U.S. v. Sarkissian
| Decision Date | 10 March 1988 |
| Docket Number | Nos. 85-5037-5039,s. 85-5037-5039 |
| Citation | 841 F.2d 959 |
| Parties | UNITED STATES of America, Plaintiff/Appellee, v. Karnig SARKISSIAN, Steven Dadaian, Viken Hovsepian, Defendants/Appellants. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Barrett S. Litt, Los Angeles, Cal., for defendants/appellants.
Robert C. Bonner, Robert L. Brosio, and Terree A. Bowers, Los Angeles, Cal., for plaintiff/appellee.
Appeal from the United States District Court for the Central District of California.
Before ANDERSON, SKOPIL, and REINHARDT, Circuit Judges.
Sarkissian, Dadaian, and Hovsepian appeal their convictions for conspiracy to bomb, 18 U.S.C. Sec. 844 (1982), transportation of explosive materials, 18 U.S.C. Sec. 844(d), and possession of an unregistered firearm, 26 U.S.C. Sec. 5861(d) (1982). They contend that (1) the government's warrantless search of a suitcase violated the fourth amendment; (2) the government was required to obtain wiretap authorization under Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (Title III), 18 U.S.C. Secs. 2510-2521 (1986), not under the Foreign Intelligence Surveillance Act of 1978 (FISA), 50 U.S.C. Secs. 1801-1811 (1982); and (3) the district court erred in not disclosing the government's ex parte in camera submission of classified information. We affirm.
This case involves the Federal Bureau of Investigation's (FBI) attempt to prevent Armenian terrorists from bombing the Honorary Turkish Consulate in Philadelphia. On September 17, 1982, the FBI, as part of an ongoing investigation of Armenian terrorist groups, obtained authorization from the United States Foreign Surveillance Court (USFSC) to place a wiretap on Hovsepian's telephone in Santa Monica, California. The wiretap paid off from the start. Although defendants spoke in Armenian and used simple code words, FBI translators and investigators soon cracked the code. By late September the FBI knew that Hovsepian, Sarkissian, and others planned to take some type of violent action against the Honorary Turkish Consulate in Philadelphia and that they had a contact person in Boston. FBI Agent Maples, who headed the investigation in Los Angeles, believed that Hovsepian and others would act in early October.
Later intercepted phone calls convinced Maples that Hovsepian had postponed his plans. By October 19, Maples realized that Hovsepian's plans were on again; defendants were assembling a bomb. On October 21, the USFSC authorized a continuation of the surveillance. Shortly after 3:00 a.m. eastern daylight time (EDT), Maples discovered that one of Hovsepian's colleagues had missed a flight from Los Angeles but would take the next one, which would arrive at its destination at noon.
Maples and his agents continued the investigation through the early morning hours. He concluded that components of a bomb, if not an assembled bomb, were being transported from Los Angeles on an unidentified flight by an unidentified person or persons in unidentified luggage to an unidentified city. By checking the schedule of flights out of Los Angeles, Maples determined that the bomb's courier or couriers were probably on a Northwest Orient (NWO) flight due to arrive in Boston's Logan International Airport at noon EDT. He warned Boston's FBI office before 9:00 a.m. EDT of the danger.
At 9:10 a.m. EDT Maples discovered that the courier or couriers were "S. Tataian" and/or "V. Lopez." At 9:25 a.m. EDT Maples concluded that defendant Dadaian was probably one of the couriers. At 9:30 a.m. EDT he called Boston FBI agent Hildreth to warn that the suspect or suspects apparently were on a Trans World Airlines or NWO flight that would arrive at about 11:00 a.m. or noon EDT following stop-overs in Minneapolis and New Jersey. Maples provided Hildreth with the names of four suspects. Between 9:45 and 10:00 a.m. EDT, Maples told Hildreth to disregard the names provided earlier. He advised Hildreth to focus on Dadaian who was on the NWO flight due to arrive at noon EDT. Maples gave Hildreth a general physical description of Dadaian.
