United States v. Harold Evan Grant

RALPH B. GUY, Jr., Circuit Judge,

concurring in part and dissenting in part.

Because I believe that the conduct of the government in this case conformed to the requirements of the fourth amendment until the DEA agents conducted a full laboratory analysis on the cans without first securing a warrant, I am compelled to write separately. I agree with the conclusion of the majority that the PCP must be suppressed, but I would reverse the suppression order as to all other evidence seized.

As we stated in United States v. Flowers, 909 F.2d 145 (6th Cir.1990), there are three different levels of contact that occur between law enforcement officers and the travelling public. This case presents a progression from the lowest, most innocuous level of contact to the highest, most intrusive level.

In the first level of contact, a law enforcement officer approaches a person without any articulable reason whatsoever. As long as a reasonable person would feel free to leave the situation, no seizure has occurred within the meaning of the fourth amendment. See Florida v. Royer, 460 U.S. 491 , 103 S.Ct. 1319 , 75 L.Ed.2d 229 (1983). The contact rises to the second, somewhat more intrusive, level of contact when the person no longer feels free to go. This type of contact is commonly known as a Terry stop. So long as the agent has reasonable suspicion and so long as the detention of the traveller is limited, the fourth amendment is not offended. The final level of police-traveller contact occurs when the police have probable cause to believe a crime has been committed and that the person stopped committed the crime. In such situations, the police officer may, in fact, place the traveller under arrest, and he may conduct non-consensual searches of the person and his belongings. Even though he has probable cause, however, the government agent still must conduct his activities within the boundaries of the fourth amendment.

The majority merges its analysis of the two on-plane interrogations of the defendant by the agents. In my opinion, the two interrogations can and must be separated by the court in order to evaluate the fourth amendment implications of the case.

The initial approach of the defendant by the Border Patrol agents was within the first level of contact. The agents did not have reasonable suspicion to detain Grant; they were merely conducting a routine check of flight 338. Border Patrol agents routinely board flights in Detroit to check for illegal aliens. They are authorized by statute to board flights within a reasonable distance 5 of the international border. 8 U.S.C. § 1357 (a)(3).

*391 Looking at the totality of the circumstances, I am convinced that there was nothing improper about the first approach by the agents. The Border Patrol agents were dressed in civilian clothes, and their weapons were concealed. Although Buech-ner tapped Grant on the shoulder and showed him his badge, his overall manner was non-threatening. Most significantly, they did not restrict his movement, and they permitted him to move to a different seat, presumably to get away from them. In this case, not only would a reasonable person have felt free to leave, Grant did leave.

When the agents approached Grant for the second time and asked him to accompany them off the airplane, a seizure occurred. However, by this time, the agents had developed reasonable suspicion that Grant might be associated with criminal activity. First, the photograph on his green card did not really look like him, which led the agents to believe the card might be counterfeit. Second, his name was not on the flight manifest. Third, Grant was shaking as he handed his green card to Buechner. Fourth, Grant was unable to produce his plane ticket, saying that it was in his checked luggage. Although possible, it is highly improbable that someone would check his plane ticket in his suitcase. Finally, the agents had already discovered 55 illegal aliens on board.

Although each of these factors, in isolation, would be insufficient to give rise to reasonable suspicion, “articulable suspicion is to be based upon an assessment of all circumstances surrounding the actions of a suspected wrongdoer.” United States v. Knox, 839 F.2d 285, 290 (6th Cir.1988), cert. denied, 490 U.S. 1019 , 109 S.Ct. 1742 , 104 L.Ed.2d 179 (1989). Taken together, the factors listed above gave rise to reasonable suspicion justifying a Terry stop of Grant.

Because the agents lacked probable cause at this point, the search of Grant’s carry-on bag had to be with his consent in order to be legal. Although there was conflicting testimony at the evidentiary hearing, the magistrate concluded that Grant’s consent to the search was voluntary. Because they found that the government’s actions became illegal before this search, neither the district judge nor the majority ever made a specific finding of whether Grant gave his consent. The magistrate’s conclusions were not clearly erroneous, and I would not disturb them. Consequently, the subsequent arrest and search-incident-to-arrest was legal, and all evidence seized up to this point is admissible.

The next question becomes whether the search of Grant’s suitcase in New York was a valid private search, or whether it was illegal. The magistrate concluded that the search was private and therefore legal, but the district court and the majority concluded that, because the Port Authority officers had been advised to secure a warrant before opening the bag, their participation in the search of the bag at the direction of the Northwest agent was an impermissible government search. This conclusion blurs the distinction between a private and a government search. The fourth amendment only proscribes government action; it is wholly inapplicable to the actions, even if unreasonable, of private citizens, unless those citizens are acting as agents of the government. United States v. Jacobsen, 466 U.S. 109, 113 , 104 S.Ct. 1652, 1656 , 80 L.Ed.2d 85 (1984).

The mere presence of law enforcement officers at a private search does not implicate the fourth amendment. Just as an illegal government search cannot be vindicated if the primary actor is a private citizen, a non-governmental search does not lose its private character simply because law enforcement officers perform tasks at the directive of a private citizen. In United States v. Gomez, 614 F.2d 643 (9th Cir.1979), for example, the Ninth Circuit held that a search was a valid, private one even though a police officer helped an airline supervisor open the defendant’s suitcase. See also United States v. Capra, 501 F.2d 267 (2d Cir.1974), cert. denied, 420 U.S. 990 , 95 S.Ct. 1424 , 43 L.Ed.2d 670 (1975).

