U.S. v. Gomez

• Decision Date: 28 December 1979
• Docket Number: No. 78-3516,78-3516
• Citation: 614 F.2d 643
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Angela Luz GOMEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 643

614 F.2d 643

UNITED STATES of America, Plaintiff-Appellee, v. Angela Luz GOMEZ, Defendant-Appellant.

No. 78-3516.

United States Court of Appeals Ninth Circuit.

Dec. 28, 1979.

Rehearing Denied March 17, 1980.

Carl E. Stewart, Newport Beach, Cal., Charles D. Edelstein, Miami, Fla., for defendant-appellant.

J. Stephen Czueleger, Asst. U. S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before CHAMBERS and HUG, Circuit Judges, and INGRAM, ^* District Judge.

CHAMBERS, Circuit Judge:

Appellant was tried by the court on two counts of violation of the narcotics laws after the denial of her motion to suppress evidence. Her appeal from the conviction raises issues related only to the denial of the motion to suppress.

A Dade County detective assigned to the Miami International Airport saw a suitcase that appeared to have fallen from a National Airlines conveyor belt in back of its ticket counter. It had no identification on it. He notified the airline's shift supervisor who made inquiries at the ticket counter. When no one could be found who could identify the suitcase, the supervisor took the suitcase to an office, accompanied by the officer who had found it and also by another officer who happened to be in the vicinity. The supervisor proceeded to open the suitcase to determine the identity of the owner, but when he had difficulty with a lock, one of the officers said that it merely needed to be tapped. The officer tapped or kicked the mechanism and it released the lock. The airline supervisor then continued the process of opening the bag. When the supervisor lifted the lid he and the officers immediately saw a revolver and many small packages wrapped in contact paper. The supervisor turned the suitcase over to the police. Their further search (now prompted by discovery of the gun) disclosed that the packages contained 23 pounds of 70% cocaine, having a street value in the millions of dollars.

Nothing in the interior of the suitcase indicated who the owner was. But appellant reported a lost suitcase which matched the description of this one, and when a controlled delivery was made in Los Angeles (to which she had flown on the day of the loss), she was arrested.

The district judge found specifically that the suitcase had no exterior identification and that it was opened by an airline employee "for the purpose of determining its ownership." The officers testified that they never suggested opening the suitcase and that they were aware that it would be improper to make such a suggestion. Their testimony remained unshaken on cross-examination. The shift supervisor testified that the decision to open the suitcase was his, and his alone. He stated that he was acting in furtherance of his airline's policy of attempting to reunite lost luggage with the passengers as quickly as possible and, when necessary, opening suitcases to determine ownership. He testified that fast action of this sort obviates time-consuming and expensive procedures of tracing passengers, often to very distant locations. He described the cooperation between airlines in this regard, including exchange of information as to the identity of incoming and outgoing passengers. In summary, the evidence supports the district judge's finding as to motivation for the search and his finding that the decision to open the suitcase was that of the airline supervisor.

A carrier's search, on its own initiative, for its own purposes, is normally considered a private (and not a governmental) search, and thus not one giving rise to Fourth Amendment protections. United States v. Ogden, 485 F.2d 536, 538-9 (9th Cir. 1973); see United States v. Gumerlock, 590 F.2d 794 (9th Cir. 1979). There is nothing unreasonable about permitting a carrier, when faced with lost luggage that bears no identification, to open the luggage in an attempt to identify the owner. The search by airline personnel of luggage left in the public baggage room at an airport has been held to be a private search. United States v. Blanton, 479 F.2d 327 (5th Cir. 1973); United States v. De La Fuente, 548 F.2d 528 (5th Cir. 1977). Similarly, searches by motel or hotel employees of luggage left in rooms have been held to be private searches. United States v. Wilson, 472 F.2d 901 (9th Cir. 1973); United States v. Harless, 464 F.2d 953 (9th Cir. 1972).

