U.S. v. Leffall, 95-2074

• Decision Date: 23 April 1996
• Docket Number: No. 95-2074,95-2074
• Citation: 82 F.3d 343
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Daniele M. LEFFALL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 343

82 F.3d 343

UNITED STATES of America, Plaintiff-Appellee, v. Daniele M. LEFFALL, Defendant-Appellant.

No. 95-2074.

United States Court of Appeals Tenth Circuit.

April 23, 1996.

Appeal from the United States District Court for the District of New Mexico; James A. Parker, Judge (D.C. No. CR 94-463-JP).

Teresa E. Storch, Assistant Federal Public Defender, Albuquerque, New Mexico, for Defendant-Appellant.

Rhonda Backinoff, Assistant U.S. Attorney (John J. Kelly, United States Attorney, with her on the brief), Albuquerque, New Mexico, for Plaintiff-Appellee.

Before ANDERSON, LOGAN and REAVLEY, ^* Circuit Judges.

LOGAN, Circuit Judge.

The single issue in this appeal is whether a police officer acting as a witness while an airline employee opens a package is sufficient to make the employee an instrument of the government requiring suppression of the evidence uncovered by the search. This is necessarily a fact-specific inquiry; but deciding the appeal also requires us to give more specific content to the applicable test stated in our prior cases.

Defendant Daniele M. Leffall entered a conditional guilty plea to possession of counterfeit securities, in violation of 18 U.S.C. § 513(a), reserving the right to take this appeal of the denial of his motion to suppress evidence. The district court accurately and thoroughly summarized the facts in its order denying defendant's motion to suppress. Because the facts are crucial to our determination and we cannot improve on the district court's statement we quote its order at length:

On July 23, 1994, Mr. Steve Wilkins, an air freight employee of Continental Airlines in Albuquerque, received several inquiries from the defendant [who identified himself to Mr. Wilkins as Kenny Hartfield] about a package the defendant was expecting to receive that day from Houston through Continental's air freight services. Mr. Wilkins testified that the defendant first inquired about the package in person at 2:45 p.m. on July 23. Defendant contacted Mr. Wilkins about the package a total of four or five times throughout the afternoon and evening either in person or by telephone. Despite Mr. Wilkins' requests for information about the package, the defendant could not provide any information to Mr. Wilkins regarding the air freight bill number or when the package was shipped from Houston.

When Continental's last flight from Houston on July 23 arrived at 9:30 p.m., Mr. Wilkins was on duty alone. He observed what he believed to be the package about which the defendant had made the numerous inquiries. The package was addressed to someone named Kenny Hartfield or Hatfield. It had been mailed from Houston at 4:45 p.m. that day, approximately two hours after the defendant's first inquiry about the package in Albuquerque. The air freight charge had been paid in cash. The package was a box about 14"' by 10"' by 4"' and was light in weight.

Although Mr. Wilkins did not find the box itself suspicious in nature, Mr. Wilkins decided he should open it when he saw the package was addressed to Kenny Hartfield or Hatfield. Mr. Wilkins testified that he had become suspicious of the contents because of the defendant's multiple inquiries, his unusually nervous appearance, and his inability to provide the air bill number in order for Mr. Wilkins to track the package. Mr. Wilkins stated that he personally and independently made the decision to open the package because he felt it contained some type of contraband or something illegal. He suspected that the contents were either some type of explosives that were not armed or drugs.

When asked whether he made the decision to open the defendant's package on behalf of his employer or on behalf of law enforcement agencies, Mr. Wilkins testified that he would open suspicious packages on behalf of his employer, Continental Airlines.

They are the ones that give me the authority to do that, to protect my airline and my airplanes and my cargo, my people. In other words, I don't want any contraband involved in my--in Continental Airlines whatsoever. I have been given the authority to make sure--or if I have suspicions, to bring those suspicions to light, to make sure that people are not shipping unlawful substances, whatever it might be.

Transcript of Motion Hearing held November 29, 1994, at p. 23. Mr. Wilkins also stated that he believed Continental Airlines had a policy directing an employee to open any package suspected of containing something dangerous to the safety of the airline's personnel or its passengers and that such a policy would include the responsibility to open a package that an employee thinks might contains drugs. Id. at 22. Mr. Wilkins did not present any written policy to this effect.

