United States v. Scheiblauer, 72-2189.

• Decision Date: 17 January 1973
• Docket Number: No. 72-2189.,72-2189.
• Parties: UNITED STATES of America, Plaintiff and Appellee, v. Rickie A. SCHEIBLAUER, Defendant and Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

472 F.2d 297 (1973)

UNITED STATES of America, Plaintiff and Appellee, v. Rickie A. SCHEIBLAUER, Defendant and Appellant.

No. 72-2189.

United States Court of Appeals, Ninth Circuit.

January 17, 1973.

Frederick F. Cohn (argued), Chicago, Ill., William H. Wise, of Katz, Hirsch & Wise, Ltd., Chicago, Ill., for defendant and appellant.

F. Michael Carroll, Asst. U. S. Atty. (argued), William C. Smitherman, U. S. Atty., Phoenix, Ariz., for plaintiff and appellee.

Before CHAMBERS and TRASK, Circuit Judges, and BYRNE, Sr.,^* District Judge.

WILLIAM M. BYRNE, Sr., District Judge:

Scheiblauer appeals from his conviction for both unlawful possession of marihuana with intent to distribute it and smuggling marihuana, violations of 21 U.S.C. § 841(a), § 952(a), and § 960(a) (1) respectively. He challenges the admissibility of the crucial evidence which led to his conviction, namely, 116 pounds of marihuana and his admissions pertaining thereto.

On December 22, 1971, the Tucson, Arizona office of United States Customs received a telephone call from an employee of a local private air service. The caller stated that a man (later identified as Scheiblauer) had chartered a private aircraft to fly him, his female companion, and their luggage to Sky Harbor Airport in Phoenix, Arizona, that their luggage consisted of a large footlocker and two suitcases, that they intended to catch a connecting commercial flight to Chicago that was scheduled to depart from Sky Harbor Airport within a few minutes after they arrived there, and that the man had done the same thing on at least one previous occasion. This informant further stated that the aircraft was already airborne and he furnished a detailed description of the aircraft and its occupants. Immediately after receiving this information, the Tucson office relayed it via radio to Customs agents in Phoenix.

After the Phoenix office received the relayed information, Special Agents Adams and Loughridge were dispatched to Sky Harbor Airport to await the arrival of the chartered aircraft. At that site, they observed the aircraft land, taxi to an American Airlines' loading gate, and disembark passengers and luggage fitting the descriptions which they had received. The male passenger was assisted in unloading the luggage by an airlines' employee to whom he gave custody of it. Thereupon, Agent Adams kept the two passengers under surveillance while Agent Loughridge went to the airlines' operations office to seek further information.

At that office, Agent Loughridge identified himself to a Mr. Femia, the airlines' passenger service supervisor, and a Mr. Moberly, the airlines' employee to whom the male passenger had given custody of the luggage. The agent then asked whether anything unusual had recently occurred. Mr. Moberly answered that a small private aircraft had just arrived at the airlines' loading gate and unloaded two passengers and their luggage. The agent inquired further. Moberly told him that the male passenger had told him that his name was "Johnson", had tipped him $5.00, and had given him custody of his luggage with instructions to place it aboard the flight to Chicago. Moberly also noted that the flight to Chicago had originally been scheduled to depart shortly after the private aircraft had arrived but had been unexpectedly delayed.

Agent Loughridge then stated that there was a possibility that the luggage contained a shipment of narcotics and suggested that it be checked. Femia expressed willingness to cooperate and the three men proceeded to the airlines' baggage area where Moberly pointed out the baggage. Thereupon, the three determined that the luggage was exuding a very strong odor of mothballs. They also noted that the footlocker was locked with a heavy-duty combination lock in addition to its built-in lock.

After this external examination, Femia decided to page "Mr. Johnson" and to have him open his luggage. Agent Loughridge took no part in Femia's decision. Instead, the agent withdrew to a vantage point where he could observe from afar. In the meantime, he briefed Agent Paulsen, a third Customs agent who had just arrived.

Subsequently, Femia's page for "Mr. Johnson" was answered by the male suspect who was still being followed by Agent Adams. After a short conversation at the ticket desk, "Johnson" accompanied Femia to the baggage area. The pair walked directly to the suspicious luggage and "Johnson" identified it as being his. However, when Femia asked him to open it, he abruptly disclaimed ownership. After further discussion, "Johnson" inquired as to whether the police had been notified. When Femia replied in the negative, "Johnson" stated that he was going to board the flight to Chicago without any luggage. Thereafter, "Johnson" left the baggage area. Instead of following "Johnson," Agent Adams went up to Femia, identified himself, and asked what had transpired. Femia related the entire conversation.

Thereupon, Agents Adams and Paulsen rendezvoused and exchanged their respective information. They decided to question "Johnson" and his female companion. Therefore, they walked up to the pair who were standing near the ticket desk, identified themselves, and stated that they wanted to ask them some questions. The two suspects willingly accompanied the agents to the main lobby where Agent Paulsen gave them a Miranda warning, "Johnson" stated that he understood the warning and was willing to answer questions. When Agent Paulsen asked him what he had inside the luggage, "Johnson" replied, "You know what I have in the bag!" When the agent asked him if he would open it "Johnson" refused to do so. Then, the agent told him that, if necessary, a search warrant for the luggage would be obtained. Shortly thereafter, Agent Loughridge arrived in the main lobby and the three agents escorted their suspects toward the airlines' security office where they intended to question them further.

While enroute to that office, "Johnson" admitted that the luggage contained marihuana and stated that he was being paid $500 per trip for transporting it to Chicago. In addition, he claimed that his female companion was not involved.

Upon arriving at the security office, "Johnson" stated, "Go ahead and get the bags!" Agent Paulsen left to retrieve them. Then, Agent Loughridge gave "Johnson" another Miranda warning. Again, "Johnson" stated that he understood the warning and was willing to answer further questions. When asked how he obtained the marihuana, "Johnson" told the two agents that he had gone to Nogales, Mexico, paid for the marihuana there, and arranged to have it delivered to a site within the United States. "Johnson" then asked, "What can you do for me if I take it on to Chicago?" When the agents replied that they could not promise leniency, "Johnson" stated, "Okay, I don't want to talk to you anymore. I want to talk to my attorney." Thereupon, the agents ceased questioning him. However, after a short hiatus, they did ask him about personal identification data (i. e., name, physical description, place of birth, etc.) for their "personal history sheet."

Approximately ten minutes after "Johnson" had requested an attorney, Agent Paulsen returned with the luggage. As soon as "Johnson" saw the luggage, he suddenly threw his arms into the air and exclaimed, "As you will probably find out, my name is not Johnson, it's Scheiblauer!" Then, he took a wallet out of his boot. From the wallet, he took out a card bearing the numbers necessary to open the combination lock on the footlocker. He then walked over to the luggage, uttered some profane statements about being "burned," kicked it a few times, opened the footlocker, and proceeded to throw its contents (including the 116 pounds of marihuana) onto the floor. Thereafter, he was taken to the U....