602 F.2d 458 (1st Cir. 1979), 78-1242, United States v. Edwards

Docket Nº:78-1242, 78-1243.
Citation:602 F.2d 458
Party Name:UNITED STATES of America, Appellee, v. Raymond EDWARDS, Appellant. UNITED STATES of America, Appellee, v. David RICHARDS, Appellant.
Case Date:June 28, 1979
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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602 F.2d 458 (1st Cir. 1979)

UNITED STATES of America, Appellee,

v.

Raymond EDWARDS, Appellant.

UNITED STATES of America, Appellee,

v.

David RICHARDS, Appellant.

Nos. 78-1242, 78-1243.

United States Court of Appeals, First Circuit

June 28, 1979

Argued March 12, 1979.

As Amended July 25, 1979.

Page 459

[Copyrighted Material Omitted]

Page 460

Ellen Yankiver Suni, Boston, Mass., with whom Jack I. Zalkind, Boston, Mass., by appointment of the Court, was on brief, for appellant Raymond Edwards.

Ronald J. Chisholm, Boston, Mass., by appointment of the Court, and Paul M. Hoffman, Boston, Mass., on brief, for appellant David Richards.

James F. X. Dinneen, Asst. U. S. Atty., Boston, Mass., with whom Edward F. Harrington, U. S. Atty., Boston, Mass., was on brief, for appellee.

Before COFFIN, Chief Judge, BOWNES, Circuit Judge, PETTINE, District Judge. [*]

PETTINE, District Judge.

Appellants were convicted of possession of heroin with intent to distribute, in violation of 21 U.S.C. § 841, and conspiracy to commit the same crime, in violation of 21 U.S.C. § 846. Both Richards and Edwards challenge the admission into evidence at trial of the heroin seized in the course of the government's investigation and arrests. The questions we must resolve are: 1) whether the search of an air freight package by an airline employee constitutes government action, by virtue of pertinent federal statutes and regulations sufficient to invoke the protections of the Fourth Amendment and the exclusionary rule; 2) the constitutionality of the government's search of Edwards' residence, which led to

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the seizure of evidence against the defendants, premised on an allegedly invalid search warrant; and 3) whether the evidence against Edwards was sufficient for conviction on either count of the indictment.

The history of this case begins at the Los Angeles International Airport where, on July 16, 1976, an unidentified man approached the United Airlines shipping counter with a package. At the counter, he gave the package to United's Customer Service Agent (CSA) Robert Newlands, filled out a shipping slip, and paid a $42.00 fee. Pursuant to airlines regulations, Newlands asked the man to identify the contents of the package on the shipping slip. After some hesitation, he identified the contents as "film."

The man behaved suspiciously as he left the counter, stopping at several points within and without the terminal to observe the handling of his package. Newlands and his companion, CSA Morris, noticed the man's behavior; Morris feared that the package might contain "hazardous material," which was prohibited from shipment by Civil Aeronautics Board Tariffs, and decided to open it. Therein Morris found four bags of what later proved to be heroin. He informed his supervisor, who called the police.

Officer Celmer of the Los Angeles Police Department retrieved the opened package and brought it to a police substation at the airport. There, a field test verified the nature of the contents.

Because the package was addressed to David Richards in South Boston, Celmer contacted the FBI office in Boston. He was referred to the Drug Enforcement Agency (DEA) in Boston, whose Special Agent Richard O'Connor instructed Celmer to contact the FBI in Los Angeles. Celmer turned over to that agency eight of the ten ounces of heroin contained in the package. The FBI then executed a "controlled delivery" of the package to Logan Airport in Boston.

At about 10:40 A.M. on July 16, DEA agents observed David Richards pick up the package at Logan Airport. They followed him as he traveled by bus and car to the home of Raymond Edwards in Randolph, Massachusetts. As Richards' car pulled up to the curb in front of Edwards' house, Edwards met it and the two men removed the package from the trunk of the car, where Richards had placed it. At that point, Edwards gestured toward an FBI agent on surveillance from a nearby vantage point. The two men entered the house, Edwards carrying the package.

Shortly thereafter, the agents entered the house, without a search warrant, through a closed but unlocked door. One agent heard running water as he approached the door, and as they entered, the lead agent had his gun drawn. The agents found Richards, Edwards, and others in the kitchen. When the agents entered, Edwards voluntarily stated, "the package you are looking for is over there," indicating the pantry of the kitchen. Richards and Edwards were frisked, Edwards was handcuffed, and the agents then conducted a "body search" of the house to determine if other people were there.

