United States v. Vallejo

• Decision Date: 20 June 1973
• Docket Number: No. 72-2016.,72-2016.
• Citation: 482 F.2d 616
• Parties: UNITED STATES of America v. Thomas Peter VALLEJO et al. Appeal of Edson L. WHIPPLE.
• Court: U.S. Court of Appeals — Third Circuit

482 F.2d 616 (1973)

UNITED STATES of America v. Thomas Peter VALLEJO et al. Appeal of Edson L. WHIPPLE.

No. 72-2016.

United States Court of Appeals, Third Circuit.

Argued March 22, 1973.

Decided June 20, 1973.

Robert E. J. Curran, U. S. Atty., Jeffrey M. Miller, Asst. U. S. Atty., Philadelphia, Pa., for appellee.

Leonard Sosnov, Asst. Defender, Jonathan Miller, Vincent J. Ziccardi, Defender Association of Philadelphia, Philadelphia, Pa., for appellants.

Before SEITZ, Chief Judge, and ALDISERT and ADAMS, Circuit Judges.

OPINION OF THE COURT

ADAMS, Circuit Judge.

In this case arising from an abortive attempt to smuggle one ton of marijuana from Mexico by way of Texas to Philadelphia, appellant Whipple was convicted of dealing in and conspiring to import marijuana. 21 U.S.C. § 176(a); 26 U.S.C. § 4755. The district court denied a suppression petition, and Whipple has appealed.

Richard Esch and John Schenck went to Mexico in early 1971 to discuss with David Miller the possibility of flying "illicit" drugs into the United States. After agreeing to work together in upcoming drug ventures, Esch and Schenck returned to the United States while Miller remained in Mexico.

Thereafter, Leonard Glassberg flew to Mexico and met with Miller in January, 1971, to discuss the plans for smuggling the marijuana into the United States. In February, 1971, Whipple came to see Glassberg in his hotel room and indicated that he, Whipple, was "fully capable of procuring an airplane and pilot, and asked if it were possible for him to enter into some sort of contractual agreement with Glassberg and David Miller in relationship to smuggling marijuana." Glassberg's girl friend, Maria Kirby, who was present at the meeting, confirmed this story.

Celcer, the pilot of the plane, testified that Whipple hired him with instructions to pick up a load of marijuana in Vera Cruz, Mexico. Celcer received the marijuana, landed in Texas, and, after obtaining further instructions from Whipple, flew the marijuana to Philadelphia. Whipple's conversations with Celcer were intercepted electronically by government agents with the pilot's permission.

Under these circumstances there was probable cause to issue an arrest warrant, which was properly executed upon Whipple in a public airport lobby in Harlington, Texas on April 12, 1971.

When taken into custody, Whipple was carrying a large clothes bag and some carry-on luggage that were taken from him by the arresting authorities. He was immediately driven to the United States Customs House in Brownsville, Texas. Upon arrival in Brownsville, approximately one hour after his arrest in Harlington, the authorities examined Whipple's baggage and retained certain documents later used at trial. They had no search warrant.

Whipple contends, among other things,¹ that the warrantless search of his luggage at the Brownsville Customs House following his arrest at the airport nearly one hour earlier violated his Fourth Amendment rights.

Having carefully examined all the evidence in this case, this Court is of the opinion that it is unnecessary to determine the legality of the search of appellant's baggage. Even assuming that the search was unlawful, the mass of remaining evidence against Whipple was overwhelming. Glassberg and Miller both changed their pleas to guilty and testified on behalf of the government. Maria Kirby confirmed Glassberg's trial testimony. Celcer, the pilot, also testified against Whipple, and the conversations between Whipple and him, which had been tape recorded with Celcer's permission, were played to the jury. In addition, U. S. Customs Agents testified to having seen Whipple meet with Miller and to having heard Whipple planning the touchdown of the plane in Philadelphia. Under these circumstances, the admission of the "fruit" of the allegedly unlawful search was harmless beyond a reasonable doubt. Milton v. Wainwright, 407 U.S. 371, 92 S.Ct. 2174, 33 L.Ed.2d 1 (1972); Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L. Ed.2d 705 (1967); Fahy v. Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963).

As intellectually alluring as it might be to address ourselves to the intriguing question whether the examination of the luggage at the Customs House constitutes a "search" for Fourth Amendment purposes, in view of the conclusion that any error committed by the admission of the fruits of that activity was harmless beyond a reasonable doubt, we eschew, as unnecessary and thus inappropriate, that attractive assignment.

