Petition — Goldstein v. United States

Supreme Court brief1981

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| Office-Supreme Court, U.S.

FILED

APR 15 (98!

No. 80-1725 | eee STEVAS

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

BENNETT GOLDSTEIN and JAMES EDWARD KERN

Petitioners,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT

OF APPEALS FOR THE FIFTH CIRCUIT

JOHN KENNETH ZWERLING, Record Counsel

JONATHAN SHAPIRO, Esquire

MICHAEL S. LIEBERMAN, Esquire

ZWERLING & SHAPIRO, P.C.

108 North Columbus St.

Post Office Box 383

Alexandria, Va. 22313

(703) 836-5551

LARRY TURNER, Counsel

THOMAS W. KURRUS, Esquire

LAW OFFICE OF LARRY G. TURNER, P.A.

204 W. University Avenue

Post Office Box 508

Gainesville, Florida 32602

(904) 375-4460

For Petitioners Goldstein and Kern

QUESTIONS PRESENTED

1. Whether a police officer

must have reasonable suspicion that a

crime is afoot before he may seize and

remove locked personal luggage from an

airline baggage cart in order to subject

the luggage to an examination by a police

K-9 unit trained to locate drugs.

Ze Whether, under the Fourth

Amendment, a search has occurred when the

police used a specially trained K-9 unit

to sniff and examine locked, personal

luggage, with the sole purpose of deter-

mining its contents.

3. Whether a conviction by a

jury for possession of a controlled

substance with the intent to distribute

can stand when no evidence of the element

of an intent to distribute was presented

to the jury.

TABLE OF CONTENTS

Questions Presented ..csceccccccsees i

Memne GF COMGONEE ccccccccccccsesece Ak

Beem GOL AUCHOLIELOS coccccccccceccse Lah

Reference to Opinion Below ........-.

DEE cececeseseseocecoececoces

Constitutional Provisions .....eeee.

Memeemene GCE COBO cocccoccscccceccce

Reasons for Granting the Writ ......

ANNre FE

This Case Is In Direct

Conflict With Another Prior

United States Court of

Appeals Decision As To

An Important Fourth Amend-

MOORS LESUScccccccceccccscese §

az. This Case Squarely Raises An

Important Issue Under The

Fourth Amendment Which Was

Decided In A Way That Con-

flicts With This Court's

Opinion In Katz v. United

SEAECS i. cccccccccccccesccccce LZ

III. The Decision In This Case

Is In Conflict With This

Court's Prior Decision

In Re Winship....cccccccccce 25

IV. The Decision In This Case

Is In Conflict With This

Court's Decision In Turner

eT eee | |

COMELUSION ccccccccccccccccccccceces 33

Certificate of Service ....c.ceceeee 34

DEM ctcbeueeeoseeocecesoecces Me™

DET. pé¢ccaceccocicsscccescoes Bemus

‘TABLE OF AUTHORITIES

Arkansas v. Sanders,

442 U.S. 753 (1979)

Brown v. Texas,

443 U.S. 47 (1979)

Chimel v. California,

395 U.S. 752 (1969)

Churder v. United States,

387 F.2d 825 (8th Cir. 1968)

Coolidge v. New Hampshire,

403 U.S. 443 (1971)

Delaware v. Prouse,

440 U.S. 648 (1979)

Goldman v. United States,

316 U.S. 129 (1942)

Henderson v. Morgan,

426 U.S. 637 (1976)

Jones v. Latexo Indep. School

Dist., 499 F.Supp. 223

(E.D. Texas 1980)

Katz v. United States

389 U.S. 347 (1967)

Olmstead v. United States,

277 U.S. 438 (1928)

People v. Arno,

153 Cal.Rptr. 624

(Cal.App. 1979)

Rakas v. Illinois,

439 U.S. 128 (1978)

iii

6,10,

11,12

19,20

passim

16,22,

23,24

17,24

Rawlings v. Kentucky,

448 U.S. , 65 L.Ed.2d

633 (1980)

Re Winship, 397 U.S. 358 (1970)

Reid v. Georgia, U.S. 9

65 L.Ed.2d 890 (1980)

Robinson v. United States,

333 F.2d 323 (8th Cir. 1964)

State v. Ward,

617 P.2d 568 (D.Hawaii 1980)

rry v. Ohio,

392 U.S. 1 (1968)

Turner v. United States,

396 U.S. 398 (1970)

United States v. Barker,

313 F.Supp 987 (D.Del. 1970)

United States v. Blake,

484 F.2d 50 (8th Cir. 1973)

cert. denied 417 U.S. 949

(1974)

United States v. Bobo,

586 F.2d 355 (5th Cir. 1978),

cert. denied 440 U.S. 976

(1979)

United States v. Brignoni-Ponce,

422 U.S. 873 (1975)

United States v. Burns,

624 F.2d 95 (10th Cir. 1980)

cert. denied U.S. __,

17,24

passim

9,10,

passim

7,29,

“United States v. Bycer

<oroS For e49 (35a Cie. 1979)

United States v. Chadwick,

433 U.S. 1 (1977)

United States v. Clayborn

383 F.Supp. 1186

(W.D. Texas 1974)

United States v. DiNovo,

523 F.2d 197 (7th Cir.)

cert. denied, 423 U.S. 1016

(1975)

United States v. Edwards,

602 F.2d 458 (lst Cir. 1979)

United States v. Garza-Hernandez

623 F.2d 496 (7th Cir. 1980)

United States v. Goldstein,

635 F.2d 356 (5th Cir. 1981)

United States v. Grayson,

625 F.2d 66 (5th Cir. 1980)

United States v. Hayes,

479 F.Supp. 901

(D.Puerto Rico 1979)

United States v. Johnson,

469 F.2d 973 (Sth Cir. 1972)

United States v. Kim,

415 F.Supp. 1252

(D.Hawaii 1976)

United States v. Klein,

626 F.2d 22 (7th Cir.1980)

United States v. Lee,

274 U.S. 559 (1927)

passim

29,31

15,19

7,9,12

United States v. Luciow,

~~ 518 F.2d 298 (8th Cir. 1975)

United States v. Mann,

F.2q 668 (5th Cir. 1980),

cert. denied, es

(March 23, 1981)

United States v. Mather

465 F.2d 1035 (5th Cir.),

cert. denied 409 U.S. 1085

)

United States v. Moore,

452 F.2d 569 (6th Cir. 1971),

cert. denied, 407 U.S. 910

)

United States v. Nelson,

582 F.2d 1246 (10th Cir. 1978),

cert. denied 439 U.S. 1079

United States v. Nocar,

497 F.2d 719 (7th Cir.),

cert. denied 419 U.S. 1038

)

United States v. Nocerino,

474 F.2d 993 (2d Cir.),

cert. denied, 412 U.S. 942

(1973)

United States v. Owens

344 F.Supp. 1355

(W.D. Texas 1972),

aff'd, 475 F.2d 759 (Sth Cir.

)

United States v. Perr

480 F.2d 147 (Sth ete. 1973)

31,32

United States v. Polite,

489 F.2d 679 (5th Cir.)

cert. denied, 419 U.S. 854

(1974)

United States v. Raffo,

P.2d 199 (5th Cir. 1979)

United States v. Ramirez

608 F.2d 1261 (9th Cir. 1979)

United States v. Ramirez-

Rodriguez, 552 F.2d 883

{5th Cis- 1977), cert. denied

430 U.S. 966 (1978)

United States v. Rodriguez,

585 F.2d 1234 (5th Cir. 1978)

on rehearing, 612 F.2d 906

cert. denied U.S.

