U.S. v. Martell

• Decision Date: 06 November 1981
• Docket Number: 80-1154,Nos. 80-1163,s. 80-1163
• Parties: UNITED STATES of America, Plaintiff and Appellee, v. Lindsay MARTELL, Defendant and Appellant. UNITED STATES of America, Plaintiff and Appellee, v. Joseph MINNECI, Defendant and Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1356

654 F.2d 1356

UNITED STATES of America, Plaintiff and Appellee, v. Lindsay MARTELL, Defendant and Appellant.

UNITED STATES of America, Plaintiff and Appellee, v. Joseph MINNECI, Defendant and Appellant.

Nos. 80-1163, 80-1154.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 9, 1980.

Decided Aug. 31, 1981.

As Amended Nov. 6, 1981.

Michael J. McCabe, Savitz & McCabe, San Diego, Cal., for defendants-appellants.

Raymond Edwards, Jr., Asst. U. S. Atty., argued, M. James Lorenz, U.S. Atty., Bruce R. Castetter, Asst. U. S. Atty., San Diego, Cal., for plaintiff-appelle.

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

Before FARRIS and NELSON, Circuit Judges, and CURTIS, ^* District Judge.

CURTIS, District Judge:

Appellants Martell and Minneci were convicted of "conspiracy to possess cocaine with intent to distribute" and "possession of cocaine with intent to distribute" in violation of Title 21 U.S.C. §§ 841(a)(1) and 846. They appeal from an order of the trial court refusing to suppress as evidence narcotics seized at the time of their arrest. Finding that the motion was properly denied, we affirm.

I. FACTUAL BACKGROUND

On September 30, 1979, DEA agent Charles Kenerson, based in San Diego, received a telephone call from a DEA agent in Anchorage, Alaska. Kenerson understood the other agent to say that two subjects, one a known drug trafficker (Martell) who had been arrested eight months earlier with approximately a pound of cocaine and $109,000 in cash ¹ had made arrangements to fly from Anchorage to San Diego. Martell was traveling under the name of A. Brewer.

Kenerson and other agents began surveillance of the San Diego airport on September 30, 1979. Minneci arrived that night carrying two suitcases. He was observed making two phone calls, and then taking a cab to the Sheraton Harbor Island Hotel. Martell arrived at 7:10 the next morning, made a phone call to the Sheraton and proceeded directly there, checking in under the name of Martell.

At about 9:45 a. m. Martell was observed leaving the hotel with an unidentified male in a white Toyota pickup truck which was then driven in a somewhat erratic manner, known to the agents as being a method of discovering and avoiding any possible surveillance. It then returned to the hotel within five minutes, whereupon Martell reentered the hotel and proceeded to the third floor. Ten minutes later Minneci was observed making telephone calls, after which he went to Martell's room on the third floor.

At 11:30 a. m. Minneci and Martell left the hotel, went back to the airport and purchased tickets under the names of Minneci and Taylor on a 12:20 p. m. Western Airlines flight to Anchorage. After purchasing their tickets they left their suitcases in the security area and went back outside the security area to have a drink. At 11:40 a. m., DEA agents sent for a narcotics detector dog. At about 12:10 p. m., Martell and Minneci were detained by DEA agents as they approached the boarding area. The agents identified themselves and stated that they were conducting a narcotics investigation. There was testimony by the agents that they had intended to detain the subjects when they approached them, and that the subjects were not free to board their flight. In Martell's case an agent testified that this was made clear to Martell by, inter alia, the fact that his flight left in five minutes. In Minneci's case there was testimony that his ticket was seized. The agents asked for permission to search the suitcases, which Martell and Minneci refused.

At about 12:30 (twenty minutes later) Martell, Minneci and their luggage were escorted downstairs to the Harbor Police Office (about a one-minute walk) where a narcotics detector dog (Duster) was allowed to "sniff" the luggage. In response to a question about precautions taken by the agents against escape attempts by the subjects while on the way downstairs, there was testimony that the only precaution was that the subjects were surrounded by agents. After Duster gave positive alert for narcotics in the suitcases, Martell and Minneci were transported to the Narcotics Task Force office in the east end of the airport. It was at the time of the alert that the trial court held probable cause first arose. The subjects were detained there for four hours until a search warrant was obtained, at which time the suitcases were searched and a large quantity of cocaine found, whereupon appellants were arrested.

