U.S. v. Johnson

• Decision Date: 17 January 1979
• Docket Number: No. 77-5634,77-5634
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Dennis Michael JOHNSON, and Stephen Arthur Baldwin, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 147

588 F.2d 147

UNITED STATES of America, Plaintiff-Appellee, v. Dennis Michael JOHNSON, and Stephen Arthur Baldwin,

Defendants-Appellants.

No. 77-5634.

United States Court of Appeals, Fifth Circuit.

Jan. 17, 1979.

Juan E. Gavito, Asst. Federal Public Defender, Brownsville, Tex., Roland Dahlin, II, Federal Public Defender, Charles S. Szekely, Jr., Asst. Federal Public Defender, Houston, Tex., for Johnson.

Tony Martinez, Brownsville, Tex., for Baldwin.

J. A. Canales, U. S. Atty., George A. Kelt, Jr., John Patrick Smith, James R. Gough, Anna E. Stool, Asst. U. S. Attys., Houston, Tex., for plaintiff-appellee.

Appeals from the United States District Court for the Southern District of Texas.

Before TJOFLAT and HILL, Circuit Judges, and HIGGINBOTHAM ^*, District Judge.

TJOFLAT, Circuit Judge:

Stephen Arthur Baldwin and Dennis Michael Johnson were found guilty after a bench trial on both counts of an indictment charging possession and conspiracy to possess marijuana with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1), 846 (1976). The appellants' motion to suppress the marijuana was granted in part and denied in part. On this appeal, they contend it should have been granted in toto. We agree and reverse their convictions.

I

As the facts are important, we relate them in some detail. At approximately 5:00 a. m. on July 1, 1977, the appellants and one Juan Carlos Anzaldua ¹ entered the United States from Mexico at the Hidalgo, Texas, Port of Entry. Their car, a 1974 Plymouth Duster with Texas plates, was stopped at the border by Customs Inspector Don Whitson. At his request, the driver opened the trunk, whereupon Inspector Whitson detected the odor of marijuana and noticed marijuana seeds in and around the trunk latch. The occupants of the car were then searched. Baldwin produced a pilot's license and the key to room 136 of the Sheraton Motel, Harlingen, Texas. Baldwin said that he and Johnson had flown from Florida to visit Anzaldua but was otherwise reluctant to talk about his plane.

The license plate number and a description of the car were communicated to the Customs Patrol Office in McAllen, Texas, and a request for a "tailout" on the car was made, but that office advised that no patrol units were available near the Port of Entry to follow the car. The car and its occupants were released at approximately 5:25 a. m., and they left the Port of Entry. At approximately 5:45 a. m. the car was found at the Sheraton Motel in Harlingen by Customs Patrol officers dispatched by the McAllen office. The car and the motel were put under surveillance.

Meanwhile, Inspector Whitson had contacted the Federal Aviation Administration Flight Service Station at McAllen and determined that the only private plane from Florida then in the area had landed at the Harlingen, Texas, airport the day before. Several requests for an early refueling of that plane had been received. On the basis of this information, the plane was located at the airport and placed under surveillance by Customs Patrol officers.

The record does not indicate that any of the three defendants were seen again until 9:00 a. m. the same morning, when Johnson and Anzaldua came out of their motel room and started loading bags and suitcases into the trunk of the car. When they left the motel they were followed to the Harlingen airport. Shortly before they arrived, Baldwin (who, unbeknownst to the surveilling agents, had taken the motel courtesy car to the airport) was seen approaching the airplane to begin a preflight check. When Johnson and Anzaldua arrived at approximately 9:40, they parked the car with its trunk toward the side of the aircraft, and all three defendants began unloading luggage from the trunk and carrying it to the plane. After one white canvas duffle bag had been placed in the plane and a suitcase had been set on the ground near the plane, the Customs Patrol officers approached the defendants and identified themselves. They smelled the odor of marijuana emanating from the trunk of the car. They saw three more bags still in the trunk, one with a tear in its side, through which could be seen some brown paper covered with clear plastic a type of wrapping that the officers knew from experience was often used around bricks of marijuana. In response to the officers' questions, all three defendants disclaimed knowledge of who owned the luggage or what it contained. They also refused to consent to a search of the bags. They were placed under arrest and given the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

The Drug Enforcement Administration (DEA) was notified of the arrest at the airport, and at approximately 10:30 a. m. a DEA agent arrived and was briefed on the situation by the Customs Patrol officers. After consulting by telephone with the United States Attorney's office, the agent returned to the airplane and searched the white duffle bag, which was found to contain bricks of a substance later determined to be marijuana. This search occurred 45 minutes after the defendants had been arrested. The remaining bags were later searched, without a warrant, at the DEA office in Brownsville, Texas. A total of 195 pounds of marijuana was found in all the bags.

