U.S. v. Andrews, 79-1963

• Decision Date: 19 March 1980
• Docket Number: No. 79-1963,79-1963
• Citation: 618 F.2d 646
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. John Allen ANDREWS, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 646

618 F.2d 646

UNITED STATES of America, Plaintiff-Appellant, v. John Allen ANDREWS, Defendant-Appellee.

No. 79-1963.

United States Court of Appeals, Tenth Circuit.

Argued Jan. 24, 1980.

Decided March 19, 1980.

Mervyn Hamburg, Atty., Dept. of Justice, Washington, D.C. (Joseph F. Dolan, U. S. Atty., Denver, Colo., with him on the brief), for plaintiff-appellant.

Joseph Saint-Veltri, Denver, Colo., for defendant-appellee.

Before BARRETT, DOYLE and SEYMOUR, Circuit Judges.

BARRETT, Circuit Judge.

The United States (Government) appeals from a final order of the District Court denying a Motion for Reconsideration after the Court granted appellee John Allen Andrews' (Andrews) Second Motion to Suppress Evidence. Jurisdiction is conferred pursuant to 28 U.S.C. § 1291.

An indictment was lodged against Andrews on April 12, 1979, charging him with possession of cocaine with intent to distribute the same, in violation of 21 U.S.C. § 841(a)(1). Andrews filed a Motion to Suppress the cocaine as evidence, contending that it was discovered as a result of an unauthorized search of a package by an airline employee in Miami, Florida. After this motion was denied, Andrews filed a Second Motion to Suppress which was granted.

Factual Background

On the afternoon of March 23, 1979, an unidentified man presented a package to the Continental Airlines Cargo Service office at the Miami, Florida, International Airport for shipment to Denver, Colorado. Writing on the wrapping paper covering the package identified the sender as "Inter-American Autobar Systems" and the intended recipient as Andrews, whose address was in Denver, Colorado. The writing described the contents of the package as "dispenser housing". The Continental Airlines Cargo Service Supervisor, Kerry Galegher, testified that he became suspicious about the package because goods sent by corporations ordinarily were packaged in cardboard boxes bearing the corporation's trade name or logo, and were not simply wrapped in brown paper. Based on his suspicion, Galegher opened the package. Inside he found a plastic bag containing a white powder. Galegher notified the Dade County, Florida, police authorities of his discovery of the white powder. Soon thereafter, two Dade County detectives assigned to the Miami Airport Narcotics Unit arrived at the Continental Cargo Service station, where they field tested the white powder. They concluded that it contained cocaine. Thereupon the detectives phoned Agent James Roth of the federal Drug Enforcement Administration (DEA) office in Denver, notified him of the discovery and provided a description of the package delivered for shipment to Andrews in Denver. After consulting with Agent Roth, the detectives removed some of the cocaine from the plastic bag. The package was then re-wrapped for shipment and flown to Denver on a Continental flight, which arrived at 9:10 p. m. March 23, 1979.

When the package arrived in Denver, Agent Roth took custody of it. He placed it in a vault at Continental's freight office at the Denver airport. The following morning, Roth took the package from the vault and while dressed in the uniform of a Continental Airlines clerk at Continental's freight office, he met Andrews at about 11:15 a. m. After Andrews identified himself, Agent Roth asked Andrews to meet him in the hallway, where Roth told Andrews that he had been on duty the following evening when the package arrived in a partially opened condition, and that while resealing it, he discovered that the package did not contain any machine parts, even though they were listed on the air freight bill. Roth inquired of Andrews whether he was aware of the mislabeling. Andrews responded affirmatively. Roth then remarked that the package appeared to contain drugs which should be reported to the police unless Andrews was prepared to make it worth Roth's while not to make such a report. Thereupon Andrews asked Roth how much he wanted. Roth stated that $50.00 was reasonable. Andrews then went to his vehicle to get his checkbook. Upon his return, Andrews wrote Roth a check in the amount of $50.00. Agent Roth inquired whether the check was good. Andrews replied that while he might not have sufficient funds in his account then, if Roth waited a day or two there would be plenty of money to cover the check. Roth took the check and then released the package to Andrews, who left the building. As Andrews walked toward his car, he was arrested by DEA agents who had been in radio communication with Roth. After Andrews' arrest, Roth resumed physical custody of the package. Roth opened it and removed the cocaine at the DEA office in Denver.