101 S.ct. 108 (1981)

United States v. Rogers

4 F.2d 1079 (5th Cir 1974),

cert. denied 422 U.S. 1042

)

United States v. Salvucci,

448 U.S. , 65 L.Ed.2d 619

(1980)

United States v. Taborda

635 F.2d 131 (2d Cir. 1980)

United States v. Thomas,

F.Supp. 662

(E.D. Pa. 1955)

United States v. Van Leeuwen,

397 U.S. 249 (1970)

United States v. Venema,

563 F.2d 1003 (10th Cir. 1977)

vii

29,32

17,24

9,10,12

United States v. Vomero,

567 F.20 1315 (5th Cir. 1978)

United States v. Welebir,

498 F.2d 346 (4th Cir. 1974)

United States v. Wilkerson

478 F.2d 813 (8th Cir. 1973)

United States v. Wilson

284 F.2d 407 (4th Cir. 1960)

Statutory Provisions

United States Code, Title 2l,

Section 841l(a) (1)

viii

28,32

REFERENCE TO OPINION BELOW

The opinion of the United

States Court of Appeals for the Fifth

Circuit is United States v. Goldstein,

et.al., reported at 635 F.2d 356 (Sth

Cir. 1981) (A. 1-15). The order denying

rehearing is not reported, and is

attached hereto at A.16.

JURISDICTION

The United States Court of

Appeals for the Fifth Circuit entered its

judgment on January 26, 1981, affirming

the convictions of the petitioners, (A.

1-15). Petitioners’ petition for a

rehearing and suggestion for a hearing en

banc was timely filed and was denied on

February 25, 1981. (A. 16.) This petition

is timely filed.

The jursidiciton of thie Court

is invok«d pursuant to 27 U.S.C. Section

1254(1).

ale

CONSTITUTIONAL PROVISIONS

The Fourth Amendment provides:

The right of the people to

be secure in their persons,

houses, papers and effects,

against unreasonable searches

ané seizures, shall not be

violated, and no warrants shall

issue, but upon probable cause,

s ted by oath or

affirmation, and particularly

Gescribing the place to be

searched, and the persons or

things to be seized.

STATEMENT OF CASE

On May 29, 1979, agents for the

Drug Enforcement Administration (DEA)

observed petitioners Goldstein and Kern

in the Orlando International Airport, and

became suspicious that they might be

involved in transporting a controlled

substance. DEA Agent Maroney decided to

determine the contents of the luggage the

petitioners had checked in at the ticket

-2-

counter by having a narcotics-trained

K-9 unit dog examine the bags. The

agents entered the baggage handling area

and removed the petitioners' luggage from

the baggage carts in order to facilitate

the police K-9 unit's examination. After

receiving a positive alert from the

police dog, DEA Agent Wingfield arrested

the petitioners, informed them of the

positive reaction and asked for consent

to search their luggage. After per-

mission was denied as to one piece of

luggage, the agents obtained a search

warrant based on the positive alert by

the dog. The bag was found to contain

one plastic bag of cocaine and various

items of clothing.

A Motion to Suppress Evidence

was timely filed by both petitioners on

-3-

23 July 1979, and after a hearing, the

motion was denied on August 15, 1979.

At trial, although petitioners

were charged with possession with intent

to distribute the seized cocaine, 21

U.S.C. §841(a) (1), —/ absolutely no evi-

dence of intent to distribute was

offered. The sole fact upon which the

government relied to establish that ele-

/ Title 21 U.S.C. §841(a)(1) states:

(a) Except as authorized by

this sub-chapter, it shall be

unlawful for any person

knowingly or intentionally -

(1) to manufacture, distri-

bute or dispense, or possess

with intent to manufacture,

distribute or dispense, a

controlled substance; ...

ment for the jury was the weight of the

substance. Absolutely no testimony was

offered to give that weight any

significance. On September 12, 1979,

the jury found Goldstein and Kern guilty

of possession with intent to distribute

cocaine. At that time the court denied

petitioners' Motion for a Judgment of

Acquittal and New Trial. They were each

subsequently sentenced to serve six years

in the federal penitentiary.

Petitioners filed a Notice of

Appeal November 5, 1979. After argument,

the Court of Appeals for the Fifth

Circuit issued an opinion affirming their

convictions. (A. 1-15). On February 6,

1981, the petitioners filed a Petition

for Rehearing and Suggestion for

Rehearing En Banc. This petition was

denied on February 25, 1981. (A. 16-17).

ofa

REASONS FOR GRANTING THE WRIT

THIS CASE IS IN DIRECT CONFLICT WITH

ANOTHER PRIOR UNITED STATES COURT OF

APPEALS DECISION AS TO AN IMPORTANT

FOURTH AMENDMENT ISSUE.

In the recent case of Delaware

Ve Prouse, 440 U.S. 648, (1979), this

Court stated that:

[t]he essential purpose of the

proscriptions in the Fourth

Amendment is to impose a standard

of “reasonableness” upon the exer-

cise of discretion by government

officials, including law-

enforcement agents, in order "to

safeguard the privacy and security

of individuals against arbitrary

invasion...' (footnotes and cita-

tions omitted).

* * * * * * *

»--ethe reasonableness standard

usually requires, at a minimum,

that the facts upon which an intru-

sion is based be capable of

measurement against "an objective

standard" whether this be probable

cause or a less stringent test.

(Footnotes omitted.)

In its opinion, the Court of Appeals held

that police officers did not need any

reasonable suspicion that locked suit-

e§«

cases contained evidence of a crime

before removing them from an airline

baggage cart for further examinaton by a

police K-9 unit. (A. 10-12.)

Specifically, the Court stated:

{fo]ur review of the record reveals

that the DEA agents were in the

semi-public baggage area with the

permission of National [Airlines].

Once Kern and Goldstein released

their luggage to the custody of the

airlines, they could no _ longer

control who actually handled their

bags. We hold that, because the

DEA -agents' placement of the two

bags in a position to be sniffed

did not’ violate [petitioners']

privacy interests in the contents

of their bags, their actions in

doing so did not constitute an

unreasonable seizure within the

meaning of the Fourth Amendment.

See United States v. Klein, supra,

626 F.2d at 26; United States v.

Burns, supra, 624 F.2d at 101; see

also, United States v. Venema, 563

F.2d at 1006.

(A. 10-11.) _2/ By so holding, the court

has departed from persuasive authority to

the contrary, and has now permitted the

police to take substantial intrusive

investigatory action against individuals

and their property without any founded or

reasonable suspicion that criminal con-

duct is afoot. Accordingly, there is now

a serious division in the Courts of

Appeal on this very important Fourth

Amendment issue in need of resolution.

_2/ In fact, the record of the

suppression hearing makes no mention of

any permission being granted by National

Airlines for the seizure of the

petitioners' baggage, nor is there any

evidence that the baggage cart was in a

semi-public area. The only ‘mention of

any permission being granted was at

trial, at a time when the issue of per-

mission was irrelevant. Accordingly, at

trial no evidence was presented by the

defense to rebut the issue. Furthermore,

even at trial, the permission discussed

was not specifically geared toward the

petitioners’ baggage, but was a more

generalized understanding between the DEA

and the airlines.

