Petition — Bulgier v. United States

JUN 30 1980

WACHAEL RODAK, JR., CLERR

In THE

Supreme Court of the Anited States

Octoser TERM, 1979

|

a

= <a

SANDRA BULGIER,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

JEROME A. DePALMA

SCOTT B. ZOLKE

33 North LaSalle Street

Suite 3800

Chicago, Illinois 60602

(312) 236-0360

Counsel for Petitioner

Midwest Law Printiug Co., Chicago 60601, Financial 6-3988

TABLE OF CONTENTS

OPINIONS BELOW 2

JURISDICTION 2

QUESTION PRESENTED 2

STATUTORY PROVISIONS INVOLVED 3

STATEMENT 5

REASONS FOR GRANTING THE PETITION ........ 6

CONCLUSION 9

APPENDIX A—Opinion of the Court of Appeals ........ la

APPENDIX B—Judgment of the Court of Appeals .... 14a

APPENDIX C—Memorandum Opinions of the District

Court 15a

APPENDIX D—Order of the Court of Appeals ............ 7a

APPENDIX E—Order of the Court of Appeals ............ 28a

TABLE OF AUTHORITIES

Cases

DiBella v. United States, 369 U.S. 121, 82 S.Ct. 654, 7

L.Ed.2d 614 (1962) 6, 7

United States v. Dieter, 429 U.S. 6, 97 S.Ct. 18, 50 L.

Ed.2d 8 (1976) 6

United States v. Humphries, 600 F.2d 1238 (9th Cir.

1979) | 7

United States v. Robinson, 316 U.S. 220, 80 S.Ct. 282, 4

L.Ed.2d 259 (1960) 7,8

United States v. Scott, 524 F.2d 465 (5th Cir. 1975) ...... 6

United States v. Wilson, 420 U.S. 332, 95 S.Ct. 1013,

43 L.Ed.2d ...... (1975) 8

Other Authorities

18 U.S.C. Section 3731 4, 6, 7, 8, 9

28 U.S.C. 1254(1) 2

Rule 4(b), Federal Rules : 3, 7,8

In THE

Supreme Court of the Anited States

Octroser TERM, 1979

SANDRA BULGIER,

Petitioner,

vB.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

SANDRA BULGIER, by and through her attorneys,

Jerome A. DePalma, and Scott B. Zolke, petitions for a

Writ of Certiorari to review the judgment of the United

States Court of Appeals for the Seventh Circuit in this

case.

a

OPINIONS BELOW

The opinion of the Court of Appeals, (App. A, infra,

pp. la-13a), is not yet reported. The memorandum opin-

ion and supplemental memorandum opinion of the dis-

trict court, (App. C, infra, pp. 15a-26a), are unreported.

JURISDICTION

The judgment of the Court of Appeals, (App. B, infra,

p. 14a), was entered on April 8, 1980. The order of the

Court of Appeals, (App. D, infra, p. 27a), denying the

Petition for Rehearing was entered on April 29, 1980.

The order of the Court of Appeals, (App. E, infra, p.

28a), denying the Petition for Rehearing in Banc was

entered on May 6, 1980. The jurisdiction of this Court is

invoked under 28 U.S.C. 1254(1).

QUESTION PRESENTED

Whether the filing of a Motion for Reconsideration

directed to an order suppressing evidence tolls the time

for filing Notice of Appeal, or whether the denial of a

Motion for Reconsideration is itself an appealable order

under Section 3731 of Title 18, United States Code.

a

STATUTORY PROVISIONS INVOLVED

Rule 4(b), Federal Rules of Appellate Procedure

provides:

In a criminal case the notice of appeal by a defen-

dant shall be filed in the district court within 10

days after the entry of the judgment or order

appealed from. A notice of appeal filed after the an-

nouncement of a decision, sentence or order shall be

treated as filed after such entry and on the day

thereof. If a timely motion in arrest of judgment or

for a new trial on any ground other than newly dis-

covered evidence has been made, an appeal from a

judgment of conviction may be taken within 10 days

after the entry of an order denying the motion. A

motion for a new trial based on the ground of newly

discovered evidence will similarly extend the time

for appeal from a judgment of conviction if the mo-

tion is made before or within 10 days after entry of

the judgment. When an appeal by the government

is authorized by statute, the notice of appeal shall

be filed in the district court within 30 days after

the entry of the judgment or order appealed from.

A judgment or order is entered within the meaning

of this subdivision when it is entered in the

criminal docket. Upon a showing of excusable

neglect the district court may, before or after the

time has expired, with or without motion and

notice, extend the time for filing a notice of appeal

for a period not to exceed 30 days from the expira-

tion of the time otherwise prescribed by this sub-

division.

= a

Section 3731, Title 18, United States Code, provides:

In a criminal case an appeal by the United States

shall lie to a court of appeals from a decision, judg-

ment or order of a district court dismissing an in-

dictment or information as to any one or more

counts, except that no appeal shall lie where the

double jeopardy clause of the United States Con-

stitution prohibits further prosecution.

An appeal by the United States shall be to a court

of appeals from a decision or order of a district

court suppressing or excluding evidence or requir-

_ ing the return of seized property in a criminal

proceeding, not made after the defendant has been

put in jeopardy and before the verdict or finding on

an indictment or information, if the United States

attorney certifies to the district court that the

appeal is not taken for purpose of delay and that

the evidence is a substantial proof of fact material

in the proceeding.

The appeal in all such cases shall be taken within

thirty days after the decision, judgment or order

has been rendered and shall be diligently

prosecuted.

Pending the prosecution and determination of the

appeal in the foregoing instances, the defendant

— _ released in accordance with Chapter 207 of

this Title.

The provisions of this Section shall be liberally

construed to effectuate its purposes.

— )—

STATEMENT

1. On July 24, 1979, the District Court granted the

petitioner’s Motion to Suppress the Evidence, supported

by a memorandum opinion. (App. C, infra, pp. 15a-18a).

2. On August 9, 1979, the government filed its Mo-

tion for Reconsideration which was denied on September

5, 1979, again supported by a memorandum opinion.

(App. C, infra, pp. 19a-26a).

3. On September 10, 1979, the government, pursuant

to Section 3731, Title 18, United States Code, filed its

Notice of Appeal. (App. A, infra, p. 4a).

4. On October 4, 1979, the petitioner filed her Motion

to Dismiss the Appeal as filed more than thirty days

from the order of July 24, 1979, suppressing the

evidence.

~

REASONS FOR GRANTING THE PETITION

1. The government’s motion for reconsideration is

neither provided for in the Federal Rules of Appellate

Procedure, nor in Section 3731 of Title 18, United States

Code. Yet, the court of appeals held that a motion for

reconsideration terminates the running of the time for

appeal. In so doing, the court of appeals misconceived

this Court’s decision in United States v. Dieter, 429 U.S.

6, 97 S.Ct. 18, 50 L.Ed.2d 8 (1976), which held that a

motion to set aside the dismissal of an indictment tolls

the time for appeal. The Dieter case leaves unresolved

the questions of whether the denial of a motion for

reconsideration is itself an appealable order under Sec-

tion 3731, or whether a motion for reconsideration ex-

tends the time for appealing from a Section 3731 order.

