*2
lаnd,
observed the aircraft
taxi to
Atty.
Carroll,
F.
Asst. U. S.
Michael
loading gate,
an American Airlines’
and
Smitherman,
(argued),
U. S.
William C.
passengers
fit-
disembark
ting
Atty., Phoenix, Ariz.,
plaintiff
descriptions
which
had
appellee.
passenger
The male
assist-
ceived.
unlоading
TRASK,
ed in
air-
Before CHAMBERS and
Cir
gave custody
employee
Judges,
BYRNE, Sr.,*
lines’
whom he
cuit
District
Thereupon, Agent
kept
Judge.
of it.
Adams
passengers
while
under surveillance
Agent Loughridge went to
airlines’
BYRNE, Sr.,
M.
WILLIAM
District
operations
further informa-
office to sеek
Judge:
tion.
appeals
convic-
from his
Agent Loughridge
office,
possession
At that
iden-
of mari-
tion for both unlawful
Femia,
tified
the air-
it and
himself
huana
intent
to distribute
with
Mr.
passenger
supervisor,
smuggling
lines’
of 21
service
marihuana, violations
Moberly,
employee
841(a),
952(a),
960(a)
airlines’
Mr.
U.S.C.
§
§
§
passenger
given
challenges
whom
(1) respectively.
the male
had
ad-
custody
luggage.
agent
The
missibility
then
the crucial evidence which
anything
pounds
asked
namely,
whether
unusual had
conviction,
led
recently
Moberly
pertain-
occurred.
an-
Mr.
of marihuana and his admissions
private
ing
swered
small
that a
aircraft
thereto.
*
Judge,
Sr.,
Byrne,
District
Central District
Honorable William M.
United States Senior
sitting
designation.
California,
just
at the
up
arrived
airlines’ load-
Femia,
Adams went
identi-
ing gate
passengers
and unloaded two
fied himself, and asked what had trans-
agent
luggage.
inquired
pired.
and their
Femia related
entire
conver-
Moberly
further.
told him that the male
sation.
passenger had told him
name
thаt his
Thereupon,
Adams and Paul-
“Johnson”,
tipped
$5.00,
exchanged
sen rendezvoused and
their
*3
given
custody
luggage
had
of his
respective
They
information.
decided
place
the
with instructions to
it aboard
question
to
“Johnson” and his female
flight
Chiсago. Moberly
to
noted
also
companion. Therefore, they
up
walked
flight
Chicago
originally
that the
to
pair
standing
to the
who were
near the
depart shortly
been scheduled to
after
desk,
themselves,
ticket
identified
privаte
the
aircraft had arrived but had
they
stated that
wanted to ask them
unexpectedly delayed.
been
questions.
suspects
some
The two
will-
Agent Loughridge
accompanied
agents
ingly
then stated that
the
the
to
possibility
luggage
lobby
Agent
gаve
there was a
that the
main
where
Paulsen
shipment
contained a
warning,
of narcotics and them a Miranda
“Johnson”
suggested that it
warning
checked. Femia ex-
be
stated that
understood the
pressed willingness
cooperate
willing
the
to
questions.
and was
to answer
proceeded
bag-
three men
gage
Agent
the
to
airlines’
When
Paulsen
what
asked him
Moberly pointed
area where
luggage,
out he had
the
inside
“Johnson”
baggage. Thereupon,
the
replied,
the three de-
“You
I
in
know what
have
the
exuding
termined
bag!”
the
agent
When the
asked him if
very strong
They
odor
open
of mothballs.
he would
it “Johnson” refused to
also
Then,
agent
that,
noted
the footlocker was locked do so.
the
told him
heavy-duty
with a
nеcessary,
combination lock in
if
a search
for
warrant
the
addition to its
Shortly
built-in lock.
would be obtained.
thereafter, Agent Loughridge
arrived
examination,
After this external
Fem-
agents
lobby
the main
and the three
es-
page
ia decided to
“Mr. Johnson” and
suspects
corted their
security
toward the airlines’
luggage. Agent
to have him
Loughridge
to
office where
intended
part
took no
in Femia’s de-
question them further.
