U.S. v. Gibbons

• Citation: 607 F.2d 1320
• Decision Date: 11 September 1979
• Docket Number: No. 77-1965,77-1965
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Clifton Gene GIBBONS, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 1320

607 F.2d 1320

UNITED STATES of America, Plaintiff-Appellee, v. Clifton Gene GIBBONS, Defendant-Appellant.

No. 77-1965.

United States Court of Appeals, Tenth Circuit.

Argued and Submitted Jan. 25, 1979.

Decided Sept. 11, 1979.

Charles Lee Waters, Asst. U. S. Atty., Oklahoma City, Okl. (Larry D. Patton, U. S. Atty., Oklahoma City, Okl., on brief), for plaintiff-appellee.

Charles F. Cox, Jr., of Cox & Barr, Norman, Okl., for defendant-appellant.

Before SETH, Chief Judge, and HOLLOWAY and LOGAN, Circuit Judges.

HOLLOWAY, Circuit Judge.

This is a direct appeal by the defendant-appellant Clifton Gene Gibbons from his jury conviction on one count of a two-count indictment charging Gibbons and James Michael Hoover with conspiracy to commit offenses defined in 21 U.S.C. Sec. 841(a)(1) ¹ and with possession of a controlled substance, methaqualone, with intent to distribute in violation of 21 U.S.C. Sec. 841(a) (1). Appellant Gibbons was acquitted by the jury on the conspiracy count and was convicted on the substantive count. He was sentenced to a term of five (5) years to be followed by a three (3) year special parole term.

Prior to trial defendant Hoover entered a plea of guilty to the conspiracy count pursuant to a plea bargain agreement negotiated with the United States Attorney's office. As part of that agreement Hoover testified at Gibbons' trial. In return, the United States Attorney agreed to drop the substantive count and not to file bail jumping charges against him. At the time of Gibbons' trial Hoover had not been sentenced.

Appellant's basic contentions on appeal are that the trial court erred in: (1) admitting in evidence a number of quaalude pills over a timely objection in violation of his Fourth Amendment rights; (2) admitting testimony at trial from a witness called before a grand jury after an indictment had been returned against defendant, the grand jury proceedings being improperly used to freeze and to discover testimony; (3) denying a motion to dismiss, the evidence being insufficient to support the conviction; and (4) refusing to grant his motion to dismiss and discharge the jury panel due to prejudicial comments made by a prospective juror during voir dire examination.

I. The Facts

Viewing all the evidence, together with all reasonable inferences therefrom, in the light most favorable to the government as we must on this appeal from a guilty verdict, United States v. Twilligear, 460 F.2d 79, 80-81 (10th Cir.), the evidence tended to show the following facts:

In the late evening on Saturday, May 14, 1977, an unnamed man delivered a black trunk to the American Airlines' airfreight office in Phoenix, Arizona. Although the trunk was in a dilapidated condition American Airlines' employee Charles Guilfoyle accepted it for shipment to Oklahoma City because it would be transported on a direct flight and would therefore require little handling. The airbill authorizing the shipment, which was filled out by the unnamed individual, indicated that the trunk contained books and personal effects and was to be shipped to a Michael Hoover in Oklahoma City. II R. 75. Guilfoyle found the cargo unusual because the "beat up" trunk was locked by a "very brand new and high security lock." Moreover, his suspicion was aroused further when he recognized that the return address listed on the airbill was to a parking lot of a local high school. II R. 72.

After the shipper had left the freight office Guilfoyle attempted to move the trunk to another location for shipment. Upon standing the trunk up on its end, a small tinfoil packet of pills fell out of a crack in the bottom seam of the trunk. ² Written on the packet was the word "Quaalude." Peering into the crack of the trunk Guilfoyle saw "nothing but quaaludes or the pills, the packets of pills all the way through the whole trunk." This revelation, coupled with his earlier suspicion, caused him to contact his superior who subsequently notified the Phoenix Police Department. II R. 73-74.

