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[NOT FOR PUBLICATION]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. Ve
____________________
____________
Pacheco, Assistant United States Attorney, on brief for appellee.
_______
____________________
____________________

Per Curiam.
__________
appellant Thomas John

This

is an appeal from the

Conowal's 28 U.S.C.

denial of

2255 motion

to

vacate his sentence.

BACKGROUND
__________
Conowal
the

pleaded guilty to knowingly importing into

Customs territory

South America,
U.S.C.

of the

United States

481 kilograms of

952(a) and 18

U.S.C.

hearing, Conowal admitted

from Colombia,

cocaine in violation
2.

that he had

At

the change-of-plea

imported the

from Colombia into this country, indicated that his

voluntary,

and

stated

that

attorney's

representation.

he

was

Based on

of 21

satisfied

cocaine
plea was

with

his

Conowal's substantial

assistance,

the judge departed

sentencing range (188-235

months imprisonment,
release term of
pro
___

in

Amendment issue.
it would
affirmed

a fine

which
In an

of

He

(2)

an

of

the

he

district

filed

grounds

denying

to

was piloting

whom
it.

the
for

search

of

resulted

the
The

Sixth

We, thus,

court,

without

instant

2255

relief:

suitcases

district judge

been

inside

seizure

his

the

of the

ineffective assistance

grounds one and two.

motion had

(1)

his Miranda rights;

_______

in the

cocaine; and (3) his counsel provided

judge

raise

a claim.

obtained in violation of

by failing to litigate

supervised

2255 motion.

Conowal

unconstitutional

airplane

to

address such

raised three

confession was

120

subsequently pursued a

attempted

prejudice to the filing of a

motion.

him to

unpublished opinion, we decided that

judgment

Accordingly,

$20,000, and

Conowal

he

be premature to
the

the guideline

months) and sentenced

five years.

se appeal
__

downward from

The magistrate

referred

adopted the

recommended
magistrate's

report and

recommendation.

On appeal,

Conowal presses only

his Sixth Amendment ineffective assistance of counsel claim.

DISCUSSION
__________
To prevail on a
must satisfy

the standards of Strickland

__________

U.S. 668

(1984) -- (1)

objective

standard of

prejudiced
Because
claim

Sixth Amendment challenge, Conowal

as

the
is the

counsel's performance fell

reasonableness;

result

principal

v. Washington, 466
__________

of

his

basis of

and (2)

attorney's
Conowal's

alleged unlawful search

below an

Conowal was
incompetence.

Sixth Amendment

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

motion, there is a reasonable

have

a pretrial

suppression

probability that he would

not

chosen to plead guilty but would have insisted on going

to trial.

See Hill v. Lockhart, 474 U.S. 52, 59 (1985).

___ ____
________
We hold

warrantless one.

that

the search

at

issue was

lawful

In so deciding, we first examine the nature

of the encounter between Conowal and Ruiz, the Customs agent.

We conclude that, at most,
such

detention,

suspicion"

based

an
on

it was a Terry stop.

_____
officer

must

articulable

-3-

have
facts

To support
"reasonable

(and

rational

inferences

from

committed or
Ohio,
____

the

facts)

that the

person

is engaged in committing a crime.

392 U.S. 1, 21

(1968); United States

_____________

stopped

has

See Terry v.
___ _____

v. Maguire, 918
_______

F.2d 254, 258 (1st Cir. 1990), cert. denied, 111 S.

____________

Ct. 1421

(1991).

existed,

To determine

we must look

whether reasonable suspicion

at the

"totality of the

circumstances."

See
___

Illinois v. Gates, 462 U.S. 213, 227 (1983).

________
_____
Here,
"probable

we are

cause" standard

question is whether
the

not dealing

Customs

at issue

with the
in Gates.
_____

the information in

officials

"reasonable suspicion"

was

Rather, the

the tip received

sufficient

required for

more rigorous

to

support

a Terry stop.
_____

by
the

Keeping

this in mind, it is significant that the tip described future

______
events

which

officials.

were
That

exact tail number

is,

later

corroborated

a Piper

by

the

Navajo airplane

described in the

tip landed at

Customs

bearing the
Mercedita

when

the informant said

described

it would.

Given the corroboration

above, along with the filing of what was plainly a

phony flight plan

and the southerly

after it

left Mercedita

America,

a Terry stop was

_____

course of the

Airport in the
warranted.

airplane

direction of
See
___

South

United States v.
_____________

Vargas, 931 F.2d 112, 114 (1st Cir. 1991) (where surveillance
______
indicated

that

defendant's

drug

transactions

apartment

as

were

informant

taking

had

place

stated

and

at
when

-4-

information in

tip was confirmed by

police, under "totality

of the circumstances," probable cause existed).

Ruiz's
detention.
met.

and

he did not

which could be deemed

obviously

suspicion

consistent

with this

kind of

He identified himself to Conowal as soon as they

Further,

manner

conduct was

that

show a

gun or act

coercive.

The
or

directed

at

confirming

Conowal

was

engaged

in

in any other
stop was brief

dispelling
drug

the

smuggling.

Indeed, Conowal rapidly confirmed the officer's suspicions by

stating that there
was not "in
did

815

Conowal's

in the

aircraft.1

custody" at this time and, thus,

not require

Quinn,
_____

was cocaine

F.2d

Miranda
_______
153,

statement

warnings.
160-61

See
___

(1st

that there

the Terry stop

_____

United States
_____________

Cir.

was

Conowal

1987).

cocaine

v.

Hence,

on board

the

airplane would have been admissible at trial.

This statement alone
for

Conowal's arrest and

Probable
within

cause
[an

for the

exists where

agent's]

provided probable cause

"the

knowledge

search of

the suitcases.

facts and
and

of

both

circumstances

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,
expectation
home.

we note

of privacy

that
in an

aircraft than

See United States v. Zurosky,

___ _____________
_______

Cir. 1979) (discussing search

U.S.

an individual

967 (1980).

mobile.

has a

lesser

in his

or her

614 F.2d 779, 789 (1st

of a boat), cert. denied,

____________

Second, an

airplane

by its

nature

446
is

See United States v. Brennan, 538 F.2d 711, 721 (5th

___ _____________
_______

Cir. 1976) (although an airplane is not the "legal equivalent

of

an automobile

fact that it

for purposes of

search and

is more difficult to abscond in

seizure," the
an airplane is

offset by greater range of escape routes), cert. denied, 429

_____________
U.S. 1092 (1977).
circumstances
under

Because both

existed, the warrantless

the automobile

See United States v.

___ _____________
(holding

that

probable cause and

search

exception to the

search was justified

warrant requirement.

Rollins, 699 F.2d 530, 534

_______
of aircraft

fell

exigent

within

(11th Cir.)
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
have

been

fact that the cocaine

admissible at

certain admissibility of

trial,

suppress.

with the

remiss in not filing a

Indeed, in pursuing

counsel secured

combined

almost

Conowal's pre-arrest statement,

do not think that counsel was

to

most likely would

for Conowal

we

motion

a plea agreement instead,

a sentence

significantly below

the guideline range.

We
reasons,

need

go

no

further.2

For

the

foregoing

the judgment of the district court is affirmed.

________

also deny, as
____

moot, Conowal's petition for writ

requesting that we decide his appeal forthwith.

We

of mandamus

____________________
2. We need not address
violation of
Conowal's

the issue concerning the alleged

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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