United States v. Kaye, 73-1723.

• Decision Date: 27 February 1974
• Docket Number: No. 73-1723.,73-1723.
• Citation: 492 F.2d 744
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Barry David KAYE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

492 F.2d 744 (1974)

UNITED STATES of America, Plaintiff-Appellee, v. Barry David KAYE, Defendant-Appellant.

No. 73-1723.

United States Court of Appeals, Sixth Circuit.

Argued December 12, 1973.

Decided February 27, 1974.

David W. Fais, Columbus, Ohio (Court-appointed), for defendant-appellant.

Robert D. Zitko, Columbus, Ohio, for plaintiff-appellee. William W. Milligan, U. S. Atty., Curtis Griffith, Jr., Special Asst. U. S. Atty., Drug Enforcement Administration Task Force, Columbus, Ohio, on brief.

Before EDWARDS, CELEBREZZE and MILLER, Circuit Judges.

PER CURIAM.

Appellant was convicted of possession of cocaine, in violation of 21 U.S.C. § 841(a)(1).

On June 23, 1972, agents from the Office for Drug Abuse Law Enforcement at Columbus, Ohio, received information from an informant whose reliability had not been established that a quantity of cocaine could be purchased from an individual named "Barry" who would arrive at Port Columbus International Airport on a Delta Airlines flight at approximately 9:20 P.M., that evening.

That evening the agents proceeded to Port Columbus International Airport, accompanied by the informant, who was to introduce Officer Jack Mignosi (who was to use the assumed name of Joe Verollo) to "Barry." Officer Mignosi was furnished with four thousand dollars ($4,000) of "buy money." It was agreed that Officer Mignosi would signal to the other agents by putting on his coat if at any time during the transaction, he: 1) had made a purchase; 2) ascertained that "Barry" had the cocaine; or 3) was himself in danger.

Appellant and Thomas Eisaman disembarked from the plane and they were introduced by the informant to "Joe Verollo" (Officer Mignosi). All four proceeded to the luggage carousel. During this time Officer Mignosi asked Appellant if he "had it." Mignosi testified that Appellant responded, "yes, six and a half ounces," while Eisaman and the informer testified that Appellant replied negatively. Appellant then showed Mignosi $1,600, and Mignosi showed Kaye $4,000. Upon seeing the $4,000, Kaye entered into the following dialogue with Mignosi, according to Mignosi's testimony:

Kaye: "Wow."

Mignosi: "It is going to be yours anyway."

Kaye: "Right. When we get done with business, I can take you to Florida and get two kelos (sic)."

Mignosi: "Sounds good."

Subsequent to this, Mr. Eisaman pointed out Detective Wasem and identified him as "a cop." At this time, both Appellant and Eisaman retrieved their luggage, and began to walk quickly toward the door. As Kaye and Eisaman picked up their luggage, Mignosi asked Kaye if he was stupid enough to put the dope in his suitcase, and Kaye "said not to worry about it, that he had it." At approximately this point, Kaye told Mignosi: "If we are busted, run and we will meet later," and Mignosi put his coat on as a signal to the other agents. The walk became a full run, and Appellant Kaye and Eisaman were stopped just outside the main door to the airport by Special Agent Harry Hensel. At the time he was stopped, Kaye was swinging his suitcase in mid-air to keep people away.

Immediately after stopping Kaye and Eisaman, Agent Hensel took custody of the suitcase carried by Appellant, and both Kaye and Eisaman were taken just inside the main door of the airport, into the Airport Security Office, where they were advised of their rights, and advised that they were under arrest. At this time, Agent Hensel, in the Security Office, opened Kaye's unlocked suitcase and found therein a white powder, stipulated at trial as being five and one-half ounces of cocaine.

The sole issue before us is whether the opening of Appellant's suitcase without a warrant constituted an unlawful search. We are presented with a search made subsequent to a valid arrest. Incident to making a lawful custodial arrest, a full search of the person may be made without a warrant. United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973).

Our question is whether that search may extend to the suitcase Appellant was carrying with him. We find that it can. A search incident to arrest may extend to "the arrestee's person and the area `within his immediate control' — construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence." Chimel v. California, 395...