For the next one and one half hours the agents secured the house but did not search for the package. During this time Edwards, after being informed of his rights, repeated his statement that the package was in the pantry. He claimed that he did not know the contents of the package and that Richards was the one who had brought it into the house.

The government agents waited while FBI agent Simpkins and an Assistant United States Attorney obtained a search warrant in Boston. Simpkins filed an affidavit in which he recounted the events of the case, including the developments in Randolph that morning. He identified Agent O'Connor (of the DEA in Boston) as the source of his information regarding events in Los Angeles; it was O'Connor, not Simpkins, who had spoken with Officer Celmers of the Los Angeles Police. The affidavit contained one inaccuracy: Simpkins mistakenly identified

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Celmers as the person who first opened the package, whereas United's CSA Morris, in fact, had opened the package first before summoning Celmers and delivered it to him without reclosing it.

A magistrate issued the search warrant. This information was radioed to the agents occupying Edwards' house, who then searched the premises and found the package in the pantry. It had been slit open.

After the arrests were made, Simpkins learned of his error and contacted Officer Celmers by telephone. On July 21, five days after the arrests, he filed an amended affidavit with correct facts as to the opening of the package. The magistrate noted on the amended affidavit that it was denied because the warrant already had been issued.

The district court denied defendants' motion to suppress, holding that the original search of the package by airline personnel was a private search not subject to the requirements of the Fourth Amendment. In addition, it found that the error contained in the original affidavit in support of the search warrant was made in good faith and not recklessly or negligently. Therefore, this defect did not require suppression of the fruits of the search authorized by the warrant. See United States v. Edwards, 443 F.Supp. 192 (D.Mass.1977).

Richards and Edwards subsequently were convicted and now bring this appeal.

I

Both appellants contend that the original opening of the Richards package constituted an illegal government search which was conducted without a warrant or probable cause. They argue that the fruits of that search i. e. the heroin eventually brought to Edwards' house by Richards should have been suppressed and not used as evidence against them. The validity of their argument is contingent upon a showing that there was sufficient government involvement in the search to bring into play the requirements of the Fourth Amendment.

The constitutional implications arising from the original opening of the package require an analysis of airline tariffs and regulations and the common law rights of airlines as common carriers. Edwards contends that the opening of the package by airline personnel constituted a government search because it was authorized by Rule 24 of the Official Air Freight Rules Tariff, C.A.B. No. 96. That tariff provides:

Inspection of Shipments All shipments are subject to inspection by the carrier, but the carrier shall not be obligated to perform such inspection.

Tariffs such as this are filed with the Civil Aeronautics Board pursuant to 49 U.S.C. § 1373(a), 1 which empowers the CAB to reject any tariff. A tariff so rejected is void. Conversely, tariffs which have been accepted by the Board are "conclusive and exclusive . . . (of) the rights and liabilities between airlines and their passengers," Tishman & Lipp, Inc. v. Delta Air Lines, 413 F.2d 1401, 1403 (2d Cir. 1969). 2 With regard to the tariff in question, Rule 24, its practical effect

is that the person shipping goods consents to inspection of his goods by entering into the contract of shipment. The Board's involvement in these inspections and

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therefore the Government's is limited to accepting the tariffs as filed and providing a forum for challenges to the tariffs by either the Board or interested parties.

United States v. DeBerry, 487 F.2d 448, 449-50 n. 1 (2d Cir. 1973).

Regardless of the effect of airline tariffs in general, and Rule 24 in particular, appellant's argument fails because Rule 24 is not the source of an airline's authority to search the freight it carries. The airline's inspection privilege

is rooted in the rule of the common law that common carriers have the right to decline shipment of packages proffered in circumstances indicating contents of a suspicious, indeed of a possibly dangerous, nature. Justification for the carrier's refusal is to be found in the exigencies of safeguarding life and property, and undeniably the frustration of criminality is likewise a worthy carrier endeavor. The imperatives of either objective may warrant inquiry by the carrier as to the contents of a parcel tendered for shipment; they may suffice, too, to justify a reasonable inspection of the parcel to fulfill that purpose.

United States v. Pryba, 163 U.S.App.D.C. 389...

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