*392 Here, the Port Authority officers were merely assisting the Northwest service manager. LaGrone had a legitimate policy justification for opening the suitcase, because he suspected that the cans contained flammable materials. The search was legitimate, and the actions of the law enforcement officers were legal, even up to the point of opening the cans to sniff the contents.

The behavior of the law enforcement officers in this case became questionable, however, when the DEA seized the cans and took them to the laboratory to be analyzed. Clearly, the lab analysis went beyond the scope of the private search, as the private search merely disclosed the cans and the possibility that they might contain a flammable substance.

The government contends that the laboratory analysis made here was similar in nature to the field test that was approved by the Court in Jacobsen . In Jacobsen , the police officer conducted a field test on a small quantity of the white powder that had been discovered to determine whether the substance was cocaine. The Court held that such a field test did not compromise any legitimate privacy interest:

A chemical test that merely discloses whether or not a particular substance is ■ cocaine does not compromise any legitimate interest in privacy. This conclusion is not dependent on the result of any particular test. It is probably safe to assume that virtually all of the tests conducted under circumstances comparable to those disclosed by this record would result in a positive finding; in such cases, no legitimate interest has been compromised. But even if the results are negative — merely disclosing that the substance is something other than cocaine — such a result reveals nothing of special interest. Congress has decided — and there is no question about its power to do so — to treat the interest in “privately” possessing cocaine as illegitimate; thus governmental conduct that can reveal whether a substance is cocaine, and no other arguably “private” fact, compromises no legitimate privacy interest.

Jacobsen, 466 U.S. at 123 , 104 S.Ct. at 1661 (footnote omitted). The laboratory analysis conducted in this case clearly went beyond the scope of any field test envisioned by the Court in Jacobsen . The contents of the cans were subjected to a full battery of tests, which revealed not only whether the cans contained PCP, but also exactly what they did contain. The actions by the DEA at this point cannot be justified by Jacobsen .

At the point law enforcement officials seized the cans for testing, their activities rose to the third, and final, level of contact between the government and travellers. The laboratory testing constituted a search within the meaning of the fourth amendment, and it must be supported by probable cause and either a warrant or some exception to the warrant requirement.

The government argues that this case is controlled by this court’s decision in United States v. Rodriguez, 596 F.2d 169 (6th Cir.1979). In Rodriguez , an employee of Emery Air Freight opened a package and discovered that it contained a large, sealed plastic trash bag, inside of which were a number of transparent plastic bags containing a brown, powdery substance. There was also a lot of talcum powder loose in the larger trash bag. The employee contacted the police department, and the police officer ultimately took some of the powder back to a laboratory for testing. The testing revealed that the brown powder was PCP. The court determined that a government search and seizure had occurred, but that it was justified by the “plain view” exception to the warrant requirement. The court stated that “[a]n object in plain view may be inspected and seized without a warrant if (1) the officer is lawfully present, (2) the object is in plain view, and (3) its incriminating nature is immediately apparent.” Id. at 175 (footnote omitted).

The instant case is distinguishable from Rodriguez because the incriminating nature of the cans was not immediately apparent. Although it was certainly unusual for someone to be carrying lacquer thinner or ether in a suitcase, such circumstances *393 do not lead inevitably to the conclusion that the cans contained contraband. By contrast, the incriminating nature of a parcel containing a number of small plastic bags full of brown powder is immediately apparent from plain view observation.

At the time the DEA seized the cans, the government had probable cause to believe that a crime had been committed. First, the circumstances surrounding Grant’s ticket were suspicious. It was a one-way ticket, purchased with cash, in someone else’s name. Such circumstances often accompany the purchase of tickets by drug couriers. In addition, he lied about the purchase of the ticket. He also lied about the contents of the cans. He was carrying marijuana on his person, which constituted evidence of his association with illegal drugs. Finally, the fact that the cans contained a liquid that smelled like ether indicated that the cans might contain PCP.

Given that probable cause existed, there is no reason why the agents could not have obtained a warrant before seizing and testing the contents of the cans. The cans were securely stored at LaGuardia Airport by Northwest Airlines. The defendant could not have appeared to claim them, as he was in custody in Detroit.

As this court recently reiterated, “[war-rantless searches are per se unreasonable under the fourth amendment, except in a féw carefully delineated instances. The exigent circumstances exception relies on the premise that the existence of an emergency situation, demanding urgent police action, may excuse the failure to procure a search warrant.” United States v. Radka, 904 F.2d 357, 360 (6th Cir.1990) (citations and footnote omitted). No such emergency situation existed in this case, and there was no need for urgent police action.

The seizure of the cans and the laboratory analysis of their contents without first securing a warrant violated Grant’s fourth amendment right to be free from unreasonable searches and seizures. I would affirm the suppression of the cans.

I also concur in the conclusion of the majority that the bond issue is moot.

. 8 C.F.R. § 287.1 (a)(2) defines "reasonable distance" to mean within 100 air miles of the border.