United States v. Soriano

• Citation: 482 F.2d 469
• Decision Date: 03 December 1973
• Docket Number: No. 72-1520.,72-1520.
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Rafael SORIANO et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

482 F.2d 469 (1973)

UNITED STATES of America, Plaintiff-Appellant, v. Rafael SORIANO et al., Defendants-Appellees.

No. 72-1520.

United States Court of Appeals, Fifth Circuit.

July 2, 1973.

Rehearing and Rehearing Denied December 3, 1973.

Robert W. Rust, U. S. Atty., Michael P. Sullivan, Asst. U. S. Atty., Miami, Fla., Mervyn Hamburg, Dept. of Justice, Washington, D. C., for plaintiff-appellant.

Arthur Massey, Miami, Fla., for Soriano & Arroyo.

James J. Hogan, Alan E. Weinstein, Miami Beach, Fla., for Angel Aviles.

Albert J. Krieger, New York City, for Alfredo Aviles.

Julio F. Ferrer, Miami, Fla., for Mazza.

Philip E. Vitello, Coral Gables, Fla., for Marsh.

Gino P. Negretti, Miami, Fla., for Colon.

Gross & Krause, Manard A. Gross, Miami, Fla., for Sierra and Betancourt.

Before COLEMAN, GOLDBERG and GODBOLD, Circuit Judges.

Rehearing and Rehearing En Banc Denied December 3, 1973.

GODBOLD, Circuit Judge:

The government appeals from a pretrial order suppressing the fruits of two searches, a warrantless search of three suitcases outside the entrance to the Miami International Airport and a search under warrant of a house. Presumably the government bases its right to appeal on § 14 of Title III of the Omnibus Crime Control Act of 1970, 18 U.S.C. § 3731. We have considerable doubt whether we should review the order, but we do so with the aim that our caveat below¹ may give some guidance for future cases, and without any commitment on our part to review future pretrial suppression orders in a like posture. We conclude that the District Court correctly found the searches of the suitcases to be illegal but that it erred in suppressing fruits of the house search.

On December 17, 1971, federal narcotics agents received word from Sarah Cook that persons whom she knew as Freddie, Rafael, and Argentine were expecting a large shipment of narcotics. Cook previously had been a reliable informant to the FBI, and that agency had put her in touch with narcotics agents concerning this particular information. About 2:00 p. m. on January 4, 1972, Cook reported to a narcotics agent that she had been to the house of defendant Ana Rose Betancourt, had asked Betancourt whether the narcotics were in, and Betancourt had said "the stuff was in." Cook related that on this occasion she saw defendants Alfredo Aviles ("Alfredo") and Marta Sierra in Betancourt's house.

Agents promptly placed the Betancourt residence under surveillance, and at approximately 4:00 p. m. of the same day they observed Alfredo and Sierra leave the house carrying a brown trash bag, enter a car, and place the bag on the seat. Alfredo drove the car a few blocks away to a point where Sierra deposited the bag in a trash receptacle. An agent retrieved it. Inside were clear plastic bags and torn Christmas wrapping paper, each containing traces of a white powder which, on field test, was disclosed to contain an opium derivative. Later in the afternoon Cook told agents she had just left the Betancourt residence; that inside were Betancourt, Sierra, Angel Aviles ("Angel"), Rafael Soriano, and Edward Arroyo; that she had seen suitcases and Christmas packages there; and that the parties had been whispering to each other.

The agents continued their surveillance of the Betancourt residence. At 10:00 p. m. on January 4 they observed defendants Angel, Domingo Colon, and Soriano exit the Betancourt residence carrying three large suitcases. They entered a taxicab which agents followed to the entrance of the Miami International Airport. Acting without a warrant, the agents stopped the cab on the ramp outside the Airport entrance, arrested the passengers, opened the cab's trunk, and removed the suitcases. After the cab and the arrestees had been removed from the ramp the agents opened the suitcases, searched them, and seized plastic bags of white powder that are in part the subject of the pretrial motion to suppress.

Meanwhile other agents had been preparing affidavits and securing a warrant pursuant to which they planned to search the Betancourt residence. Between 11:00 and 11:30 p. m. an agent appeared before a magistrate who signed the search warrant, and the house was searched when an officer arrived with the warrant. The search produced evidence that defendants seek to suppress.

