September 30, 1993 [NOT FOR PUBLICATION]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 In an unpublished opinion, we decided that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
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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
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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").
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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).
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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).
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