In United States v. Klein, 626

F.2d 22,27 (7th Cir. 1980), under cir-

cumstances very similar to those in this

case, the court held that a bag checked

in at an airport cannot be detained while

police wait for. a dog trained in

detecting narcotics, unless the agents

who were detaining the bags had a reaso-

nable suspicion to believe that the bags

contained contraband. In reaching its

decision the Court stated:

[o]Jur research has uncovered no

case in which a court has

confronted a ‘detention situation

precisely like the one before us

now, but the Supreme Court did

address an analogous situation in

U.S. v. Van Leeuwen, 397 U.S. 249

---(1970), where it extended the

Terry logic to the detention of

parcels of mail believed to con-

tained contraband.

Id. at 25.

In Van Leeuwen, as in Klein,

the detention or seizure of the property

aGo

only occurred after police had reasonable

suspicion to believe that a crime was

afoot. There, mail was taken out of its

normal traffic flow and subjected to a

temporary detention because police offi-

cers had a reasonable suspicion that the

packages contained contraband. This

Court analogized that situation to the

then recently sanctioned temporary deten-

tions in Terry v. Ohio, 392 U.S. 1

(1968).

Since the Van Leeuwen and Terry

cases, this Court has repeatedly required

some restraints, specifically an

"articulable suspicion" on the part of

government agents, to ensure that intru-

‘sive surveillance and investigatory tech-

niques are not used in a random or

unprincipled fashion, or left to the

unbridled discretion of the agent. See

Delaware v. Prouse, 440 U.S. at 661;

-10-

Brown v. Texas, 443 U.S. 47,51 (1979);

United States v. Brignoni-Ponce, 422 U.S.

873 (1975): cf.: Reid v. Georgia,

__U.S.___, 65 UL.Ed.2d 890, 893-894

(1980). "(S]tandardless and uncon-

Strained discretion is the evil the

Court has discerned when in previous

cases it has insisted that the discretion

of the official in the field _ be

circumscribed, at least to some

extent." Delaware v. Prouse, 440 U.S. at

661 (citations omitted).

Here, the petitioners' baggage

was taken out of the normal flow of traf-

fic, removed from the baggage cart, and

subjected to a detention while the police

brought in their narcotics trained K-9

unit to examine them. The Court of

Appeals has not required that the offi-

cers have reasonable suspicion prior to

seizing the bags. The officer's action

was permitted even if based on a mere

atie

hunch, or even if it were random and

indiscriminate. Such a holding is incon-

sistent with this Court's decision in Van

Leeuwen, in direct conflict with the

Seventh Circuit's decision in United

States v. Klein, supra, and invites

intrusions upon constitutionally

guaranteed rights based on nothing more

substantial than the officer's peculiar

prejudices or inarticulate hunches. See

Terry v. Ohio, 392 U.S. at 23; Delaware

v. Prouse, 440 U.S. at 661. A writ of

certiorari should be granted in order to

resolve this issue.

II.

THIS CASE SQUARELY RAISES AN IMPORTANT

ISSUE UNDER THE FOURTH AMENDMENT WHICH

WAS DECIDED IN A WAY THAT CONFLICTS WITH

THIS COURT'S DECISION IN KATZ V. UNITED

STATES.

In its opinion the Fifth

Circuit adopted standards that conflict

with the decision in Katz v. United

States, 389 U.S. 347 (1967), concerning

o12e

the fundamental protections guaranteed by

the Fourth Amendment. In this case, the

court determined that when a police dog,

under the direction of government agents,

touched, smelled and examined the

exterior of locked personal luggage, with

the sole purpose of determining its

contents, no search occurred despite the

owner's reasonable expectation of privacy

in the contents of that luggage. The

court's opinion relied upon the fact that

the dog's nose did not physically

penetrate into the interior of the

luggage. This decision resurrects a

barrier to Fourth Amendment protections

that was long ago abolished in Katz v.

United States.

In Katz, the Court was faced

with the issue of whether a search had

occurred when a police officer placed an

electronic listening device, which

greatly magnified the officer's nearing

=) 3e

ability, outside a telephone booth in

order to overhear a gambling suspect's

telephone conversation. The government

argued that the defendant had no expec-

tation of privacy in the booth because it

was made of glass and was in a public

place. Under the government's theory,

there had been no invasion of privacy

since the listening device had not physi-

cally penetrated the phone booth.

Rejecting the "trespass test" as the sine

qua non of an unconstitutional search,

the Court stated:

the Fourth Amendment protects

people, not places. What a

person knowingly exposes to the

public, even in his own home or

office, is not a subject of

Fourth Amendment protection

++. But what he seeks to pre-

serve as rivate, even in an

area accessible to the public,

may be Seeeet en, (onat Ts

protected.

389 U.S. at 351-52 (citations

omitted) (emphasis added). As to the

-14-

°%

government's second contention, the

Court stated that “the fact that the

electronic device employed ... did not

happen to penetrate the wall of the booth

can have no constitutional significance.”

389 U.S. at 353. Accordingly, the Court

held that even though it did not

penetrate the booth, the government's use

of a device to discern normally impercep-

tible sounds was a search within the

reach of the Fourth Amendment. _2/

In so holding, the Court in Katz

expressly overturned an earlier line of

sal In construing this central holding of

Katz, subsequent courts have similarly

concluded that one's reasonable expec-

tation of privacy can be invaded by the

improper use of sophisticated sensory

enhancement devices. For instance, in

United States v. Kim, 415 F.Supp. 1252,

(D.Hawaii 1976) the court suppressed

evidence obtained as a result of the

warrantless use of a telescope, stating:

A “plain” plain view of Kim's

apartment was impossible; only

(Footnote continued on following

page.)

-15-

cases which required a physical trespass

by the government as an essential element

for establishing an unlawful search by

the use of sensory enhancement aids. f/

In the course of repudiating

the doctrine derived from

*) tead v. United States...and

n Vv. United States...,

that police officers had not

been guilty of a commonlaw

trespass they were not prohi-

bited by the Fourth Amendment

from eavesdropping, the Court

(Footnote continued from previous page.)

an aided view could penetrate.

In view of the powerful tech-

nology used by the law enfor-

cement agents in this case, the

*"plain® in plain view must be

interpreted as permitting only

an unaided plain view.

see also United States v. Lee, 274 U.S.

sos . 7), stead v. United States,

U. . .

-16-

in Katz held that capacity to

claim the protection of the

Fourth Amendment depends not

upon a property right in the

invaded place but upon whether

the rson who claims the pro-

tection of the Amendment has a

legitimate expectation of pri-

vacy in the invaded place.

(citations omitted) Rakas v.

Illinois, 439 U.S. 128, 143

Subsequently, “this Court has repeatedly

repudiated the notion that ‘arcane

distinctions developed in property and

tort law’ ought to control our Fourth

Amendment inquiry." United States v.

Salvucci, 448 U.S. _, 65 L.Ed 2d 619,

627 (1980), citing Rakas v. Illinois, 439

U.S. 128,143 (1978). See also Rawlings

v. Kentucky, 448 U.S. ___, 65 L.Ed 2d

633 (1980).

This case is indistinguishable

from Katz. _2/ Here, as the Court of

_/ If anything, the government intrusion

this case was actually more egregious

than in Katz since the agents in Katz

were assumed to have had probable cause

prior to installing the listening

(Footnote continued on following page.)

-l7?-

Appeals decision made abundantly clear,

the petitioners had a reasonable expec-

tation of privacy in their bags.

"(E]very passenger who has_ luggage

checked with an airline enjoys a reason-

able expectation of privacy that the con-

tents of that luggage will not be exposed

in the absence of consent or a legally

obtained warrant." (A. 9) (emphasis

in original). In Katz, the defendant had

a reasonable expectation that the con-

tents of his conversation would remain

outside the realm of public knowledge.