II. APPELLANTS' CONTENTION

Appellants argue that their twenty-minute detention by the DEA agents constituted an illegal arrest unsupported by probable cause, citing the Supreme Court's recent decision in Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979), and that the seizure of the narcotics being the poisonous fruit of an illegal arrest cannot withstand a fourth amendment challenge. Believing, as we do, that a conceptual difference exists between the detention of the appellants on the one hand, and the detention of their suitcases on the other, we focus on what we believe to be the real issue whether the government agents can detain the appellants' suitcases without probable cause, but upon a well founded suspicion, for twenty minutes without running afoul of the fourth amendment. We conclude that they can and that the trial court did not err in refusing to suppress such evidence.

III. A STOP AND DETENTION OF APPELLANTS

Admittedly, the agents had a well founded suspicion that the appellants were engaged in drug trafficking, thus justifying, at least, a momentary detention of them for investigative purposes. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

Based upon the same reasons, the officers likewise had a well founded suspicion that the suitcases contained the narcotics; therefore, they were justified in detaining the suitcases for further investigation. United States v. Van Leeuwen, 397 U.S. 249, 90 S.Ct. 1029, 25 L.Ed.2d 282 (1970). Such a detention in both instances was a "seizure" to be judged by fourth amendment standards, for it was apparent from the moment the agents announced that a narcotic investigation was underway, they would not have permitted either the appellants to leave or their luggage to be removed during the brief investigation.

As the Terry Court points out, for fourth amendment purposes, "whenever a police officer accosts an individual and restrains his freedom to walk away, he has 'seized' that person." 392 U.S. at 16, 88 S.Ct. at 1877. After referring to the difficulties other courts have experienced in attempting to distinguish between a stop not requiring probable cause, and an arrest which does, the Supreme Court said:

"In our view the sounder course is to recognize that the Fourth Amendment governs all intrusions by agents of the public upon personal security, and to make the scope of the particular intrusion, in light of all the exigencies of the case, a central element in the analysis of reasonableness."

392 U.S. n.15 at 18, 88 S.Ct. at 1878.

The Court then proceeded to balance the minimal intrusions which a momentary "stop" and "frisk" detention would cause a citizen, against the necessity of protecting the police in their law enforcement endeavors, and held that a momentary stop for the purpose of making brief inquiry and for frisking for weapons was a reasonable seizure within the fourth amendment.

Some twelve years after Terry, the Supreme Court decided Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979), in which it recognized Terry as an exception to the well established prohibition of arrests without probable cause, and held that because any detention by a police officer is such "a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment," the Terry exception must be narrowly construed allowing only momentary stops for on-the-spot questioning. In Dunaway, the Court specifically disapproved a detention of approximately twenty minutes, which became an in-custody interrogation.

In our view, however, Terry and Dunaway and their progeny relate to detention of persons and not inanimate objects. The rationale relied upon by the Court in those cases is inappropriate as applied to "things," a seizure of which constitutes a substantially less serious intrusion upon rights of the individual. ²

IV. SEIZURE AND DETENTION OF LUGGAGE

We look then to the standard of reasonableness as required by the fourth amendment in the seizure and detention of inanimate objects.

In United States v. Van Leeuwen, 397 U.S. 249, 90 S.Ct. 1029, 25 L.Ed.2d 282 (1970), the Supreme Court recognized the propriety of detaining inanimate objects without probable cause when "reasonable suspicion existed" that they were included in a scheme of criminal activity. In that case two twelve pound packages of coins sent by first-class mail were stopped and delayed for more than a day because government agents suspected they were part of an illegal coin importation system. Speaking for a unanimous Court, Justice Douglas acknowledged the sanctity of a citizen's fourth amendment privacy interest in sending objects through first-class mail, but added, "Yet even first-class mail is not beyond the reach of all inspection; and the sole question here is whether the conditions of its detention and inspection had been satisfied." Id. at 252, 90 S.Ct. at 1032. After pointing out that the officers had justifiable suspicion about these packages of coins, the Court approved their removal from the flow of the mail without a warrant while a brief investigation was being completed.

Although the length of time during which appellants' luggage was detained is a relevant factor when considered in the light of all the surrounding circumstances in determining whether such an intrusion is permissible under fourth amendment standards, we know of no case which has placed...