U.S. v. Jennings, 79-5254

• Decision Date: 22 June 1981
• Docket Number: No. 79-5254,79-5254
• Parties: UNITED STATES of America, Appellee, v. Hank JENNINGS, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 107

653 F.2d 107

UNITED STATES of America, Appellee, v. Hank JENNINGS, Appellant.

No. 79-5254.

United States Court of Appeals, Fourth Circuit.

Argued Feb. 6, 1981.

Decided June 22, 1981.

Leo I. Fox, Chicago, Ill., for appellant.

Sara Criscitelli, Washington, D. C. (Justin W. Williams, U. S. Atty., Nash W. Schott, Asst. U. S. Atty., Kevin R. Sullivan, Sp. Asst. U. S. Atty., Alexandria, Va., on brief), for appellee.

Before HAYNSWORTH, Senior Circuit Judge, PHILLIPS, Circuit Judge, and MICHAEL ^*, District Judge.

HAYNSWORTH, Senior Circuit Judge:

The question is whether a governmental agent was sufficiently involved in the search of a package in the possession of American Airlines in Chicago as to bring into play the prohibition of the Fourth Amendment and the exclusionary rule. After a suppression hearing, the district judge held that he was not, and we agree.

Immediately after picking up a package addressed to him at Washington National Airport in the Eastern District of Virginia, the defendant was arrested and later convicted of possession with the intent to distribute preludin, an amphetamine, in violation of 21 U.S.C. § 841(a)(1) and of unlawful use of a facility in interstate commerce with the intent to distribute preludin in violation of 18 U.S.C. § 1952(a)(3). The arrest and the subsequent conviction were dependent upon information obtained during an earlier search of the package in O'Hare Airport at Chicago.

At the trial, the defendant unsuccessfully sought to have excluded the pills, the package and the testimony regarding the Chicago search. On appeal, the question is whether the Chicago search was indeed in violation of his Fourth Amendment right.

I.

In early March 1979, agents of the Drug Enforcement Administration in Chicago received an anonymous tip that a Mary Jennings was sending illegal drugs from Chicago to her husband, the defendant, in Washington, D. C. On March 4, Whittington, one of those agents, passed on that anonymous tip to Herbert Briik, chief of security for American Airlines in Chicago, and to the Priority Parcel Service of American Airlines. An investigation by American Airlines disclosed that it had recently transported a package delivered to it in Chicago by Mary Jennings and delivered by it at the Washington National Airport to Hank Jennings.

On April 20, 1979, Briik was notified by the Priority Parcel Service of its receipt of a package from Mary Jennings for shipment to the defendant in Washington, D. C. Briik had the sealed package brought to his office. Its size and shape were that of a shoe box, and Briik was informed that the sender had declared the contents to be a pair of shoes. Briik's suspicions were aroused because he thought it highly unlikely that a sender would pay $29 to American Airlines for transportation of a pair of shoes to be picked up by the addressee at Washington National Airport or for delivery at a substantial additional charge to the addressee in the District of Columbia. What he observed was consistent with the earlier anonymous tip of which he had been informed.

Briik decided to open the package. Before doing so, however, he telephoned Agent Whittington and invited him to be present when the package was opened. He did so, he said, because he wanted the presence of someone familiar with contraband drugs and capable of performing an immediate field test. Briik had been an FBI agent for twenty-years before he joined American Airlines as its security manager in Chicago, but he had not handled drug cases, and he did not have the means of performing field tests. Briik was also concerned about the obligation of American Airlines to send the package on the next flight to Washington National Airport if the contents of the package were not contraband. Speedy identification of the contents of the package was necessary.

Whittington, who had an office at O'Hare Airport, arrived at Briik's office approximately fifteen minutes after the telephone call. In his presence, Briik then opened the package, removed the top of the shoe box and discovered the contents were not shoes but pills. A field test was then performed by a governmental agent which indicated that the pills were preludin. The package was then resealed and sent by the next American Airlines flight to Washington National Airport, where it was picked up by the defendant.

II.

It is clear that there was governmental involvement in the search to the extent that it was prompted by communication to Briik and the Priority Parcel Service of the anonymous tip the DEA agent received in March, and to the extent that the DEA agents actually participated in the search after they had been summoned by Briik on April 20. There is some slight uncertainty in the record about the extent of that participation, however. Whittington testified to his purely passive presence until after the package had been opened and its contents had been seen to have been pills. It is undisputed that a DEA agent performed the field test on one of the pills, which disclosed it to be contraband. Briik had been very positive in his testimony that he alone decided to open the package, a decision he had made before he telephoned Whittington, but at one point in his testimony he responded "He did" when asked by the prosecutor whether any governmental agent had told him to open the package.

The district judge made no formal findings of fact after conclusion of the suppression hearing, but in an extensive colloquy with counsel, he repeatedly stated that Briik was acting on his own. Immediately after explicitly stating that Briik acted without any "suggestion or request from the government," the transcript indicates that he said "American Airlines admitted they opened it without the aid but a suggestion from the government." The sentence makes no sense unless "of" was mistranscribed as "but."

We cannot read that one inexplicable sentence as a finding that a DEA agent ordered, requested or suggested that the package be opened. To do so would be inconsistent with other clear and emphatic statements of the district judge. Indeed, Briik's reported answer to the question about governmental direction is substantially inconsistent with his statement that he alone decided to open the package and conduct the search. Moreover, that answer seems to have escaped the notice of everyone. The questioning of Briik moved immediately to other things and there was no later reference to it by any witness, by court or by counsel.

If there were any reasonable doubt about the findings of the district judge, the doubt should be resolved in favor of the United States, for the district judge denied the suppression motion. We held in United States v. Bethea, 598 F.2d 331 (4th Cir. 1979), that when, after a suppression hearing, a district judge is not requested to make findings of fact and makes none, we would adopt any reasonable view of the evidence, viewed in the light most favorable to the government, which would support the suppression denial. Considering all of the colloquy between court and counsel, however, we are left with no substantial doubt that the district judge found that the search was not prompted by any suggestion from any governmental agent.

III.

Everyone knows that the constraints of the Fourth Amendment apply only to the United States and its officers and agents and, through the Fourteenth Amendment, to the states and their officers and agents. The restraints apply to governments and not to private individuals. If a private person searches a package he may commit a civil wrong, for which he may be responsible in damages to the owner, but he has not violated the Constitution.

The exclusionary rule is fashioned to enforce and supplement constitutionally protected rights. It was never designed to rectify private wrongs. Hence, if the Chicago search was Briik's and not Whittington's, the evidence of it was properly admitted during the defendant's trial.

A governmental agent may not avoid constitutional restraints upon his conduct by procuring a private individual to perform a forbidden act for him. If Whittington had instigated the search and it had been done to serve...