Defendant and one Joseph Sarcinelli purchased airline tickets in San Diego, California, for a United Airlines flight to Buffalo by way of Chicago, and checked two suitcases through to their destination. They paid for the tickets with one hundred dollar bills which, according to the ticket agent, were removed from a "group” of others of the same denomination. This fact, coupled with the apparent nervousness of the two men, aroused the suspicion of the ticket agent and, in keeping with his "responsibility to the company”, he opened the two suitcases and in one he observed two plastic bags containing what appeared to be marijuana.
He communicated this information to a drug enforcement agent in San Diego and furnished him with the men’s names and descriptions, together with descriptions of their luggage, their flight number and destination, and the baggage claim ticket number for the suspected suitcase.
That information, in turn, was forwarded to drug enforcement officers in Buffalo who observed the defendant and
Both the defendant and the suitcase were immediately taken to a police substation located within the airport where the suitcase was opened by Deputy Petronella. It contained two large plastic bags of marijuana and a brown bag containing smaller bags of white amphetamine pills.
The defendant’s motion to suppress the evidence was denied and upon a jury trial he was convicted of criminal possession of a controlled substance in the second degree (Penal Law, § 220.18, subd 3) and criminal possession of a controlled substance in the fifth degree (Penal Law, § 220.09, subd 10).
The defendant contends on appeal that the facts upon which the airline ticket agent based his suspicion were insufficient to constitute probable cause for inspection of the content of defendant’s suitcase. It follows, the defendant says, that the information communicated to the Federal narcotics officers was the product of an unlawful search requiring the suppression of the marijuana and amphetamines as evidence. Relying on Jones v United States (
Those cases are inapposite, however, in that they all involved searches made by or at the behest of the police. We would agree, of course, that suppression would be required here if the ticket agent’s search of the suitcase could be characterized as State action within the contemplation of the Fourth Amendment.
It is well settled that the constitutional prohibition against unlawful searches does not apply to purely private activity (Burdeau v McDowell,
Where the search into personal property is made by an employee of a common carrier in pursuit of the private interests of the employer and in furtherance of the common carrier’s common-law right to inspect goods presented for shipment, it is not constitutionally proscribed (United States v Pryba, 502 F2d 391, cert den
There is no indication in this record that the airline ticket agent inspected defendant’s suitcase at the behest of the police or otherwise in concert with them. He was in no way govern-mentally motivated. Indeed, upon observing what he believed was contraband, he notified a law enforcement agent, but only after the intrusion was complete. Once the ticket agent’s observations were conveyed by the California agent to government agents in this State (see People v Lypka,
Accepting then the propriety of both the defendant’s arrest and the seizure of the suitcase, the more troublesome question arises as to whether the search of the suitcase without a warrant may be justified as incident to the arrest.
"The rule allowing contemporaneous searches is justified
Chimel has been interpreted to justify as incident to the arrest a search of an attaché case taken by the police from the hand of the accused at the moment of his arrest (People v Darden,
Not to have seized the attaché case in such circumstances "would have been both to expose the arresting officers to the risk of serious injury by means of weapons which might have been concealed in the case, as well as to risk destruction of the incriminating evidence which the case might have contained.” (People v Darden, supra, p 180.) Drawing no distinction between the seizure of the attaché case and its warrant-less search after it was in the exclusive possession of the police, the Darden court concluded that the search "was a proper incident to defendant’s arrest” (id., p 180).
The justification for a search contemporaneous to an arrest has also been expressed in different terms by Chief Judge Breitel in People v Perel (
"The reason searches of a person and his immediate effects at a place of detention are permissible lies not in the fiction that they are incident to arrest but because of the maximum intrusion already effected by an arrest and detention”. * * *
"Given the nature of the gross intrusion by detention of the*261 person it is reasonable to conduct a less intrusive search of his person and the possessions he carried with him.”
Both in Perel and in People v Weintraub (
We are thus led to a determination of whether the Supreme Court, in United States v Chadwick (
In Chadwick, the court was concerned with a double-locked footlocker which had been loaded by two of the defendants onto a train in San Diego for transport to Boston. They claimed the footlocker at the Boston terminal and were there joined by Chadwick. The footlocker was then placed into the trunk of a waiting car, but while the trunk door was still open and before the car engine had been started, Federal agents arrested all three and seized exclusive possession and control of the footlocker. The three were taken to the Federal building in Boston, as was the footlocker, which was separately transported by Federal agents with Chadwick’s car. An hour and a half later, without a warrant and without defendants’ consent, but acting with probable cause to believe that the footlocker contained a controlled substance, the agents opened the footlocker and found it to contain large amounts of marijuana.
In holding that the defendants were entitled to the protection of the warrant clause before their privacy interests in the contents of the footlocker were invaded, the court pointedly distinguished impoundment (seizure) of luggage or other property from the right of the police to intrude into the property.
Upon its determination that "a line must be drawn”, the court defined a standard for distinction between the two events. "In our view, when no exigency is shown to support the need for an immediate search, the Warrant Clause places the line at the point where the property to be searched comes under the exclusive dominion of police authority” (United States v Chadwick,
Chadwick, however, is not authority for vitiating the search
"Once law enforcement officers have reduced luggage or other personal property not immediately associated with the person of the arrestee to their exclusive control, and there is no longer any danger that the arrestee might gain access to the property to seize a weapon or destroy evidence, a search of that property is no longer an incident of the arrest.” (United States v Chadwick, supra, p 15, emphasis added.)
Here, however, we are concerned with the seizure of a suitcase which was, at the moment of arrest, "immediately associated with the person of the arrestee”. In such circumstances, as restated in Chadwick, it was reasonable for the arresting officers to conduct a prompt warrantless search of the defendant "and the area 'within his immediate control’— construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence” (Chimel v California,
Given the greater intrusion of the defendant’s lawful arrest upon probable cause, the police required no additional justification for the incidental search of the suitcase (People v Weintraub, supra, p 354) provided, of course, the search was not remote in time or place from the arrest (United States v Chadwick,
In the view thus taken, it is unnecessary to decide the other issue raised by defendant on appeal.
The judgment of conviction should be affirmed.
Judgment unanimously affirmed.