This Court has made it very clear that only Congress

can enlarge the government’s right to appeal in criminal

cases. IiBella v. United States, 369 U.S. 121, 82 S.Ct.

654, 7 L.Ed.2d 614 (1962). Hence, a court of appeals is

without power to determine which types of judgments

and orders are appealable. In addition, a reviewing

tribunal is under a duty to make certain of its jurisdic-

tion and must decline to proceed in a cause where

jurisdiction is lacking.

2. Motions for reconsideration have met with varying

interpretations throughout the circuits. United States v.

Scott, 524 F.2d 465 (5th Cir. 1975), holds that the

government’s statutory right to appeal from an order

suppressing evidence is not an exclusive remedy, and

that it was within the discretion of the district court to

grant a motion for reconsideration of an order suppress-

ing evidence. The Ninth Circuit has held that although

=

appeals after the statutory thirty day limitation period

are not regarded with favor, the court may exercise

jurisdiction. United States v. Humphries, 600 F.2d 1238

(9th Cir. 1979). The Ninth Circuit has further reasoned

in Meier v. Keller, 521 F.2d 548, 553 (9th Cir. 1975), cert.

denied, 423 U.S. 948, 96 S.Ct. 1410, 47 L.Ed.2d 348

(1976), that the thirty day limitation on appeals as

provided in 18 U.S.C. 3731 is not jurisdictional. The

Keller decision is in direct conflict with this Court’s long

standing rule that the taking of an appeal within the

time prescribed by Fed.R.App.P. 4(b), is both man-

datory and jurisdictional. United States v. Robinson, 316

U.S. 220, 80 S.Ct. 282, 4 L.Ed.2d 259 (1960). This

conflict in interpretations of Rule 4(b) and Section 3731

has presented an area of great confusion.

3. Inasmuch as Congress alone is empowered to

grant the government statutory authority to take an

appeal in a criminal case, a court of appeals or a district

court cannot enlarge or modify that right. The instant

case presents a most crucial area of concern because the

order from which the government took its appeal was

interlocutory. This Court has consistently recognized

that “the concept of finality as a condition of review has

encountered situations which made clear that it need not

invite self-defeating judicial construction.” DiBella, 369

U.S. 121, 125 (1962). It is not the province of a lower

federal court to determine the boundaries of its jurisdic-

tion, but rather to work within those boundaries and

determine whether it has the requisite statutory author-

ity to exercise its jurisdiction. To permit a lower court to

classify certain types of interlocutory orders as appeal-

able is to invite inconsistency, confusion and delay in the

administration of the judicial process.

~~

Jurisdiction is not a matter of discretion. However, the

lower courts have exhibited many divergent degrees of

judicial construction resulting in a departure from the

long standing rule “that the taking of an appeal within

the prescribed time is mandatory and jurisdictional.”

Robinson, 361 U.S. 220, 229 (1960). For a court of

appeals to ignore the thirty day time limitation and

recognize a late notice of appeal is to actually enlarge its

jurisdiction. The result of such a practice is to cireum-

vent the proper administration of the Rules of Court. By

adopting the view that a motion for reconsideration of

an interlocutory order is the same as a motion for

rehearing directed at a final judgment, the Seventh Cir-

cuit has promulgated a quasi rule of appellate

procedure which is inconsistent with the requirement of

finality.

4. Simply stated, Rule 4(b) and Section 3731 must

specifically provide for a motion for reconsideration.

There would consequently be no confusion nor inconsis-

tent interpretations of the proper time in which to file a

notice of appeal. The lower federal courts would not be

left with the task of determining the limitations for fil-

ing. What now plagues the courts is an uncertainty

which can only be remedied by the prescription of

precise times within which the power of the courts must

be confined.

5. There is no reason for continuing to require the

lower federal courts to construe 18 U.S.C. 3731 in an ar-

bitrary manner. Congress intended to remove all

statutory barriers to government appeals, but enacted

no statute or rule which permits the government to ex-

tend the time for appeal by filing a post-order motion.

As this Court reasoned in United States v. Wilson, 420

U.S. 332, 95 S.Ct. 1013, 48 L.Ed.2d (1975), the govern-

ment must have express statutory authority in order to

fine

take a criminal appeal. It follows that the statutory

authority which specifically provides express time

limitations in the exercise of that right, cannot be ex-

panded by differing interpretations in the lower federal

courts.

Given the nature of the government’s right to appeal

from an order suppressing evidence, in light of the

general principle of federal appellate jurisdiction re-

quiring finality for review, this Court must determine

whether 18 U.S.C. 3731 empowers a court of appeals

with jurisdiction to entertain an appeal from the denial

of a motion for reconsideration directed at a non-final

suppression order. The disagreement among the circuits

and confusion within, demand an adjudication of such

conflicting and confused views regarding a problem of

considerable importance in the pruper administration of

appellate practice.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

JEROME A. DePALMA

SCOTT B. ZOLKE

33 North LaSalle Street

Suite 3800

Chicago, Illinois 60602

(312) 236-0360

Counsel for Petitioner

June, 1980

APPENDICES

Page

APPENDIX A — Opinion of the Court of

PIIIN sctissisiinsicehiesieniibiiniainviicsiaioes la

APPENDIX B — Judgment of the Court of

BOE cunisncscsctipatniindansidcuthionncs l4a

APPENDIX C — Memorandum Opinions of

the District Court ................ 15a

APPENDIX D — Order of the Court of

TI iii ican 27a

BIE sicininndcpibcganhannitesitbiniemaes 28a

—la—

APPENDIX A

UNITED STATES COURT OF APPEALS

For The Seventh Circuit

Chicago, Illinois 60604

No. 79-2053

UNITED STATES OF AMERICA,

Plaintiff-A ppellant,

Vv.

SANDRA BULGIER,

Defendant-A ppellee.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 79 CR 185—Joel M. Flaum, Judge.

ARGUED FEBRUARY 21, 1980—DECIDED APRIL 8, 1980

Before SPRECHER, TONE and Woop, Circuit Judges.

SPRECHER, Circuit Judge. In this appeal we uphold

the validity of a warrantless search and seizure ac-

complished through a controlled delivery of narcotics.

I

The facts are recited substantially as found by the dis-

trict court. On March 16, 1979, defendant arrived at

O’Hare International Airport in Chicago on a Continen-

tal Airlines flight from Los Angeles, California. She was

unable to locate her lu , and so she filed a Delayed

Baggage Report with Continental. Thereupon, defendant

left the airport.

—2a—

The next day, Continental employees located the miss-

ing luggage, noone of two suitcases and a golf bag.

After an unsuccessful attempt to have the luggage

delivered to the address listed in the report, followed by

an equally abortive effort to contact defendant at the

telephone number set forth therein,’ the employees open-

ed the smaller suitcase in the hope of finding some

further means of contacting the defendant. In so doing,

they were following what seems to have been Continen-

tal’s normal operating procedure in such cases.?

