U.S. v. Morgan

• Decision Date: 03 January 1985
• Docket Number: Nos. 82-5441,82-5442,s. 82-5441
• Citation: 744 F.2d 1215
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Johnnie Mack MORGAN (82-5441) and George Brooks, Jr. (82-5442), Defendants- Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1215

744 F.2d 1215

UNITED STATES of America, Plaintiff-Appellee, v. Johnnie Mack MORGAN (82-5441) and George Brooks, Jr.

(82-5442), Defendants- Appellants.

Nos. 82-5441, 82-5442.

United States Court of Appeals,

Sixth Circuit.

Argued Feb. 25, 1983.

Decided Sept. 26, 1984.

As Amended Jan. 3, 1985.

Niles S. Nimmo, argued, R. Price Nimmo, Nashville, Tenn., for defendant-appellant Morgan.

David Vincent, argued, Nashville, Tenn., for defendant-appellant Brooks.

Joe B. Brown, U.S. Atty., William Cohen, Asst. U.S. Atty., argued, Nashville, Tenn., for plaintiff-appellee.

Before JONES and WELLFORD, Circuit Judges, and HARVEY, District Judge. ^*

WELLFORD, Circuit Judge.

This is an appeal following a criminal trial resulting in the conviction of appellants on charges of possession with intent to distribute controlled substances and conspiracy in respect to possession and distribution of drugs. The issue in the case involves whether or not appellants' motions to suppress evidence of Dilaudid and Talwin seized after a warrantless search should have been granted. The trial judge overruled the suppression motions after a hearing and this appeal arises out of the suppression ruling.

On Saturday, February 6, 1982, a passenger service agent for Republic Airlines at the Detroit airport received a suitcase from appellant Morgan, to be shipped air express to Nashville on a 7:30 a.m. flight. The suitcase was given to the agent only a few minutes before flight time, the contents identified as clothing. The agent, Victoria Falwell, recognized Morgan as having shipped a similar suitcase approximately ten days earlier under like circumstance. She testified that it was unusual to ship a suitcase of clothing by air express due to the expense involved.

The suitcase missed the scheduled flight because a conveyor belt jammed. Falwell became suspicious, so she requested and received permission from her supervisor to open the suitcase.

Falwell took the suitcase from a red "VIP bag" in which she had placed it in accordance with normal procedures. She then unzipped the unlocked suitcase "all the way around, .... lifted up the lid and found [another] smaller suitcase inside .... surrounded by rolled-up Levis." The inner suitcase was also unlocked. She unzipped it and found two paper bags as well as more clothing. Inside the paper bags she found bottles of drugs labeled Talwin and Dilaudid. Falwell testified that she was surprised at the contents she found. She had never before during her six years as an agent with the airline opened a suitcase except to look for identification with respect to lost shipments, or to inspect damage. The airline agent then called a pharmacist who informed her that Talwin and Dilaudid were names for controlled substances. Falwell called the FBI, who in turn referred her to The Drug Enforcement Administration (DEA).

Falwell contacted DEA agent Heath at approximately 8:30 a.m. Agent Heath testified he met with another DEA agent at 9:30 a.m. and they arrived at the airport at approximately 10:30 a.m. to 11:00 a.m. ¹ The package was scheduled to go out on the next flight to Nashville at 11:20 a.m. Brooks, the consignee, had checked with a Republic representative in Nashville before the agents arrived at the Detroit airport inquiring about the shipment.

Before the agents' arrival, Falwell had closed the suitcase and put it in the condition in which she had originally seen it. The agents questioned Falwell and learned that a man named Morgan (appellant herein) had presented the suitcase for shipment to George Brooks, Jr. (the other appellant) in Nashville. They examined airline documentation for a similar kind of shipment from Morgan in Detroit to Brooks in Nashville in late January.

The lawful discovery by common carriers or customs officers of contraband in transit presents law enforcement authorities with an opportunity to identify and prosecute the person or persons responsible for the movement of the contraband. To accomplish this, the police, rather than simply seizing the contraband and destroying it, make a so-called controlled delivery of the container to its consignee, allowing the container to continue its journey to the destination contemplated by the parties. The person dealing in the contraband can then be identified upon taking possession of and asserting dominion over the container.

Illinois v. Andreas, 463 U.S. 765, 103 S.Ct. 3319 at 3322, 77 L.Ed.2d 1003 (1983) (footnotes omitted).

