U.S. v. Johnson

• Decision Date: 17 December 1987
• Docket Number: No. 86-3763,86-3763
• Citation: 834 F.2d 1191
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Richard JOHNSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1191

834 F.2d 1191

UNITED STATES of America, Plaintiff-Appellee, v. Richard JOHNSON, Defendant-Appellant.

No. 86-3763.

United States Court of Appeals, Fifth Circuit.

Dec. 17, 1987.

Kyle Schonekas, Marc D. Winsberg, New Orleans, La. (court-appointed), for defendant-appellant.

Lawrence Benson, Peter G. Strasser, Asst. U.S. Attys., John P. Volz, U.S. Atty., New Orleans, La., for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before REAVLEY, JERRE S. WILLIAMS and HIGGINBOTHAM, Circuit Judges.

JERRE S. WILLIAMS, Circuit Judge:

This case involves a warrantless search of a zipper-like briefcase by Postal Inspectors during the detention and interrogation of a mail carrier. The Inspectors found evidence during this search upon which the mail carrier was indicted and convicted of embezzlement of mail. The district court denied the defendant's motions to suppress this evidence found during the search of the briefcase. We reverse, finding that this was not a valid warrantless search incident to an arrest.

I. Factual Background

Appellant Richard Johnson, a mail carrier at the Harvey, Louisiana, Branch of the United States Post Office, was being investigated for embezzlement of mail in violation of 18 U.S.C. Sec. 1709. Someone on Johnson's route had reported that she had never received several packages that had been mailed to her. On January 17, 1986, Postal Inspectors prepared a decoy letter containing silver coins and addressed to "Rare Coins, Inc." and deposited it along with an unrelated postcard in a collection box on Johnson's route. Johnson was observed removing the mail from this collection box on this day. When Postal Inspector Kuhn went through Johnson's collection mail upon Johnson's return to the post office, Kuhn found the postcard but not the decoy letter. Kuhn then inspected other areas in the post office where Johnson might have left the decoy letter but did not find it.

At this point, Inspector Kuhn radioed Inspector Mackert to stop Johnson before he left work for the day and to ask him to return to the post office for questioning. Mackert stopped Johnson as Johnson was about to enter his car. Mackert identified himself, showed Johnson his credentials, and asked Johnson to accompany him inside for questioning. Johnson voluntarily agreed to go inside. Inspector Mackert later testified that he heard the sound of silver coins jingling in Johnson's pocket as the two walked inside. Inspector Kuhn joined Mackert and Johnson in the branch manager's office for the questioning. Johnson asked if he was under arrest. Kuhn replied that he was not under arrest at that time. Kuhn read a "Warning and Waiver of Rights" form to Johnson, and Johnson signed it. Also at this time, Inspector Mackert gave a pat down inspection of Johnson as a safety precaution although neither Inspector had reason to suspect that Johnson was armed. No weapons were found in this pat down. Johnson later testified that he did not feel free to leave the room at this time.

Inspector Kuhn asked Johnson if he had any mail on his person. When Johnson said no, he was asked to empty his pockets. Johnson complied and produced the decoy letter from his back pocket. Johnson claimed he had dropped this letter earlier in the day and had placed it in his pocket intending to put it in the collection tray. At this point, the evidence shows that the Inspectors' disposition toward Johnson became much harsher. Inspector Kuhn spoke sternly to Johnson and ordered him to sit down. Kuhn also undertook a more thorough search of Johnson's person.

Johnson had a small zipper-like briefcase in his possession. Evidently, Johnson reached for the briefcase, telling the Inspectors he wanted a cigarette. Inspector Mackert took possession of the briefcase over Johnson's objections. Johnson apparently made a motion toward the briefcase as Mackert grabbed it and told Mackert that he could not go through the briefcase. It is not clear whether Inspectors Mackert and Kuhn reasonably believed the briefcase to be government property. Johnson apparently said it was government property but also said it was his personal briefcase and contained personal items and union papers. Johnson was a union representative, and he said the briefcase contained information relating to potential worker grievances. Inspector Kuhn authorized Mackert to search the briefcase over Johnson's objections. Inspector Mackert asserted an intent to look for weapons in the briefcase. Inspector Kuhn left the room at this time to call a government attorney. Inspector Mackert then conducted a thorough search of the briefcase and found the letter addressed to Anita Self which later became the subject of Count 2 of Johnson's indictment. Inspector Kuhn was not present during the search of the briefcase.

