United States v. Ogden

• Decision Date: 27 November 1973
• Docket Number: No. 73-1041.,73-1041.
• Citation: 485 F.2d 536
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. David Douglas OGDEN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

485 F.2d 536 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. David Douglas OGDEN, Defendant-Appellant.

No. 73-1041.

United States Court of Appeals, Ninth Circuit.

September 12, 1973.

As Amended on Denial of Rehearing November 27, 1973.

John J. Cleary (argued), Matthew N. Lees, Federal Defenders of San Diego, San Diego, Cal., for defendant-appellant.

William A. Bower, Asst. U. S. Atty. (argued), Harry D. Stewart, U. S. Atty., Stephen G. Nelson, Asst. U. S. Atty., San Diego, Cal., for plaintiff-appellee.

Before CHAMBERS and CHOY, Circuit Judges, and SWEIGERT,^* District Judge.

CHOY, Circuit Judge:

David Ogden was convicted after a nonjury trial of conspiracy to possess and possession with intent to distribute forty-six pounds of marijuana in violation of 21 U.S.C. §§ 841(a) (1), 846. He was sentenced to two five-year terms of imprisonment to run concurrently. We affirm.

Ogden and his wife, Theresa Ann, approached the United Airline ticket counter at the San Diego airport on September 27, 1972 at approximately 1:30 p. m. They presented two tickets for the 2:20 p. m. flight to Los Angeles with Monterey, California as their final destination, and checked three bags. Mr. Winenger, senior custom service agent for United, determined that the Ogdens fit the FAA hijack profile in every respect¹ and noted that one bag was extremely heavy. Winenger circled the tags on the baggage to indicate to airline employees that the owners of the baggage had been designated as profile selectees. The purpose of this procedure is to prevent flight delay from removal of baggage if its owner is taken off a flight.

The three bags passed on a conveyor belt to the baggage room where an airline employee, Ailshie, seeing the encircled tags, set them aside. Ailshie noted that one of the bags was very heavy and felt solid objects inside. He "tried to hit the sides of it, and just smelled the marijuana." (R.T. at 24). Ailshie used a screwdriver to pry open the edge of the bag, detected a stronger scent of marijuana and observed brickshaped objects inside. He then closed the bag.

Ailshie informed Winenger of his find. Winenger called his supervisor, who alerted federal agent Anderson. When Anderson arrived at the bag room at 1:45 p. m., Ailshie reported what he had found. Anderson drew to within six inches of the suspect bag and smelled the strong odor of marijuana, an odor with which he was familiar. Ailshie asked, "Would you like us to open it again?" Anderson replied, "If you had it open, yes." The bag was reopened to reveal marijuana bricks wrapped in bluish-green and red cellophane.

The Ogdens were placed under arrest a little later and apprised of their constitutional rights in accordance with Miranda. The couple was then separated and federal agents secured the consent of Mrs. Ogden to open all the bags. All three contained contraband.

I.

We must first determine whether the search conducted by Ailshie, the airline employee, was a governmental search either by virtue of the FAA regulations pursuant to which the airlines had put the anti-hijacking system into operation at the nation's airports, or as a result of federal participation in the discovery of the contraband in the bag room.

The airlines and the federal government have jointly developed security programs to combat the wave of hijackings which have plagued the nation. The role of the government has been characterized as dominant. United States v. Davis, 482 F.2d 893 (9th Cir. 1973). Davis dealt with the preboarding search of passenger carry-on luggage by a private airline employee. This court held that since the search was conducted as part of the overall, nationwide anti-hijacking effort, it made no difference whether a private employee or public official actually search the passengers; compliance with the Fourth Amendment was required. Accord, United States v. Lopez, 328 F.Supp. 1077, 1101 (E.D. N.Y.1971).

But Davis is distinguishable from the instant case. There the preboarding search was an integral part of the anti-hijacking system. Ailshie's removal of the Ogdens' baggage from the conveyor belt when he saw the encircled tags was government action since the procedure was part of the airline security program. However, Ailshie's ensuing search of the bag containing the marijuana was not directed or authorized by any federal regulation.² Therefore, the search cannot be characterized as a federal search on the basis of the FAA regulations. The same conclusion was reached by the Eighth Circuit in United States v. Burton, 475 F.2d 469 (8th Cir. 1973).

The Fourth Amendment was intended to restrain the activities of the sovereign. We must determine whether there was sufficient federal participation in Ailshie's search of the bag to render the search of federal one. If the search was private, the Fourth Amendment does not apply. Burdeau v. McDonald, 256 U.S. 465, 475, 41 S.Ct. 574, 65 L.Ed. 1048 (1921); Coolidge v. New Hampshire, 403 U.S. 443, 487, 91 S.Ct. 2022, 29 L.Ed. 2d 564 (1971); Eisentrager v. Hocker, 450 F.2d 490, 492 (9th Cir. 1971). The rule for identifying a federal search was set out in Lustig v. United States, 338 U.S. 74, 78-79, 69 S.Ct. 1372, 1374, 93 L.Ed. 1819 (1949):

. . . a search is a search by a federal official if he had a hand in it . . . The decisive factor . . . is the actuality of a share by a federal official in the total enterprise of securing and selecting evidence by other than sanctioned means. It is immaterial whether a federal agent originated the idea or joined in it while the search was in progress. So long as he was in it before the object of the search was completely accomplished, he must be deemed to have participated in it.

The leading cases in this circuit on the application of the Lustig rule are Corngold v. United States, 367 F.2d 1 (9th Cir. 1966) and Gold v. United States, 378 F.2d 588 (9th Cir. 1967). In Corngold, customs agents, after demonstrating to an airline manager that the contents of a package were not as declared, asked if the manager had the authority to open the package, then aided him in doing so. This court found, in an en banc decision, that the airline employee opened the package solely to serve the purposes of the government and characterized the search as a federal search cast in the form of a carrier inspection.

Gold involved substantially different circumstances. There government agents contacted an airline manager and informed him that the description on an air waybill was inaccurate and that the address of the shipper was nonexistent. The agents then departed without revealing what they suspected the true contents to be, after which the manager opened one of the packages and discovered obscene film. The court held that the government agents had the right to point out the inaccuracy of the shipping document and that the opening of the package was the discretionary act of the manager, not so connected with government participation as to constitute a federal search. Accord, Clayton v. United States, 413 F.2d 297, 298 (9th Cir. 1969); United States v. Cangiano, 464 F.2d 320, 324-325 (2nd Cir. 1972).

Ailshie's search cannot be deemed a federal search. Federal agents did not initially contact United Airlines regarding the Ogdens or their baggage. Nor was there any government encouragement to open the Ogdens' bag or assistance in doing so. Ailshie did not open the bag pursuant to the airline's inspection clause, as in Gold and Cangiano, but solely as the result of his own...