U.S. v. Issod

• Decision Date: 14 April 1975
• Docket Number: No. 74-1367,74-1367
• Citation: 508 F.2d 990
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Stephen M. ISSOD, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 990

508 F.2d 990

UNITED STATES of America, Plaintiff-Appellant, v. Stephen M. ISSOD, Defendant-Appellee.

No. 74-1367.

United States Court of Appeals, Seventh Circuit.

Argued Nov. 8, 1974.

Decided Dec. 20, 1974, Certiorari Denied April 14, 1975, See

95 S.Ct. 1578.

Ivan Michael Schaeffer, Atty., Crim., Dept. of Justice, Washington, D.C., William J. Mulligan, U.S. Atty., Milwaukee, Wis., for plaintiff-appellant.

William M. Coffey and William Burke, Milwaukee, Wis., for defendant-appellee.

Before MARIS, Senior Circuit Judge, ^* HASTINGS, Senior Circuit Judge and TONE, Circuit Judge.

TONE, Circuit Judge.

The government appeals from an order of the District Court suppressing evidence.

Defendant Stephen M. Issod was indicted for knowingly and intentionally possessing with intent to distribute approximately 83 kilograms of marijuana in violation of 21 U.S.C. 841(a)(1). His motion to suppress the marijuana on the ground that it had been seized in violation of his Fourth Amendment rights, supported solely by a stipulation of facts, was granted by the District Court. Unites States v. Issod, 370 F.Supp. 1110 (E.D.Wis.1974). The following facts appear from the stipulation:

On February 2, 1972 at approximately 5:25 P.M. one Linda Silverstein appeared at the United Airlines Air Freight Terminal at the San Diego International Airport driving a van containing two trunks, weighing a total of 215 pounds. She turned the trunks over to the freight agent, consigning them to herself at an address in Madison, Wisconsin, with a notation to hold for pick up at Milwaukee airport, and received a copy of the treight bill.

Almost an hour later, at 6:20 P.M., the freight agent, according to the stipulation 'summoned' Agent C. J. McLaughlin of the California Bureau of Narcotics to the United Freight Terminal. At some point the freight agent opened one of the trunks and discovered what he suspected was marijuana. It is impossible to determine from the stipulation whether this occurred before or after McLaughlin arrived. The stipulation, after relating what the freight agent told McLaughlin about the delivery of the trunks, goes on as follows:

'The air freight agent informed Agent McLaughlin that he was suspicious of Miss Silverstein due to the fact that she was reluctant to give him an address in Madison, Wisconsin, and appeared extremely nervous throughout the whole transaction. The freight agent then (When? After he became suspicious or after informing Agent McLaughlin that he had been suspicious?) opened one of the foot lockers and found that it contained what he believed to be kilo bricks of marihuana. When the agent checked the contents of the foot locker and the trunk, he verified that it did in fact contain 88 kilos of marihuana.'

Five kilos of the marijuana were 'retained as evidence in San Diego' by McLaughlin. The remaining 83 kilos were 'allowed to proceed to Milwaukee,' in the trunks after McLaughlin had notified the San Diego and Milwaukee offices of the Federal Bureau of Narcotics and Dangerous Drugs of the shipment.

The trunks ¹ were flown by United to Milwaukee the next day and arrived there at about 4:50 P.M. They were unloaded from the airplane and escorted to the United Airlines Freight Terminal by Special Agent Richard L. Ripley of the Federal Bureau of Narcotics and Dangerous Drugs. They remained under continuous surveillance until the events of the following afternoon.

Late the next morning, February 4, a United Airlines agent at the freight terminal received a telephone call from a person whose voice was described by the agent as that of a young male. The caller inquired about the packages addressed to Linda Silverstein, and the agent responded that the packages had arrived. The caller then said that Linda Silverstein would be in the following day to pick them up. When the agent asked for the caller's name, 'he stuttered, then replied, 'this is her brother."