Around 9:30 a.m. EDT the Boston FBI sent an agent to Logan Airport to to set up a command post. By 11:00 a.m. EDT fifty agents had assembled at the airport. The agents manned surveillance positions and established a search procedure that included A trained dog sniffed the fifty-seven pieces of luggage unloaded from the flight, but did not react to any of them. The agents then ran the luggage through the x-ray scanner and detected parts of a bomb in a suitcase labeled "V. Lopez." They opened the suitcase and found an unassembled bomb with five sticks of dynamite. The agents did not remove anything from the suitcase, but returned it to the baggage claim carousel. His suspicions aroused by activity around the airport, Dadaian never picked up the suitcase. The FBI arrested him several hours later.
a dog sniff and x-ray scan. After the NWO flight landed around 12:15 p.m. EDT, a Massachusetts state police officer boarded the plane and posed as a first class passenger. The officer spotted a man matching Dadaian's description and followed him to the baggage claim area.
At trial the defendants sought to suppress evidence from the suitcase search and FISA wiretap. The district court denied their suppression motions. The government also made an ex parte in camera submission of classified information. The court sealed the submission without allowing disclosure to the defendants. Defendants were found guilty of conspiracy to bomb, transportation of explosive materials, and possession of an unregistered firearm. They timely appealed.
A warrantless search of luggage requires exigent circumstances supported by probable cause. United States v. Nikzad, 739 F.2d 1431, 1433 (9th Cir.1984). Defendants concede probable cause. The issue is whether there were exigent circumstances. Exigent circumstances include "those circumstances that would cause a reasonable person to believe that entry (or other relevant prompt action) was necessary to prevent physical harm to the officers or other persons...." United States v. McConney, 728 F.2d 1195, 1199 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). We view the exigency from the totality of circumstances known to the officer at the time of the warrantless intrusion. United States v. Licata, 761 F.2d 537, 543 (9th Cir.1985). We review a conclusion of exigent circumstances de novo and findings of fact for clear error. United States v. Alvarez, 810 F.2d 879, 881 (9th Cir.1987).
We conclude there were exigent circumstances in this case. The FBI knew that a bomb or parts of a bomb were being carried in a suitcase or suitcases by a member or members of an Armenian terrorist group on a commercial flight to an international airport. See United States v. Chadwick, 433 U.S. 1, 15 n. 9, 97 S.Ct. 2476, 2485 n. 9, 53 L.Ed.2d 538 (1977) (); United States v. Al-Azzawy, 784 F.2d 890, 893 (9th Cir.1985) (explosives in trailer), cert. denied, 476 U.S. 1144, 106 S.Ct. 2255, 90 L.Ed.2d 700 (1986); United States v. Williams, 626 F.2d 697, 703 (9th Cir.) (bomb in car), cert. denied, 449 U.S. 1020, 101 S.Ct. 586, 66 L.Ed.2d 482 (1980).
The FBI believed that defendants belonged to the Justice Commandoes of the Armenian Genocide (JCAG). Members of the JCAG were considered "armed and dangerous." An FBI report noted that The FBI attributed three assassinations earlier in the year to the JCAG. One assassination occurred in Los Angeles on January 28, 1982, another in Boston on May 4, 1982, and a third in Ottawa, Canada on August 27, 1982. The JCAG often used bombing as a warning to be followed by an assassination attempt.
The Philadelphia FBI estimated heavy civilian casualties if the JCAG managed to detonate its bomb. The Honorary Turkish Consulate was located "in a highly populated area which has continuous activity at all hours of the day and night." A bomb composed of six sticks of dynamite would cause at least 100 casualties. A daytime explosion could inflict as many as 2,000 to 3,000 casualties. If a shoot out between the FBI and JCAG occurred, We agree with the district court's finding that there was a "grave and imminent danger to persons and property."
Exigent circumstances alone, however, are insufficient. The government also bears the burden of showing that it could not have obtained a telephonic warrant under Fed.R.Crim.P. 41(c)(2). United States v. Manfredi, 722 F.2d 519, 522 (9th Cir.1983). It must "attempt, in good faith, to secure a warrant or ... present evidence explaining why a telephone warrant was unavailable or impractical." Alvarez, 810 F.2d at 883 (footnote omitted).
Here, the government did not attempt to obtain a telephonic warrant. The record, however, contains evidence showing why it would have been impractical to do so. See United States v. Andersson, 813 F.2d 1450, 1455 (9th Cir.1987); Manfredi, 722 F.2d at 523. Probable cause to search arose almost three hours before the plane landed. By 9:25 a.m. EDT Maples had concluded that Dadaian was the bomb's courier. The plane was scheduled to land at noon EDT but actually landed around 12:15 p.m. EDT. Although the investigation preoccupied Maples...
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