Here, the petitioner's luggage was in a

semi-public place, but only its exterior

was visible. In Katz, the defendant

(Footnote continued from previous page.)

device. If this use of a K-9 unit does

not violate the Fourth Amendment, then

dogs are living general warrants which

police may use at will to. search.

Failure to review this case will nourish

police intrusions more extensive than

those which would have followed a dif-

ferent ruling in Katz.

-18-

was in a public glass telephone booth

but only he was visible to the public.

Here, the contents of the luggage could

not be detected by ordinary human sensory

perceptions. a/ In Katz, the

defendant's conversation could not be

detected by ordinary human sensory

perception. Here, the government used a

sensory enhancement aid in order. to

determine the contents of the

luggage. ae In Katz, the government

hf Unlike several marijuana cases, this

record is completely devoid of any evi-

dence that any human olfactory sense

could detect this substance under any

condition.

mt The record below made clear that. a

dog's olfactory senses are at least 1,000

times that of an ordinary human.

Certainly, that is a more sensitive and

effective tool of invasion than the

electronic listening device on Katz'

phone booth, or the telescope in Kim,

supra.

In an analogous case, Jones v. Latexo

Independent School District, 499 F.Supp.

223,232-33 (E.D.Texas 1980), the Court

pointed out that a dog is

(Footnote continued on following page.)

~19=

used a sensory enhancement aid in order

to determine the contents of his ooneac*

sations. In both cases the sensory en-

hancement aid was applied to the exterior

of an enclosure used to keep the public

from intruding into that which was sought

to be kept private. In both cases, the

sensory enhancement aid did not physi-

cally intrude into the private enclosure.

It was merely a passive receiver

(Footnote continued from previous page).

able to detect odors completely

outside the range of the human

sense of smell. The dog thus

replaced, rather than enhanced,

the perceptive abilities of

school officials. In that

respect, the dog was far more

analogous to. an electronic

"bug" than to a flashlight,

which merely augments’ human

sight in particular lighting

conditions.

The dog's inspection was

virtually equivalent to a phy-

Sical entry into the students’

pockets and personal

possessions. In effect, he

perceived what the students had

secreted and communicated that

information to his handler.

=%6<

that disclosed the nature of that which

was otherwise hidden from public

knowledge, from he vantage point

outside of the protected enclosures. In

this case the sensory enhancement aid

deciphered odiferous molecules in the

serrounding air; in Katz it deciphered

sound waves in the surrounding air. The

differing results in this case and in

Katz are attributable solely to the Court

of Appeals' rejection of the rationale in

Katz that: "the reach of the Amendment

can not turn upon the presence or absence

of a physical intrusion into any given

enclosure." 389 U.S. at 353.

The Court of Appeals decision

effectively takes Fourth Amendment law

back to pre-Katz decisions and would

allow random intrusions of an

individual's protected privacy interests.

If this decision stands, then in any

future case involving the use of a highly

~\e

“

sensitive sensory gubancenent aid, a new

exception to the probable cause require-

ment will have been created. No search

will be determined to have occurred as

long as the sensory enhancement aid did

not physically intrude into the protected

area, but merely deciphered the sound

waves, light waves or other normally

imperceptible emanations. The ramifica-

tions of such a result are far-reaching

and of great effect. 8/

_8/ The opinion below did not distin-

guish between the use of a dog to reveal

the contents of luggage from the use of

trained dogs to reveal the contents of a

pocket, hotel room, or a home. It found,

instead, that there was no search.

In Olmstead v. United States, supra

at 478-479 Justice Brandeis commented:

e- every unjustifiable intru-

sion by the government upon. the

privacy of the individual, what-

ever the means employed, must

be deemed a violation of the

4th Amendment.

eeelt is, of course, immaterial

where the physical connection

with the telephone wires

leading into the defendant's

premises was made. And it is

also immaterial that the intru-

(Footnote continued on following page.)

Over fifty years ago, in

Olmstead v. United States, supra at 473,

Justice Brandeis observed:

Subtler and more far-reaching

means of invading privacy have

become available to the

government. Discovery and

invention have made it possible

for the government, by means

far more effective than

stretching upon the rack, to

obtain disclosure in court of

what is whispered in the

closet.

The progress of science in

furnishing the government with

means of espionage is not

likely to stop with wiretapping

ee. ‘that places the liberty of

every man in the hands of every

petty officer,' was said by

James Otis of much _ lesser

intrusions than these. To Lord

Camden, a far slighter intru-

(Footnote continued from previous page.)

‘sion was in aid of law enforcement.

Experiences should teach us to be most on

Our guard to protect liberty when the

government's purposes are beneficent. Men

born to freedom are naturally alert to

repel invasion of their liberty by evil-

minded rulers. The greatest dangers to

liberty lurk in insidious encroachment by

men of zeal, well-meaning, but without

understanding. (Footnote omitted)

«23-

sion seemed ‘subversive of all

comforts of society.' Can it

be that the Constitution

affords no protection against

such invasions of individual

security?

This case raises again the question that

troubled Justice Brandeis, and which

seemed to have been answered by the Court

in Katz and its progeny. - The Fourth

Amendment does offer protection to those

persons who have a reasonable expectation

of privacy from government intrusions.

United States v. Salvucci, 65 L.Ed 2d at

628; Rakas v. Illinois, 439 U.S. at

140; Rawlings v. Kentucky, 65 L.Ed 2d at

641. Here, the petitioners had a

recognized expectation of privacy in the

contents of their luggage and this expec-

tation was illegally invaded when the

police searched the luggage with a K-9

unit. _9/ certiorari should be granted

_2/ It is well established that a

warrantless search is per se imper-

(Footnote continued on following page.)

-24-

because the conflict between this case and

Katz v. United States is irreconcilable.

IIt.

THE DECISION IN THIS CASE IS

IN CONFLICT WITH THIS COURT'S

PRIOR DECISION IN RE WINSHIP.

The decision in this case

carved an exception to.Re Winship, 397

U.S. 358 (1970), such that proot beyond

a reasonable doubt of each element of the

offense is no longer required in drug

cases.

The Fifth Circuit's opinion

ignored Winship in order to uphold a con-

viction under 21 U.S.C. Section 841l(a),

in the absence of any proof of the cru-

(Footnote continued from previous page.)

missible unless some carefully delineated

exception to the warrant requirement

exists. See, e.g9., United States v.

Chadwick, 433 U.S. 1 (1977); Coolidge v.

New Hampshire, 403 U.S. 443 (1971);

Chimel v. California, 395 U.S. 752

(1969); Arkansas v. Sanders, 442 U.S. 753

(1979). Here there was a warrantless

search and no exception to the warrant

requirement existed.

a Z Sun

cial element of intent to distribute.

None of the normal and easily produced

types of evidence used to establish

intent was offered. 10/ Instead, the

jury was left with the sole fact that the

petitioners jointly possessed a single

plastic bag containing one and one-third

pounds of a controlled substance. They

were completely without facts from which

to determine the significance, if any, of

that weight. The jury was simply left to

speculate as to what uses the substance

in evidence could be put.

There is no proper reason

for suspending this element of proof. [In

fact, courts have specifically refused to

allow convictions to stand where the only

proof of intent was the quantity of the

10/ There was no evidence as to the

approximate purchase price, probable

street value, number of dosages of

cocaine, nor any other factors indicating

an intent to distribute.

=26-

substance possessed. United States v.

Clayborn, 383 F.Supp. 1186 (W.D. Texas

1974) (161 grams of heroin) 24/; united

States v. Owens, 344 F.Supp. 1355 (W.D.

