U.S. v. Anderson, 80-1684

• Decision Date: 14 December 1981
• Docket Number: No. 80-1684,80-1684
• Citation: 663 F.2d 934
• Parties: UNITED STATES, Plaintiff-Appellant, v. Charles M. ANDERSON, Sandra Jane Szabo, and Luis Eduardo Ferreira, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 934

663 F.2d 934

UNITED STATES, Plaintiff-Appellant, v. Charles M. ANDERSON, Sandra Jane Szabo, and Luis Eduardo Ferreira, Defendants-Appellees.

No. 80-1684.

United States Court of Appeals Ninth Circuit.

Argued and Submitted April 6, 1981.

Decided Dec. 14, 1981.

Darrell W. MacIntyre, Asst. U. S. Atty., Los Angeles, Cal., for the U. S.

Larry Fidler, Howard R. Price, Los Angeles, Cal., argued, Donald M. Re, Weitzman, Fidler & Re, Victor Sherman, Los Angeles, Cal., on brief.

Appeal from the United States District Court for the Central District of California; Robert M. Takasugi, District Judge, Presiding.

Before CHOY and ALARCON, Circuit Judges, and BURNS, ^* District Judge.

JAMES M. BURNS, District Judge:

The government appeals from an order granting the appellees' motions to suppress evidence seized from five pieces of luggage after the appellees were arrested for possession of cocaine. 21 U.S.C. § 841(a)(1). It contends that the appellees are precluded from challenging the search because they lack a reasonable expectation of privacy in the luggage and that, in any case, the evidence was not obtained as the result of an illegal stop or an illegal arrest. We reverse and remand to the district court for further findings of fact, as specified below.

BACKGROUND

On February 17, 1980, Drug Enforcement Agent (DEA) Elena Cox received information from a confidential informant that a certain Jet Commander aircraft, chartered through Gus Maestrales and piloted by Ben Rhodes and Jean Hauck, would leave Fort Lauderdale, Florida, at approximately 6:00 P.M. Florida time for the Los Angeles area, with a probable destination of the Orange County airport. The informant believed the plane would contain narcotics, though he stated that Rhodes had denied this to Hauck. Agent Cox felt the informant was reliable because he had supplied information to the DEA on two previous occasions which led to 15 arrests and four convictions. Agent Cox had knowledge through the DEA computers that Rhodes and Maestrales were narcotics transporters, though neither had been arrested or convicted for narcotics offenses. She also knew that Winfield Air Center, from which the plane was to depart, had been the site of previous narcotics activity; that Maestrales had an office at the Center; and that drugs are often distributed to the east and west coasts via chartered aircraft, since charter passengers are not required to submit their baggage for inspection under FAA security regulations. She put the aircraft under surveillance, and notified agents in Orange County of the informant's tip and of the plane's anticipated arrival.

In Orange County, five DEA agents (Hoelker, Cathey, McMillan, Bordok and Stewart), along with Los Angeles Police Department (LAPD) Officer Yarnell and his narcotics detector dog, "Frog," awaited the arrival of the plane. The plane landed at approximately 11:45 P.M. (California time), in the middle of a rainstorm. Agents Hoelker and McMillan boarded the plane. Agent Cathey approached Appellee Anderson, who had already deplaned, and was about 50 to 75 feet from the aircraft. Anderson was carrying an attache case. Agent Cathey identified himself and asked Anderson to accompany him to the nearby Martin Aviation Building, where they might speak out of the rain. Anderson agreed to do so and carried the attache case into the terminal. Agent Cathey testified he would have allowed Anderson to depart, had Anderson so chosen, but that he would have detained the attache case in any event.

Meanwhile, Agents Hoelker and McMillan identified themselves before receiving permission to board the plane from Co-pilot Once inside, appellees were placed inside a room approximately 10' X 20' in size. They were accompanied by one or more agents and Orange County deputy sheriffs at all times, including during trips to the restroom and to use the telephone. Shortly after entering the building, the appellees were questioned as to their identity and purpose for travel, and asked to identify the luggage, which had been brought into the room. Although Anderson claimed the attache case, all appellees disclaimed ownership of the two grey suitcases and the two burgundy suitcases. The luggage was then taken into a hallway where "Frog" alerted to the presence of narcotics in the two grey suitcases. Once again the luggage was returned to the appellees' room, and once again they denied ownership of the suitcases. At approximately 1:30 A.M. the appellees were placed under arrest. The pilots were not arrested, presumably because they stated the suitcases had arrived in Fort Lauderdale with the passengers. Shortly before he was taken to the Orange County Jail, Anderson denied ownership of the attache case which he had previously claimed. "Frog" later alerted to the two burgundy suitcases.

