On Appeal From The United States District Court For The Eastern District Of Pennsylvania, D.C. Criminal No. 87-00391-01.
Stapleton, and Mansmann, Circuit Judges, and Fisher, District Judge*fn*
This is an appeal from the district court's order suppressing certain evidence as illegally obtained under the Fourth Amendment. Specifically, the United States appeals from the court's conclusion that the presence of Pennsylvania State Police and Drug Enforcement Agency officers was impermissible under an order issued to the United States Marshals permitting them to conduct an inventory search incident to a civil forfeiture proceeding.
On June 22, 1987, the Pennsylvania State Police executed a search warrant at property leased by the appellee, John Showalter, and his wife in Myerstown Pennsylvania. At that time, the troopers seized laboratory equipment, chemicals, formulae, methamphetamine and a number of firearms. Subsequentiy, the Drug Enforcement Administration (IDEA") became involved in the investigation. The United States then filed a complains for forfeiture of real property, and the clerk of the district court issued a warrant for arrest at action in rem for the Showalter property. App. 22-23. United States of America v. Premises Known as R.D. 4, Box 66A, Myerstown, Pennsylvania, Civil Action No. 87-5454 (E.D. Pa. 1987).
On August 31, 1987, the United States moved to permit the United States Marshal's Service to enter the Premises and conduct an inventory search. The district court granted the motion and issued an order stating:
that at the time of the arrest of the real property herein, the United States Marshals are hereby authorized to enter the premises R.D. 4, Box 66A, Myerstown, Pennsylvania, for the purposes of conducting an inspection of the property in order to note any hazardous conditions and to inventory any items which are affixed to the realty and are thereby subject to the forfeiture.
Prior to executing the order, Deputy Marshal Gerald Reilly contacted Bryan Donga of the DEA for background on the case. App. 183. Contrary to the government's assertion, it was Donga who volunteered that he would arrange to have several DEA agents accompany the Marshals on the inventory, as well as, perhaps, Pennsylvania State Police officers. App. 184. Upon arriving at Showalter's property, both Reilly and an administrative assistant of the Marshal's Service, Dan Orr, accompanied by two Pennsylvania state troopers and three DEA agents, announced their purpose to the Showalters and proceeded to videotape the inside and outside of the home.
Although the Marshals requested that Showalter accompany them, at some point in time lie left their presence, ostensibly to make a telephone call to his attorney. The officers then asked Mrs. Showalter to accompany them to the garage and barn, where they began to videotape the interior and exterior of the barn. App. 186-87.
Donga, the DEA agent, testified that when Showalter left their presence, the Marshals, the DEA agents and the State Police officers went to look for him. While the barn was being videotaped, Showalter was seen entering the yard area, and the officers interrupted the videotaping and went to talk to him for the purpose of again asking him to accompany them while they videotaped. App. 152, 188. Deputy Marshal Reilly testified that he observed briers on Showalter's clothing, as well as an unusual odor about him. To Reilly, however, the smell was unrecognizable. App. 190.
In a subsequent conversation among the officers present, both the State Police officers and the DEA agents identified the smell on Showalter's clothing as methamphetamine. Later the troopers executed affidavits and procured a search warrant of the premises. App. 30-31, 191. That warrant was executed on September 1, 1987, and resulted in the seizure of laboratory equipment, chemicals and phenyl-2-propanone.*fn1
Consequently, Showalter was arrested on October 16, 1987, and on November 12, 1987, a three-count indictment was returned charging him with manufacturing and possessing non-narcotic controlled substances, in violation of 21 U.S.C. § 84(a)(1). App. 31-33. ShowaIter pleaded not guilty to the indictment, and his attorneys filed a motion to suppress the evidence. After evidentiary hearings, the ...