United States v. Angela Luz Gomez

614 F.2d 643

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 17, 1980
• Docket: 78-3516
• Status: Published

Opinions

CHAMBERS, Circuit Judge:

Appellant was tried by the court on two counts of violation of the narcotics laws after the denial of her motion to suppress evidence. Her appeal from the conviction raises issues related only to the denial of the motion to suppress.

A Dade County detective assigned to the Miami International Airport saw a suitcase that appeared to have fallen from a National Airlines conveyor belt in back of its ticket counter. It had no identification on it. He notified the airline’s shift supervisor who made inquiries at the ticket counter. When no one could be found who could identify the suitcase, the supervisor took the suitcase to an office, accompanied by the officer who had found it and also by another officer who happened to be in the vicinity. The supervisor proceeded to open the suitcase to determine the identity of the owner, but when he had difficulty with a lock, one of the officers said that it merely needed to be tapped. The officer tapped or kicked the mechanism and it released the lock. The airline supervisor then continued the process of opening the bag. When the supervisor lifted the lid he and the officers immediately saw a revolver and many small packages wrapped in contact paper. The supervisor turned the suitcase over to the police. Their further search (now prompted by discovery of the gun) disclosed that the packages contained 23 pounds of 70% cocaine, having a street value in the millions of dollars.

Nothing in the interior of the suitcase indicated who the owner was. But appellant reported a lost suitcase which matched the description of this one, and when a controlled delivery was made in Los Angeles (to which she had' flown on the day of the loss), she was arrested.

The district judge found specifically that the suitcase had no exterior identification and that it was opened by an airline employee “for the purpose of determining its ownership.” The officers testified that they never suggested opening the suitcase and that they were aware that it would be improper to make such a suggestion. Their testimony remained unshaken on cross-examination. The shift supervisor testified that the decision to open the suitcase was his, and his alone. He stated that he was acting in furtherance of his airline’s policy of attempting to reunite lost luggage with the passengers as quickly as possible and, when necessary, opening suitcases to determine ownership. He testified that fast action of this sort obviates time-consuming and expensive procedures of tracing passengers, often to very distant locations. He described the cooperation between airlines in this regard, including exchange of information as to the identity of incoming and outgoing passengers. In summary, the evidence supports the district judge’s finding as to motivation for the search and his finding that the decision to open the suitcase was that of the airline supervisor.

A carrier’s search, on its own initiative, for its own purposes, is normally considered a private (and not a governmental) search, and thus not one giving rise to Fourth Amendment protections. United States v. Ogden, 485 F.2d 536, 538-9 (9th Cir. 1973); see United States v. Gumerlock, 590 F.2d 794 (9th Cir. 1979). There is nothing unreasonable about permitting a carrier, when faced with lost luggage that bears no identification, to open the luggage in an attempt to identify the owner. The search by airline personnel of luggage left in the public baggage room at an airport has been held to be a private search. United States v. Blanton, 479 F.2d 327 (5th Cir. 1973); United States v. De La Fuente, 548 F.2d 528 (5th Cir. 1977). Similarly, searches by motel or hotel employees of luggage left in rooms have been held to be private searches. United States v. Wilson, 472 F.2d 901 (9th Cir. 1973); United States v. Harless, 464 F.2d 953 (9th Cir. 1972).

The evidence supports the district judge’s finding that the decision to initiate the search was that of the airline employee, and his implicit conclusion that it was a private search when it was initiated. Appellant suggests that it thereafter became a governmental search by the presence of the officers and their observation of the airline employee’s actions. We reject that contention. See United States v. Entringer, 532 F.2d 634 (8th Cir. 1976); United States v. Pryba, 163 U.S.App.D.C. 389, 502 F.2d 391 (D.C.Cir.1974). But in this case there was more than mere observation. One of the officers tapped the suitcase and thus assisted the airline employee, at least to that extent. Given the express findings of the district judge as to the motivation for the search, and his finding that the suitcase was opened by the airline employee pursuant to that motivation, we are not inclined to hold that this slight “participation” by the officer converted the clearly private search into a governmental one. The officers testified that they were present out of an interest in helping the airline and they were admittedly curious. The record contains no evidence that even suggests that they had information to suspect that the suitcase contained contraband and there is no evidence to suggest that they knew the owner. We are not disposed to hold, on the facts of this case, that their presence and conduct constituted the search a governmental one, so as to bring into play the exclusionary rule.

We do not accept appellant’s analogy of this case to that in Corngold v. United States, 367 F.2d 1 (9th Cir. 1966), where F.B.I. agents were found to have asked the airline employee to open a box and then assisted in holding back the flaps as he did so. Nor can we accept appellant’s analogy in United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977), which involved the governmental search of a footlocker made shortly after the arrest of the owner, but without a search warrant. Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979), decided since the briefing in this case, is similarly not analogous. Like Chadwick, it is directed "to a police search of a suitcase of someone who was identified in advance as a suspect. This was obviously not the situation here. The facts of this case are clearly distinguishable. The other issues raised by appellant are without merit.

Affirmed.