Hauck. They then stated they had information there were narcotics on board and "requested" that the passengers, appellees Szabo and Luis Ferreira and Ferreira's wife (not a defendant), retrieve their bags and walk to the aviation building which, at that time of night, had been opened only for the use of the DEA agents. The pilot removed the luggage from the plane. The agents then picked up the luggage and followed the passengers and pilots into the terminal.

On February 18, 1980, pursuant to a search warrant, the DEA agents searched the four suitcases and the attache case. ¹ They discovered varying amounts of cocaine in each piece.

In granting the appellees' motions to suppress, the district court ruled that the informant's tip concerning narcotics on the plane which the appellees had chartered, combined with the knowledge of DEA Agent Cox, did not supply reasonable suspicion for detention of the pilots or of the appellees. The court also held that, even assuming the legality of the initial detention, the brief stop quickly ripened into an illegal arrest. According to the court, although the probable cause necessary for arrest (and presumably for the search warrant) was supplied some time later by the alert of the narcotics detector dog, the evidence resulting from the search of the luggage must be suppressed because it was tainted by the illegal stop and arrest.

DISCUSSION

A. Abandonment and Reasonable Expectation of Privacy

At the suppression hearing the appellees failed to establish their legitimate expectation of privacy in the luggage searched, relying instead on the "automatic standing" rule of Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1968). After that hearing and the district court's initial ruling, the Supreme Court held in United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980), that defendants charged with crimes of possession, like all other defendants, may assert the exclusionary rule only if their own Fourth Amendment rights have been violated. These appellees, who were without the guidance of Salvucci, should have an opportunity to try to establish their reasonable expectation of privacy in the luggage searched. If successful in this regard, they will have demonstrated their right to challenge the search to which they object, ² unless their denials of ownership of the luggage were sufficiently clear to establish abandonment. ³

If a person has voluntarily abandoned property, he has no standing to complain of its search or seizure ... The issue of abandonment is a factual one.... It is primarily a question of intent, and intent may be inferred from words, acts, and other objective facts. Abandonment here is not meant in the strict property-right sense, but rests instead on whether the person so relinquished his interest in the property that he no longer retained a reasonable expectation of privacy in it at the time of the search.

United States v. Jackson, 544 F.2d 407, 409 (9th Cir. 1976). Accord, U. S. v. Kendall, 655 F.2d 199, at 201 (9th Cir. 1981); objective, not subjective test governs determination of intent (or lack thereof) to abandon.

Since the district court failed to make findings as to whether the appellees demonstrated a reasonable expectation of privacy in the luggage, and if so, whether their words and acts constituted an abandonment of that privacy interest, we remand for such determinations. ⁴

Assuming, for purposes of analysis, that the appellees are able to establish their privacy interest in the luggage, and that the district court finds their denials of ownership constituted an abandonment, the question of whether they may challenge the search is not yet resolved. Admissibility of the evidence of abandonment turns upon the legality of their detention. Denials of ownership may be considered as evidence of abandonment of a privacy interest only if they occur during a lawful detention. Any denials which occur during an illegal investigatory stop, or after a lawful detention becomes unlawful (for example, as is alleged here, after it develops into an arrest without probable cause) are tainted and cannot be considered. United States v. Jackson, supra, 544 F.2d at 410.

B. Legality of the Stop

The district court assumed this was initially a Terry investigative stop Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and found that the agents lacked a "reasonable suspicion" of criminal activity to justify such an intrusion into the privacy of the pilots and the appellees, who were passengers on the plane. United States v. Brignoni-Ponce, 422 U.S. 873, 881, 95 S.Ct. 2574, 2580, 45 L.Ed.2d 607 (1975).

The government first contends the encounter between the agents and the appellees did not constitute a "seizure" within the meaning of the Fourth Amendment. Consequently, the agents did not need a "reasonable suspicion" to question the appellees. The government relies on United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980) for this proposition. In that opinion two of the justices found that the encounter between two DEA agents and the defendant in...