributed about 30,000 pounds of marijuana. The informant was told by Ducharme on February 29, 1979, that the group was trafficking heavily in cocaine on a year-round basis and that marijuana shipments for the 1979 season would begin in April.
The informant told Vallie that the Ducharme-Lace organization had "personally sold him multiple pounds of marijuana" since 1975; that the group was operating a multiple pound cocaine distribution scheme on a year-round basis, while the marijuana operation went from April through the summer. He provided Vallie with the telephone numbers and location of the 1979 warehouse on Beaver Brook Road.
This information, standing alone, provided sufficient probable cause to justify a court-authorized search of the Beaver Brook Road buildings. Mapp v. Warden, New York State Correctional Institution for Women, 531 F.2d 1167, 1171-72 (2d Cir. 1976). "Although the informant did not have a previous track record of reliability, this is not the only means whereby an informant's trustworthiness can be established." Id. at 1171. The fact that the informant, himself, was a confessed participant in the criminal activities taking place on Beaver Brook Road was, by itself, sufficient to establish the trustworthiness of his disclosures. United States v. Dunloy, 584 F.2d 6, 10 (2d Cir. 1978); United States v. Rueda, 549 F.2d 865, 869 (2d Cir. 1977); United States v. Burke, 517 F.2d 377, 380 (2d Cir. 1975); United States v. Miley, 513 F.2d 1191, 1204 (2d Cir.), cert. denied, 423 U.S. 842, 96 S. Ct. 74, 46 L. Ed. 2d 62 (1975).
However, the Vermont police did not rest on this evidence alone; they gave Judge Bristaw additional facts to corroborate the informant's story. Vallie's affidavit states that during several random surveillances he and Trooper Holton saw a dark blue pick-up truck with a white cap at the Beaver Brook Road premises. The truck was owned by appellant Butts, whose first name is "Gary". On several occasions, vehicles owned by Lace, Ducharme and Southam were also seen at that address. Appellant Butts' truck was also seen at Ducharme's residence in Quechee, as was that of a known drug peddler. This combination of corroborating evidence and the informant's admitted participation in appellants' criminal activities was sufficient to satisfy a prudent judge such as Judge Bristaw that the informant's story was credible and that there was probable cause for a search warrant to be issued. Mapp v. Warden, supra, 531 F.2d at 1171; United States v. Sultan, 463 F.2d 1066, 1068-69 (2d Cir. 1972). This being so, appellants' argument that the affidavits submitted to Judge Bristaw referred to other evidence allegedly obtained in violation of appellants' constitutional rights is of little consequence.
The ultimate inquiry on a motion to suppress evidence seized pursuant to a warrant is not whether the underlying affidavit contained allegations based on illegally obtained evidence, but whether, putting aside all tainted allegations, the independent and lawful information stated in the affidavit suffices to show probable cause
United States v. Giordano, 416 U.S. 505, 555, 94 S. Ct. 1820, 1845, 40 L. Ed. 2d 341 (1974) (Powell, J. concurring and dissenting).
Justice Powell has summarized in the above quote what has been the established law of this Circuit for many years. See, e.g., United States v. Vasquez, 634 F.2d 41, 44-45 (2d Cir. 1980); United States v. Jackstadt, 617 F.2d 12-14 (2d Cir.), cert. denied, 445 U.S. 966, 100 S. Ct. 1656, 64 L. Ed. 2d 242 (1980); United States v. Marchand, 564 F.2d 983, 991-94 (2d Cir. 1977), cert. denied, 434 U.S. 1015, 98 S. Ct. 732, 54 L. Ed. 2d 760 (1978); Parts Mfg. Corp. v. Lynch, 129 F.2d 841 (2d Cir.), cert. denied, 317 U.S. 674, 63 S. Ct. 79, 87 L. Ed. 541 (1942). Other Circuits are in accord. See United States v. Williams, 633 F.2d 742, 745 (8th Cir. 1980).
Examining the evidence of surveillance referred to in the troopers' affidavits and explored at length during the suppression hearings we agree with the holdings of Chief Judge Holden concerning its admissibility on the trial. Judge Holden found that the Beaver Brook Road property consisted of the house, barn, and garage, and approximately 70 acres of land. It was owned jointly by two couples named Heine and Berkman. They rented the house and garage to Butts for his exclusive use for one year beginning September, 1978, with the understanding, however, that Butts would share the use of the remaining property with the owners. The owners could use the remainder of the property for recreation as they desired, and permission for such use had also been given to the neighbors. The property was not posted and was used freely by hunters. "Outsiders could enter the open property at will." 502 F. Supp. at 1038.
Although the yard, the garage, the barn, and much of the house were visible from the public highway, a good deal of the police surveillance which occurred after April 24, 1979, took place on the property itself. On occasion, binoculars and a spotting scope were used. Other more sophisticated optical instruments were also tried but with little success.
Appellants contend that all observations made during such surveillance violated their constitutional right of privacy and must be suppressed. The district court agreed that, while appellants were inside the house, they had a legitimate expectation of privacy from telescopic observation. See United States v. Taborda, 635 F.2d 131, 136-38 (2d Cir. 1980). However, because the area between the house, the garage, and the barn was clearly visible from the road and could easily be observed by outsiders who "could enter the open property ...