# Petition — Goldstein v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1981
- **Citation:** 452 U.S. 962

## Text

| 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,
V.
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
ii

‘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

25
11
25
31
25
6,10,
11,12
16

30

19,20

passim
16,22,
23,24
16

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. __,

iv

17,24
passim
11

31

16
9,10,
12
passim

31

28

28

11

7,29,
30

“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)

V

32

25

27

28

29

29

passim

29,31

29

31

15,19

7,9,12

16

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
oe

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)

vi

28

31

31,32

28

28

29

29

27

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

28

28

32

29,32

32

28

17,24

16

31

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

I.
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 People v. Arno, 153 Cal.Rptr.

States v. Taborda, 635 F.2d 131 (2d Cir.

1580) State v. Ward, 617 P.2d 568

(D.Hawail 1980). ~~

_f/ e Goldman v. a States, 316
U.S. =f 2) (upho ng government
agents’ use of an electronic listening
device which enhanced sound, so long as
there was no physical intrusion or
trespass accompanying the surveillance);
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.)

7%

-

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

de

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
rs

rd
y
Z

-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

A.

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,

V.
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

7%

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_2591%3A1. Public record. Not legal advice.