Texas 1972), aff'd, 475 F.2d 759 (5th Cir.

1973) (26 grams heroin). Other courts

have implicitly noted that quantity

becomes meaningful only when combined

12/

with a way to evaluate it. Most

il/ In United States v. Clayborn, 383

F.Supp. at 1187, n.1l, the court noted:

This court gave fair warning in

Owens that it will not, as

trier of fact, guess a defen-

dant into the penitentiary any

more that it will permit a jury

to do so. Proof beyond a reaso-

nable doubt as to each and

every element of an offense

charged remains the standard to

which this court will adhere in

the trial of all criminal

cases.

i2/ See, e.g., United States v.

Wilkerson, 478 F.2d 813, 815 (8th Cir.

1973) ("from the proof regarding value,

the jury could infer whether defendant

possessed the marijuana with the intent

to distribute or merely with the intent

to use the contraband himself") ; United

(Footnote continued on following page.)

@27Jo

courts, however, simply cite the evidence

which, combined with quantity, supports a

finding of intent to distribute. 13/

(Footnote contined from previous page.)

States v. Blake, 484 F.2d 50, 58 (8th

Cir. 1973) cert. denied 417 U.S. 949

(1974) ("The validity of such. an

inference depends on whether the amount

and value of the controlled substance

will support an inference of intent to

distribute as distinguished from mere

possession for personal use."); United

States v. Nelson, 582 F.2d 1246 (10th

Cir. 1978), cert. denied, 439 U.S. 1079

(1979) (353 grams of cocaine, combined

with a value of $29,000, supported guilty

verdict); United States v. Moore, 452

F.2d 569, 573 (6th Cir. 1971), cert.

denied, 407 U.S. 910 (1972) ("The large

quantity of material in the can con-

sidered together with the expert testi-

mony concerning methods of ingesting

hallucinogens ... warranted an inference

of an intent to sell").

13/ See, e.g., United States v. DiNovo,

523 F.2d 197, 202 (7th Cir.), cert.

denied, 423 U.S. 1016 (1975); United

States v. Luciow, 518 F.2d 298 (8th Cir.

1975); United States v. Welebir, 498 F.2d

346 (4th Cir. 1974). The Pifth Circuit

itself has decided many cases in a simi-

lar manner. See United States v. Bobo,

586 F.2d 355 (5th Cir. 1978), cert.

denied, 440 U.S. 976 (1979); United

States v. Rogers, 504 F.2d 1079 (5th Cir.

1974), cert. denied 422 U.S. 1042 (1975);

1979); United States v. Polite, 489 F.2d

679 (5th Cir.), cert. denied, 419 U.S.

854 (1974); United States v. Raffo, 587

F.2d 199 (5th Cir. 1979).

-28-

However, decisions like the

present one, in which the requirement of

proof of the intent to distribute is

suspended, are becoming more frequent,

both in the Fifth Circuit, see United

States v. Grayson, 625 F.2d 66 (Sth Cir.

1980); United States v. Vomero, 567 F.2d

1315 (5th Cir. 1978), and in other cir-

cuits as well, see United States v.

Nocer.no, 474 F.2d 993 (2d Cir.), cert.

denied, 412 U.S. 942 (1973); United

States v. Burns, 624 F.2d 95 (10th Cir.

1980) cert. denied __U.S.__, 101 S.Ct.

361 (1981); United States v. Garza-

Hernandez, 623 F.2d 496, 502 n.4 (7th Cir.

1980); United States v. Nocar, 497 F.2d

719 (7th Cir.) cert. denied 419 U.S. 1038

(1974); United States v. Edwards, 602

F.2d 458, 470 (lst Cir. 1979); United

States v. Rameriz-Rodriguez, 552 F.2d

883, 884 (9th Cir. 1977), cert. denied,

-29-

430 U.S. 966 (1978); United States v.

Hayes, 479 F.Supp. 901, 918 (D. Puerto

Rico 1979).

It is important that this Court

act to stop this alarming trend, and to

restore the requirement of proof beyond a

reasonable doubt of each element of the

offense. The fact that the intent to

Gistribute may be obvious to trained

courtroom participants does not excuse

the failure to produce proof for a jury

of laymen. See Henderson v. Morgan, 426

U.S. 637, 649 (1976) (White, J.

concurring). Juries now will be able to

conjure up proof of intent, based on no

more perhaps than what they have gleaned

from televised police dramas or super-

market magazines. 14/

is/ See United States v. Burns, 624 F.2d

at 102 n.1, which actually approves of

such a practice.

The absence of proof of intent in

drug cases is in stark and inexplicable

contrast to proof of value required in

(Footnote continued on following page.)

IV.

THE DECISION IN THIS CASE CONFLICTS

WITH THIS COURT'S DECISION IN TURNER

V. UNITED STATES

: Aside from its conflict with

Winship, the Fifth Circuit's opinion

conflicts with Turner v. United States,

396 U.S. 398 (1970). In this regard, it

is similar to a line of Fifth Circuit

cases beginning with United States v.

Mather, 465 F.2d 1035 (Sth Cir.), cert.

denied, 409 U.S. 1085 (1972). 15/

TPootnote continued from previous page.)

the analogous area of theft crimes.

United States v. Wilson, 224 F.2d 407,

4th Cir. 1980) (theft of 72 U.S.

Army rifles -- conviction reversed where

no evidence of a cumulative value of over

$100 -- "Nor, in the absence of any proof

of value, could the jury be permitted to

speculate on this point merely from the

appearance of the articles."); Churder v.

United States, 387 F.2d 825 (6th Cir.

, per Justice, then Circuit Judge

Blackmum; Robinson v. United States, 333

F.2d 323 (8th Cir. 1964); United States

v. Barker, 313 F.Supp. 987 (D. ;

1970); ie States v. Thomas, 135

F.Supp. -D. Pa. 1955).

3/ See United States v. Grayson, 625

F.2d 66 (Sth Cir. 1980); United ‘7 * v.

Johnson, 469 F.24 973 (Sth Cir. 1972);

United States v. Mann, 615 F.2d 668 (5th

Westacte continued on following page.)

=3ie

To the extent that these cases

read Turner as allowing mere quantity to

establish the element of intent’ to

distribute, see, e.g., Mather, 465 F.2d

at 1037, they are in error. Far from

that, the Court in Turner held that “the

bare fact of possessing heroin is far

short of sufficient evidence from which

to infer [dispensing or distributing} ."

396 U.S. at 421.

The Fifth Circuit is not alone

in its misreading of Turner. See United

States v. Ramirez-Rodriguez, supra, 552

F.2d at 884; United States v. Ramirez,

608 F.2d 1261, 1264 (9th Cir. 1979);

United States v. Welebir, supra, 498 F.2d

at 351. But compare United States v.

Bycer, 593 F.2d 549 (3rd Cir. 1979).

(Footnote continued from previous page.)

Cir. 1980), cert. erie ie *

(March 23, 1981); United States v. Perry,

a F.2d a a cir. ag73) United

tates v. riguez, F. 234 (5th

Cir. 1978), on rehearing, 612 F.2d 906,

cert. denied —__J-S.___, 101 S.Ct. 108

Due to the Court of Appeals'

failure to require proof of an intent to

distribute and due to the widespread

misinterpretation and division over the

meaning of Turner, this Court should

issue a Writ of Certiorari to settle the

issue.

CONCLUSION

For the reasons stated, peti-

tioner requests that this Court grant

this Petition for a Writ of Certiorari.

MICHAEL S. LIEBERMAN, Esquire

ZWERLING & §HAPIRO, P.C.

