U.S. v. Bulgier

Decision Date06 May 1980
Docket NumberNo. 79-2053,79-2053
Citation618 F.2d 472
PartiesUNITED STATES of America, Plaintiff-Appellant, v. Sandra BULGIER, Defendant-Appellee.
CourtU.S. Court of Appeals — Seventh Circuit

Thomas P. Sullivan, U. S. Atty., Terry A. Zitek, Asst. U. S. Atty., Chicago, Ill., for plaintiff-appellant.

Jerome A. De Palma, Chicago, Ill, for defendant-appellee.

Before SPRECHER, TONE and WOOD, Circuit Judges.

SPRECHER, Circuit Judge.

In this appeal we uphold the validity of a warrantless search and seizure accomplished through a controlled delivery of narcotics.

I

The facts are recited substantially as found by the district court. On March 16, 1979, defendant arrived at O'Hare International Airport in Chicago on a Continental Airlines flight from Los Angeles, California. She was unable to locate her luggage, and so she filed a Delayed Baggage Report with Continental. Thereupon, defendant left the airport.

The next day, Continental employees located the missing luggage, consisting of two suitcases and a golf bag. After an unsuccessful attempt to have the luggage delivered to the address listed in the report, followed by an equally abortive effort to contact defendant at the telephone number set forth therein, 1 the employees opened the smaller suitcase in the hope of finding some further means of contacting the defendant. In so doing, they were following what seems to have been Continental's normal operating procedure in such cases. 2

In the course of searching the bag for identification, the Continental employees found 90.83 grams of cocaine inside several clear plastic bags contained in a manila envelope. When Continental's baggage service agent, Shava Judy Spector, arrived at work on March 18, she was informed that the bag had been searched and that drugs were found in it. She then examined the plastic bags herself and, believing them to contain heroin, she called the Drug Enforcement Administration (DEA).

In response to her call, Special Agent Thomas L. Thompson contacted her. When apprised of the facts, Thompson went to meet Spector at the airport. 3 Spector showed him the open suitcase, with the manila envelope lying on top. Thompson removed the plastic bags therefrom and, upon visual inspection, concluded that they contained cocaine. Beyond noticing the fact that the open suitcase also contained some type of clothing, Thompson had no personal knowledge of what else was in the open suitcase. In Thompson's presence another search of the defendant's three pieces of luggage was conducted by airline personnel.

Subsequently, someone called Spector's office regarding defendant's luggage. When informed that it had been found, the caller stated that he would come and pick it up.

After listening, with Spector's consent, to that call, Thompson summoned Special Agent Michael Hillebrand to the scene. By the time Hillebrand arrived at Spector's office, the smaller suitcase had been closed, with the substance tentatively identified as cocaine inside. Hillebrand had no personal knowledge of what that suitcase contained. However, Thompson and Spector had told him what they knew about the situation.

A few hours later, the defendant and a male companion arrived and claimed the luggage. The defendant signed for it, and picked up the smaller suitcase. Her companion took the other two pieces of her baggage. They then took different escalators down to the lower level of the terminal. When the defendant exited from the lower level and headed towards her companion's automobile, Hillebrand placed her under arrest and seized the luggage.

From the time the defendant informed the Continental employee working at the ticket counter that she was there to pick up her baggage until the moment of her arrest, she was under Hillebrand's continual surveillance. He observed that she did not open the suitcase during that time period.

Immediately after placing the defendant under arrest, Hillebrand conducted a quick weapons search of her purse and found none. Based upon the nature of defendant's clothing, he was satisfied that no pat-down of her person would be necessary. He did not feel it necessary to search the smaller suitcase for weapons at that time, as he had seized it at the same instant that he arrested the defendant.

Having concluded that defendant was unarmed and not dangerous, Hillebrand took her to the airport DEA office. Once there, he opened the smaller suitcase and subjected it, along with her purse, to a thorough search. During this search, he found the cocaine and a "coke spoon" in the suitcase and another "coke spoon" in her purse. The cocaine was then subjected to a field test which yielded positive results.

The district court granted the defendant's motion to suppress the cocaine and the "coke spoon" taken from the suitcase. The government appealed.

II

At the outset we are confronted with a question of jurisdiction. On July 24, 1979, the district court granted the defendant's motion to suppress the evidence, supported by a memorandum opinion. On August 9, the government filed its motion for reconsideration. On September 5, the court denied the government's motion, again supported by a memorandum opinion. The government's notice of appeal was filed on September 10, 1979.