In the course of searching the bag for identification,

the Continental employees found 90.83 grams of cocaine

inside several clear plastic bags contained in a manila

envelope. When Continental’s baggage service agent,

Shava Judy Spector, arrived at work on March 18, she

was informed that the bag had been searched and that

drugs were found in it. She then examined the plastic

bags herself and, believing them to contain heroin, she

called the Drug Enforcement Administration (DEA).

In response to her call, Special Agent Thomas L.

Thompson contacted her. When apprised of the facts,

Thompson went to meet Spector at the airport.? Spector

showed him the open suitcase, with the manila envelope

lying on top. ompson removed the plastic bags

erefrom and, upon visual inspection, concluded that

they contained cocaine. Beyond noticing the fact that the

open suitcase also contained some of clothing,

hompson had no personal knowledge of what else was

1 The delivery man could not deliver the bags because no one

was home at the address and the neighbors refused to accept

the bags because they said there had been a drug raid at the

listed address. Tr. 130. The telephone listed in the report had

been disconnected. Tr. 134.

* The government, without objection by the defendant, ad-

vised us that the airline employees were following Civil

Aeronautics Board “4 No. 142, Rule 340(A\1) which

provides in part: “All baggage is subject to inspection by the

carrier ....

’ Before Thompson or any other DEA agent arrived, all

three pieces of luggage had been examined by airline per-

sonnel. Tr. 121-22.

—3a—

in the open suitcase. In Thompson’s presence another

search of the defendant’s three pieces of luggage was

conducted by airline personnel.

_ Subsequently, someone called Spector’s office regard-

ing defendant’s luggage. When informed that it had

a found, the caller stated that he would come and

pick it up.

After listening, with Spector’s consent, to that call,

Thompson summoned Special Agent Michael Hillebrand

to the scene. By the time Hillebrand arrived at Spector’s

office, the smaller suitcase had been closed, with the

substance tentatively identified as cocaine inside.

Hillebrand had no personal knowledge of what that suit-

case contained. However, Thompson and Spector had

told him what they knew about the situation.

A few hours later, the defendant and a male compa-

nion arrived and claimed the luggage. The defendant

signed for it, and picked up the smaller suitcase. Her

companion took the other two pieces of her baggage.

They then took different escalators down to the lower

level of the terminal. When the defendant exited from

the lower level and headed towards her companion’s

automobile, Hillebrand placed her under arrest and

seized the luggage.

From the time the defendant informed the Continental

employee working at the ticket counter that she was

there to pick up her baggage until the moment of her

arrest, she was under Hillebrand’s continual sur-

veillance. He observed that she did not open the suitcase

during that time period.

Immediately after apn the defendant under arrest,

Hillebrand conducted a quick weapons search of her

purse and found none. Based upon the nature of defen-

dant’s clothing, he was satisfied that no pat-down of her

person would be necessary. He did not feel it necessary

to search the smaller suitcase for weapons at that time,

as he had seized it at the same instant that he arrested

the defendant.

—4a—

Having concluded that defendant was unarmed and

not dangerous, Hillebrand took her to the airport DEA

office. Once there, he opened the smaller suitcase and

subjected it, along with her purse, to a thorough search.

During this search, he found the cocaine and a “coke

spoon” in the suitcase and another “coke spoon” in her

purse. The cocaine was then subje*ted to a field test

which yielded positive results.

The district court granted the defendant’s motion to

suppress the cocaine and the “coke spoon” taken from

the suitcase. The government appealed.

II

At the outset we are confronted with a question of

jurisdiction. On July 24, 1979, the district court granted

the defendant’s motion to suppress the evidence, sup-

ported by a memorandum opinion. On August 9, the

overnment filed its motion for reconsideration. On

eptember 5, the court denied the government’s motion,

again supported by a memorandum opinion. The

eels notice of appeal was filed on September

The defendant has filed in this court a motion to dis-

miss the appeal as filed more than thirty days from July

24. The government responded and we ordered that the

motion be taken with the case.

The right of the government to appeal from an order

suppressing evidence is provided by 18 U.S.C. -§ 3731.4

4 18 U.S.C. § 3731 provides:

In a criminal case an —— by the United States shall

lie to a court of appeals from a decision, judgment, or

order of a district court dismissing an indictment or infor-

mation as to any one or more counts, except that no appeal

shall lie where the double jeopardy clause of the United

States Constitution prohibits further prosecution.

An “¢ by the United States shall lie to a court of

appeals from a decision or order of a district courts [sic]

suppressing or excluding evidence or requiring the return

of seized property in a criminal proceeding, not made after

(Footnote continued on following page)

=_

Both that section and Fed. R. App. P. 4(b)5 fix the time

for appeal at thirty days after the entry of the order.

The Supreme Court, applying 18 U.S.C. § 3731 and its

own Rule 11(2), which fixed the time for appeal in

criminal cases appealable directly from the district

court to the Supreme Court, has held that if the govern-

ment moves for a rehearing within the time fixed for

taking an appeal, the motion terminates the running of

the time for appeal and the time begins to run anew

from the date of the entry of the order disposing of the

motion. United States v. Healy, 376 U.S. 75, 77-80 (1964).

See also 9 Moore’s Federal Practice, 4 204.17, at 991-92

(2d ed. 1975).

Some doubt as to whether the same principle would

apply when the criminal case was appealed from the

4 continued

the defendant has been put in jeopardy and before the ver-

dict or finding on an indictment or information, if the

United States attorney certifies to the district court that

the appeal is not taken for purpose of delay and that the

evidence is a substantial proof of a fact material in the

proceeding.

The appeal in all such cases shall be taken within thirty

days after the decision, judgment or order has been

rendered and shall be diligently prosecuted.

Pending the prosecution and determination of the

appeal in the foregoing instances, the defendant shall be

released in accordance with chapter 207 of this title.

The provisions of this section shall be liberally con-

strued to effectuate its purposes.

5 Fed. R. App. P. 4(b) provides in part:

When an appeal by the government is authorized by

statute, the notice of appeal shall be filed in the district

court within 30 days after the entry of the judgment or

order appealed from. A judgment or order is entered

within the meaning of this subdivision when it is entered

in the criminal docket. Upon a showing of excusable

neglect the district court may, before or after the time has

expired, with or without motion and notice, extend the

time for filing a notice of appeal for a period not to exceed

0 days from the expiration of the time otherwise

prescribed by this subdivision.

/

—6a—

district court to a court of appeals, subject to Fed. R.

App. P. 4(b) instead of Supreme Court Rule 11(2), was dis-

pelled in United States v. Dieter, 429 U.S. 6 (1976), when

the Court said:

The Court of Appeals misconceived the basis of

our decision in Healy. We noted there that the con-

sistent practice in civil and criminal cases alike has

been to treat timely petitions for rehearing as

rendering the original judgment nonfinal for pur-

s of appeal for as long as the petition is pend-

ing. 376 U.S., at 78-79. To have held otherwise

might have prolonged litigation and unnecessarily

burdened this Court, since plenary consideration of

an issue by an appellate court ordinarily requires

more time than is required for disposition by a trial

court of a Lagoa for rehearing. /d., at 80. The fact

that appeals are now routed to the courts of appeals

does not affect the wisdom of giving district courts

the opportunity promptly to correct their own alleg-

ed errors, and we must likewise be wary of im-

posing added and unnecessary burdens on the

courts of appeal.

