U.S. v. Rodriguez
| Decision Date | 13 April 1979 |
| Docket Number | No. 78-5108,78-5108 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Ramon RODRIGUEZ and Michael Buttigieg, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Richard G. Chosid, West Bloomfield, Mich., for defendants-appellants.
James K. Robinson, U. S. Atty., Detroit, Mich., Robert F. Helfand, Christopher A. Andreoff, Asst. U. S. Attys., Detroit, Mich., for plaintiff-appellee.
Before LIVELY and MERRITT, Circuit Judges, PHILLIPS, Senior Circuit Judge.
This is one of a growing number of cases in which evidence of crime has been discovered in the course of a search of baggage or parcels consigned to commercial carriers for shipment. 1 The issue is whether the District Court erred by denying defendants' motion to suppress narcotics which were discovered when employees of Emery Air Freight Co. opened a parcel delivered to Emery by defendant Rodriguez for shipment to defendant Buttigieg. Both defendants were convicted of conspiracy to possess narcotics with intent to distribute, 2 and Buttigieg was also convicted of the underlying substantive offense. 3 We affirm the convictions.
On May 13, 1976, Rodriguez delivered a package to the Emery Air Freight office in Los Angeles for shipment to Buttigieg in Detroit. Rodriguez appeared nervous in the Emery office. He hesitated when asked to note the contents of the package on the freight bill, and he was emphatic that the package be held at Emery's Detroit office for pick-up by Buttigieg. In the suppression hearing. Emery's Los Angeles agent testified that Rodriguez' behavior made him suspicious that the contents of the package might not be film equipment as stated on the freight bill. The Emery agent notified his supervisor of his suspicions. When the supervisor was unable to confirm the address of either the sender or the addressee, he, too, became suspicious. He shook the package and determined that it apparently did not contain film equipment. The Emery employees then opened the package. Inside, under a layer of newspaper, was a large, sealed, plastic trash bag. Inside the trash bag were a number of transparent plastic bags each of which contained a brown, powdery substance. There was also a quantity of talcum powder loose in the trash bag. The Emery employees then called the Los Angeles Police Department, described what they had discovered and asked an officer to come investigate. Upon arrival at the Emery office, Officer Stirwalt saw the partly opened box. With the aid of the Emery employees, he removed some of the contents. A field test revealed that the powder was not heroin. Stirwalt smelled the powder to see if it had the ether-like odor characteristic of Phencyclidine (PCP). The substance did not smell of ether.
Stirwalt believed that the brown powder was narcotics anyway. His belief was based upon the circumstances surrounding the delivery to Emery, on the substance's appearance, and on the fact that talcum powder had been used in the packaging, a practice common among drug shippers wishing to deceive the noses of dogs trained to detect narcotics. Stirwalt, therefore, took the package, without Emery's objection, to the police laboratory where it was determined that the brown powder was, indeed, PCP. An ounce of PCP was removed and kept by the Los Angeles police. The rest was repackaged and shipped on American Airlines to Detroit where it was received by Drug Enforcement Administration agents who removed most of the PCP and replaced it with rocks. The package was resealed and delivered to Emery's Detroit office where Buttigieg picked it up. At no time did the law enforcement officers obtain a warrant to search or seize the package or its contents.
The District Court ruled that the drugs were admissible on the theory that (1) the initial search by Emery was purely private and beyond the scope of the exclusionary rule, and (2) the government's subsequent warrantless activities were not unlawful due to the consent and plain view exceptions to the fourth amendment's warrant requirement.
On appeal, defendants make three arguments. First they claim that Emery's search, by virtue of extensive federal regulation of air carriers, was not purely private and, therefore, governed by the fourth amendment and the corollary rule of exclusion. Second, defendants claim that, even if Emery's search was purely private, the tests conducted by police at the Emery office constituted a new and different government search which cannot be justified by any exception to the warrant requirement. Finally, defendants argue that the warrantless seizure of the package by police was likewise not justified by any exception to the warrant requirement and, therefore, was illegal. The government argues in response that their failure to get a warrant was justified by the consent and plain view exceptions to the warrant requirement.
Our fourth amendment 4 analysis of these facts leads us to conclude: (1) the inspection by the air freight carrier constitutes a Private search not governed by the warrant and probable cause requirements of the fourth amendment, and (2) the seizure of the package by the police was permissible under the "plain view" exception to the warrant requirement. We explain the reasons for these conclusions in the remainder of the opinion.
