U.S. v. Canada

• Decision Date: 29 December 1975
• Docket Number: No. 75--2696,75--2696
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Margaret CANADA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1374

527 F.2d 1374

UNITED STATES of America, Plaintiff-Appellee, v. Margaret CANADA, Defendant-Appellant.

No. 75--2696.

United States Court of Appeals, Ninth Circuit.

Dec. 29, 1975.

Rehearing and Rehearing En Banc

Denied Feb. 25, 1976.

Wilfred C. Rice (argued), Detroit, Mich., for defendant-appellant.

Stephen W. Peterson, Asst. U.S. Atty. (argued), San Diego, Cal., for plaintiff-appellee.

OPINION

Before HUFSTEDLER and WALLACE, Circuit Judges, and PALMIERI, ^* District Judge.

PALMIERI, District Judge:

This is an appeal from a judgment entered on a jury verdict finding appellant guilty of conspiracy to possess heroin and cocaine with intent to distribute, 21 U.S.C. § 846(a), and of possessing heroin and cocaine with the intent to distribute, 21 U.S.C. § 841(a)(1).

The appellant, travelling under an assumed name, boarded a scheduled air carrier in Detroit on February 16, 1975, bound for San Diego, taking with her a suitcase containing a large amount of cash. The concatenation of events occurring immediately prior to her departure from Detroit, and in San Diego after arrival, led to her arrest the next day as she was proceeding speedily by car on a major highway in the direction of Los Angeles.

The appellant challenges the legality of two searches and the probable cause for her arrest.

The facts which the jury could find from the evidence are substantially the following.

The Airport Security Search in Detroit

On February 16, 1975, Theresa Thomas, an airlines security guard, was on duty at the Detroit Metropolitan Airport checking the carry-on baggage of departing passengers for weapons and explosives with the aid of an x-ray machine as part of the airline's anti-hijacking program. At approximately 5:45 p.m. a male carrying a green suitcase and accompanied by appellant approached her station. As the suitcase went through the x-ray machine, half of it was displayed on the screen as an indeterminate dark area. Thomas told the male that the suitcase would have to be opened. The man asked why it had to be opened since there was nothing in it, and Thomas informed him that it was necessary to see what was inside since the x-ray machine did not show the contents of half of it. Appellant's companion did not reply. The appellant, standing next to him, said nothing. Opening the suitcase, Thomas found one article of clothing and a grocery bag with a rubberband around it. She opened the bag and saw stacks of 20- and 50-dollar bills. As she closed the bag and returned it to the suitcase, she noticed the figure $68,000 inked on the front of the bag. As the couple left, appellant said something to her companion which Thomas did not hear, to which the man replied, 'Don't worry about it; it's okay.'

Thomas noted which gate the pair proceeded to, found that appellant Canada was flying under the name S. Taylor, and watched her board the plane for San Diego without her companion. Thomas reported all this to an agent of the Drug Enforcement Agency (DEA) at the airport.

The agent watched the male companion leave the airport and watched as he was arrested in the parking lot by local police for a traffic infraction. The agent learned from the local police that the man they had arrested was on record as a narcotics violator and that he was the son of two persons on record with the DEA as narcotics violators.

The Events in San Diego

This information was relayed to DEA agents in San Diego where surveillance of the airport was arranged in anticipation of appellant's arrival there. Appellant was met at the San Diego International airport by a male later identified as codefendant Turner. Appellant retrieved the green suitcase from a baggage conveyor belt and handed it to Turner. The couple then left the airport, walked into the parking lot, doubled back from the parking lot to the pedestrian island where they walked the length of the airport until they arrived at a waiting automobile driven by a female later identified as codefendant Welsh. During this maneuver, Turner continually glanced over his shoulder, paying particular attention to the front of the air terminal. In the course of driving to the downtown San Diego area, the trio executed a variety of maneuvers, including three or four U-turns in the middle of the block for no apparent reason, which are not satisfactorily explained by a lack of familiarity with the area, and which, in the opinion of one of the officers, were attempts to spot and lose any pursuer.