As Falwell told the agents what had occurred, and without any request from the agents, she re-opened the suitcase in their presence and pointed out to them the inner suitcase. She told the agents that the inner suitcase was similar to the one that had been previously shipped by Morgan, and pointed out the containers with the suspected drugs inside. The agents touched neither the case nor the bag inside nor the containers with the suspected drugs until they had been reopened by Falwell. The bottles were identified on the outside as Talwin and Dilaudid, and were clearly visible after the inner suitcase and paper bag were opened.

Agent Heath maintained that he had no basis for a warrant prior to about 11:00 a.m., since he was merely investigating in a routine fashion the call received from Falwell, who was unknown to him at the time. ² No policies or actions of the DEA prompted the search by the Republic agent; it was instituted on her own initiative. In addition, there was neither any promise nor expectation of reward from DEA or the airline.

After this investigation, the DEA agents took custody of the suitcase. A controlled delivery was then arranged to take the suitcase with its contents to Brooks in Nashville on the next available flight on the same day. Arrangements could not be completed in time for the 11:20 a.m. flight, so the suitcase was put on a flight arriving in Nashville at approximately 2:00 p.m. Agent Heath was told that Brooks had earlier been waiting at the Republic counter in Nashville for the shipment. By pre-arrangement, another Republic agent delivered the suitcase to Brooks in Nashville, who signed a receipt for it. Brooks was then arrested, bag in hand, by the same DEA personnel. The appellants offered no proof at the suppression hearing.

Appellants take the position that the search by the airline agent was subject to Fourth Amendment limitations. The district court found that the initial search was based on the employee's personal suspicions that the suitcase contained drugs or some hazardous material. The court found no government sanction, involvement, or request concerning the search, and concluded that consequently it constituted a private act to which no Fourth Amendment warrant requirements attached.

In addition, the district court found that the airline employee's reopening of the suitcase to show the DEA agents the contents constituted private action, since if the employee had left the suitcase open and the DEA agents had seen the bottles in the open suitcase, it would clearly be private action. Further, the court found that the suitcase was not "seized" by the DEA agents until it arrived in Nashville and Brooks was arrested.

Appellants also argued at the suppression hearing that the DEA agents should have secured a search warrant. The district court found that after the agents reached the Detroit airport, completed their investigation, and then left the Nashville airport, they could not reasonably have been required to obtain a warrant. Upon arrival in Nashville, exigent circumstances existed; namely, Brooks leaving the Nashville airport with the drugs. Accordingly, the trial court held the arrest and seizure without a warrant to be justified and overruled the suppression motion.

We affirm. The actions by Falwell were private actions, not directed, controlled, nor initiated by law enforcement agents. Even a wrongful search or seizure by a private party does not violate Fourth Amendment rights, and the government may utilize such evidence if it has acquired such evidence lawfully. Coolidge v. New Hampshire, 403 U.S. 443, 487-90, 91 S.Ct. 2022, 2048-2050, 29 L.Ed.2d 564 (1971); Walter v. United States, 447 U.S. 649, 656, 100 S.Ct. 2395, 2401, 65 L.Ed.2d 410 (1980) (Stevens, J.). In such cases, "there was nothing wrongful about the Government's acquisition of the packages or its examination of their contents to the extent that they had already been examined by third parties." Walter, 447 U.S. at 656, 100 S.Ct. at 2401. Furthermore, "the Fourth Amendment proscribes only governmental action, and does not apply to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the government or with the participation or knowledge of any governmental official." United States v. Coleman, 628 F.2d 961, 964-65 (6th Cir.1980) (citing Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048 (1921)). This is not to say that Falwell's private action in searching appellants' baggage, based on her apparently well-founded suspicions, was wrongful or unreasonable under the circumstances, although we do not necessarily condone it in view of her position as agent for a public common carrier. ³

Our determination that the initial search by Falwell was a private action, and that she did not act as an agent of the government does not, however, end the inquiry. For appellants to prevail in this case to exclude the evidence based on Fourth Amendment considerations, they must show that they had a privacy or property interest protected by the Fourth Amendment and they must show illegal conduct by the government that intrudes on that interest. ⁴ See Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980); Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); United States v. Barry, 673 F.2d 912, 917 (6th Cir.), cert. denied, 459 U.S. 927, 103 S.Ct. 238, 74 L.Ed.2d 188 (1982).

In Barry, this Court found that an...