United States v. Robert Kenneth Lomas, United States of America v. Peter Kahn Margolis

concurring and dissenting:

I concur in the result of the majority’s opinion as to the conviction of Margolis. I also concur in parts 1 and 2 of the opinion. I dissent from the majority’s reversal of Lomas’s conviction and the remand of his case. I write separately primarily to explain my disagreement with the majority’s unwarranted extension of United States v. Allard, 634 F.2d 1182 (9th Cir.1980) (Allard II), to the facts of this case.

I

The facts surrounding the seizure of room 2214 are substantially different from those in Allard II. There, two Drug Enforcement Agency agents made a warrantless entry into the hotel room of Berg. The agents originally went to the hotel room to “continue their investigation.” 634 F.2d at 1184 . After questioning Berg for five to ten minutes, however, the agents “decided that they had ‘probable cause to stay there,’ and that a search warrant should be obtained.” Id. The two agents, subsequently joined by two other agents, waited in the *896 hotel room for approximately two hours, while others sought and eventually obtained a warrant.

At a pretrial hearing, the district court suppressed evidence taken in the search. In the first appeal, United…

Peter Kahn Margolis and Robert Kenneth Lomas appeal their convictions under 21 U.S.C. §§ 841 (a)(1) and 846 for participation in a conspiracy to possess with intent to distribute cocaine. Both Margolis and Lomas made numerous pretrial motions, all of which were denied. Margolis and Lomas then agreed to submit to a bench trial on stipulated facts. In return, the government pledged to move for dismissal of two of the three counts in the indictment with which each was charged. The district court convicted both on the conspiracy count and sentenced each to six years imprisonment. They now appeal the denial of their motions which sought dismissal of the indictment, challenged the validity of their arrests, and requested the suppression of evidence obtained by federal agents while searching a hotel room registered in Margolis’s name.

FACTS

Margolis and Lomas were arrested during the culmination of a police undercover operation led by Drug Enforcement Administration Special Agent E. Neil Van Horn. The investigation was initiated through Edward Cunningham, a Drug Enforcement Administration informant who stated that he had sources who could supply cocaine in South America and that he…

706 F.2d 886 UNITED STATES of America, Plaintiff-Appellee, v. Robert Kenneth LOMAS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Peter Kahn MARGOLIS, Defendant-Appellant. Nos. 81-1768, 81-1788. United States Court of Appeals, Ninth Circuit. Argued and Submitted Oct. 8, 1982. Decided April 12, 1983. As Amended May 17 and Aug. 15, 1983. Kenneth Bauman, Asst. U.S. Atty., Portland, Or., for the U.S. Paul Denton, Denton & Thynne, Denver, Colo., and Marcus S. Topel, Topel & Goodman, San Francisco, Cal., for defendants-appellants. Appeal from the United States District Court for the District of Oregon. Before WALLACE, FARRIS, and NELSON, Circuit Judges. FARRIS, Circuit Judge: 1 Peter Kahn Margolis and Robert Kenneth Lomas appeal their convictions under 21 U.S.C. Secs. 841 (a)(1) and 846 for participation in a conspiracy to possess with intent to distribute cocaine. Both Margolis and Lomas made numerous pretrial motions, all of which were denied. Margolis and Lomas then agreed to submit to a bench trial on stipulated facts. In return, the government pledged to move for dismissal of two of the three counts in the indictment with which each was charged. The…