Appellant and Turner registered in a motel room as man and wife under assumed names. A second room was rented in Welsh's name. Three long distance calls to Detroit were made from one of the rooms, one to a known associate of the parents of the man who had accompanied appellant to the Detroit airport who were known narcotics violators. That evening as the trio drove to a cocktail lounge they executed numerous maneuvers apparently intended to flush out and abort any surveillance.

The next morning appellant took a cardboard box and the green suitcase to the room where the other two had stayed. She then walked to the downtown area of San Diego, returned at 1:30 after the others had left, and waited in a state of obvious agitation for their return.

Turner placed an empty yellow duffel bag in the car and shortly thereafter he and Welsh drove directly to Mexico, crossing the border at 11:30 a.m. They were next seen returning to the motel at 4:10 p.m. Immediately thereafter, Turner rapidly removed from the car and carried into the motel a paper sack and the yellow duffel bag which appeared to contain objects which made the bottom form a V. Within four or five minutes, Turner came out of the room carrying the green suitcase and walking at a rapid pace. He almost threw the suitcase into the trunk of the car, and followed it with the duffel bag that now looked full and well packed. Turner positioned the vehicle near the motel office while appellant was inside. When appellant came out of the office, she entered the car with the other two and Turner drove off at a fairly fast rate of speed, proceeded to an interstate highway and headed north. The DEA agents then stopped the car with the aid of uniformed police. They searched the car, found four pounds of heroin and one pound of cocaine in the green suitcase, and

arrested appellant and her two codefendants. The Airport

Search of the Suitcase was Conducted Pursuant to a Valid Consent

Appellant's first complaint is that her fourth amendment rights were violated when the green suitcase being carried by her male companion was searched by an airline employee at the Detroit airport. If she should prevail on this issue, the charges against her require dismissal as the balance of the government's case would be the fruit of a poisoned search. Silverthorne Lumber Co. v. United States, 251 U.S. 385, 391--92, 40 S.Ct. 182, 64 L.Ed. 319 (1920). However, we find no legal infirmity in the search. We find it was conducted pursuant to a valid consent.

First, there can be no doubt that the actions of the airline security guard constituted state action for fourth amendment purposes. United States v. Davis, 482 F.2d 893 (9th Cir. 1973). Second, the government argues that appellant does not have standing to object to the search because the searcher could not have known the luggage was in her custody. This is not a requirement for standing to object. The state of mind of the searcher regarding the possession or ownership of the item searched is irrelevant to the issue of standing. ¹ Rather, standing to object is predicated on the objector alleging and, if challenged, proving he was the victim of an invasion of privacy. Jones v. United States, 362 U.S. 257, 261, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). In her original motion to suppress, appellant claimed the suitcase as hers. The government has not disputed this claim of ownership. In fact, the government's evidence that she transported it to San Diego and was seen with it there on several occasions lends support to her claim. This is sufficient to confer on appellant standing to object to its search.

The fact that appellant was not openly exercising control over the suitcase immediately prior to the search does not defeat her standing. United States v. Mulligan, 488 F.2d 732 (9th Cir. 1973), cert. denied, 417 U.S. 930, 94 S.Ct. 2640, 41 L.Ed.2d 233 (1974) (car owner could object to its search though he had no control over the car when it was searched, had registered it under a fictitious name and had parked it in an acquaintance's driveway for over two months). Furthermore, she did not relinquish her protectible interest, nor her standing to object, by sharing access and control of the suitcase with her companion. Mancusi v. DeForte, 392 U.S. 364, 88 S.Ct. 2120, 20 L.Ed.2d 1154 (1968).

This brings us to the question of consent. The Supreme Court in Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), held that whether a consent to search is voluntary is a question of fact to be determined from all the circumstances and that the government is not required to prove knowledge of a right to withhold consent as a sine qua non of an effective consent. In Davis, supra, we dealt with an airport search similar to the instant case and held that the threshold question of whether or not there had been consent-in-fact must be decided in the affirmative before the precise Bustamonte question of voluntariness could be broached. The present case falls somewhere between the verbal consent in Bustamonte and the facts in Davis. As anticipated in Davis, we find that 'the alternatives presented to a potential passenger approaching the screening area are so self-evident that his election to attempt to board necessarily manifests acquiescence in the initiation of the screening process.' 482 F.2d at 914. Since the 1971 search in Davis, the nature and scope of airport searches have become much more widely known. Such searches have become...