108 North Columbus Street

Post Office Box 383

Alexandria, Virginia 22313

(703) 836-5551

LARRY G. TURNER, Esquire

THOMAS W. KURRUS, Esquire

OFFICE OF LARRY G. TURNER, P.A.

204 W. University Avenue

Post Office Box 508

Gainesville, Florida 32602

(904) 375-4460

Counsel for Petitioners Goldstein and Kern

-33-

CERTIFICATE OF SERVICE

I hereby certify that on this 15th day

Of April 1981 three true and accurate

copies of this Petition for Writ of

Certiorari to the United States Court of

Appeals for the Fifth Circuit was mailed,

first class, postage prepaid, to the

Office of the Solicitor General,

Department of Justice, Washington, D.C.

LEED

OHN KENNETH ZWBEREING

-34-

APPENDIX

1980) (cocaine detected in suitcases at

airport); United States v. Sullivan, 625

F.2d 9,13 (4th Cir. 1980) (PCP detected in

suitcases at airport); United States v.

Venema, 563 F.2d 1003,1005-6 (10th Cir.

1977) (LSD, marijuana and hashish detected

in rental locker at storage company) ;

United States v. Solis, 536 F.2d 880,882

(9th Cir. 1976) (marijuana detected in

semi-trailer); United States v.

Bronstein, 521 F.2d 459,461 (2d Cir.),

cert. denied, 424 U.S. 918, 96 S.Ct.

1121, 47 L.Ed.2d 324 £=(1975) (marijuana

found. in suitcases at airport).

Appellants urge this Court to interpret

those cases as requiring at least a

reasonable articulable suspicion before a

Suspected drug courier's luggage may be

sniffed; however, we decline to apply

such an interpretation for the following

reasons.

APPENDIX

United States v. Goldstein, ......A.-l

635 F.2d 356 (5th Cir. 1981)

Denial of Petition for .....2eee2eA.-25

Rehearing En Banc, In The

United States Court of Appeals

for the Fifth Circuit, Unit B,

(unreported) (February 25, 1981)

a3%=

UNITED STATES of America,

Plaintiff-Appellee,

Bennett GOLDSTEIN and James Edward Kern,

Defendants-Appellants.

No. 79-5531.

United States Court of Appeals,

Fifth Circuit

Unit B

Jan. 26, 1981.

Appeal from the United States District

Court for the Middle District of Florida.

Before KRAVITCH and FRANK M. JOHNSON,

Jey Circuit Judges, and ALLGOOD*,

District Judge.

FRANK M. JOHNSON, Jr., Circuit Judge:

James E. Kern and Bennett Goldstein

appeal their convictions for possession

of cocaine with intent to distribute in

violation of 21 U.S.C. §841(a) (1) and 18

U.S.C. §2 (1976). Appellants seek rever-

sal of the district court on the grounds

*District Judge of the Northern District

of Alabama, sitting by designation.

A.-l

that the court erred by denying their

pre-trial motion to suppress certain evi-

dence and by denying their timely motions

for judgment of acquittal. They allege

that the evidence was obtained in viola-

tion of their Fourth Amendment rights and

that the evidence introduced by the

Government at trial was insufficient to

support their convictions.

C ? |

On May 29, 1979, Kern and Goldstein

were arrested at the Orlando

International Airport by Drug Enforcement

Administration [DEA] agents. At approxi-

mately 6:00 a.m. Agents Maroney = and

Fletcher began their Orlando Airport sur-

veillance in the area of the Eastern

Airlines' and National Airlines' ticket

counters. The agents observed appellant

Kern approach the National ticket counter

A.-2

at approximately 6:45 a.m. Kern, who

wore a beard, was dressed in a print

shirt, dungarees, and boots and was

Carrying one large suitcase and a smaller

brown one. A few minutes later, a Daniel

Lynch also approached the National ticket

counter; Agent Maroney became interested

in the two men when he noticed that they

cast side glances towards each other but

did not appear to speak to each other.

Kern and Lynch departed from the ticket

counter separately and then engaged in a

short conversation. The DEA agents

learned from the National ticket agent

that Lynch had purchased a ticket on

National Flight #96 to Washington, D.C.,

and had checked his bags but that Kern,

who had attempted to purchase two tickets

for the same flight, decided to wait as

only one ticket could be confirmed and

the other was on a stand-by basis.

A.-3

Agent Maroney overheard Lynch and

Kern discussing the ticket problem and he

noticed that shortly after Lynch

departed, Kern was joined at approxi-

mately 6:51 a.m. by another man,

appellant Goldstein. After Kern gave the

larger baq to Goldstein and retained the

smaller one they walked over to the

National ticket counter. Before they

purchased their tickets they began

checking the flight schedules on the

various airlines’ T.V. monitors. When

they returned to the ticket counter,

Agent Maroney lined up behind them at

approximately 7:00 a.m. and observed the

name of Ben Goldstein on the larger bag

and James Kern on the smaller bag.

Maroney also noticed that, when Kern

purchased the two tickets on Flight #96

to Washington, one ticket was in the name

of M. Kern and the other was in the name

A.-4

of J. Kern. Appellants checked the two

bags and left the ticket counter.

Agent Maroney then decided to examine

the luggage checked by appellants and

Daniel Lynch. He met with officer

Deisler and requested that Deisler bring.

his police dog Zeke, who was trained to

detect the presence of cocaine, heroin

and marijuana, to the National baggage

area. Agent Maroney first removed

Lynch's two bags from the baggage cart

and placed them next to each other; he

then placed two decoy bags on either side

of Lynch's bags. Zeke positively reacted

to the presence of narcotics when he

began pawing, barking and attempting to

bite at Lynch's two bags. The same pro-

cedure was utilized during the examina-

tion of appellants' two bags and Zeke

again made a positive reaction to the two

bags.

Agent Maroney informed DEA Agents

Fletcher and Wingfield of Zeke's positive

reaction and instructed them to question

Kern and Goldstein.1l Agent Wingfield

located appellants at Gate #6; he iden-

tified himself as a police narcotics

officer and asked to speak with them.

Kern and Goldstein agreed and produced

their tickets upon request; Kern's ticket

was in the name of MM. Kern = and

Goldstein's ticket was in the name of J.

Kern. Wingfield informed them that a

narcotics trained dog had positively

reacted to the presence of narcotics in

their luggage. Agent Wingfield asked for

1. At the motion hearing, there was some

dispute about the timing of the investi-

gatory stop and the sniff by Zeke.

Appellants had claimed that they were

stopped before their bags were sniffed

and therefore such a stop was not

justified at that point. The district

court found to the contrary and

appellants have not raised this issue on

appeal.

A.-6

permission to search their bags and

appellants responded by requesting a pri-

vate conference. After they conferred

several feet away from the agents for a

brief period of time, Kern and Goldstein

indicated that they wanted an attorney.

After being advised of their Miranda

rights, Kern and Goldstein requested

another conference. After they conferred

for a moment, they were placed under

arrest. 2

After appellants were escorted to the

Airport Police Office, Agent Wingfield

advised appellants not to talk and at

appelllants' request placed a call to

2. Agent Maroney was questioning Lynch

during the interaction between appellants

and the other DEA agents. Maroney

informed Lynch of Zeke's reaction and

received Lynch's consent to the search of

his baggage. A small amount of marijuana

residue was found at the bottom of each

bag along with $2,500 in cash in one bag

and a chemical test kit in the other.

Lynch was not charged with any crime and

was released.