The evidence supports the district judge's finding that the decision to initiate the search was that of the airline employee, and his implicit conclusion that it was a private search when it was initiated. Appellant suggests that it thereafter became a governmental search by the presence of the officers and their observation of the airline employee's actions. We reject that contention. See United States v. Entringer, 532 F.2d 634 (8th Cir. 1976); United States v. Pryba, 163 U.S.App.D.C. 389, 502 F.2d 391 (D.C.Cir.1974). But in this case there was more than mere observation. One of the officers tapped the suitcase and thus assisted the airline employee, at least to that extent. Given the express findings of the district judge as to the motivation for the search, and his finding that the suitcase was opened by the airline employee pursuant to that motivation, we are not inclined to hold that this slight "participation" by the officer converted the clearly private search into a governmental one. The officers testified that they were present out of an interest in helping the airline and they were admittedly curious. The record contains no evidence that even suggests that they had information to suspect that the suitcase contained contraband and there is no evidence to suggest that they knew the owner. We are not disposed to hold, on the facts of this case, that their presence and conduct constituted the search a governmental one, so as to bring into play the exclusionary rule.

We do not accept appellant's analogy of this case to that in Corngold v. United States, 367 F.2d 1 (9th Cir. 1966), where F.B.I. agents were found to have asked the airline employee to open a box and then assisted in holding back the flaps as he did so. Nor can we accept appellant's analogy in United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977), which involved the governmental search of a footlocker made shortly after the arrest of the owner, but without a search warrant. Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979), decided since the briefing in this case, is similarly not analogous. Like Chadwick, it is directed to a police search of a suitcase of someone who was identified in advance as a suspect. This was obviously not the situation here. The facts of this case are clearly distinguishable. The other issues raised by appellant are without merit.

Affirmed.

HUG, Circuit Judge, dissenting:

I dissent. In my opinion the initiation of the search of the suitcase and the participation in that search by the government law enforcement officers does not permit us to characterize the search as a private search outside the restrictions of the Fourth and Fourteenth Amendments. A review of the undisputed facts adduced at the suppression hearing establishes the extensive involvement of the law enforcement officers.

Officers William Johnson and Fred Stadtler were detectives with the Organized Crime Bureau of Narcotics, Investigation Section employed by Dade County, Florida. They were assigned to work in the Miami International Airport to investigate interstate transportation of narcotics. On the evening of March 31, 1979 at about 8:30 or 8:45 p. m., Detective Johnson observed a suitcase up against the National Airlines ticket counter on the rear side at the very end of the counter. (TR 21-22). ¹ The bag was located about 10 to 15 feet from the entrance of the conveyer belt that transported baggage to the baggage makeup area. (TR 21) He observed the suitcase for about 15 minutes, noting that it bore no identification nor any destination tag. When no one approached the suitcase during this time he then interviewed three National Airline ticket counter employees who were working at their stations behind the counter. (TR 22) The ticket agents did not know to whom it belonged nor had they seen anyone put it there. There is no indication that Detective Johnson suggested to them that they follow normal procedures to see that the bag was placed on the flight with the owner.

Instead, Detective Johnson went to the office of Peter Johnson, the Senior Station Manager of National Airlines, who is the supervisor of the 45 employees involved in the checking and ticketing of passengers, to report the lost bag to him. In his testimony, the station manager stated that Detective Johnson "told me he had seen a bag which had been placed at the end of my counter by someone and had been sitting there for quite some time apparently unattended and that it had no identification on the outside or no strap check indicating destination city on the back, and just brought it to my attention." (TR 30)

The station manager stated that he was going to check into it; Detective Johnson told him he would go with him and watch. (TR 7) The station manager, Peter Johnson, evidencing a remarkable concern for this one unidentified bag, then personally went with Detective Johnson to the counter to see the bag. He there questioned the employees who stated they had no knowledge about the bag.

Detective Johnson carefully advised station manager Johnson "that I wasn't trying to influence anything that he wanted to do, simply telling him that the bag was there." (TR 8) Detective Stadtler then joined them. The station manager took...