U.S. v. Walsh, s. 84-1650

• Decision Date: 27 May 1986
• Docket Number: Nos. 84-1650,84-1660,s. 84-1650
• Citation: 791 F.2d 811
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Donald J. WALSH, Jr., and Interrand Corp., Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 811

791 F.2d 811

UNITED STATES of America, Plaintiff-Appellee, v. Donald J. WALSH, Jr., and Interrand Corp., Defendants-Appellants.

Nos. 84-1650, 84-1660.

United States Court of Appeals, Tenth Circuit.

May 27, 1986.

Steven R. Bailey (Martin V. Gravis, with him on brief), Ogden, Utah, for defendants-appellants.

Bruce C. Lubeck, Asst. U.S. Atty. (Brent D. Ward, U.S. Atty., with him on brief), Salt Lake City, Utah, for plaintiff-appellee.

Before McKAY, McWILLIAMS and BALDOCK, Circuit Judges.

BALDOCK, Circuit Judge.

After a jury trial, appellants were convicted of two counts of possessing a firearm which was not identified by a serial number in violation of 26 U.S.C. Sec. 5861(i). ¹ On appeal, appellants contend that evidence received by agents of the Bureau of Alcohol, Tobacco and Firearms (BATF) should have been suppressed and that 26 U.S.C. Sec. 5861(i) should be construed to allow for a reasonable period of time within which to serialize a firearm. Because these contentions are not supported by existing precedent, we affirm.

Defendant-appellant Walsh, who is the president of defendant-appellant Interrand Corporation, was travelling from Washington, D.C. to a defense conference in Las Vegas, Nevada. He checked two pieces of luggage with a Western Airlines representative at Dulles International Airport in Washington. One was a silver colored rifle case declared as a firearm, the other was a green briefcase not so declared. The luggage was tagged with a destination of Las Vegas.

That evening, the briefcase was found near a baggage carousel in the Salt Lake City, Utah, airport by a local Western Airlines representative, Linda Erian. She found the briefcase just before closing at midnight and as part of a routine procedure of storing unclaimed baggage so that it might be restored to its rightful owner. Using standard keys, she attempted to open the locked briefcase because there was no identification or destination tag on the outside of it. Only able to open one lock, she placed a note on the briefcase explaining that it was without identification and that she was unable to open it. The note and briefcase were left for the morning shift.

The next morning, another Western Airlines employee in the lost and found section, Hillis Mohn, opened the other lock of the briefcase in an effort to find some identification or indicated destination on the inside. His purpose was to trace the ownership of the briefcase and get it restored to the right passenger. Record vol. I at 54, 60-61, 78. When he opened the briefcase, he found a firearms license, a registration form for certain firearms, pistols, clips and several suppressors, ² including two unserialized suppressors at issue in this case. He then called airport security. While waiting for a security officer to arrive, he examined the suppressors and saw that some lacked serial numbers. Record vol. III at 61. He reported this to the BATF agent who arrived later. Id. at 66.

Prior to the arrival of airport security officers and a BATF agent, Mr. Mohn showed the briefcase and its contents to his supervisor, Harold Hardy. Record vol. III at 64, 83. Ultimately, Mr. Mohn and Mr. Hardy guided the BATF agent to the Western Airlines office where the briefcase was located and showed him the contents. Id. at 67-68, 79-81, 93.

Like the two Western Airlines employees, the BATF agent saw the firearms licenses, registration forms, two Heckler and Koch 9 millimeter semi-automatic pistols, magazines, ten ammunition clips and five suppressors. He also saw that two of the suppressors lacked serial numbers and accordingly took the briefcase and its contents into custody. Later that day, defendant Walsh telephoned the BATF agent from Las Vegas seeking to have the briefcase returned. Defendant Walsh explained then and at trial that, although the unserialized suppressors had been manufactured previously, he had not had a chance to serialize them and planned to do so upon his arrival in Las Vegas.

I. Private search and subsequent seizure.

Appellants contend that the warrantless search and subsequent seizure of the briefcase by the BATF agent violated the fourth amendment, ³ thereby requiring exclusion of the inculpatory evidence. Specifically, appellants suggest that the absence of a warrant along with a lack of probable cause render the agent's inspection and seizure of the suppressors constitutionally infirm, even though two Western Airlines employees had previously conducted a private search of the briefcase.