When Inspector Kuhn returned to the room he requested that Johnson consent to a search of his car. Johnson agreed and signed a consent waiver. Johnson's car was searched but no further evidence was discovered. The Inspectors then required Johnson to accompany them to the Main Post Office in New Orleans where Johnson was fingerprinted and photographed. Johnson was permitted to leave after that.

Johnson was subsequently indicted on two counts of embezzlement of mail under 18 U.S.C. Sec. 1709. The first count involved the decoy letter, and the second count involved the letter addressed to Anita Self. Johnson's trial counsel moved the district court to suppress both letters, claiming both were obtained as the result of an illegal search. The district court denied this motion. The court also denied appellant's motion for reconsideration of its denial of suppression of the Anita Self letter. A jury acquitted Johnson on the first count but convicted him on the second count. Johnson is appealing the district court's denial of his suppression motions as to the Anita Self letter.

The ultimate issue in this case is whether the district court properly denied Johnson's motions to suppress the Anita Self letter--the letter which formed the basis of Count 2 of Johnson's indictment. Because there was no search warrant, the government has to justify the search of Johnson's briefcase under one of the warrantless search exceptions. Three of these exceptions have been put forward by the government or the district court at some point in the proceedings. ¹ The only exception urged by the government in this appeal, however, is the search incident to an arrest exception. We confine our discussion to this one claim.

II. Was there a valid arrest?

18 U.S.C. Sec. 3061(a)(3) authorizes Postal Service officials to "make arrests without warrant for felonies cognizable under the laws of the United States if they have reasonable grounds to believe that the person to be arrested has committed or is committing such a felony." This Court has held the "reasonable grounds" requirement under 18 U.S.C. Sec. 3061(a)(3) to be the equivalent of "probable cause." United States v. Gibson, 462 F.2d 400, 402 (5th Cir.1972). The Supreme Court has recognized that "Congress enacted 18 U.S.C. Sec. 3061 to make clear that postal inspectors are empowered to arrest without warrant upon probable cause." United States v. Watson, 423 U.S. 411, 416 n. 4, 96 S.Ct. 820, 824 n. 4, 46 L.Ed.2d 598 (1976).

To establish probable cause for the Postal Inspectors to arrest Johnson, the Inspectors knew the following facts: (1) They had received a number of customer complaints about missing mail on Johnson's route. (2) Johnson had been seen to pick up the mail in the collection box in which the decoy letter was placed. (3) The planted postcard was found in the collection mail upon Johnson's return to the post office, but the decoy letter was not. (4) They had heard silver coins jingling in Johnson's pocket as he was escorted inside. (5) Johnson denied he had mail on his person, but upon being asked to empty his pockets he pulled the decoy letter from his pocket.

Probable cause for an arrest exists where the facts and circumstances within the knowledge of the arresting officer, and of which he has reasonably trustworthy information, are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed. Draper v. United States, 358 U.S. 307, 313, 79 S.Ct. 329, 333, 3 L.Ed.2d 327 (1959); United States v. Ashcroft, 607 F.2d 1167, 1170 (5th Cir.1979), cert. denied, 446 U.S. 966, 100 S.Ct. 2944, 64 L.Ed.2d 826 (1980); United States v. Williams, 594 F.2d 86, 91 (5th Cir.1979). The record before this Court clearly indicates that the Inspectors had "probable cause" to arrest Johnson. United States v. Roberson, 650 F.2d 84, 86 (5th Cir.1981), cert. denied, 454 U.S. 1100, 102 S.Ct. 675, 70 L.Ed.2d 642 (1981).

The inquiry now becomes whether Johnson actually had been arrested at the time his briefcase was searched. The Inspectors' disposition toward Johnson clearly became more hostile after the discovery of the decoy letter in Johnson's pocket. The government now claims that at that time the detention of Johnson was transformed into an arrest. The government asserts that Inspector Kuhn's prior statement denying that Johnson was under arrest, the fact that Johnson was never told specifically he was under arrest, and the fact that Johnson was later released after fingerprinting are not determinative of the existence of a custodial detention that constituted an arrest for Fourth Amendment purposes. The government is correct in asserting that an "arrest" does not require a specific procedure and a statement that the subject is under arrest. Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979) (a case which, ironically, discusses whether a custodial questioning rose to the level of an arrest thereby requiring probable cause in order to protect a defendant's Fourth Amendment rights); United States v. Morin, 665 F.2d 765 (5th Cir.1982); United States...