Shortly after 3:00 P.M. the same day, a BNDD agent observed a man and a woman subsequently identified as defendant and Linda Silverstein drive into a parking lot adjacent to the United Airlines Freight Terminal in a green Pontiac sedan, which they parked. They left the car and proceeded to the freight office, where defendant asked one of the airline employees for directions to the men's room. He then went to the men's room while Linda Silverstein proceeded to arrange to pick up the trunks. She handed the consignee memo for the two trunks to the freight agent, who went to the back of the office and informed BNDD Agent Streicher that 'the people for the Silverstein package were there.' Agent Streicher, dressed as a United Airlines employee, went to the front counter, handed the delivery invoice to Linda Silverstein, and asked her to sign the delivery receipt copy, which she did. He then asked 'what type of vehicle she had and she replied that she and the individual she was with were in a Pontiac sedan.' Agent Streicher told her to back the vehicle up to the dock, which she did. Defendant 'was waiting to assist in the loading of the packages' at the dock when they arrived. Agent Streicher helped defendant load one of the trunks into the car trunk, and then, with defendant in the rear seat and Agent Streicher outside the door, they proceeded to load the other trunk into the passenger compartment of the car. While they were thus engaged antoher BNDD agent and detectives of the Milwaukee Police Department 'converged on the vehicle,' and defendant and Linda Silverstein were placed under arrest. The agents and the Milwaukee Police Officers seized the two trunks and searched the vehicle and defendant. The present appeal concerns only the two trunks.

The admissibility of the evidence depends upon the validity of both the search in California and the seizure in Wisconsin. For reasons that will appear later, we are unable to determine on the record before us whether the California search was lawful. It is necessary to remand the case for the taking of evidence relating to that search, however, only if the Wisconsin seizure was valid. We accordingly consider the Wisconsin events first.

We assume for that purpose that the California search was not unlawful as to defendant, for if it were otherwise that would be the end of the matter. The information on which the federal agents and state officers acted in Wisconsin would be tainted and the Wisconsin seizure and search would therefore be unlawful. Wong Sun v. United States, 371 U.S. 471, 484-487, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Assuming, however, that defendant was not deprived of Fourth Amendment rights by the California search, the information of the BNDD agents in Wisconsin that the boxes contained contraband was not tainted, and they were entitled to act upon that information.

During the 22-hour period the boxes were under the federal agents' surveillance or control in Wisconsin before defendant and his companion arrived to take delivery, the agents could have obtained a warrant to search and seize the boxes. They could not, however, have obtained a warrant to arrest the person who would claim the boxes or to search the vehicle into which the boxes would be loaded, because they could not satisfy the Fourth Amendment's requirement of an affidvit 'particularly describing the place to be searched, and the person . . . to be seized' until those persons arrived to pick up the boxes. See Lowrey v. United States, 161 F.2d 30, 33 (8th Cir. 1947), cert. denied, 331 U.S. 849, 67 S.Ct. 1737, 91 L.Ed. 1858 (1947).

Furthermore, the agents were not 'obliged to intercept incipient criminality before the participation of others therein (could) be ascertained.' United States v. Pryba, 502 F.2d 391, 400 (D.C.Cir. 1974), cert. denied 419 U.S. 1127, 95 S.Ct. 815, 42 L.Ed.2d 828, 1975; United States v. Schrenzel, 462 F.2d 765, 775 (8th Cir. 1972), cert. denied, 409 U.S. 984, 93 S.Ct. 325, 34 L.Ed.2d 248 (1972); United States v. Sizer, 292 F.2d 596, 599 (4th Cir. 1961). They were entitled to allow the delivery to be completed before arresting the consignee and her confederates. See United States v. Johnson, 469 F.2d 973 (5th Cir. 1972); United States v. Canesco,465 F.2d 383 (5th Cir. 1972); United States v. Quinones-Alvarado, 464 F.2d 12 (5th Cir. 1972). Cf. also Hoffa v. United States, 385 U.S. 293, 310, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966).

The BNDD agents were therefore justfied in waiting until defendant, who was not the named consignee and who left Linda Silverstein to present the delivery receipt to the freight agent and to arrange to take delivery of the boxes while he went to the men's room, performed some unequivocal act with respect to the trunks, i.e., loading them into the car, before arresting him. By that time the trunks were in the car, and the search of the car was governed by Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), as applied in United...