U.S. v. Goldstein

• Decision Date: 26 January 1981
• Docket Number: No. 79-5531,79-5531
• Citation: 635 F.2d 356
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Bennett GOLDSTEIN and James Edward Kern, Defendants-Appellants. . Unit B
• Court: U.S. Court of Appeals — Fifth Circuit

Page 356

635 F.2d 356

UNITED STATES of America, Plaintiff-Appellee, v. Bennett GOLDSTEIN and James Edward Kern, Defendants-Appellants.

No. 79-5531.

United States Court of Appeals, Fifth Circuit.

Unit B

Jan. 26, 1981.

Rehearing and Rehearing En Banc Denied Feb. 25, 1981.

Larry G. Turner, Gainesville, Fla., for James Edward Kern.

John Zwerling, Jonathan Shapiro, Alexandria, Va., for Bennett Goldstein.

Kendell W. Wherry, Asst. U.S. Atty., Orlando, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before KRAVITCH and FRANK M. JOHNSON, Jr., Circuit Judges, and ALLGOOD ^*, District Judge.

FRANK M. JOHNSON, Jr., Circuit Judge:

James E. Kern and Bennett Goldstein appeal their convictions for possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (1976). Appellants seek reversal of the district court on the grounds that the court erred by denying their pre-trial motion to suppress certain evidence and by denying their timely motions for judgment of acquittal. They allege that the evidence was obtained in violation of their Fourth Amendment rights and that the evidence introduced by the Government at trial was insufficient to support their convictions.

I.

On May 29, 1979, Kern and Goldstein were arrested at the Orlando International Airport by Drug Enforcement Administration (DEA) agents. At approximately 6:00 a. m. Agents Maroney and Fletcher began their Orlando Airport surveillance in the area of the Eastern Airlines' and National Airlines' ticket counters. The agents observed appellant Kern approach the National ticket counter at approximately 6:45 a. m. Kern, who wore a beard, was dressed in a print shirt, dungarees, and boots and was carrying one large suitcase and a smaller brown one. A few minutes later, a Daniel Lynch also approached the National ticket counter; Agent Maroney became interested in the two men when he noticed that they cast side glances towards each other but did not appear to speak to each other. Kern and Lynch departed from the ticket counter separately and then engaged in a short conversation. The DEA agents learned from the National ticket agent that Lynch had purchased a ticket on National Flight #96 to Washington, D.C., and had checked his bags but that Kern, who had attempted to purchase two tickets for the same flight, decided to wait as only one ticket could be confirmed and the other was on a stand-by basis.

Agent Maroney overheard Lynch and Kern discussing the ticket problem and he noticed that shortly after Lynch departed, Kern was joined at approximately 6:51 a. m. by another man, appellant Goldstein. After Kern gave the larger bag to Goldstein and retained the smaller one they walked over to the National ticket counter. Before they purchased their tickets they began checking the flight schedules on the various airlines' T.V. monitors. When they returned to the ticket counter, Agent Maroney lined up behind them at approximately 7:00 a. m. and observed the name of Ben Goldstein on the larger bag and James Kern on the smaller bag. Maroney also noticed that, when Kern purchased the two tickets on Flight #96 to Washington, one ticket was in the name of M. Kern and the other was in the name of J. Kern. Appellants checked the two bags and left the ticket counter.

Agent Maroney then decided to examine the luggage checked by appellants and Daniel Lynch. He met with officer Deisler and requested that Deisler bring his police dog Zeke, who was trained to detect the presence of cocaine, heroin and marijuana, to the National baggage area. Agent Maroney first removed Lynch's two bags from the baggage cart and placed them next to each other; he then placed two decoy bags on either side of Lynch's bags. Zeke positively reacted to the presence of narcotics when he began pawing, barking and attempting to bite at Lynch's two bags. The same procedure was utilized during the examination of appellants' two bags and Zeke again made a positive reaction to the two bags.