Shortly after the Phoenix Police were called in, narcotics detective John Dee began an investigation. Upon his arrival at the freight office, Dee was filled in on the details by Guilfoyle and was given the small tinfoil packet which had dropped out of the trunk. He apparently recognized the pills as being a controlled drug. II R. 74. After "looking through the crack" of the trunk and seeing a number of "tinfoil packets similar to the one . . . (he) had been handed," Dee seized the trunk and tinfoil packet along with a copy of the airbill and took them to the police station. II R. 86-87. After obtaining an Arizona search warrant (I R. 97-103) early Sunday morning, May 15, Dee opened the trunk by removing the rear panel hinge guards and hinge pins. This procedure was used so as not to disturb the lock and to prevent alerting the parties to the Government's involvement. In the trunk, along with various other items, Dee found three brown paper bags filled with approximately 23,000 pills wrapped in tinfoil packets, with 10 pills to a packet. II R. 92-93. ³ These pills were identified at trial by two forensic chemists as containing methaqualone. II R. 135, 137, 152. ⁴

Shortly after opening the trunk Dee telephoned the Oklahoma City Police Department and spoke with detective Ray Clark. Dee informed Clark of the discovery of the drug shipment bound for Oklahoma City. The detectives agreed upon a plan whereby Dee would select, mark and send to Oklahoma City a random sample of the quaalude found in the trunk. The remainder would be retained in the custody of the Phoenix police pending trial. Dee packed the random sample along with a copy of the Arizona search warrant into the trunk, resealed it, returned it to the airport and watched it loaded onto the originally scheduled flight to Oklahoma City. Meanwhile, on the basis of the phone conversation with Dee and a follow-up teletype message containing identical information, detective Clark executed an affidavit and obtained an Oklahoma search warrant (I R. 104) for the trunk. II R. 103.

When the flight from Phoenix arrived at Oklahoma City detective Clark personally witnessed the trunk being unloaded and carried to a storage area where surveillance had been set up. Shortly thereafter Michael Hoover, the addressee, and the appellant came and claimed the trunk. When Clark and two other police officers approached the two men, Hoover was unlocking the back door of a camper-covered pickup truck while appellant, who had the trunk in his hands, was waiting to place it inside the camper. Both men were arrested and were served with the Oklahoma search warrant. One of the keys taken from Hoover's possession opened the heavy duty lock on the trunk. Inside were the Arizona search warrant and the random sample of drugs shipped by detective Dee. II R. 107-08, 119-20.

We turn to defendant's Fourth Amendment claim.

II. The Fourth Amendment Claims

Prior to trial the appellant moved to suppress the evidence found in the trunk on the ground that it had been obtained in violation of his Fourth Amendment rights. I R. 19. The trial court overruled this motion at the pre-trial hearing, I Supp. R. 40, and subsequently admitted this evidence at trial over a timely objection. ⁵

Appellant's Fourth Amendment claim has three branches. First, he says that the initial actions and investigation by the American Airlines' employee Guilfoyle, when the trunk was presented for shipment, amounted to a warrantless search. Consequently, the search warrants which were issued as a result of the information derived from that search were fatally tainted as the fruit of an illegal search. Second, he contends that the search warrants and supporting affidavits failed to contain any "positive averments" showing the need for a nighttime search. Finally, he argues that the search warrants lacked probable cause for their issuance. Brief of Appellant at 7-9.

a. Search by the airline employee

It is fundamental that before the Fourth Amendment can be implicated there must be governmental action involved. Burdeau v. McDowell, 256 U.S. 465, 474, 41 S.Ct. 574, 65 L.Ed. 1048. Information derived from a search by a private person who is not acting in collusion with or at the behest of Government officials is not subject to Fourth Amendment strictures. See United States v. Ford, 525 F.2d 1308, 1311-12 (10th Cir.); See generally annot., 36 A.L.R.3d 553 (1971). Clearly, such information can be used in obtaining a search warrant without fatally tainting subsequent governmental action.

Appellant relies on United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977) to support his theory that the airline employee's visual intrusion into the interior of the trunk constituted a search within the meaning of the Fourth Amendment. The issue in Chadwick was whether a search warrant was required before federal agents could open a locked footlocker which they had lawfully seized at the time of the arrest of its owners, when there was probable cause to believe the footlocker contained contraband. Id. at 3, 97 S.Ct. 2476. In holding that a warrant was necessary the Court noted several times that the fundamental purpose of the Fourth Amendment is to protect people from unreasonable governmental invasions into their legitimate expectations of privacy. Id. at 7, 11, 97 S.Ct. 2476. Nowhere in that opinion is there an indication that private action is circumscribed by Fourth Amendment limitations.

Appellant does not contend, nor is there sufficient evidence on the record to support a claim, ⁶ that the airline employee was acting in concert with Government officials when he made his initial discovery of drugs in the trunk. ⁷ Consequently we hold that the initial actions of the airline employee were not a search within the meaning of the Fourth Amendment. Therefore there is no room for a claim that the information derived from the private investigation, when used to support the...