
USCA1 Opinion

	




        September 30, 1993      [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1149                                 THOMAS JOHN CONOWAL,                                Plaintiff, Appellant,                                          v.                              UNITED STATES OF AMERICA,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                   [Hon. Gilberto Gierbolini, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                               Selya, Boudin and Stahl,                                   Circuit Judges.                                   ______________                                 ____________________            Thomas John Conowal on brief pro se.            ___________________            Daniel F. Lopez Romo, United States  Attorney, and Jorge E.  Vega-            ____________________                               _______________        Pacheco, Assistant United States Attorney, on brief for appellee.        _______                                 ____________________                                 ____________________                      Per Curiam.  This  is an appeal from the  denial of                      __________            appellant Thomas John  Conowal's 28 U.S.C.    2255 motion  to            vacate his sentence.                                      BACKGROUND                                      __________                      Conowal  pleaded guilty to knowingly importing into            the  Customs territory  of the  United States  from Colombia,            South America,  481 kilograms of  cocaine in violation  of 21            U.S.C.    952(a) and 18  U.S.C.    2.  At  the change-of-plea            hearing, Conowal admitted  that he had  imported the  cocaine            from Colombia into this country, indicated that his  plea was            voluntary,  and  stated  that  he  was  satisfied  with   his            attorney's  representation.   Based on  Conowal's substantial            assistance,  the judge departed  downward from  the guideline            sentencing range (188-235  months) and sentenced  him to  120            months imprisonment,  a fine  of  $20,000, and  a  supervised            release term of  five years.  Conowal  subsequently pursued a            pro  se appeal  in  which  he  attempted  to  raise  a  Sixth            ___  __            Amendment issue.  In an  unpublished opinion, we decided that            it would  be premature to  address such  a claim.   We, thus,            affirmed   the  judgment  of   the  district  court,  without            prejudice to the filing of a   2255 motion.                      Accordingly,  Conowal  filed  the  instant     2255            motion.    He  raised three  grounds  for  relief:   (1)  his            confession was  obtained in violation of  his Miranda rights;                                                          _______            (2)  an  unconstitutional  search  of  suitcases  inside  the            airplane  he  was piloting  resulted  in the  seizure  of the            cocaine; and (3) his counsel provided  ineffective assistance            by failing to litigate  grounds one and two.   The magistrate            judge  to  whom  the  motion had  been  referred  recommended            denying  it.   The  district judge  adopted the  magistrate's            report and  recommendation.  On appeal,  Conowal presses only            his Sixth Amendment ineffective assistance of counsel claim.                                      DISCUSSION                                      __________                      To prevail on a  Sixth Amendment challenge, Conowal            must satisfy  the standards of Strickland  v. Washington, 466                                           __________     __________            U.S. 668  (1984) -- (1)  counsel's performance fell  below an            objective  standard of  reasonableness;  and (2)  Conowal was            prejudiced  as  a  result  of  his  attorney's  incompetence.            Because  the  principal  basis of  Conowal's  Sixth Amendment            claim  is the  alleged unlawful search  and seizure,  he must            also show that his Fourth Amendment claim is meritorious, see                                                                      ___            Kimmelman v. Morrison, 477 U.S. 365, 374-75 (1986), and that,            _________    ________            but  for counsel's  failure  to file  a pretrial  suppression            motion, there is a reasonable  probability that he would  not            have  chosen to plead guilty but would have insisted on going            to trial.  See Hill v. Lockhart, 474 U.S. 52, 59 (1985).                       ___ ____    ________                      We hold  that  the search  at  issue was  a  lawful            warrantless one.  In so deciding, we first examine the nature            of the encounter between Conowal and Ruiz, the Customs agent.            We conclude that, at most,  it was a Terry stop.   To support                                                 _____            such  a  detention,  an   officer  must  have  a  "reasonable            suspicion"   based   on  articulable   facts   (and  rational                                         -3-            inferences  from  the  facts)  that the  person  stopped  has            committed or  is engaged in committing a crime.  See Terry v.                                                             ___ _____            Ohio,  392 U.S. 1, 21  (1968); United States  v. Maguire, 918            ____                           _____________     _______            F.2d 254, 258 (1st Cir. 1990), cert. denied, 111 S.  Ct. 1421                                           ____________            (1991).  To determine  whether reasonable suspicion  existed,            we must look  at the  "totality of the  circumstances."   See                                                                      ___            Illinois v. Gates, 462 U.S. 213, 227 (1983).            ________    _____                      Here,  we are  not dealing  with the  more rigorous            "probable  cause" standard  at issue  in Gates.   Rather, the                                                     _____            question is whether  the information in  the tip received  by            the   Customs  officials   was  sufficient  to   support  the            "reasonable suspicion"  required for  a Terry stop.   Keeping                                                    _____            this in mind, it is significant that the tip described future                                                                   ______            events  which   were  later   corroborated  by   the  Customs            officials.   That  is,  a Piper  Navajo airplane  bearing the            exact tail number  described in the  tip landed at  Mercedita            when  the informant said  it would.   