United States v. Palazzo, 73-1847.

• Citation: 488 F.2d 942
• Decision Date: 23 January 1974
• Docket Number: No. 73-1847.,73-1847.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael A. PALAZZO and Rudolfo Castro Viagran, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

488 F.2d 942 (1974)

UNITED STATES of America, Plaintiff-Appellee, v. Michael A. PALAZZO and Rudolfo Castro Viagran, Defendants-Appellants.

No. 73-1847.

United States Court of Appeals, Fifth Circuit.

January 23, 1974.

Phillip D. Hardberger, San Antonio, Tex., for Palazzo.

Alan Brown, San Antonio, Tex., for Viagran.

William S. Sessions, U. S. Atty., Joel D. Conant, Asst. U. S. Atty., San Antonio, Tex., for plaintiff-appellee.

Before THORNBERRY, SIMPSON and CLARK, Circuit Judges.

CLARK, Circuit Judge:

Michael A. Palazzo and Rudolfo Castro Viagran were joined in a three-count indictment with Wayne Szpara. Count I charged all defendants with conspiring to possess 73.1 pounds of marijuana with intent to distribute it in violation of 21 U.S.C. § 841(a) (1). Count II charged Viagran alone and Count III charged Palazzo and Szpara jointly with possession of and intent to distribute marijuana. After the pre-trial motions to suppress the physical evidence and certain incriminating statements were denied, Palazzo and Viagran were found guilty by the trial judge on all counts. Szpara's case was severed before trial because of serious accidental injuries. Palazzo and Viagran each received a five-year term of imprisonment on Count I and special parole periods of five and two years respectively on the remaining counts. Because the search of his luggage by the airport security personnel impermissibly infringed Palazzo's Fourth Amendment rights, we must reverse his conviction. Inasmuch as Viagran lacks standing to assert the constitutional immunities of his co-defendant, he has no basis upon which to invoke application of the Exclusionary Rule; his conviction is therefore affirmed.

Like every search case, this one turns upon its facts. Deputy United States Marshal Mariano Granados had been working the anti-air piracy detail for several years when he observed Palazzo and Szpara as they arrived together by taxi at the San Antonio International Airport at 6:45 a.m. on the morning of August 1, 1972. Their extremely nervous and fidgety appearance as they entered the Eastern Airlines check-in area aroused his suspicion. He continued to observe them and noted that Palazzo approached Szpara, who had seated himself in the far corner of the waiting room. After they exchanged a few words, Szpara took some money from his pocket and handed it to Palazzo. As Palazzo took the money he attempted to hand Szpara a small white bundle (which later proved to be a towel), but it dropped to the floor as he hurriedly departed in the direction of the front terminal. Szpara picked up the bundle and placed it on a small table beside his seat.

When the boarding call for the plane was given Palazzo was still absent. Szpara waited until all other passengers had left the waiting room, then moved toward the security check area with an obvious appearance of reluctance. As he passed through the gate, he "lit the magnetometer." In response to Marshal Granados' request for identification, Szpara produced a New Jersey driver's license receipt and consented to be searched. After Granados was unable to detect any metal objects during a patdown search in the men's room, Szpara was asked to go back through the magnetometer and this time he failed to trigger the metal detector. He was told he could enter the airliner. Noticing that the bundle still lay on the table in the waiting area, Granados brought it to the waiting area, Granados brought it to Szpara's attention. Szpara denied knowledge of its ownership. When asked about the man who dropped it (Palazzo), Szpara stated that his only acquaintance consisted of a casual request for a small loan to enable this stranger to complete the price of an airline ticket.

Just before the plane was to depart, Palazzo returned to the airline ticket lift desk at this departure point. Upon Granados' request for identification, he produced a New Jersey driver's license. When Granados quizzed him about the bundle in the waiting area, Palazzo stated that he had no luggage and volunteered to be searched. This search revealed no dangerous objects. Granados did write down the numbers of two baggage claim stubs for future reference, after Palazzo had attempted to hide them when he was asked to empty his pockets. The Marshal permitted Palazzo to board the flight.