Id. at 8 [footnote omitted].

The defendant seems to have placed some significance

on the fact that the granting of the motion to suppress is

Po songs nen aM She argues that an appeal from such an

order should be expedited. While it is true that both

Healy and Dieter involved orders dismissing an indict-

ment, 18 U.S.C. § 3731 gives the government the right

to appeal both from orders dismissing indictments and

from orders suppressing evidence. Section 3731 Phono

as to both appeals, that they “shall be diligently

prosecuted.” Nevertheless, the Supreme Court approved

the possibility of lengthier appeals in favor of giving the

district courts the first opportunity to correct their own

alleged errors. In addition, many dismissals of in-

dictments are the direct result of suppressions of

evidence.’ Finally, the Dieter result was anticipated in

6 In Dieter, the “District Court . . . reconsidered the. . . mo-

7 to suppress, and . . . dismissed the indictment.” 429 U.S.

a

—7a—

United States v. St. Laurent, 521 F.2d 506, 511-12 (1st

Cir. 1975), cert. denied, 423 U.S. 1049 (1976), where the

appeal, like this one, was from the granting of a motion

to suppress evidence.

ane notice of appeal by the government was timely

i

III

The district court based its suppression of the

evidence Stapp upon Arkansas v. Sanders, 99 S.Ct.

2586 (1979) and United States v. Berry, 560 F.2d 861

7th Cir. 1977), vacated on other pa 571 F.2d 2 (7th

ir) cert. denied, 439 U.S. 840 (1978). The court con-

cluded that the warrantless search of the luggage which

occurred after the defendant’s arrest violated the Fourth

Amendment under the authority of those cases.’ Except

for the facts that Sanders involved luggage and B

involved an attache case, the two cases bear little factua

resemblance to the present case,’ which involves luggage

but also involves an earlier private search by non-

governmental persons and a “controlled delivery” by the

government to the defendant.

Even as “[t]he word ‘automobile’ is not a talisman in

whose presence the Fourth Amendment fades away and

disappears,” Coolidge v. New Hampshire, 403 U.S. 4438,

461-62 (1971), we do not believe that the Supreme Court

’ Inasmuch as the court found the post-arrest search un-

constitutional, it assumed, without deciding, that the prior

search made by airport personnel in the presence of a DEA

agent was permissible and that the earlier search provided

probable cause to believe that the smaller suitcase contained

contraband.

8 In addition, Berry was vacated when we determined that

United States v. Chadwick, 433 U.S. 1 (1977) would not be

applied retroactively in this circuit. Likewise, the searches in-

volved here took place on March 16-18, 1979 and Sanders was

decided on June 20, 1979, so that it would require retroactive

application of Sanders in order to apply it here. However, for

the purposes of this case, we assume that both Chadwick and

Sanders apply.

cnliinee

in Sanders, in which it recognized that “the cir-

cumstances giving rise to suppression requests can vary

almost infinitely,” intended that the word “luggage”

would automatically require suppression to the exclusion

of all other prior teaching surrounding the application

of the Paarth Amendment. Sanders, supra, 99 S.Ct. at

2589.

Controlled deliveries of contraband apparently serve a

useful function in law enforcement. They most ordinari-

ly occur when a carrier, usually an airline, unexpectedly

iscovers what seems to be contraband while inspecting

luggage to learn the identity of its owner, or when the

contraband falls out of a broken or damaged piece of

luggage, or when the carrier exercises its inspection

privilege because some suspicious circumstance has

caused it concern that it may unwittingly be transport-

ing contraband. Frequently, after such a discovery, law

enforcement agents restore the contraband to its con-

tainer, then close or reseal the container, and authorize

the carrier to deliver the container to its owner. When

the owner appears to take delivery he is arrested and

the container with the contraband is seized and then

= a second time for the contraband known to be

there.

In this case, about four hours elapsed between the time

of the government agent’s awareness of the contraband

until the suitcase containing it was picked up by the

defendant. As we said in United States v. Issod, 508 F.2d

990 (7th Cir. 1974), cert. denied, 421 U.S. 916 (1975):

During the 22-hour period the boxes were under

the federal agents’ surveillance or control in

Wisconsin before defendant and his companion

arrived to take delivery, the agents could have ob-

tained a warrant to search and seize the boxes.

They could not, however, have obtained a warrant

to arrest the person who would claim the boxes or

to search the vehicle into which the boxes would be

loaded, because they could not satisfy the Fourth

Amendment’s requirement of an affidavit “par-

ticularly describing the place to be searched, and

the person ... to be seized” until those persons

—9IJa—

arrived to pick up the boxes. See Lowrey v. United

States, 161 F.2d 30, 33 (8th Cir. 1947), cert. denied,

331 U.S. 849, 67 S.Ct. 1737, 91 L.Ed. 1858 (1947).

Id. at 993.

The district court here assumed that the government

agents could have seized the cocaine and the suitcase in

which it was transported before it was returned to the

defendant, but that the second seizure and search re-

quired a warrant to satisfy the Fourth Amendment.

Several other circuits have taken a different view of

controlled deliveries. In United States v. Ford, 525 F.2d

1308 (10th Cir. 1975), the court said:

Realistically, the contraband was seized bv the of-

ficers in California before it was ever shipped to

Oklahoma. See United States v. DeBerry, 487 F.2d

448 (2d Cir. 1973). The California officers marked

the package and placed a business card inside it.

Upon receiving assurances of cooperation from

Oklahoma City officers, they authorized its ship-

ment. This action constituted the initial act of con-

trol and dominion over the contraband, for without

government authorization the airline officials could

not have shipped the contraband. This official do-

minion continued unbroken because close surveil-

lance followed the seized contraband, insuring that it

remained within official possession. Actual physical

control was in fact reasserted by the Oklahoma City

— when the arrest process was completed.

hese material facts are indistinguishable from

DeBerry, supra, and we adopt the analysis of that

case in concluding that the official seizure of the

contraband occurred in San Francisco when the

government asserted dominion over it. The seizure

must be judged against the Fourth Amendment as

of that time and place.

Certainly, the seizure meets the Fourth Amend-

ment requirement of probable cause, because the

government agents involved knew that the sub-

stance was contraband before seizing it. But, the of-

ficers’ failure to obtain a warrant to seize can be ex-

cused only if the circumstances at the time of the

—10a—

seizure were sufficiently exigent to make their

course of action imperative. See Coolidge, supra. We

believe that such circumstances existed here. The

California officers had determined with certainty—

and without violation of privacy—that the substance

submitted for shipment was contraband. At that

time. they could have ordered that the substance be

detained until a magistrate could issue a warrant to

seize it. The time delay required to obtain a

warrant, however, might very well have warned the

parties to the crime of the government’s presence

and prevented their apprehension. If the contra-

band had not been shipped immediately, the

Oklahoma City addressee probably would have

become suspicious and remained aloof, and the of-

ficers’ investigation and arrest process would have

proven unproductive. See also cases cited in IJssod,

supra, at 993. In these circumstances we think the

California officers’ actions in seizing the package

were reasonable and necessary. No warrant to seize

was required here.