First Motion to Suppress

Evidence was adduced at the hearing on Andrews' first of two Motions to Suppress, directed at the alleged illegal search and seizure at the Miami airport. Memorandum briefs were filed.

Andrews recognized that this Court's opinion in United States v. Ford, 525 F.2d 1308, 1309 (10th Cir. 1975) held that a search by airport employees of the contents of an air freight package and its subsequent search and seizure by law enforcement officers called in by airline officials constitutes a private search beyond the protection of the Fourth Amendment. Even so, Andrews contended that Ford did not involve the prohibitions contained in the 1976 addition of Subsection (k) to 14 C.F.R. § 121.538. Subsection (k) provides that an airline may refuse to transport goods if consent to search the goods is refused by the shipper. Andrews argued that Ford did not control inasmuch as it predated the addition of Subsection (k). Andrews further argued that in light of the addition of Subsection (k), the Government placed its imprimatur on air freight procedures, thus implanting searches conducted by airline personnel within the Fourth Amendment; and that because federal statutes and regulations require the airline to notify an air freight shipper that he has a right to refuse consent to a search of its goods, the airline's failure to advise the Miami shipper in this case eliminates any consideration of consent and renders the subsequent warrantless search violative of the Fourth Amendment.

Accordingly, argued Andrews, the exclusionary rule should be applied and the "fruit" of the Miami airport search conducted by Continental Airlines personnel (the cocaine) must be suppressed as evidence from use at trial because it was plucked from "the poisonous tree". Andrews placed substantial reliance on this Court's opinion in United States v. Gooch, 603 F.2d 122 (10th Cir. 1979). We there held that even though the warrantless search of an aircraft used in illegal transportation of marijuana from Mexico to the United States was justified on the basis of the existence of probable cause and exigent circumstances, the same rationale did not apply to a briefcase found on board the plane by the United States Customs officers which was searched by them without the benefit of a search warrant. The striking factual difference between Gooch and the case at bar is that in Gooch, unlike the instant case, police officers conducted the warrantless search. Further, Gooch involved the search of a private briefcase aboard a noncommercial aircraft, whereas the instant case involves the search of an ostensibly corporate package to be shipped on a commercial flight. In Gooch we stated that United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977) recognized that a much greater expectation of right of privacy exists in relation to the contents of a briefcase since it is an item of personal luggage than the contents of a commercial cargo package.

In its Order of August 9, 1979, denying Andrews' First Motion to Suppress, the District Court rejected Andrews' argument that the federal government effectively placed its imprimatur on air freight procedures by enactment of the Air Transportation Act of 1974, 49 U.S.C. § 1511, and the Federal Aviation Administration regulations governing air carriers and security measures for cargo shipments. See : 14 C.F.R. § 121.538(b), (d) and (k).

The District Court rejected the holding in United States v. Fannon, 556 F.2d 961 (9th Cir. 1977), strongly urged upon it by Andrews. Fannon held that the aforesaid statute and regulations meant that Congress intended to subject air freight shipments such as packages containing heroin "to the government's administrative scheme to strengthen the security of air transportation" thus rendering airline personnel searches conducted pursuant to the program subject to the Fourth Amendment. Fannon, however, was overruled in United States v. Gumerlock, 590 F.2d 794 (9th Cir. 1979) (en banc), cert. denied, 441 U.S. 948, 99 S.Ct. 2173, 60 L.Ed.2d 1052 (1979). The Ninth Circuit there held that air freight shipments are not subject to the security screening process mandated by the Government for passengers and their carry-on possessions, and further that the search of freight packages by airline personnel constitutes a private search in which the Government is in no respect involved, either directly as a participant or indirectly as an encourager. Accordingly, the Ninth Circuit held that an airline conducting such a private search is not subject to the Fourth Amendment.

The District Court rejected the Fannon rationale on the basis that "(s)ince Continental Airlines was under no statutory compulsion to search the package deposited with it in this case, the requisite governmental participation necessary to invoke constitutional protection is missing." (R., Vol. I, p. 49). We agree. Even so, the District Court opined that the activities pursued by Supervisor Galegher in opening the package, were ". . . prompted solely by his desire to assist law enforcement in uncovering, what he perceived to be, the attempted distribution of contraband . . . (even though) there is no specific evidence to support a finding that Galegher conducted this search at the behest, control, or direction of...