The fourth amendment does not protect against all searches and seizures, but rather against those which are unreasonable. United States v. Espinosa, 782 F.2d 888, 890 (10th Cir.1986). Absent voluntary consent and subject to a few well-recognized exceptions, searches conducted without a warrant and probable cause are presumed unreasonable. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854 (1973), United States v. Gay, 774 F.2d 368, 376 (10th Cir.1985). The protections of the fourth amendment, however, apply only to governmental action; a search or seizure, even if unreasonable, performed by a private person not acting as a government agent or in concert with a government official is not within the scope of the fourth amendment. United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 1656, 80 L.Ed.2d 85 (1984); United States v. Lambert, 771 F.2d 83, 89 (6th Cir.1985), cert. denied, --- U.S. ----, 106 S.Ct. 598, 88 L.Ed.2d 577 (1986); United States v. Andrews, 618 F.2d 646, 652 (10th Cir.), cert. denied, 449 U.S. 824, 101 S.Ct. 84, 66 L.Ed.2d 26 (1980). The actions of the Western Airlines employees were private actions, not directed, controlled or initiated by government agents. See United States v. Morgan, 744 F.2d 1215, 1218-19 (6th Cir.1984) (airline employee's search of luggage amounted to private action). Therefore, the initial private activity of the carrier employees involved no interests protected by the fourth amendment. Burdeau v. McDowell, 256 U.S. 465, 475, 41 S.Ct. 574, 576, 65 L.Ed. 1048 (1921).

The viewing of the briefcase and its contents by the government agent thereafter did not require a warrant. In Illinois v. Andreas, 463 U.S. 765, 103 S.Ct. 3319, 77 L.Ed.2d 1003 (1983), the Court discussed the fourth amendment implications of a common carrier's discovery of contraband and notification of law enforcement personnel. The Court said:

When common carriers discover contraband in packages entrusted to their care, it is routine for them to notify appropriate authorities. The arrival of police on the scene to confirm the presence of contraband and to determine what to do with it does not convert the private search by the carrier into a government search subject to the Fourth Amendment. E.g., United States v. Edwards, 602 F.2d 458 (CA1 1979).

Andreas, 463 U.S. at 769 n. 2, 103 S.Ct. at 3323 n. 2. Suspecting contraband, the airline employees could convey the information they obtained and the government agent could then replicate their previous inspection without violating the fourth amendment.

This conclusion is consistent with recent Supreme Court precedent concerning private searches. In Walter v. United States, 447 U.S. 649, 100 S.Ct. 2395, 65 L.Ed.2d 410 (1980), several securely sealed cartons of films depicting homosexual activities were mistakenly delivered to an Atlanta company. Employees of the company opened the cartons and examined the individual boxes of film, which had suggestive drawings and explicit descriptions. They then called government agents who picked up the films and later viewed them on a projector. The Court determined that the films should have been suppressed.

The plurality opinion recognized that the government could acquire the packages and examine their contents to the extent of the private search, however, the projection of the films by the government agents was a significant expansion of the private search, or an independent search, which required a warrant. Walter, 447 U.S. at 656, 100 S.Ct. at 2401. The concurring justices agreed that the government agents could examine the contents of the packages which had been opened by private parties, but only to the extent of what was in plain view. Walter, 447 U.S. at 660-61, 100 S.Ct. at 2403-04 (White, J. concurring in part). Thus, even had the private parties viewed the films before turning them over to the government, a warrant would have been required for government projection of the films because the owners of the films still retained a legitimate expectation of privacy in their contents. Id. at 660-61, 100 S.Ct. at 2403-04; see also Stanley v. Georgia, 394 U.S. 557, 569-72, 89 S.Ct. 1243, 1250-51, 22 L.Ed.2d 542 (Stewart, J. concurring).

This case differs in a very important respect from Walter v. United States and leads us to a different result. In this case, the government agent merely repeated the private search and inspected what was in plain view. A carrier employee had previously examined the silencers and noted the absence of serial numbers. ⁴ Appellants' primary argument is that the agent inspecting the suppressors for serial numbers lacked probable cause because the briefcase and its contents were not clearly contraband. Yet at the invitation of the carrier, the government agent was entitled to inspect the suppressors for serial numbers even in the absence of probable cause because he was merely repeating what the carrier employees had done. Appellants' premise that the agent's inspection of the suppressors for serialization somehow exceeded the scope of the private search does not appear to be consistent with the trial testimony on this point.

In United States v. Jacobsen, 466 U.S. 109, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984), Federal Express employees opened a damaged package and found several plastic bags of white powder inside a closed tube covered by crumpled newspaper. The carrier notified the Drug Enforcement...