Still suspicious, Granados went to the Eastern Airlines ticket lift desk and discovered that the tickets used by Szpara and Palazzo had been purchased in numerical sequence. Deducing that the tickets must have been purchased contemporaneously rather than separately as represented, the Marshal concluded that a search of their luggage was essential "for the safety of the flight." After ordering the flight to wait, he went beneath the aircraft and withdrew one of the suitcases that matched a claim number he had recorded during his search of Palazzo. Granados testified that after checking the baggage for wires or other triggering devices, he opened it and immediately ascertained that it contained marijuana. At about 8:45 a.m. Szpara, Palazzo and four suitcases were removed from the aircraft and returned to the terminal.

Szpara claimed two of the four confiscated suitcases. A search made over his objections revealed that they contained no contraband. Palazzo continued to deny that he was traveling with luggage. Granados opened the two bags with tags matching Palazzo's stubs and found them both to contain marijuana. The defendants' requests to contact an attorney were refused. They were detained incommunicado by Customs agents, who had advised them of their constitutional rights, before they were transferred to agents from the Bureau of Narcotics and Dangerous Drugs (BNDD) for questioning.

At 10:30 a.m. Palazzo, who had been given Miranda warnings by Granados and the BNDD agents, agreed to cooperate. He stated that the marijuana had been purchased early that morning from an individual named "Rudy" (the defendant Viagran), whose phone number was found on a slip of paper in Palazzo's wallet. After several unsuccessful attempts, Palazzo completed an implicating telephone call to Viagran, which was tape recorded by the agents.

The defendants urge this court to reverse their convictions on grounds that the district court erred in admitting the marijuana—because it was the product of a search and seizure that violated their Fourth Amendment rights—and the incriminating statements uttered by Palazzo and Szpara—because they followed denial of their requests for assistance of counsel and the delay of their appearance before a Magistrate, contrary to Fed.R.Crim.P. 5(a). Our judgment that the under-plane luggage search by Marshal Granados went beyond constitutionally permissible air piracy search limits makes it unnecessary to reach the second contention as to the defendant Palazzo.

This court was first faced with the constitutional propriety of an airport search in United States v. Moreno, 475 F.2d 44 (5th Cir. 1973). Consistent with our Fourth Amendment duty "to strike a cautious balance between the competing interests of law enforcement in conducting warrantless searches and the right of the individual to be left alone," 475 F.2d at 49-50, we looked to principles enunciated by the Supreme Court in constitutionally analogous circumstances. The rationales underlying the seminal decisions in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1963), and Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972), led us to recognize that "due to the gravity of the air piracy problem . . . the airport, like the border crossing, is a critical zone in which special Fourth Amendment considerations apply." 475 F.2d at 51 (footnote omitted). We held there that a warrantless search of the defendant, a ticketed passenger who exhibited signs of suspicious activity in the airport lounge and en route to the boarding gate,¹ was constitutionally permissible under a less demanding standard than ordinary probable cause. Similarly, in United States v. Legato, 480 F.2d 408 (5th Cir. 1973), two anonymous bomb threat tips that were corroborated on the scene by the questionable conduct of two suspects were held to supply "reasonable grounds" that constitutionally justified an "intermediate police response" by security personnel.

United States v. Skipwith, 482 F.2d 1272 (5th Cir. 1973), upheld an airport search at the boarding gate in a different factual setting. Skipwith had presented himself for boarding, met the F.A.A. anti-skyjack profile, appeared nervous and under the influence of alcohol or some other drug, first stated that he had no identification and then confessed to traveling under a false name, and displayed a bulge in his trouser pocket that proved upon search to be a packet of cocaine rather than the suspected weapon. We held "that those who actually present themselves for boarding on an air carrier, like those seeking entrance into the country, are subject to a search based on mere or unsupported suspicion." 482 F.2d at 1276. When viewed in this light, Marshal Granados' actions in detaining Palazzo and Szpara at the boarding gate on the basis of suspicious actions and in conducting personal searches to which they both consented, were clearly consistent with the constitutional precepts laid down in the prior decisions of this Circuit.

The search of the baggage deposited in the aircraft presents a far different aspect. The government argues that this search was justified by the overwhelming public interest in effective protection against the threat posed by air piracy, the objective facts known to and capable of articulation by Granados at the time, and the fact that the luggage in question had not been examined prior to its stowage on the aircraft.

In Moreno, we measured "the constitutionality of the police officer's conduct by the . . . Terry standard: whether the facts available to the officer at the moment of the seizure or the search would justify a man of...