Agent Maroney informed DEA Agents Fletcher and Wingfield of Zeke's positive reaction and instructed them to question Kern and Goldstein. ¹ Agent Wingfield located appellants at Gate #6; he identified himself as a police narcotics officer and asked to speak with them. Kern and Goldstein agreed and produced their tickets upon request; Kern's ticket was in the name of M. Kern and Goldstein's ticket was in the name of J. Kern. Wingfield informed them that a narcotics trained dog had positively reacted to the presence of narcotics in their luggage. Agent Wingfield asked for permission to search their bags and appellants responded by requesting a private conference. After they conferred several feet away from the agents for a brief period of time, Kern and Goldstein indicated that they wanted an attorney. After being advised of their Miranda rights, Kern and Goldstein requested another conference. After they conferred for a moment, they were placed under arrest. ²

After appellants were escorted to the Airport Police Office, Agent Wingfield advised appellants not to talk and at appellants' request placed a call to their Virginia attorney that was answered by an answering device. Goldstein apparently made an unsolicited remark that the agents would only be interested in his bag, but it is not clear from the record whether that comment was made in the waiting area or in the police office. Agent Maroney again requested their consent to search their bags after stating that they would not be charged if the search revealed a "small quantity of drugs obviously for personal consumption"; however, Maroney did not represent that consent would render them immune from prosecution if a large quantity of drugs were found as a result of the search of the luggage.

When Officer Deisler and Zeke arrived at the police station, Zeke started sniffing appellants' two bags without prompting and again began barking and pawing at the bags. Goldstein refused to consent to a search but Kern consented. The search of Kern's bag, conducted in the office, revealed $11,800 in cash, a glass beaker, a bottle with oil residue, small straws, a stand and the top portion of a butane torch, a thermometer, and a few items of clothing and newspapers. Goldstein and Kern were then jailed and Maroney sought a warrant in order to search Goldstein's bag. When his bag was subsequently searched, it contained $2,415 in cash, approximately two pounds of cocaine ³ in a Sears shopping bag, a few pieces of clothing and a boarding pass for a flight on the previous day from Washington to Ft. Lauderdale, Florida.

The jury found appellants guilty as charged in the one count indictment. On appeal Kern and Goldstein have alleged seven errors committed by the district court, which we will treat in order.

II.

The first four contentions raised by Kern and Goldstein relate to the district court's denial of their motion to suppress the evidence found in their suitcases at the Orlando airport. Appellants argue that their bags were detained and "sniff-searched" by Zeke solely because they matched certain characteristics of the drug courier profile. ⁴ They contend that since the drug courier profile alone would not supply the reasonable and articulable suspicion ⁵ necessary to justify an investigatory stop, the profile, without more, cannot be used to justify the initial detention of their luggage. Moreover, because their bags were sniffed after being removed from the National baggage cart in a non-public area for reasons other than airport security, appellants claim that such action was an intrusion and thus an unreasonable search and seizure in violation of the Fourth Amendment. They alleged that the district court erred by denying their motion to suppress the evidence found in the suitcases. We disagree.

A number of courts confronted with the issue of the use of dogs trained in drug detection have held that the use of such dogs to sniff for the presence of controlled substances in luggage and other places does not constitute a search within the meaning of the Fourth Amendment. See, e. g., United States v. Klein, 626 F.2d 22, 26-7 (7th Cir. 1980) (cocaine detected in suitcases at airport); United States v. Sullivan, 625 F.2d 9, 13 (4th Cir. 1980) (PCP detected in suitcases at airport); United States v. Venema, 563 F.2d 1003, 1005-6 (10th Cir. 1977) (LSD, marijuana and hashish detected in rental locker at storage company); United States v. Solis, 536 F.2d 880, 882 (9th Cir. 1976) (marijuana detected in semi-trailer); United States v. Bronstein, 521 F.2d 459, 461 (2d Cir.), cert. denied, 424 U.S. 918, 96 S.Ct. 1121, 47 L.Ed.2d 324 (1975) (marijuana found in suitcases at airport). Appellants urge this Court to interpret those cases as requiring at least a reasonable articulable suspicion before a suspected drug courier's luggage may be sniffed; however, we decline to apply such an interpretation for the following reasons.

First, Zeke's sniffing around the exterior of Kern and Goldstein's bags was not an intrusion into an area protected by the Fourth Amendment. We recognize that, when airport security is not involved, every passenger who has luggage checked with an airline enjoys a reasonable expectation of privacy that the contents of that luggage will not be exposed in the absence of consent or a legally obtained warrant. ⁶ See Arkansas v. Sanders, 442 U.S. 753, 764, 99 S.Ct. 2586, 2593, 61 L.Ed.2d 235 (1978); United States v. Klein, supra, 626 F.2d at 26; United States v. Burns, 624 F.2d 95, 101 (10th Cir. 1980). But the passenger's reasonable expectation of privacy does not extend to the airspace surrounding that luggage. United States v. Venema, supra, 563 F.2d at 1005; United States v. Bronstein, supra, 521 F.2d at 461. ⁷ It is undisputed that, had one of the DEA agents through the use of his olfactory sense detected the odor of the controlled substances in the suitcases, a...