The Supreme Court has declined to erode the rule that the fourth amendment applies only to government searches and does not apply to private searches, unless a government agent participates directly in the private search. 5 The Court has stuck by the rule for fifty years, despite ample opportunity to modify it. 6 The air carrier's inspection of the defendant's box in this case was a private search under this rule.
The recently enacted federal statute 7 which governs the authority of air freight carriers to inspect parcels for dangerous items does not convert the search from a private to a governmental search. The new statute in fact limits the carrier's private, common law authority to open packages. The statute provides that any "agreement for the carriage of . . . property . . . by an air carrier . . . shall be deemed to include an agreement that such carriage shall be refused when consent . . . to inspect such property . . . is not given." 8
At the common law, the authority of the carrier to inspect was not tested in the context of search and seizure cases 9 but rather by writs allowing actions for conversion. Although, at early common law, carriers apparently lacked authority to inspect packages, 10 modern courts have recognized the carrier's right to inspect. 11 That right has been held to exist for the following purposes: detection of insurance fraud, 12 detection of rate cheating by improper declaration of contents, 13 inventory and identification of unclaimed baggage and parcels, 14 insulation of the carrier from criminal liability, 15 ensuring that the carrier's property is not used in the commission of a crime, 16 and protection of the carrier's and other shipper's property. 17
The new federal statute in no way expands this traditional, common law authority of carriers to open and inspect packages. Indeed, it seems to limit this authority by permitting inspection only after the shipper has been notified that the carrier might open the shipment. Thus, the statute does not operate as a federal grant of power to carriers which might turn their conduct into government activity. Moreover, there is no suggestion that the government or police agent encouraged the search or participated in it. 18 It was therefore a purely private search by the carrier to which the fourth amendment exclusionary rule does not apply. 19
The carrier gave the police access to the package. They inspected it and took it away without a warrant. They looked at it on the carrier's premises, smelled it, tested it and believed, but could not prove scientifically, that it was narcotics. They took it with the carrier's permission to the police station for further tests. The government seeks to justify its failure to obtain a warrant by the consent exception to the warrant requirement.
The principles underlying the third party consent cases decided by the Supreme Court and the lower federal courts are unclear. Where a third party has possession or some right of control over the property of another which constitutes incriminating evidence and the third party, without the owner's consent, gives it or shows it to the police, or allows a police search or seizure, fourth amendment analysis has varied widely. The courts alternately have said that third party consent means (1) there was no government search or seizure; 20 (2) there was a government search or seizure, but it was reasonable because the relationship of the parties to the property was such that the owner, by leaving the evidence with another "assumed the risk" that the other might allow police to look at or take the property; 21 and (3) there was a government search or seizure, but it was unreasonable because the owner did not assume the risk that another would allow the police to search or seize the property. 22
In the instant case, we find it impossible to say that there was no government search or seizure. The police took the contents out of the box for inspection and field testing and then carried it away for further tests. Nor can we say that the defendant who shipped the narcotics "assumed the risk" that the carrier would allow the police to search and seize the package, which had been opened for inspection in apparent violation of the federal law requiring advance notification of the carrier's right to do so. No such notice was given in the contract of carriage or otherwise. 23
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People v. Adler
...on nothing more than the airline employee's suspicion (see United State v. Haes, 551 F.2d 767, 771 (8th Cir.); cf. United States v. Rodriguez, 596 F.2d 169, 174 (6th Cir.); but see People v. De Santis, 46 N.Y.2d 82, 86, 412 N.Y.S.2d 838, 385 N.E.2d 577). Yet if one thing is clear in Fourth ......
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State v. Eiseman, 81-502-C
...would have been acting unlawfully had he merely seized the package. Relying on the Sixth Circuit court's opinion in United States v. Rodriguez, 596 F.2d 169 (6th Cir.1979), the state, asserts, however, that the plain-view doctrine justified the field test of the white powder. In Rodriguez, ......
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U.S. v. Grant
...exception to the warrant requirement. The government argues that this case is controlled by this court's decision in United States v. Rodriguez, 596 F.2d 169 (6th Cir.1979). In Rodriguez, an employee of Emery Air Freight opened a package and discovered that it contained a large, sealed plas......
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U.S. v. Andrews, 79-1963
...action is involved. See also: United States v. Ford, supra. Decisions from other courts have held likewise: United States v. Rodriguez, 596 F.2d 169 (6th Cir. 1979); United States v. Gumerlock, supra; United States v. Lamar, 545 F.2d 488 (5th Cir. 1977), cert. denied, 430 U.S. 959, 97 S.Ct.......