U.S. v. Henry
| Decision Date | 22 February 1980 |
| Docket Number | No. 79-1121,79-1121 |
| Citation | 615 F.2d 1223 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Patrick G. HENRY, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Ronald W. Sommer, Tucson, Ariz. (argued), for defendant-appellant; Harold I. Glaser, Baltimore, Md., on brief.
Dale Danneman, Tucson, Ariz. (argued), for plaintiff-appellee; Michael D. Hawkins, U. S. Atty., Tucson, Ariz., on brief.
Appeal from the United States District Court for the Central District of Arizona.
Before DUNIWAY, PECK *, and HUG, Circuit Judges.
The appellant, Patrick G. Henry, was convicted for knowingly delivering a briefcase in which there was a firearm to a common carrier (American Airlines) for shipment in interstate commerce without giving written notice, in violation of 18 U.S.C. §§ 922(e) and 924(a). The case principally involves the validity of an airport search of a passenger's briefcase, the specific application of the federal statute regulating the interstate transportation of firearms, and the pretrial delay in prosecution of the appellant.
The contentions the appellant urges on appeal are: (1) that the search of his briefcase was unlawful, (2) that his arrest was illegal, (3) that his Sixth Amendment speedy trial rights were violated, and (4) that he comes within an exception to the criminal statute he was charged with violating. Having carefully considered these contentions, we find no error which requires a reversal, and we therefore affirm the conviction.
On December 6, 1977, at approximately 11:30 A.M., Henry, using the name Donald Vester, approached ticket agent Eugene Zarr at the American Airlines counter at the Tucson International Airport. Henry held a ticket for a night flight from Tucson to Dallas. He requested Zarr to upgrade the ticket so he could take a day flight to Dallas, leaving at 11:55 A.M. that morning. The only baggage Henry had with him was a briefcase, which he gave to the agent to be checked onto the plane.
After the agent had attached the baggage check to the briefcase, Henry asked for the briefcase back, saying that he needed something from it. Zarr returned the briefcase, and Henry took it with him to the men's room.
This act, coupled with the facts that Henry was wearing an ill-fitting wig and a "couple of sets of clothes," and that he appeared to be very nervous, aroused Zarr's suspicions. While Henry was gone with the briefcase, Zarr reported these events and his observations to his supervisor, Eugene Weber. Weber, who was concerned that the briefcase might contain an explosive device, told Zarr that when Henry returned with the briefcase Zarr should tell Henry that the airline had closed the luggage acceptance for that flight at the ticket counter, and that Henry should take the bag to the gate, where it could then be loaded onto the plane as checked baggage. 1 The purpose of telling this to Henry was so that the briefcase would pass through the x-ray scanner as Henry proceeded to the gate.
When Henry returned, and again presented the briefcase for check-in, Zarr told him this story. Henry protested that he wished to have the bag checked and did not want to carry it on board the plane. Zarr repeated that he would have to have it checked at the gate. Henry then took the briefcase and went to the security check-point. The security agent ran the briefcase through the scanner twice. She saw some dark objects but could not determine what was in the briefcase, so she asked the defendant to open it. Henry told her the briefcase contained "tools and stuff," and that he did not have the key to open it. The police officer at the check-point came over at this point and told Henry that if he would not open the briefcase, Henry would have to take it back to the ticket counter and check it through as baggage. Henry returned with the briefcase to the ticket counter and informed Zarr of what had occurred at the check-point. Henry also told Zarr that he did not have the key to open the briefcase. Zarr then took the briefcase and told Henry that he would get his supervisor (Weber), and that Henry should meet them at the check-point.
When Zarr and Weber arrived at the check-point Henry had already gone to the gate area where the flight for Dallas was boarding. Zarr and Weber left the briefcase at the check-point and went to the gate to talk with Henry.
Weber told Henry that unless he was willing to open the briefcase he could not take it to Dallas with him. Henry insisted that he wanted the briefcase checked, and Weber again told him the briefcase could not be transported unless it was opened for inspection. When Henry stated he did not have the key to open it, Weber told Henry he did not believe him. Weber informed Henry that Weber could open the bag either by using a key American Airlines had or by forcing it open, and that he would do so with a policeman present to ensure that nothing was stolen from the briefcase. At this point Henry said, "I've got to have that bag in Dallas. Okay." Henry then turned away and boarded the plane.