The judgment of the district court will be affirmed.

ALDISERT, Circuit Judge (concurring).

I prefer to address the interesting question posed in this appeal: whether the warrantless search of appellant's luggage at the Customs House in Brownsville, Texas, one hour after his arrest in a public airport in Harlington, Texas, was lawful as incident to an arrest, United States v. Miles, 413 F.2d 34 (3d Cir. 1969), or comes within the prohibition of Preston v. United States, 376 U. S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964). The district court denied a petition for suppression and appellant was convicted of dealing in and conspiring to import marijuana. 21 U.S.C. § 176(a); 26 U.S.C. § 4755.

The arrest followed an abortive attempt to fly a ton of marijuana from Mexico via Texas to Philadelphia on March 15, 1971. One Glassberg met appellant Whipple in Mexico in February, 1971, at which time Whipple indicated that he was "fully capable of procuring an airplane and pilot, and asked if it were possible for him to enter into some sort of contractual relationship with (Glassberg) and David Miller in relationship to the smuggling enterprise." A government undercover agent witnessed the meeting. The plane's pilot testified that Whipple had hired him with directions to pick up a load of marijuana in Vera Cruz, Mexico. The pilot did exactly that, stopped in Texas, and, after obtaining further instructions from Whipple, flew the ton of marijuana to Philadelphia. Whipple's conversations with the pilot were intercepted electronically by government agents with the pilot's permission. It is an understatement to observe that under these circumstances there was probable cause to issue an arrest warrant which was properly executed upon Whipple in a public airport lobby in Harlington, Texas, on April 12, 1971.

When taken into custody, Whipple was carrying a large clothes bag and some carry-on luggage. He was taken to a waiting car and immediately driven to the United States Customs House in Brownsville, Texas. Immediately upon arrival there—approximately one hour after his arrest in Harlington—this baggage was examined and certain documents were retained by the authorities. There was no search warrant. The question for our resolution is whether this was a lawful search and seizure incident to arrest.

I begin my analysis with the seemingly inflexible pronouncement of Preston v. United States, supra, 376 U.S. at 367, 84 S.Ct. at 883, that a contemporaneous search incident to a lawful arrest must be limited to the situs of the arrest: "Once an accused is under arrest and in custody, then a search made at another place, without a warrant, is simply not incident to the arrest. Agnello v. United States, supra, 269 U.S. 20, at 31, 46 S.Ct. 4, at 5, 70 L.Ed. 145." See also Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964). But if there is one unyielding principle which has emerged from the troublesome area of Fourth Amendment case law, it is that isolated excerpts from judicial opinions do not necessarily rise to black letter dogma.

It is necessary, therefore, to consider the factual background giving rise to the quoted proscription when attempting to apply the principle to a new situation. In Agnello, relied upon by Preston, Agnello was arrested in the home of one Alba. The police attempted to justify as incident to an arrest, the warrantless search of Agnello's house some blocks away. In Stoner, decided the same day as Preston, the search of a hotel room on one day while attempting to arrest Stoner was held not to be incident to an arrest made two days later at a different place. In Preston, an arrest for vagrancy was made in an automobile parked on the street. The car was driven some distance away to the station-house, from which it was towed to a garage where the automobile's trunk was searched.

Preston itself was not devoid of cautionary language: "This right to search and seize without a search warrant extends to things under the accused's immediate control, Carroll v. United States, supra, 267 U.S. 132 at 158, 45 S.Ct. 280 at 287, 69 L.Ed. 543, and, to an extent depending on the circumstances of the case, to the place where he is arrested, Agnello v. United States, supra, 269 U.S., at 30, 46 S.Ct. 4 at 5, 70 L. Ed. 145. . . ." 376 U.S. at 367, 84 S.Ct. at 883 (Emphasis supplied.)

Indeed, in Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967), the Supreme Court indicated that there was no absolutism to the Preston holding, and affirmed a conviction where, without a search warrant, the police took heroin from the glove compartment of petitioner's impounded automobile a week after he had been lawfully arrested for a narcotics violation. Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968), sustained the admissibility of items inventoried by the police as a routine procedure where automobiles were received in police custody. Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216, 88 S.Ct. 1472, 20 L.Ed.2d 538 (1968), distinguished searches occurring when police have the right to custody of the automobile, as in Cooper, from those in which the automobile was parked near the police station while the driver was being processed for reckless driving.

It appears, therefore, that any application of Preston must be guided by the statement that "the...