The search was private, and the ensuing

warrantless seizure was made upon probable cause

under exigent circumstances. Neither the search

nor the seizure violated appellant’s Fourth Amend-

ment rights.

Id. at 1312-13.

In United States v. DeBerry, 487 F.2d 448 (2d Cir.

1973), the court said:

It may be go that the New York seizure was

separate and distinct from the California search,

and because there was ample opportunity for the

New York officers to obtain a warrant for the suit-

cases’s seizure, its warrantless seizure violated the

fourth amendment. See Coolidge v. New

Hampshire, 403 U.S. 448, 470-471, 91 S.Ct. 2022, 29

L.Ed.2d 564 i This, however, would ignore the

facts and realities of the situation. The suitcase was

seized initially in California by Sergeant Figelsky

of the Los Angeles Police Department. That seizure

although done without warrant was legal, because

—lla—

Emery’s legal inspection in effect put the marijuana

in Figelsky’s plain view; he, therefore, could seize

the contraband upon sight. Cf. United States v.

Riges, 474 F.2d 699 (2d Cir. 1973), cert. denied, 414

U.S. 820, 94 S.Ct. 115, 38 L.Ed.2d 53 (1973).

Figelsky made the seizure by removing one of the

bricks of marijuana, marking all the rest of the

bricks with his initials, and finally marking the

suitcase itself with his initials. He then authorized

the suitcase to be shipped on. Even though the suit-

case was then in transit, later in the luggage bin,

and later still in the freight room, it remained

legally “seized” just as much as if it were under the

actual physical control of the police. In fact, except

for the time that it was actually in the airplane’s

belly, it was under the close surveillance of the

police. Thus, when the agents and police in New

York removed the bag from the back seat of the car

appellants were in, they were not making an initial

seizure, but rather were merely reasserting control

of the suitcase which had already been seized for

legal purposes and which was merely being used as

bait. Accordingly, no warrant was required.

Id. at 450-51 [footnotes omitted]. See also United States

v. Blanton, 479 F.2d 327, 328 (5th Cir. 1973) (“events

which later transpired did not constitute a separate or

additional search”); United States v. Emery, 541 F.2d

887, 890 (1st Cir. 1976) (“inserting the beeper into...

contraband ... legitimately discovered and construc-

tively seized at the border . . . did not violate” Fourth

Amendment). :

Where, as here, the suitcase with the contraband was

never out of the sight of the DEA agents, the marking of

the contraband, as done in Ford an DeBerry, where the

contraband was shipped to different states, was not

necessary to create the legitimate constructive seizure.

In Issod, supra, it was not necessary to rely upon a con-

structive seizure because the second search was believed

to have qualified as an automobile search governed by

Chambers v. Maroney, 399 U.S. 42 (1970) and now

changed as to that aspect by Arkansas v. Sanders,

—12a—

supra. However, the remaining principles of /ssod are

not affected by Sanders.

The district court held that although the first private

search wherein the presence of contraband was dis-

covered was permissible and although there were

reasons for not seeking a warrant until the defendant

and her companion arrived at the airport at which time

it was too late for a warrant, and although there was

probable cause for the arrest and seizure, nevertheless

the final search required a warrant. We hold that the

first seizure followed by the controlled delivery created

a — seizure which validated the second

search.

IV

Inasmuch as the district court presumed without

deciding that the earlier search made by airport per-

sonnel in the presence of the DEA agent was proper and

that the earlier search provided the government with

probable cause to believe that the suitcase contained

contraband, we must consider and determine these

questions.

The first search of the defendant’s luggage was con-

ducted by airport personnel prior to the DEA’s involve-

ment in any way. This search was a private search not

protected by the Fourth Amendment. Burdeau v. Mc-

Dowell, 256 U.S. 465 (1921); United States v. Issod, 508

age 994 (7th Cir. 1974), cert. denied, 421 U.S. 916

Thereafter, the DEA agent arrived at the airport’ and

a second search was undertaken by airport personnel in

9 When the DEA agent arrived at the airport, airport per-

sonnel showed him the smaller suitcase lying open on a desk.

Resting on top of some women’s clothing in the open suitcase

was a plain unsealed manila envelope. The agent looked inside

the envelope and saw seven clear plastic bags containing a

white powdery substance, which, on the basis of his having

—e hundreds of times, he concluded was cocaine. Tr.

=

the agent’s presence. The reopening and reinspection of

the contents of a container by or in the presence of

government authorities following a private search of the

same container does not constitute a separate, indepen-

dent search requiring a warrant. United States v.

Sanders, 592 F.2d 788, 794 (5th Cir. 1979), cert. granted,

48 U.S.L.W. 3258 (Oct. 16, 1979); United States v. Me-

Daniel, 574 F.2d 1224, 1226-27 (5th Cir. 1978), cert.

denied, 99 S.Ct. 2181 (1979); United States v. Pryba, 502

F.2d 391, 401 (D.C. Cir. 1974), cert. denied, 419 U.S.

1127 (1975); United States v. Blanton, 479 F.2d 327, 328

(5th Cir. 1978).

The discovery of what an experienced narcotics agent

concluded to be cocaine gave the DEA probable cause to

arrest the defendant. The experienced agent testified

that he had identified cocaine previously “hundreds of

times” and that “[t]here was no question in my mind, I

thought it was cocaine.”

The man is reversed and remanded for further

proceedings.

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit

—l4a—

APPENDIX B

Opinion by Judge Sprecher

UNITED STATES COURT OF APPEALS

For The Seventh Circuit

Chicago, Illinois 60604

April 8, 1980.

Before

Hon. Rosert A. Sprecuer, Circuit Judge

Hon. Puiu W. Toner, Circuit Judge

Hon. Harutineton Woop, Jr., Circuit Judge

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

No. 79-2053 vs.

SANDRA BULGIER,

Defendant-Appellee.

Appeal from the United States District Court for the

Northern District of [llinois, Eastern Division.

No. 79-CR-185—Jorn, M. Fiaum, Judge.

This cause came on to be heard on the transcript of the

record from the United States District Court for the North-

ern District of Illinois, Eastern Division, and was argued

by counsel.

On consideration whereof, it is ordered and adjudged by

this court that the judgment of the said District Court in

this cause appealed from be, and the same is hereby, RE-

VERSED AND REMANDED, in accordance with the opin-

ion of this court filed this date.

—15a—

APPENDIX C

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

UNITED STATES OF AMERICA )

)

v. ) 79 CR 185

)

)

SANDRA BULGIER

MEMORANDUM OPINION

JOEL M. FLAUM, District Judge:

This matter comes before the court upon defendant’s

Motion to Suppress. For the reasons set forth below, Gov-

ernment Exhibits 1 (Ex. 1) and 3 (Ex. 3) are ordered sup-

pressed.

