U.S. v. Walther

Decision Date19 February 1981
Docket NumberD,BARBA-BARB,80-1370,Nos. 80-1125,s. 80-1125
Citation652 F.2d 788
PartiesUNITED STATES of America, Plaintiff-Appellant, v. Karyn Rene WALTHER, Defendant-Appellee. UNITED STATES of America, Plaintiff-Appellant, v. Gracielaefendant-Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Francis J. Diskin, Asst. U.S. Atty., Seattle, Wash., for plaintiff-appellant.

Howard Ratner, Seattle, Wash., on brief, for Barba-Barba.

Stewart P. Riley, Howard Ratner, Seattle, Wash., for Walther.

On Appeal from the United States District Court for the Western District of Washington.

Before SNEED and ANDERSON, Circuit Judges, and EAST, * Senior District Judge.

J. BLAINE ANDERSON, Circuit Judge:

In these consolidated appeals, the government appeals the granting of the defendants' separate motions to suppress evidence obtained during a series of searches taking place on or about August 17, 1979. We affirm the rulings of the court below.

I. BACKGROUND

Unless otherwise indicated, the following factual development has been gleaned from the district court's findings below.

On August 17, 1979, a woman's overnight case arrived at the Western Airlines baggage terminal at Seattle-Tacoma International Airport. The case had been shipped as a "Speed Pak" from San Diego and was addressed to a "Mrs. R. Nelson" of Vashon Island, Washington. Shortly after the case arrived, a Western Airlines employee named Hank Rivard examined the case by shaking it. Rivard found the case to be somewhat suspicious because it was lightweight, did not rattle when shaken, and was taped shut. He opened the case and found that it contained a white powder substance.

After discovering the white powder, Rivard contacted Special Agent Walt Brehm of the Drug Enforcement Administration. Brehm and several other DEA agents went to the Western terminal, where they observed the open case and white powder. A field test confirmed that the substance was cocaine. The case was then repacked with sugar, and resealed. Later that evening, the defendant Karyn Walther arrived, claimed the case, and was arrested in the airport's parking garage. Walther's arrest led to the seizure of other evidence from her purse and car. Apparently, defendant Barba-Barba was responsible for shipping the case to Seattle.

The disclosure of the contents of Walther's overnight case was not Rivard's first contact with the DEA. The DEA has maintained a confidential informant file on Rivard which relates mainly to his reporting suspicious individuals fitting the "drug profile" while working at the ticket counter. According to that file, Rivard was established as a confidential informant and issued an informant number in October 1973. Between 1973 and 1977, Rivard provided information to the DEA on at least eleven occasions for which he received payments in amounts ranging from $25.00 to $250.00, receiving a total of $800.00 during that period. Rivard's file was closed on October 27, 1977, while he was on leave of absence from Western Airlines. Rivard was never made aware that his file had been closed.

According to Rivard's testimony at the suppression hearing, he had opened approximately ten Speed Paks in the past and had frequently discovered illegal drugs. Though he had never been paid for information supplied in connection with Speed Pak openings, the DEA had never discouraged him from so doing and, according to the testimony of one agent, would have paid him had he ever discovered a significant amount of drugs. Rivard also testified that while he did not expect payment for notifying the DEA of the contents of Walther's case, he also had no reason not to expect payment.

Walther was indicted on one count of possession of cocaine with intent to distribute, one count of possession of marijuana with intent to distribute, and one count of conspiring with Barba-Barba to possess cocaine with the intent to distribute. Barba-Barba was indicted on one count of possession of cocaine with intent to distribute, and one count of distribution. Both defendants moved to suppress all evidence seized on August 17.