Before opening the package, Mr. Wilkins telephoned the airport police office which is located at the main terminal, a short drive from Continental's air freight services, and advised whomever answered the phone that he wanted someone to witness the opening of the package. Mr. Wilkins testified that he wanted a witness so that no one could accuse Mr. Wilkins of altering the contents of the box. Although Mr. Wilkins could have asked anyone to observe the opening of the package, he selected a law enforcement officer because no coworkers were present at the freight service office, and in any event he had to drive to the main terminal where the police office was located to find a witness. Mr. Wilkins then drove to the airport police office at the main terminal with the package and encountered Sergeant Phil Perez.

Mr. Wilkins testified that he told Sgt. Perez of his suspicions about the package and also informed Sgt. Perez that according to the air freight contract he, Mr. Wilkins, had the right to open the package. As a condition of using Continental Air Freight, an individual sender must sign an air freight contract which states that all shipments are subject to inspection by the carrier.... I made a factual finding that after Mr. Wilkins entered Sgt. Perez's office, Mr. Wilkins told Sgt. Perez that he, Mr. Wilkins, had the contract authority to open the package and showed the air freight contract to Sgt. Perez who looked at it, read it and agreed that it said that Mr. Wilkins did have the contract authority to open the package.

Sgt. Perez testified that the tape that sealed the box had already been opened when Mr. Wilkins first showed him the box and that Mr. Wilkins admitted that he had already opened the box but not the contents. Inside the box was an orange overwrap tied with a string that enclosed an unknown item.

After Mr. Wilkins placed this box on a counter, Sgt. Perez put his hands on the box, turned it around on the counter and satisfied himself that it did not contain a bomb or explosive device. Sgt. Perez testified that he then watched while Mr. Wilkins lifted the lid of the box, unsealed the overwrap and opened the sealed manilla envelope which was inside. Sgt. Perez testified that he did not open the box or touch the contents. Mr. Wilkins extracted what appeared to be a sheaf of papers from the manilla envelope and spread the papers out on the counter between Sgt. Perez and himself. While scrutinizing the papers on the counter, Sgt. Perez and Mr. Wilkins simultaneously realized that the papers were approximately forty identical sheets of Target payroll checks. Each sheet contained two payroll checks, one made out to Kenny Haetfield in the amount of $496.92 and the other made out to Wilma J. Childs in the amount of $487.38.

Sgt. Perez dispatched officer Debra Roach to accompany Mr. Wilkins with the package back to the Continental air freight office. When they arrived, the defendant was present. After the defendant took possession of the package and signed for it, Officer Roach took him into custody.

I R. doc. 31 at 1-5 (citations and footnotes omitted).

We review the district court's findings of fact determining the airline employee was not a government agent or instrument under a clearly erroneous standard. Pleasant v. Lovell, 974 F.2d 1222, 1226 (10th Cir.1992) (Pleasant II ). We consider the evidence in the light most favorable to the government, United States v. Short, 947 F.2d 1445, 1449 (10th Cir.1991), cert. denied, 503 U.S. 989, 112 S.Ct. 1680, 118 L.Ed.2d 397 (1992), but review de novo the ultimate question of constitutional law. United States v. Thody, 978 F.2d 625, 628-29 (10th Cir.1992), cert. denied, --- U.S. ----, 115 S.Ct. 273, 130 L.Ed.2d 190 (1994). Although the Fourth Amendment protects against unreasonable searches and seizures: it "proscrib[es] only government action; it is wholly inapplicable 'to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any governmental official.' " United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 1656, 80 L.Ed.2d 85 (1984) (quoting Walter v. United States, 447 U.S. 649, 662, 100 S.Ct. 2395, 2404, 65 L.Ed.2d 410 (1980) (Blackmun, J., dissenting)).

We have stated the applicable test to determine when a search by a private person becomes government action as a two-part inquiry, "1) whether the government knew of and acquiesced in the intrusive conduct, and 2) whether the party performing the search intended to assist law enforcement efforts or to further his own ends." Pleasant v. Lovell, 876 F.2d 787, 797 (10th Cir.1989) (Pleasant I ) (citations omitted). Both prongs of the test must be met before it is governmental conduct. Id.; Pleasant II, 974 F.2d at 1226. Only the second prong is at issue in the instant appeal, as the government concedes it knew of and acquiesced in the search.

After examining both the level of government participation and the searching party's motivation the district court ruled that Sergeant Perez was neither "a direct participant or an indirect encourager of the search," I R. doc. 31 at 10, that airline employee Wilkins acted "primarily to...