On March 1€, 1979, defendant Sandra Bulgier (Bulgier)

arrived at O’Hare International Airport in Chicago on a

Continental Airlines (Continental) flight from Los Angeles,

California. She was unable to locate her luggage, and so

she filed a Delayed Baggage Report (Report) with Con-

tinental. Thereupon, Bulgier left the airport.

The next day, Continental employees located the miss-

ing luggage. After an unsuccessful attempt to have it de-

livered to the address listed in the Report, followed by an

equally abortive effort to contact Bulgier at the phone

number set forth therein, the employees opened one of

the suitcases, Government Exhibit A (Ex. A), in the hope

of finding some further means of contacting Bulgier. In so

—l16a—

doing, they were following what seems to have been Con-

tinental’s normal operating procedure in such cases.

In the course of searching the bag for identification, the

Continental employees found 90.83 grams of cocaine (Ex.

1) inside several clear plastic bags contained in a manilla

envelope. When she arrived at work the next morning,

Shava Judy Spector (Spector), was informed that the bag

had been searched and that drugs were found in it. She

then examined the plastic bags herself and, believing them

to contain heroin, she called the DEA.

In response to her call, Special Agent Thomas L. Thomp-

son (Thompson) contacted her. When appraised of the

facts, Thompson went to meet Spector at the airport.

Spector showed him the open suitcase, with the manilla

envelope lying on top. Thompson removed the plastic bags

therefrom and, upon visual inspection, concluded that they

contained cocaine. Beyond noticing the fact that the open

suitcase also contained some type of clothing, Thompson

had no personal knowledge of what else was in Ex. A.

A search of Bulgier’s other luggage followed. However,

the facts surrounding that search are not relevant to the

court’s determination of the issue decided herein, and so

nothing further shall be said concerning that search, ex-

cept that nothing incriminating was found in the course

of, or as a result of, it.

Subsequently, someone called Spector’s office concerning

Bulgier’s luggage. When informed that it had been found,

the caller stated that he would come and pick it up.

After listening, with Spector’s consent, to that call,

Thompson summoned Specia! Agent Michael Hillebrand

(Hillebrand) to the scene. By the time Hillebrand arrived

at Spector’s office, Ex. A had been closed, with Ex. 1 in-

side. Until he had made the search held unconstitutional

in this Opinion, he had no personal knowledge of what that

snitcase contained. However, Thompson and Spector had

told him what they knew about the case.

—17a—

A few hours later, Bulgier and a male companion ar-

rived and claimed the luggage. Bulgier signed for it, and

picked up Ex. A. Her companion took the other two pieces

of her baggage. They then took different escalators down

to the lower level of the terminal. When Bulgier exited

from the lower level and headed towards her companion’s

car, Hillebrand placed her under arrest and seized Ex. A.

From the time Bulgier informed the Continental employee

working at the ticket counter that she was there to pick

up her baggage until the moment of her arrest, she was

under Hillebrand’s continual surveillance. He observed that

she did not open the suitcase during that time period.

Immediately after placing Bulgier under arrest, Hille-

brand conducted a quick weapons search of her purse. He

found none. Based upon the nature of Bulgier’s clothing,

he was satisfied that no pat-down of her person would be

necessary. He did not feel it necessary to search Ex. A for

weapons at that time, as he had seized it at the same in-

stant that he arrested Bulgier.

Having concluded that Bulgier was unarmed and not

dangerous, Hillebrand took her to the airport DEA office.

Once there, he opened Ex. A and subjected it, along with

her purse, to a thorough search. During this search, he

found Ex. 1 and Ex. 3, a ‘‘coke spoon’’, in the suitcase,

and another ‘‘coke spoon’’ (Government Exhibit 2) in her

purse.

At the time of the search, the suitcase was concededly

within the exclusive control of the DEA. Therefore, the

question of the constitutionality of Hillebrand’s warrant-

less search of Ex. A is clearly controlled by United States

v. Berry, 560 F.2d 861 (7th Cir. 1977), vacated on other

grounds, 571 F.2d 2 (7th Cir.), cert. denied, 99 S.Ct. 129

(1978), the Government’s arguments notwithstanding.

The Government contends that Berry was incorrectly

decided. This court disagrees, and it infers from Arkansas

v. Sanders, 47 U.S.L.W. 4782 (U.S. June 20, 1979), that

—18a—

the Supreme Court shares its view. In any event, this court

is bound to follow Berry as long as it is the law of this

Circuit.

Alternatively, the Government suggests that Berry is

inapplicable here. The Government reasons that because

Thompson had properly seen the packets and identified

them as containing cocaine, the warrantless search vio-

lated no cognizakle privacy interest of Bulgier.

The court rejects this view. Neither Thompson nor Hille-

brand knew, on the basis of personal observation or other-

wise, exactly what was in the suitcase. The discovery of

Ex. 3, for instance, was unexpected. While it does not

believe that its conclusion would necessarily be differeut

if the Government had previously conducted a legal search

of the suitcase and inventoried its entire contents, the

court is satisfied that the total examination of the per-

sonal effects contained within Bulgier’s suitcase that oc-

curred in this case constituted a ‘‘search’’ within the mean-

ing of the Fourth Amendment. Therefore, while the court

has assumed, for the purposes of this ruling, that there

was probable cause to believe the suitcase contained con-

traband, since there were no exigent circumstances, the

court finds this warrantless search to have been ‘‘unreason-

able’’ within the meaning of the Fourth Amendment.

Accordingly, Government Exhibits 1 and 3 must be sup-

pressed.

It is so ordered.

/s/ Joel M. Flaum

United States District Judge

Dated: July 24, 1979

—19a—

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

UNITED STATES OF AMERICA )

)

v. ) 79 CR 185

)

)

SANDRA BULGIER

MEMORANDUM OPINION

JOEL M. FLAUM, District Judge:

This matter comes before the court upon the Govern-

ment’s Motion for Reconsideration of its Order suppressing

cocaine and a ‘‘coke spoon’’ seized by agents of the Drug

Enforcement Administration (DEA) from defendant, San-

dra Bulgier (Bulgier). For the reasons set forth below, the

Motion is denied.

The facts relevant to the determination of this Motion

are discussed at length in the court’s Memorandum Opin-

ion dated July 24, 1979, and so they will not be repeated

here.

In that Opinion, this court ruled that United States v.

