U.S. v. Canady
| Decision Date | 18 April 1980 |
| Docket Number | No. 79-5169,79-5169 |
| Citation | 615 F.2d 694 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Keith CANADY, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
P. Bruce Kirwan, Federal Public Defender, J. Richard Young, Atlanta, Ga., for defendant-appellant.
Charles S. Saphos, William R. Toliver, Asst. U. S. Attys., Atlanta, Ga., for plaintiff-appellee.
Appeal from the United States District Court for the Northern District of Georgia.
Before GEE, TJOFLAT and ANDERSON, Circuit Judges.
Keith Canady was convicted of one count of unlawfully and knowingly possessing with intent to distribute heroin hydrochloride. 21 U.S.C.A. § 841(a)(1). Canady was sentenced to three years in prison to be followed by three years special parole. He appealed his conviction on the grounds that the district court erred in denying his Motion to Suppress a quantity of heroin seized at the Atlanta Airport. Finding no error, we affirm.
Canady arrived at Hartsfield International Airport in Atlanta, Georgia, in the early morning hours of October 31, 1978, on an Eastern flight from Los Angeles, California. His destination was North Carolina. At approximately 4:40 A.M., Canady, preparing to depart Atlanta on Piedmont Airlines, approached the only passenger checkpoint open at that time. He was carrying a suitcase and a sack containing a figurine. The checkpoint was manned by Officer Betty Jane LeStage, an employee of ARC Security, a private company. At this early hour in the morning, Officer LeStage would check not only baggage but tickets as well to insure that only passengers went onto the concourse. Officer LeStage noted from Canady's ticket that he was scheduled to leave on a Piedmont flight to North Carolina. Officer LeStage then asked Canady if she could search his suitcase and he replied yes. Because the x-ray machines were customarily turned off at that time of morning, Officer LeStage had to inspect Canady's baggage by hand. She had difficulty opening the lock on the left side of the suitcase and asked Canady if it was locked. Canady replied that it was not locked, but one had to hit it in order for it to open. He proceeded to hit the suitcase which allowed Officer LeStage to open it.
While looking through the suitcase, Officer LeStage encountered a brown paper bag beneath the clothing containing two cylindrical packages. Because the cylindrical packages were completely wrapped in tape, Officer LeStage took a "still shot" of the package with the x-ray machine. Because the x-ray examination did not rule out explosives or other contraband, she asked Canady what they were. Canady replied that he did not know. Officer LeStage then asked him to open the cylindrical packages so that she could determine their contents and let him through the checkpoint. With this request, Canady became very nervous and replied, "Well, that's not mine; that's not mine," referring both to the suitcase and to the package. Officer LeStage placed the package back in the suitcase, closed the suitcase, and directed Canady to return the suitcase to the Eastern ticket counter. Officer LeStage gave Canady directions to the ticket counter and last observed him walking in that direction.
Officer LeStage waited 15 minutes and Canady did not return. She became concerned because she knew Canady's flight was scheduled to leave shortly that morning. She suspected that Canady would try to pass through a checkpoint on the Eastern concourse which had opened in the interim. Officer LeStage telephoned Officer Rachel Short, also an employee of ARC Security, who was manning the Eastern checkpoint. Officer LeStage described Canady to Officer Short and said that he had a package in his suitcase which he would not allow Officer LeStage to inspect. Officer LeStage asked Officer Short to be on the lookout for Canady. As Officer Short ended her conversation with Officer LeStage, Canady approached the Eastern checkpoint. Since the x-ray machine was operating at this checkpoint, Canady's bag was run through it. After the suitcase went through the machine on the conveyer belt, Officer Short asked Canady if she could open it. He replied yes and helped Officer Short open the suitcase. When the suitcase was opened, Officer Short found the bag containing the wrapped cylinders under some clothing. Officer Short asked Canady what the bag contained and he replied he did not know and that he was trying to return the suitcase to Eastern as it was not his. Officer Short then put the cylindrical objects through the x-ray machine. She again asked Canady what the cylindrical objects contained. He repeated that he did not know. Officer Short returned the cylindrical objects to the paper bag and placed the paper bag back in the suitcase.
Canady at this time took the suitcase and began to walk away from the checkpoint down the Eastern concourse. Because Officer Short could not leave the checkpoint as other passengers were waiting in line to be screened, she called two Atlanta policemen on duty nearby, telling them that Canady had a package and had said he did not know what was in it. Officer Short also told the policemen that Canady had said the package did not belong to him and that he would not open the package.
Officer William Mangrum of the Atlanta Police Department was one of the officers on duty near Officer Short's checkpoint and responded to her call. Officer Mangrum's duties were to prevent weapons, explosives, and articles which could be used in hijacking from passing the checkpoint. When Officer Short reported to Officer Mangrum that Canady refused to let her check the package, Officer Mangrum called to Canady several times, directing him to stop. Canady stopped, turned and approached Officer Mangrum. Officer Mangrum asked Canady if he had refused to let the security guard check a package, to which Canady replied that he had to catch a plane. Officer Mangrum then asked Canady to come back to the checkpoint so that the package could be checked. As they walked back to the checkpoint, Canady told Officer Mangrum that the suitcase was not his. Once Canady and Officer Mangrum had returned to the checkpoint, Officer Mangrum asked Canady to open the suitcase, which he did. Officer Mangrum found the paper bag inside the suitcase and asked Canady to open the bag. Canady refused to open the paper bag. After the third request to open the bag and the third refusal, Mangrum opened the bag and found the two cylindrical objects. Officer Mangrum noted that the two objects felt grainy, and at this point had Agent Markonni of the Drug Enforcement Agency paged. Officer Mangrum then asked Canady to sit down. At that time, Canady again told Officer Mangrum that the suitcase was not his.
When Agent Markonni arrived at the checkpoint, he saw the paper bag open, lying on top of the clothing in the suitcase. Officer Mangrum asked Agent Markonni to look in the paper bag, which he did and saw two cylindrical objects wrapped with tape. Agent Markonni took the two cylindrical objects out of the bag, felt and smelled them. Agent Markonni noted that the odor resembled that of heroin, that the granular or powdery consistency of the contents which he could feel was common in narcotic trafficking, and that the completely tape-wrapped package was a common method of packaging heroin transported by couriers. Agent Markonni asked Canady what was in the cylindrical objects, to which Canady again replied that he did not know as the suitcase was not his. Agent Markonni asked Canady if he had any identification, to which Canady replied he did not. After Agent Markonni briefly interviewed Officer Short, he arrested Canady. Thereupon, Agent Markonni and Officer Mangrum took Canady to Agent Markonni's office in the airport terminal where one of the cylindrical objects was opened and its contents field-tested. There was a positive reaction for the presence of an opiate.
We conclude that Canady did not have a legitimate expectation of privacy in the suitcase and its contents and therefore cannot object to the seizure of the heroin. Our decision is controlled by Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978) and by this Court's holdings in United States v. Colbert, 474 F.2d 174 (5th Cir. 1973) (en banc) and United States v. Anderson, 500 F.2d 1311 (5th Cir. 1974). 1
In Colbert, the police recognized the two defendants as suspected felons. As the police approached the defendants, the defendants set the briefcases they were carrying down on the sidewalk. In response to questions, the defendants denied that they owned the briefcases or had any knowledge about them, and began to walk away from the officers, leaving the briefcases on the sidewalk. When the defendants were unable to produce draft cards at the officer's request, the officers arrested the defendants for failure to carry Selective Service Registration Cards, and placed them in the...
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