The district court held the stationhouse search of the luggage invalid under United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977), but upheld the search at the airport as a valid border search. Alternatively, it held the airport search justifiable under the automobile search exception, See Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), which it considered applicable to airplanes, Cf. United States v. Brennan, 538 F.2d 711, 721 (5th Cir. 1976) (noting analogy but declining to hold automobiles and airplanes legally equivalent for fourth amendment purposes), Cert. denied, 429 U.S. 1092, 97 S.Ct. 1104, 51 L.Ed.2d 538 (1977). We find we are unable to agree with either ground relied upon by the court below.

II

We consider first the automobile search rationale advanced by the district court. We agree with the court below that the agent had probable cause to search: marijuana seeds had been found in the car at the border, the trunk from which the duffle bag had been removed smelled of marijuana, and suspected marijuana wrappings could be seen through a tear in one of the suitcases. ² See United States v. Ogden, 572 F.2d 501, 502 (5th Cir. 1978) (odor of marijuana provides probable cause to search), Cert. denied,--- U.S. ----, 99 S.Ct. 564, 58 L.Ed.2d ---- (1978). If United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977), applies here, however, probable cause alone is not enough; a warrant was required before the luggage could be searched.

In Chadwick, the Supreme Court held unconstitutional the warrantless search of a locked footlocker that had been removed by federal agents from the trunk of a taxicab and taken downtown to the federal building before it was searched. The agents had probable cause to search, but their failure to obtain a warrant rendered the search invalid. The Court rejected the Government's invitation to fashion, by analogy to the automobile search cases, an exception to the warrant clause for personal luggage. The Court distinguished between the privacy interests one could reasonably have in the two types of "effects" and concluded that "a person's expectations of privacy in personal luggage are substantially greater than in an automobile." Id. at 13, 97 S.Ct. at 2484. Thus, "when no exigency is shown to support the need for an immediate search, the Warrant Clause places the line (between permissible and impermissible searches) at the point where the property to be searched comes under the exclusive dominion of police authority." Id. at 15, 97 S.Ct. at 2486.

The court below distinguished Chadwick on the basis that the duffle bag was loaded on an airplane fueled and ready for takeoff from an airport located near an international border. Since there remained some danger, in its view, that the baggage or its contents might be removed by possible associates of the arrested men, an immediate search was justified. We cannot agree. The facts of this case are that all the luggage was under the complete control of the Customs officers for forty-five minutes prior to the search. In Chadwick, the Court found that "(t)he initial seizure and detention of the footlocker . . . were sufficient to guard against any risk that evidence might be lost." Id. at 13, 97 S.Ct. at 2484-85. Once personal property of an arrestee has been reduced to the "exclusive control" of the arresting officers, an immediate search is no longer necessary or permissible. Id., 97 S.Ct. at 2485. ³ We think it clear that the duffle bag was in the exclusive control of the officers as soon as the pilot of the plane and his confederates had been arrested. See United States v. Schleis, 582 F.2d 1166, 1172 (8th Cir. 1978) (en banc) ("Ordinarily, the initial seizure at the time of arrest would be sufficient to place the property within the officer's exclusive control."); United States v. Stevie, 582 F.2d 1175, 1179-80 (8th Cir. 1978) (en banc). ⁴ At that point they could seize and immobilize the duffle bag but not search it. A contrary holding would encourage officers of the law to search luggage routinely at the time of arrest, a procedure manifestly in conflict with Chadwick's rationale. United States v. Schleis,582 F.2d at 1172. It is true that Chadwick involved a search removed in time and place from the point of arrest, but we refuse to confine the decision to its peculiar facts. Chadwick stands for the proposition that a warrantless search of personal property should be the exception and not the rule. Where, as here, the authorities are in control of the situation, they must obtain a warrant prior to searching...