The defendant has filed in this court a motion to dismiss the appeal as filed more than thirty days from July 24. The government responded and we ordered that the motion be taken with the case.

The right of the government to appeal from an order suppressing evidence is provided by 18 U.S.C. § 3731. 4 Both that section and Fed.R.App.P. 4(b) 5 fix the time for appeal at thirty days after the entry of the order.

The Supreme Court, applying 18 U.S.C. § 3731 and its own Rule 11(2), which fixed the time for appeal in criminal cases appealable directly from the district court to the Supreme Court, has held that if the government moves for a rehearing within the time fixed for taking an appeal, the motion terminates the running of the time for appeal and the time begins to run anew from the date of the entry of the order disposing of the motion. United States v. Healy, 376 U.S. 75, 77-80, 84 S.Ct. 553, 554-556, 11 L.Ed.2d 527 (1964). See also 9 Moore's Federal Practice, P 204.17, at 991-92 (2d ed. 1975).

Some doubt as to whether the same principle would apply when the criminal case was appealed from the district court to a court of appeals, subject to Fed.R.App.P. 4(b) instead of Supreme Court Rule 11(2), was dispelled in United States v. Dieter, 429 U.S. 6, 97 S.Ct. 18, 50 L.Ed.2d 8 (1976), when the Court said:

The Court of Appeals misconceived the basis of our decision in Healy. We noted there that the consistent practice in civil and criminal cases alike has been to treat timely petitions for rehearing as rendering the original judgment nonfinal for purposes of appeal for as long as the petition is pending. 376 U.S., at 78-79, 84 S.Ct. at 555-556. To have held otherwise might have prolonged litigation and unnecessarily burdened this Court, since plenary consideration of an issue by an appellate court ordinarily requires more time than is required for disposition by a trial court of a petition for rehearing. Id., at 80, 84 S.Ct. at 556. The fact that appeals are now routed to the courts of appeals does not affect the wisdom of giving district courts the opportunity promptly to correct their own alleged errors, and we must likewise be wary of imposing added and unnecessary burdens on the courts of appeal.

Id. at 8, 97 S.Ct. at 19 (footnote omitted).

The defendant seems to have placed some significance on the fact that the granting of the motion to suppress is "interlocutory." She argues that an appeal from such an order should be expedited. While it is true that both Healy and Dieter involved orders dismissing an indictment, 18 U.S.C. § 3731 gives the government the right to appeal both from orders dismissing indictments and from orders suppressing evidence. Section 3731 provides, as to both appeals, that they "shall be diligently prosecuted." Nevertheless, the Supreme Court approved the possibility of lengthier appeals in favor of giving the district courts the first opportunity to correct their own alleged errors. In addition, many dismissals of indictments are the direct result of suppressions of evidence. 6 Finally, the Dieter result was anticipated in United States v. St. Laurent, 521 F.2d 506, 511-12 (1st Cir. 1975), cert. denied, 423 U.S. 1049, 96 S.Ct. 775, 46 L.Ed.2d 637 (1976), where the appeal, like this one, was from the granting of a motion to suppress evidence.

The notice of appeal by the government was timely filed.

III

The district court based its suppression of the evidence primarily upon Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979) and United States v. Berry, 560 F.2d 861 (7th Cir. 1977), vacated on other grounds, 571 F.2d 2 (7th Cir.), cert. denied, 439 U.S. 840, 99 S.Ct. 129, 58 L.Ed.2d 138 (1978). The court concluded that the warrantless search of the luggage which occurred after the defendant's arrest violated the Fourth Amendment under the authority of those cases. 7 Except for the facts that Sanders involved luggage and Berry involved an attache case, the two cases bear little factual resemblance to the present case, 8 which involves luggage but also involves an earlier private search by nongovernmental persons and a "controlled delivery" by the government to the defendant.

Even as "(t)he word 'automobile' is not a talisman in whose presence the Fourth Amendment fades away and disappears," Coolidge v. New Hampshire, 403 U.S. 443, 461-62, 91 S.Ct. 2022, 2035, 29 L.Ed.2d 564 (1971), we do not believe that the Supreme Court in Sanders, in which it recognized that "the circumstances giving rise to suppression requests can vary almost infinitely," intended that the word "luggage"...

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