Following a suppression hearing on Walther's motion, the district court found that at the time Rivard opened the Speed Pak and summoned DEA agents, he was acting as "an instrument or agent" of the DEA. In addition to the findings recited above, the court found that in opening the Speed Pak Rivard was not carrying out a business purpose of his employer, his sole reason being his suspicion that the case contained illegal drugs. The court further found that Rivard probably opened the case with the expectation that he would be compensated by the DEA if he were to discover a significant quantity of illegal drugs. Accordingly, the court ruled that Rivard had been acting as an agent of the DEA at the time he opened the overnight case and that all evidence seized as a result of the search would be suppressed. The court subsequently ordered the same evidence suppressed in Barba-Barba's case on the basis of its findings in the Walther suppression hearing. These appeals followed. 1

II. DISCUSSION

The sole issue raised on appeal is whether the district court erred in finding that Rivard was acting as an instrument or agent of the DEA when he inspected the overnight case and discovered the hidden cocaine. The government vigorously attacks the district court's findings that Rivard had no legitimate business purpose in opening the case and that his sole motivation was the expectation of financial reward. The government also questions the court's legal conclusion that this particular combination of factors conclusively demonstrates that Rivard was acting as an agent.

Neither party has cited any case law dealing with the applicable standard of review in a case wherein the district court has ruled whether a private citizen was acting as an "agent" of the government for fourth amendment purposes. A district judge's findings of fact in a suppression hearing are subject to the "clearly erroneous" standard. See, e. g., United States v. Botero, 589 F.2d 430, 433 (9th Cir. 1978), cert. denied, 441 U.S. 944, 99 S.Ct. 2162, 60 L.Ed.2d 1045 (1979). Because we find that the district court's ruling was proper under any standard, we decline to announce a definite standard for findings that a private citizen has acted as an "agent" of the government here.

A wrongful search or seizure by a private party does not violate the fourth amendment. See, e. g., Walter v. United States, 447 U.S. 649, 100 S.Ct. 2395, 65 L.Ed.2d 410, 417 (1980). However, where a private party acts as an "instrument or agent" of the state in effecting a search or seizure, fourth amendment interests are implicated. Coolidge v. New Hampshire, 403 U.S. 443, 487, 91 S.Ct. 2022, 2048, 29 L.Ed.2d 564 (1971). This court has recognized that there exists a "gray area" between the extremes of overt governmental participation in a search and the complete absence of such participation. See United States v. Sherwin, 539 F.2d 1, 6, n.5 (9th Cir. 1976) (en banc). The resolution of cases falling within the "gray area" can best be resolved on a case-by-case basis with the consistent application of certain general principles.

While a certain degree of governmental participation is necessary before a private citizen is transformed into an agent of the state, de minimis or incidental contacts between the citizen and law enforcement agents prior to or during the course of a search or seizure will not subject the search to fourth amendment scrutiny. The government must be involved either directly as a participant or indirectly as an encourager of the private citizen's actions before we deem the citizen to be an instrument of the state. United States v. Gumerlock, 590 F.2d 794, 800 (9th Cir.) (en banc) cert. denied, 441 U.S. 948, 99 S.Ct. 2173, 60 L.Ed.2d 1052 (1979). The requisite degree of governmental participation involves some degree of knowledge and acquiescence in the search. United States v. Sherwin, supra, 539 F.2d at 6.

Prior case law indicates the wide variety of factual situations to which these principles might be applied. A search made by airline employees pursuant to a federal anti-hijacking program may be considered a governmental search where the employee's actions fall within the federal guidelines. See United States v. Canada, 527 F.2d 1374 (9th Cir. 1975), cert. denied, 429 U.S. 867, 97 S.Ct. 177, 50 L.Ed.2d 147 (1976); United States v. Davis, 482 F.2d 893 (9th Cir. 1973). On the other hand, an airline employee's search of a passenger's luggage which exceeds the guidelines of the hijacking program may be regarded as a private search. See 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), cf. United States v. Gumerlock, supra. Mere governmental authorization of a particular type of private search in the absence of more active participation or encouragement is similarly insufficient to require the application of fourth amendment standards. See United States v. Goldstein, 532 F.2d 1305 (9th Cir.), cert. denied, 429 U.S. 960, 97 S.Ct. 384, 50 L.Ed.2d 327 (1976); cf. United States v. Stevens, 601 F.2d 1075 (9th Cir.), cert. denied, 444 U.S. 917, 100 S.Ct. 232, 62 L.Ed.2d 172 (1979).

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