A.-7

their Virginia attorney that was answered

by an answering device. Gol istein

apparently made an unsolicited remark

that the agents would only be interested

in his bag, but it is not clear from the

record whether that comment was made in

the waiting area or in the police office.

Agent Maroney again requested their con-

sent to search their bags after stating

that they would not be charged if the

search revealed a “small quantity of

drugs obviously for personal

consumption"; however, Maroney did not

represent that consent would render then

{sic]) immune from prosecution if a large

quantity of drugs were found as a result

of the search of the luggage.

When Officer Deisler and Zeke arrived

at the police station, Zeke started

sniffing appellants’ two bags without

prompting and again began barking and

A.-8

pawing at the bags. Goldstein refused to

consent to a search but Kern consented.

The search of Kern's bag, conducted in

the office, revealed $11,800 in cash, a

Glass beaker, a bottle with oil residue,

small straws, a stand and the top portion

of a butane torch, a thermometer, and a

few items of clothing and newspapers.

Goldstein and Kern were then jailed and

Maroney sought a warrant in order to

search Goldstein's bag. When his bag was

subsequently searched, it contined $2,415

in cash, approximately two pounds of

cocaine 3? in a Sears shopping bag, a few

pieces of clothing and a boarding pass

for a flight on the previous day from

Washington to Ft. Lauderdale, Florida.

3. The subsequent analysis of the

substance seized revealed that’ the

cocaine hydrochloride weight 766 grams

and that 73% (or 559 frams) was pure

cocaine.

A.-9

The jury found appellants guilty as

charged in the one covnt indictment. On

appeal Kern and Goldstein have alleged

seven errors committed by the district

court, which we will treat in order.

II.

The first four contentions raised by

Kern and Goldstéin relate to the district

court's denial of their motion to

suppress the evidence found in their

suitcases at the Orlando airport.

Appellants argue that their bags were

detained and "“"sniff-searched" by Zeke

solely because they matched certain

characteristics of the drug courier

profile. 4 They contend that since the

4. United States v. Ballard, 573 F.2d

913, 914 (Sth Cir. 1978) describes the

drug courier profile in detail. The pro-

file is an informally compiled abstract

of characteristics thought typical of

persons carrying illegal drugs. United

States v. Robinson, 625 F.2d 1211, 1214 &

(Footnote continued on following page.)

A.-10

Grug courier profile alone would not

supply the reasonable and articu-

lable suspicion 5 necessary to justify

an investigatory stop, the profile,

without more, cannot be used to justify

(Footnote continued from previous page.)

n.2 (5th Cir. 1980). The profile charac-

teristics manifested by appellants were:

(1) an early morning flight when

fewer drug enforcement agents are

on duty, from a known’ source

city;

(2) Kern's appearance: beard, print

shirt, boots and dungarees;

(3) the side glances between Lynch

and Kern appeared to be an

attempt by them to belie any

association;

(4) the subsequent conversation bet-

ween Kern and Lynch;

(5) the exchange of luggage between

Kern and Goldstein and their

review of other flight schedules;

(6) The inconsistent names on the

tickets and the luggage;

(7) the large amount of cash found in

Kern's bag;

(8) the small amount of clothing in

Kern's luggage.

5. The Supreme Court has defined reaso-

nable and articulable suspicion as

"specific articulable facts together with

rational inferences from those facts."

Terr ¥. Ghie, 392 UscB. 1,23,-88 8.C.

868,1879, 20 L.Ed.2d 889 (1968).

A.-1l

the initial detention of their luggage.

Moreover, because their bags were sniffed

after being removed from the National

baggage cart in a non-public area for

reasons other than airport security,

appellants claim that such action was an

intrusion and thus an unreasonable search

and seizure in violation of the Fourth

Amendment. They alleged that’ the

district court erred by denying their

motion to suppress the evidence found in

the suitcases. We disagree.

A number of courts confronted with the

issue of the use of dogs trained in drug

detection have held that the use of such

dogs to sniff for the presence of

controlled substances in luggage and

other places does not constitute a search

within the meaning of the Fourth

Amendment. See, e.g., United States v.

A.-12

First, Zeke's sniffing around the

exterior to Kern and Goldstein's bags was

not an intrusion into an area protected

by the Fourth Amendment. We recognize

that, when airport security is not

involved, every passenger who has luggage

checked with an airline enjoys a reaso-

nable expectation of privacy that the

contents of that luggage will not be

exposed in the absence of consent or a

legally obtained warrant. 6 See

Arkansas v. Sanders, 442 U.S. 753, 764,

92 6S«.Ct.. 2586,2593, 61 L.Ed.2d 235

(1978); United States v. Klein, supra,

6. It is clear that, because of the

great danger posed to the public safety

by air piracy, searches conducted in the

interest of airport safety are subject to

a more relaxed test of reasonableness.

See e.g., United States v. Palazzo, 488

P.20 942 (5th Cir. 1975). However, it

should be noted that searches in the

interest of drug enforcement cannot be

justified on the same basis as those in

the airport security context; instead

drug searches are to be analyzed under

traditional Fourth Amendment principles.

A.-14

626 F.2d at 26; United States v. Burns,

624 F.2d 95, 101 (10th Cir. 1980). But

the passenger's reasonable expectation of

privacy does not extend to the airspace

surrounding that luggage. United States

ve. Wenema, supra, 563 F.2d at 1005;

United States v. Bronstein, supra, 521

F.2d at 461. 7’ It is undisputed that,

had one of the DEA agents through the use

of his olfactory sense detected the odor

of the controlled substances in the

Suitcases, a search would not have

occurred. United States v. Sullivan,

Supra, 624 F.2d at 13. The agents' use

of a canine's more enhanced (through

training) olfactory sense cannot convert

7. Although the Courts in Bronstein and

Sullivan concluded that, because of

current airport security measures

passengers have no reasonable expectation

Of privacy in their checked luggage

(Sullivan, supra, 625 7.36 <6 &33

Bronstein, supra, 521 F.2d at 462), we

decline to reach that conclusion.

A.-15

a sniff of the exterior of those suit-

cases into a search. Id.

Moreover, the agents' initial removal

of appellants'luggage from the National

Airlines baggage cart did not violate the

constitutional rights of Kern and

Goldstein. Our review of the record

reveals that the DEA agents were in the

semi-public baggage area with the per-

mission of National. Once Kern and

Goldstein released their luggage to the

custody of the airlines, they could no

longer control who actually handled their

bags. We hold that, because the DEA

agents' placement of the two bags in a

position to be sniffed did not violate

appellants' privacy interests in the con-

tents of their bags, their actions in

doing so did not constitute an unreaso-

nable seizure within the meaning of the

Fourth Amendment. See United States v.

A.-16

Klein, supra, 626 F.2d at 26; United

States v. Burns, supra, 524 F.2d at 101;

see also, United States v. Venema, supra,

563 F.2d at 1006.

We agree with appellants that

reasonable suspicion is necessary to

justify an investigatory stop and that an

individual's manifestation of certain

drug courier profile characteristics,

without more, does not constitute reaso-

nable suspicion. Reid v. Georgia,

U.S. » 2086 8.60. 2732, 645 888.20

890 (1980) (per curiam); United States v.

Elmore, 595 F.2d 1036 (5th Cir. 1979),

cert. denied, 5.8, 100 S.Ct. 2998,

64 L.Ed.2d 861 (1980) (two justices

dissenting). 8 But Zeke's sniff of

8. The Supreme Court has not yet set the

standard for determining when an investi-

gatory stop constitutes a seizure under

the Fourth Amendment. See United States

v. Robinson, supra, 625 F.2d at 1215;

United States v. Bowles, 625 F.2d 526,

(Footnote continued on following page.)