1. The suitcase search

The agents had probable cause to believe that the occupants of the taxicab were carrying narcotics in their suitcases, and appellees do not seriously contend otherwise. The agents were justified in opening the trunk and removing the suitcases under Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), and its progeny in this circuit.² The intrusion into the cab's trunk met the criteria for warrantless vehicular searches set out in Coolidge v. New Hampshire, 403 U.S. 443, 460, 91 S.Ct. 2022, 29 L.Ed.2d 564, 579 (1971). Under the circumstances the officers could legitimately seize these suitcases — they were not required to leave them in the cab or on the sidewalk to be taken away or to disappear. Warrantless temporary detentions of containers that officials have probable cause to believe contain contraband, such as parcels in transit, have been approved by the Supreme Court when demanded by the exigencies of the situation. See, e. g., United States v. Van Leeuwen, 397 U.S. 249, 90 S.Ct. 1029, 25 L.Ed.2d 282 (1970). The crucial question before us is whether the agents, having seized the suitcases, could open and search them or whether, while retaining them in their dominion and control, they were required to appear before a magistrate and seek a warrant to examine them.

Indubitably the suitcases were "effects" within the fourth amendment's protection of "the right of the people to be secure in their persons, houses, papers, and effects." To justify a warrantless search the government must fit it within an established exception. "Searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions," and "the burden is on those seeking the exemption to show the need for it." Coolidge v. New Hampshire, supra, 403 U.S. at 454-455, 91 S.Ct. at 2030, 29 L. Ed.2d at 576.³ As Justice Jackson explained in Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948), with characteristic clarity:

The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. . . . When the right of privacy must yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or Government enforcement agent.

Id. at 13-14, 68 S.Ct. at 369, 92 L.Ed. at 440. We must therefore analyze the reasons advanced by the government toward fulfilling its burden and determine if the warrantless search of the suitcases fits within one of the well-defined exceptions to the fourth amendment's warrant requirement.

At the threshold we put aside as inapplicable several theories sometimes advanced to justify warrantless searches of such personal effects as handbags, suitcases, billfolds, or briefcases. The government does not argue that the search was legitimately incident to a lawful arrest under Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969).⁴ Nor does the government claim that the search was valid under the plain view doctrine⁵ or under the theory of abandonment,⁶ and, appropriately, there is no suggestion that constitutional analysis should vary because by hindsight we know the agents discovered contraband.⁷ Instead the government stakes its case on two principal arguments: (1) exigent circumstances justified failure to secure a warrant; and (2) a warrant to search personal effects is not required after they have been legitimately seized.^7A

a. Exigent circumstances

Exigent circumstances requiring an immediate search may operate in some cases to excuse time-consuming resort to judicial processes for issuance of a warrant. E. g., Terry v. Ohio, 392 U. S. 1, 20, 88 S.Ct. 1868, 20 L.Ed.2d 889, 905 (1968); McDonald v. United States, 335 U.S. 451, 455-456, 69 S.Ct. 191, 93 L.Ed. 153, 158 (1948). The only exigent circumstance advanced by the government in this case is that opening the suitcases immediately might have disclosed information which possibly would have led to the capture of others participating in the narcotics operation.^7B This does not stand constitutional scrutiny.⁸ The argument proves too much. If this court were to accept as legitimate the government's loosely defined concept of exigent circumstances, scarcely a case would remain in which a warrantless search for narcotics would not be justified. There is almost always a chance that newly discovered evidence will ensnare unknown accomplices. Also, a magistrate was readily available in the Miami area — one was contemporaneously signing a warrant to search the Betancourt residence — so the officers would have lost little time in detaining the suitcases until a warrant was secured.⁹ Additionally, so far as the record discloses, none of the officers even entertained a notion that a temporary delay in searching the suitcases would have in any manner prejudiced their planned raid on the Betancourt residence. And, finally, the agents acknowledged what in good sense we all know — their purpose in searching the suitcases was to confirm that they contained the narcotics which the agents suspected they contained. Compare Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968).

b. Post-seizure search theory

As previously pointed out, the officers would...