Berry, 560 F.2d 861 (7th Cir. 1977) (Berry I), vacated

on other grounds, 571 F.2d 2 (7th Cir.) (Berry IJ), cert.

denied, 99 8.Ct. 129 (1978), was controlling precedent with

regard to the issues involved in this case. The Government,

in its briefs on the Motion sub judice, has merely renewed

its earlier argument that Berry II deprived Berry I of its

precedential value. The court, upon further consideration

of this question, concludes that, while the Government may

be correct insofar as it could be argued that, technically,

Berry II reduced Berry I to obiter dictum or less, the Gov-

ernment’s position is fundamentally wrong. Berry II

showed no signs of retreating from the views espoused

—20a—

by the unanimous panel in Berry J. To the contrary, the

opinion in Berry II, when read fairly, reaffirms Berry I’s

teachings on the subject of substantive Fourth Amendment

law. In vacating Berry I, Berry IT reflects only the Sev-

enth Cireuit’s concern, about applying the exclusionary

rule to searches or seizures ‘‘retroactively’’ found to have

been unconstitutional.

Even if this court were to consider Berry II as so far

withdrawing from Berry I as to put this court in the posi-

tion of deciding the questions raised and decided in Berry

I as a matter of first impression in this Circuit, the result

would be the same. As the court remarked in its Opinion

of July 24, 1979, it believes Berry I to have been rightly

decided. United States v. Chadwick, 433 U.S. 1 (1977), re-

jected the contention that a search like the one conducted

in this case is a search of the person, whose validity is to

be determined in accordance with the principles set forth

in United States v. Edwards, 415 U.S. 800 (1974), and

United States v. Robinson, 414 U.S. 218 (1973). And, as

was pointed out by the Supreme Court in Arkansas v.

Sanders, 99 S.Ct. 2586, 2593 n.11 (1979), this type of search

cannot be justified as a search incident to arrest, since the

suitease was not within the arrestee’s ‘‘immediate con-

trol’’ at the time of the search.

Considering Berry I to have been deprived of all prece-

dential value, as well as wrongly decided, the Government

presses upon the court its understanding of the proper

legal analysis to be employed in this case. However, once

again, the court is of the opinion that the Government mis-

perceives some of the legal issues posed by this case and

misconstrues the law applicable to the resolution of the

others.

The Government begins by arguing briefly in favor of

the constitutionality of the search of Bulgier’s luggage

conducted by several Continental Airlines employees, and

the resultant viewing of the packets of cocaine by Special

Agent Thomas L. Thompson (Thompson) of the DEA.

—2la—

Since the court will assume, for the purposes of this de-

cision, the existence of untainted probable cause to believe

the suitcase contained contraband, which probable cause

was sufficient to justify Bulgier’s arrest, and that that

arrest justified the warrantless seizure of her suitcase, it

is not necessary for the court to address this portion of

the Government’s argument. The court will assume that

Thompson could have seized the cocaine, and the entire

suitcase in which it had been transported, before the suit-

case was returned to Bulgier.

The Government next asserts that, by arranging for a

‘controlled delivery’’ of the suitcase to Bulgier, the DEA

maintained ‘‘constructive possession’’ of the suitcase and

its contents even while she exercised custody over it. No

cases are cited by it in support of this proposition. The

court has found two. In United States v. Ford, 525 F.2d

1308 (10th Cir. 1975), American Airline employees dis-

covered. that a package given to them contained contra-

band and showed it to California police officers. The offi-

cers field tested the suspect substance and found it to be

heroin. Nonetheless, they allowed the package to be shipped

by American to Oklahoma City. After she claimed the

packages, Ford was arrested and the package was seized.

Her objections were limited to the constitutionality of

the California search and the warrantless seizure in Okla-

homa. The Court of Appeals held that no seizure had taken

place in Oklahoma. Rather, the court said that, under

United States v. DeBerry, 487 F.2d 448 (2d Cir. 1973), the

police seized the package in California and remained in

constructive possession thereof until the time of its ‘‘re-

possession’’ by the law enforcement officers in Oklahoma.

DeBerry, the other case that this court has discovered

which is supportive of the Government’s position, is factu-

ally quite similar to Ford. DeBerry relied on no prior

case law. The DeBerry court merely reasoned that, be-

cause the contraband was under police control at the point

of shipment, it was under their constructive possession

even after it had been claimed by the person to whom the

package had been sent.

—22a—

While it may be true that the law enforcement officers’

permission was a prerequisite to the airlines’ shipment of

the cargo transported in Ford and DeBerry, it does not

necessarily follow that the arresting officers’ actions did

not constitute a second seizure of the contraband.’ How-

ever, accepting Ford and DeBerry as good law, they do

not legitimate the search of Bulgier’s suitcase which is

all that is at issue here.

Similarly, the Government’s reliance on United States

v. Emery, 541 F.2d 887 (1st Cir. 1976), is misplaced. Emery

was concerned with the constitutionality of the Govern-

ment’s implanting a beeper within a package that had

legally been inspected by its agents. Thus, Emery did not

purport to consider the legality of the search conducted

by DEA Agent Michael Hillebrand (Hillebrand) among

the personal belongings contained in Bulgier’s suitcase.

The Government then seems to suggest that United States

v. Issod, 508 F.2d 990 (7th Cir, 1974), cert. denied, 421 U.S.

916 (1975), and United States v. Lamar, 545 F.2d 488 (5th

Cir. 1977), held that search constitutional. However, those

cases do not lend any support to the Government’s posi-

tion. Jssod does not consider the constitutionality of the

search of the two trunks after their seizure by Government

agents in Wisconsin. Indeed, the opinion of the court gives

no indication as to when that search was conducted, and

whether or not it was conducted pursuant to a warrant.

To the extent that the opinion may have intended to sug-

gest that a warrantless search of the trunks would have

been permissible under Chambers v. Maroney, 399 U.S. 42

(1970), the law has since been changed by Arkansas v.

Sanders, 99 S.Ct. 2586 (1979). As for Lamar, the quota-

tion cited in the Government’s brief is taken out of con-

1 It is surely undeniable that the Government, by taking the

suitcase from Bulgier upon arresting her, interferred with her

possessory interest of it, although she may have been legally un-

able to enjoy a right of ownership over the cocaine contained

therein.

—23a—

text. Lamar’s motion to suppress was premised on his

contention that the airline employees’ search was really

a warrantless governmental search, hence violative of his

Fourth Amendment rights. As in Jssod, no mention is made

by the Lamar court of the time of, or the conditions sur-

rounding, any search of the seized bag that may have oc-

curred after defendant Aaron’s arrest. It appears that

the remark quoted in the Government’s brief was directed

to the legality of Aaron’s arrest—i.e., the court found the

arrest to be valid because it was made on the basis of un-

tainted probable cause. In any event, Lamar was also de-

cided before Chadwick and Sanders.

The last case cited by the Government in support of its

argument that the search was, at least in part, ‘egal,

United States v. Haes, 551 F.2d 767 (8th Cir. 1977), is also

inapposite here. Haes held that a Government viewing of

two allegedly pornographic films with the aid of a movie

projector constituted a search separate from the one con-

ducted by a private person who merely opened a package

and found reels of film, labeled ‘‘Sex is My Bag’’ and

‘‘F'laming Youth’’, inside. In this case, the DEA agents

were only privy to the result of the private search con-

ducted by Continental employees. They knew something

resembling cocaine was inside Bulgier’s suitcase, but they

knew nothing else about its contents except that it con-

tained some clothing. Haes, if relevant at all to this case

is surely not persuasive authority favoring the Govern-

ment’s position.

