556 F.2d 961 (9th Cir. 1977), 76-2700, United States v. Fannon

Docket Nº:76-2700, 76-2732.
Citation:556 F.2d 961
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Marc Paul FANNON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Paul Howard GUMERLOCK, Defendant-Appellant.
Case Date:July 05, 1977
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 961

556 F.2d 961 (9th Cir. 1977)

UNITED STATES of America, Plaintiff-Appellee,

v.

Marc Paul FANNON, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

Paul Howard GUMERLOCK, Defendant-Appellant.

Nos. 76-2700, 76-2732.

United States Court of Appeals, Ninth Circuit

July 5, 1977

Page 962

Donald A. Nunn, argued, San Diego, Cal., for defendant-appellant fannon.

Michael D. Stein, Frank Ragen, argued, Baxley, Ragen & Ray, San Diego, Cal., for defendant-appellant Gumerlock.

Stephen W. Peterson, Asst. U.S. Atty., San Diego, Cal., on the brief, Terry J. Knoepp, U.S. Atty., Stephen W. Peterson, Asst. U.S. Atty., San Diego, Cal., argued, for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California.

Before CHAMBERS, KOELSCH and HUFSTEDLER, Circuit Judges.

OPINION

KOELSCH, Circuit Judge:

These appeals present this question: Is a search by an airline employee of a package deposited with the air carrier for shipment subject to the limitations of the Fourth Amendment?

The material facts are not in dispute: acting in concert, the defendants, on successive days, deposited at the United Airlines freight office at San Diego, California, two packages for shipment by air to Milwaukee, Wisconsin. After the defendants had left the office, employees of the carrier, suspecting the packages contained drugs, opened them and discovered heroin secreted therein. They then turned the drugs over to federal law enforcement officers. Defendants

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were eventually indicted, tried jointly and convicted of multiple counts of violating 21 U.S.C. §§ 841(a)(1) and 846. 1

The principal error they assign is the court's ruling refusing to suppress the use of the drugs as evidence. The court based its ruling on the ground that because the searches originated with and were conducted by airline employees acting alone, they were private in character and hence not governed by the Fourth Amendment.

We conclude that this ruling was error.

In the absence of the requisite governmental sanction whether by explicit authorization 2 or comparable degree of involvement 3 searches of cargo by common carriers resulting in the discovery and seizure of contraband which form the basis for subsequent criminal proceedings are private rather than governmental and thus not subject to the strictures of the Fourth Amendment. United States v. Ford, 525 F.2d 1308 (10th Cir. 1975); United States v. Issod, 508 F.2d 990 (7th Cir. 1974), cert. denied, 421 U.S. 916, 95 S.Ct. 1578, 43 L.Ed.2d 783 (1975); United States v. Pryba, 163 U.S.App.D.C. 389, 502 F.2d 391 (1974), cert. denied, 419 U.S. 1127, 95 S.Ct. 815, 42 L.Ed.2d 828 (1975); United States v. DeBerry, 487 F.2d 448 (2d Cir. 1973); United States v. Ogden, 485 F.2d 536 (9th Cir. 1973), cert. denied,416 U.S. 987, 94 S.Ct. 2392, 40 L.Ed.2d 764 (1974). 4 Such searches, whether founded on common law right 5 or conducted pursuant to tariff, 6 do not differ for Fourth Amendment purposes from private searches: the evidence so obtained is not subject to exclusion under the Fourth Amendment because it was not discovered by government officers. Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048; United States v. Sherwin, 539 F.2d 1 (9th Cir. 1976) (in banc).

Appellants concede that the searches in issue in this case were conducted solely by the employees of a private air carrier and that there was no evidence of any prior or contemporaneous involvement by government officers. They contend, however, that the air carrier was authorized by statute to conduct the searches as part of the government's air transportation security program, thus endowing the carrier's conduct with a governmental purpose and subjecting it to Fourth Amendment scrutiny.

In 1974 Congress enacted the "Air Transportation Security Act" (the "Act"; Pub.L. 93-366, Title II, 88 Stat. 415). 7 In the words of the Senate committee report, the Act was designed to deal "with prevention, deterrence and punishment for criminal offenses against the air transportation system." S.Rep.No.93-13, 93d Cong., 1st Sess. 2 (1973). Section 204 of the Act amended section 1111 of the Federal Aviation Act of 1958 (49 U.S.C. § 1511) to require the Administrator of the Federal Aviation Administration to authorize air carriers to condition air transportation of persons and property on the consent of the passenger or shipper to searches to determine the presence of "dangerous weapon(s), explosive(s),

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or other destructive substance(s)." 8 more 49 U.S.C. § 1511(a).

Section 204 further amended section 1511 by adding a new subsection (b):

"Any agreement for the carriage of persons or property in air transportation or intrastate air transportation by an air carrier, intrastate air carrier, or foreign air carrier for compensation or hire shall be deemed to include an agreement that such carriage shall be refused when consent...

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