Zarr returned to the ticket counter while Weber went to inform George Boiko, the manager of airport services for American Airlines in Tucson, of what had taken place. Boiko went with Weber back to the check-point, where the briefcase still remained, unopened. Boiko and Weber each looked at the screen while the briefcase was passed through the scanner. The security agent also took another look. The only object they could identify was a pair of pliers, although the security agent said she thought there might be a gun inside.
Boiko and Weber and one of the airport security policemen took the briefcase down to the American Airlines' baggage service office to open the briefcase and determine its contents. They were able to open one latch of the briefcase with a key, but were unable to open the other latch. After prying up the unlocked end, they saw what appeared to be a string. Fearing that it might be a fuse or part of an explosive device, they discontinued their efforts to open the briefcase.
The briefcase was placed outside in a bomb bucket 2 by the Tucson Airport Authority police. The Pima County Sheriff Department bomb squad was then notified. Two men from the bomb squad arrived and first checked the briefcase for sound by using an electronic stethoscope. No noise from a mechanism was detected. This was done while awaiting the arrival of two dogs trained to detect explosives. The two dogs were led near the bomb bucket, and they reacted in such a manner as to indicate that there was something of an explosive nature in the briefcase. When the briefcase was finally opened, a metal box was found inside which contained a loaded revolver. The dogs were trained to respond to the type of powder contained in the cartridges of the bullets. A hunting knife, some tools, and some firecrackers were also found inside the briefcase.
After this discovery the FBI was notified. On his way to the airport, Agent Donn Sickles contacted Assistant United States Attorney Daniel Knauss, and relayed the information he had received from the airport authorities. Sickles received more information after arriving at the airport, and he again called Knauss. The information Sickles received was that Henry had attempted to board the aircraft with a weapon. This was erroneous, because Henry was attempting to check the briefcase as baggage. At this time Knauss authorized the arrest of Henry.
Sickles telephoned all of this information to Dallas. Frank Ramirez, a police officer, told FBI Agent Steve Rand, who was stationed at the Dallas-Fort Worth Airport, the facts Sickles had communicated to Dallas. Rand located Henry arriving at the airport and immediately took him to an interview room. Rand called Sickles to obtain more details. He was advised that the defendant had attempted to board the plane with a briefcase in which a gun and some burglary tools were found, and that the United States Attorney's Office in Tucson had authorized an arrest. Rand called the United States Attorney's Office in Dallas to obtain another prosecutor's opinion. That office also authorized an arrest. Henry was then formally arrested and taken to county jail in Forth Worth.
It was not until later that any of the federal officials involved learned that Henry had attempted to check the briefcase and had proceeded to the check-point only because he had been told by American Airlines personnel to do so to check the bag.
On December 7, 1977, Henry was charged by complaint, in the United States District Court for the District of Arizona, with violating 18 U.S.C. § 922(e). This complaint was dismissed at the request of the Government on December 19, 1977.
Henry was indicted in the Superior Court of Arizona in and for Pima County for attempted murder on March 9, 1978. The State of Arizona, through its Governor, commenced extradition proceedings against Henry on March 17, 1978, and notified the Governor of Maryland 3. On August 16, 1978, while Henry was challenging the extradition in the Maryland state courts, he was indicted by a federal grand jury in Arizona for the violation of section 922(e) and the penalty provision, section 924(a). Henry was arrested, as a result of this indictment, on a warrant of removal in the District of Maryland. After an appearance before a magistrate, Henry was released on an unsecured bond of $25,000. On October 26, 1978, he appeared in the United States District Court for the District of Arizona for the purpose of arraignment. Upon completion of the arraignment, as he was leaving the courtroom, Henry was arrested by Pima County authorities pursuant to the pending state charges.
Henry pleaded not guilty to the federal charges. He filed a motion to suppress on the ground that the search of his briefcase...
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