Ultimately, the Government’s analysis of this case is

that ‘‘Bulgier’s protectable privacy interests had been ex-

tinguished by the time she took temporary custody of the

suitcase before her arrest.’’ More specifically, the Govern-

ment claims that the Continental Airlines employee’s dis-

covery of the cocaine suspended her privacy interests, and

that Thompson’s viewing of the substance destroyed it en-

tirely.

The court rejects the Government’s analysis of the pri-

vacy interests involved in this case. While it is true that

—24a—

Bulgier took the risk that the Continental Airlines em-

ployees might open her suitcase and turn over to the Gov-

ernment any contraband found therein, cf. Hoffa v. United

States, 385 U.S. 293 (1966), this court agrees with the

holding of Haes that ‘‘a defendant’s expectation of pri-

vacy should not be deemed unreasonable merely . . . be-

cause of a right of [a freight carrier] to inspect packages,’’

551 F.2d at 770 (quoting United States v. Kelly, 529 F.2d

1365, 1370 (8th Cir. 1976), (brackets in Haes). Consistent

with the result in Haes, this court concludes that the fact

that the Government had lawfully obtained some knowl-

edge about the contents of Bulgier’s suitcase did not render

unreasonable her expectation that no one would, without

her consent, rummage through its contents in search of

that known item. And this is precisely the privacy interest

that was impermissibly invaded by the Government in

this case.

As this court interprets the chain of events in this case,

the DEA agents had, at the time of Bulgier’s arrest, no

more than (what is assumed to be untainted) probable

cause to believe that her suitcase, contained contraband,

among other things.? Since there were no exigent circum-

stances which would justify the Government’s noncompli-

ance with the Constitution’s warrant requirement this find-

ing should lead to the conclusion that Agent Hillebrand’s

2 The court does not regard this fact as determinative, but it

is worth noting that the agents only had probable cause to be-

lieve that the substance contained in Bulgier’s suitcase was con-

traband. In this sense, this case is no different from a case in

which a trained police dog has sniffed a suitcase and indicated

that drugs are contained therein. The identity of this case with

the aforementioned hypothetical case becomes complete if it is

assumed that the hypothetical traveller’s suitease had been packed

by someone else. Yet the court doubts that the Government would

seriously argue that the hypothetical traveller’s suitcase could be

opened without a warrant, absent exigent circumstances. The

court simply cannot perceive any reason why the Motion in the

case sub judice should have a different outcome.

—25a—

warrantless search of Bulgier’s suitcase was unconstitu-

tional.

The Government would avoid this result by its argu-

ment that to require the authorities to obtain a warrant

in this situation would be to elevate form over substance.

However, this argument is fundamentally erroneous, in

that it ignores the facts that the warrant requirement is

the rule, and that the Government has the heavy burden

of proving the necessity of specific exemptions from that

rule. See Arkansas v. Sanders, 99 S.Ct. 2586, 2590-2591

(1979). No such necessity has been shown here. Although

the search in this case may have been reasonable, ‘‘[t]he

mere reasonableness of a search, assessed in the light of

the surrounding circumstances, is not a substitute for the

judicial warrant required under the Fourth Amendment.’’

Id. at 2590.

Accordingly, the Government’s Motion to Reconsider is

hereby denied.

It is so ordered.

/s/ Joel M. Flaum

United States District Judge

Dated: September 5, 1979

3 Subsequent to the writing of this opinion, United States v.

Garcia, No. 78-1671 (7th Cir. Aug. 31, 1979), was decided. In

that case a trial court’s denial of a defendant’s motion to sup-

press was affirmed by a divided panel, each of whose members

contributed a separate opinion.

Garcia does not affect the result reached by the court in this

case, This is so because of the critical respects in which the facts

in the two cases differ.

In Garcia, the search of the defendant’s hand-luggage occurred

at the scene of her arrest, and within fifteen seconds on the an-

(footnote continued on following page)

—26a—

3 Continued

nouncement of that occurrence. Further, the luggage was within

four to six feet of the defendant at the time the search was con-

ducted. Finally, the defendant was apparently in no wise re-

strained, and the law enforcement officers had the right to take

adequate precautions to insure their physical safety.

These factual considerations, which caused the majority in Garcia

to uphold the trial court’s decision that the warrantless search

in that case was justifiable as a search incident to arrest under

the principles enunciated in Chimel v. California, 395 U.S. 752

(1969), are lacking in the case sub judice. Bulgier’s arrest took

place just outside the lower level of the Continental Airlines

terminal. Hillebrand immediately took her suitcase, which he

carried as he escorted Bulgier to the DEA’s Office, which is in

another terminal. For the next five minutes, during which Hille-

brand and Thompson continued to exercise ‘‘exclusive custody’’

over the luggage, Bulgier was ‘‘fingerprinted and processed’’. At

last, her luggage was searched. While she seems to have been

present during the search, no evidence has been presented re-

garding her proximity to the luggage or her freedom of move-

ment at that time. In addition, the DEA agents have acknowl-

edged the absence of exigent circumstances, as well as of their

perception of such. Thus, the search in this case can not be con-

sidered as falling within the ambit of the Chimel doctrine, both

because it was conducted at a time and place sufficiently remote

from the arrest and because the element of necessity which in-

heres in the justification for the role of Chimel was strikingly

absent in this case, on both a subjective and an objective level.

This conclusion, in turn, renders Garcia imapposite.

—27a—

APPENDIX D

UNITED STATES COURT OF APPEALS

For The Seventh Circuit

Chicago, Illinois 60604

April 29, 1980.

Before

Hon. Ropert A. Sprecuer, Circuit Judge

Hon. Pum W. Tons, Circuit Judge

Hon. Harutincton Woop, Jr., Circuit Judge

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

No. 79-2053 vs.

SANDRA BULGIER,

Defendant-Appellee.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 79-CR-185—Jornt M. Fiaum, Judge.

ORDER

On consideration of the petition for rehearing and sug-

gestion for rehearing in banc filed in the above-entitled

cause by defendant-appellee, all of the judges on the orig-

inal panel having voted to deny the same,

IT IS HEREBY ORDERED that the petition for re-

hearing is DENIED. An order will subsequently be en-

tered ruling on the suggestion for rehearing im banc.

APPENDIX E

UNITED STATES COURT OF APPEALS

For The Seventh Circuit

Chicago, Illinois 60604

May 6, 1980.

Before

Hon. Rosert A. Sprecuer, Circuit Judge

Hon. Haruincton Woon, Jr., Circuit Judge

SNS. dicicinapideitialeiteniass

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

No. 79-2053 vs.

SANDRA BULGIER,

Defendant-Appellee.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 79-CR-185—Jor, M. Fiaum, Judge.

ORDER

An order has been entered on April 29, 1980 denying the

petition for rehearing by all of the judges on the original

panel, and no judge in active service has requested a vote

on in banc. Accordingly,

IT IS ORDERED that the petition for rehearing im banc

be, and the same is hereby, DENIED.