A.-17

appellants’ luggage is not the equivalent

of an investigatory stop for the simple

reason that the use of Zeke constituted

neither a search nor a seizure under the

Fourth Amendment. It is because Zeke's

sniff did not constitute a search within

the meaning of the Fourth Amendment that

we hold that reasonable and articulable

suspicion is not required before a DEA

agent may use a canine to sniff luggage

(Footnote continued from previous page.)

530-31 (5th Cir. 1980). The Fourth

Amendment requires an objective justifi-

cation for a search or seizure; because

any number of profile characteristics can

be exhibited by individuals innocent of

any wrongdoing, the profile, without

more, cannot serve as the justification

for an investigatory stop. United States

v. Ballard, supra, 573 F.2d at 916. See

Smith v. Maryland, 442 U.S. 735, 745-46,

99 S.Ct. 2577, 2582-83, 61 L.Ed.d2d 220

(1979); Torres v. Puerto Rico, 442 U.S.

465, 471, 99 S.Ct. 2425,2429, 61 L.Ed.2d

1 (1979).

A.-18

in the custody of a common carrier. 9

Consequently, we do not have to reach the

issue of whether Agent Maroney's decision

to subject appellants' luggage to a sniff

by Zeke was based on a reasonable and

articulable suspicion. 10

Furthermore, once Zeke positively

reacted to the presence of drugs in the

Goldstein bag, that reaction along with

9. If we were to hold that Zeke's sniff

did constitute a search or seizure, the

Government's action would have to be

justified on grounds recognized by the

Fourth Amendment. However, when the

Government's actions do not constitute a

search or seizure under the Constitution,

such justifications are not required.

10. It should be noted that Agent

Maroney's observation that Kern and

Goldstein met certain profile

characteristics, coupled with his obser-

vation that the names of the bags (Kern

and Goldstein) and the names on the

tickets (M. Kern and J. Kern) were

incensistent, would probably meet the

reasonable suspicion standard. Conduct

that would appear wholly innocent to an

untrained observer may be assessed as

suspicious by a trained narcotics agent.

See United States v. Bowles, supra, 625

F.2d at 533.

A.-19

the other facts present supplied the DEA

agents with the requisite probable cause .

to seek a warrant in order to search the

luggage and to arrest Kern and Goldstein.

United States v. Klein, supra, 626 F.2d

at 27; United States v. Sullivan, supra,

625 F.2d at 13. 11 Appellants further

contend that Agent Maroney's supporting

affidavit for the search warrant was

deficient because it did not allege

details about zeke's training -

reliability. However, our review of the

affidavit shows thar Agent Maroney's

allegations with respect to Zeke's quali-

ll. If Agent Maroney had searched

Goldstein's bag without a warrant, such a

search would have been unreasonable.

Since the appellants were in custody at

that point, there were no exigent cir-

cumstances to justify such a warrantless

search; further, such a search would not

have been an incident to the arrests

under these circumstances. See, e€.g.,

United States v. Chadwick, 433 U.S. 1,13,

97S.Ct. 2476, 2484, 53 L.Ed.2d 538

(1976); United States v. Dien, 609 F.2d

1038,1045 (2d Cir. 1979).

A.-20

fications were sufficient. United States

v. Klein, supra, 626 F.2d at 27; United

States v. Venema, supra, 563 F.2d at

1007.

Since Kern gave his consent to have

his bag searched after he was in a custo-

dial setting, the Government has the bur-

den of showing that his consent was

voluntary. Schneckloth v. Bustamonte,

412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d

854 (1973). We conclude that the

Government met its burden in showing that

Kern's consent was voluntary, especially

in light of all the attendant

circumstances. On this point, it is

significant that Kern and Goldstein were

questioned in the same custodial setting

at the same time; Kern could have

followed Goldstein's example by refusing

to consent to a search of the bag with

his name on it.

A.-21

Itl.

The remaining contentions involve the

district court's denial of their motions

of judgment of acquittal. Appellants

argue that, because the Government did

not introduce any specific evidence of

distribution other than the amount of

cocaine seized, the Government failed to

prove possession with intent to

distribute. However, this argument fails

since the 559 grams of pure cocaine

seized sufficiently support an inference

of possession with intent to distribute.

See United States v. Grayson, 625 F.2d 66

(Sth Cir. 1980); United States v. Vomero,

567 F.2d 1315 (5th Cir. 1978).

Finally, appellant Kern argues that

the Government failed to prove that he

had possession of Goldstein's suitcase,

either actual or constructive. However,

this argument borders on the frivolous in

A.-22

view of Kern's actions regarding the

suitcase tagged with Goldstein's name.

The agents observed Kern bringing the

suitcase into the terminal where he exer-

cised actual control and dominion over it

until he gave the larger bag to

Goldstein. Kern's general behavior,

together with the other facts, would sup-

port the inference that Kern at the time

be had actual control over the suitcase

was aware that it contained the

contraband. Furthermore, possession of

contraband may be constructive as well as

actual and may be proven by circumstan-

tial evidence. See e.g., United States

v. Riagcins, 563 F.2d 1264,1266 (Sth Cir.

1977), cert. denied, 439 U.S. 878, 99

S.Ct. 148, 58 UL.Ed.2d 150 (1978).

Reviewing the evidence as a whole, we

conclude that it was amply sufficient to

support Kern's conviction for possession

A.-23

of the cocaine. United States v.

Johnson, 469 F.2d 973,977 (5th Cir. 1972).

Because appellants’ contentions are

without merit, we hold that the district

court was correct in denying appellants’

motion to suppress and their motions for

judgment of acquittal. Thus the convic-

tions of Kern and Goldstein are

AFFIRMED.

A.-24

APPENDIX B

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

UNIT B

No. 79-5531

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

BERNNETT GOLDSTEIN and

JAMES EDWARD KERN,

Defendants-Appellants.

Appeal from the United States District

Court for the Middle District of Florida

ON PETITION FOR REHEARING AND PETITION

FOR REHEARING EN BANC

(Opinion 1026081, 5 Cir. 198 , F.2d .

(February 25, 1981)

Before KRAVITCH and FRANK M. JOHNSON,

JR., Circuit Judges, and ALLGOOD,

District Judge.

PER CURIAM:

( x ) The Petition for Rehearing is

DENIED and no member of this panel nor

A.-25

Judge of this Administrative Unit in

regular active serivce having requested

that the Court be polled on rehearing en

banc (Rule 35, Federal Rules of Appellate

Procedure; Local Fifth Circuit Rule 16;

‘Fifth Civenit Judicial Council Resolution

of January 14, 1981), the suggestion for

Rehearing En Banc is DENIED.

( ) The Petition for Rehearing is

DENIED and the judges in regular active

service of this Administrative Unit

having been polled at the request of one

of said judges and a majority of said

judges not having voted in favor of it

(Rule 35, Federal Rules of Appellate

Procedure; Local Fifth Circuit Rule 16;

Fifth Circuit Judicial Council Resolution

of January 14, 1981), the suggestion for

Rehearing En Banc is also DENIED.

A.-26

( ) A member of this Administrative

Unit in active service having requested

a poll on the reconsideration in this

cause en banc, and a majority of the

judges in active service of said unit not

having voted in favor of it, rehearing en

banc is DENIED.

ENTERED FOR THE COURT:

{Frank M. Johnson, Jr.]

United States Circuit Judge

*District Judge of the Northern

District of Alabama, sitting by

Designation.

A.-27

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