Given the corroboration            described  above, along with the filing of what was plainly a            phony flight plan  and the southerly  course of the  airplane            after it  left Mercedita  Airport in the  direction of  South            America,  a Terry stop was  warranted.  See  United States v.                        _____                       ___  _____________            Vargas, 931 F.2d 112, 114 (1st Cir. 1991) (where surveillance            ______            indicated  that  drug  transactions  were  taking   place  at            defendant's  apartment  as  informant  had  stated  and  when                                         -4-            information in  tip was confirmed by  police, under "totality            of the circumstances," probable cause existed).                       Ruiz's  conduct was  consistent  with this  kind of            detention.   He identified himself to Conowal as soon as they            met.   Further,  he did not  show a  gun or act  in any other            manner  which could be deemed  coercive.  The  stop was brief            and  obviously  directed  at  confirming  or  dispelling  the            suspicion  that  Conowal  was  engaged   in  drug  smuggling.            Indeed, Conowal rapidly confirmed the officer's suspicions by            stating that there  was cocaine  in the  aircraft.1   Conowal            was not "in  custody" at this time and, thus,  the Terry stop                                                               _____            did  not require  Miranda  warnings.   See  United States  v.                              _______              ___  _____________            Quinn,  815  F.2d  153,  160-61  (1st  Cir.  1987).    Hence,            _____            Conowal's  statement  that there  was  cocaine  on board  the            airplane would have been admissible at trial.                      This statement alone  provided probable cause  both            for  Conowal's arrest and  for the  search of  the suitcases.            Probable  cause  exists where  "the  facts and  circumstances            within  [an   agent's]  knowledge  and  of   which  [he]  had            reasonably trustworthy information were sufficient to warrant            a prudent man in believing that the [defendant] had committed                                            ____________________            1.  This response  may even  have been consensual  in nature.            See United  States v. Rodriguez-Rosario, 845 F.2d 27, 29 (1st            ___ ______________    _________________            Cir. 1988) (where defendant's  "very first" answer was freely            given and alerted  the inspector  to possibility  of a  crime            being committed,  the situation  "rapidly escalated  from one            involving  a   minimal  level  of  suspicion   to  one  fully            justifying arrest upon probable cause").                                         -5-            or was committing an offense."  Beck v. Ohio, 379 U.S. 89, 91                                            ____    ____            (1964); see also Maguire, 918  F.2d at 258.  We can  think of                    ___ ____ _______            no more "trustworthy" source of this kind of information than            Conowal  himself.    We thus  turn  to  the  validity of  the            warrantless search.                      First,  we note  that  an individual  has a  lesser            expectation  of privacy  in an  aircraft than  in his  or her            home.   See United States v. Zurosky,  614 F.2d 779, 789 (1st                    ___ _____________    _______            Cir. 1979) (discussing search  of a boat), cert. denied,  446                                                       ____________            U.S.  967 (1980).    Second, an  airplane  by its  nature  is            mobile.  See United States v. Brennan, 538 F.2d 711, 721 (5th                     ___ _____________    _______            Cir. 1976) (although an airplane is not the "legal equivalent            of  an automobile  for purposes of  search and  seizure," the            fact that it  is more difficult to abscond in  an airplane is            offset by greater range of escape routes), cert.  denied, 429                                                       _____________            U.S. 1092 (1977).   Because both  probable cause and  exigent            circumstances  existed, the warrantless  search was justified            under  the automobile  exception to the  warrant requirement.            See United States v.  Rollins, 699 F.2d 530, 534  (11th Cir.)            ___ _____________     _______            (holding  that  search  of aircraft  fell  within  automobile            exception to warrant requirement), cert. denied, 464 U.S. 933                                               ____________            (1983); Brennan, 538 F.2d at 721-22 (same); cf. Zurosky,  614                    _______                             ___ _______            F.2d at 789-90 (same regarding boat).                                         -6-                                      CONCLUSION                                      __________                      Given the  fact that the cocaine  most likely would            have  been  admissible at  trial,  combined  with the  almost            certain admissibility of  Conowal's pre-arrest statement,  we            do not think that counsel was  remiss in not filing a  motion            to  suppress.  Indeed, in pursuing  a plea agreement instead,            counsel secured  for Conowal  a sentence  significantly below            the guideline range.                      We  need  go  no   further.2    For  the  foregoing            reasons,  the judgment of the district court is affirmed.  We                                                            ________            also deny, as  moot, Conowal's petition for writ  of mandamus                 ____            requesting that we decide his appeal forthwith.                                            ____________________            2.  We  need not  address  the issue  concerning the  alleged            violation  of   Conowal's  Miranda  rights.     Even  if  the                                       _______            confession  had been  suppressed, Conowal  cannot demonstrate            prejudice since the evidentiary value of the  cocaine and the            pre-arrest statement seal his  fate.  By like token,  we need            not address  the government's contention that  the search can            be upheld as  a lawful  "border search."   See, e.g.,  United                                                       ___  ____   ______            States v. Victoria-Peguero, 920  F.2d 77, 80 (1st  Cir. 1990)            ______    ________________            (explaining  that a border search is valid on the ground that            the  item  has  entered  this country  from  outside),  cert.                                                                    _____            denied, 111 S. Ct. 2053 (1991).             ______                                         -7-