Instead,
agent
cision.
the
withdrew to
vantage point
where he could observe While enroute
that office,
to
“John-
meantime,
In
the
he briefed
son”
afar.
admitted that
con-
Agent Paulsen,
agent
a third Customs
tained marihuana
that he was
and stated
just
being
who had
paid
per
arrived.
trip
transporting
$500
Chicago.
addition,
it to
he claimed
Subsequently,
page for
Femia’s
“Mr.
companion
that his female
not in-
by
J ohnson” was answered
the male sus-
volved.
pect
being
who was still
followed
Agent
arriving
Adams.
Upon
security office,
After a short conversа-
at the '
“
desk,
tion at
get
the ticket
stated,
“Johnson” ac-
J ohnson”
ahead
“Go
companied
baggage
Agent
bags!”
Femia to the
area.
Paulsen left
pair
directly
suspi-
Agent
walked
to the
trieve them. Then,
gave
cious
and “Johnson” idеntified
“Johnson” another Miranda warn-
ing.
it
Again,
However,
his.
when Femia
“Johnson” stated that he
open it,
abruptly
asked him
willing
warning
dis- understood the
and was
ownership.
claimed
cussion,
After further
dis-
answer
further
When
inquired
marihuana,
“Johnson”
as to wheth-
asked how he obtained the
police
agents
er had been notified. When “Johnson” told the that he
replied
negative,
gone
Femia
paid
Nogales,
“Johnson”
Mexico,
for the
going
stated
there,
arranged
that he was
to board the marihuanа
to have
any luggage.
without
it delivered to a site within the United
Thereafter,
baggage
“Johnson” left States.
“Johnson”
asked,
then
“What
following “Johnson,”
you
area.
Instead of
can
do for me if I take it on to
of the above-mentioned
replied
agents
was convicted
Chicago?”
When
leniency,
promise
crimes.
not
could
stated, “Okay,
want
I don’t
“Johnson”
at
time
contends
you anymore.
him,
I
talk
want
talk to
arrested
the Customs
attorney.”
Thereupon,
my
probable
do
so.
lacked
cause
However, after
questioning
alleges
him.
at
ceased
occurred
arrest
hiatus,
initially
about
did ask
a short
Adams and Paulsen
time
name,
(i. e.,
personal
data
identification
there-
him. He
restrained
reasons
etc.)
birth,
plаce
description,
physical
admis-
and his
fore,
both the
history
“personal
illegal
sheet.”
for their
ar-
“fruit” of his
were the
sions
rest.
Approximately
ten minutes
attorney,
requested
rejected
“Johnson” had
contention was
This
lug-
with
Paulsen returned
it dеnied
district court when
Scheiblau-
gage.
expressly
“Johnson” saw
As
suppress
soon as
er’s motion to
*4
in-
suddenly
his
luggage,
arms
threw
merely
he
de-
found
the
that
you
exclaimed,
will
“As
investigative questioning.
to the air and
him
tained
for
probably
out, my
finding
is
John-
find
name
nоt
Presumably,
formed
the same
Then,
son,
took a
he
part
it’s Scheiblauer!”
court’s
the
for the district
of
basis
wallet,
the
out
his
From
wallet
boot.
guilty verdict.
bearing the numbers
took out a card
he
by
finding
supported
is
Such
necessary
lock
combinаtion
the
appeal.
At
time
the record on
then walked over
on the footloeker. He
arrested,
alleges that he
Scheiblauer
was
luggage,
profane
to the
uttered some
agents merely identified them
the two
“burned,”
kickеd
about
statements
suspects
told
and
to their
two
selves
footloeker,
times, opened
it a few
they
them some
that
wanted to ask
them
proceeded
and
to throw its contents
They
not use
did
formal
(including
pounds
mari-
116
Although
can
of arrest.
an arrest
words
huana)
he
Thereafter,
onto the floor.
words,
in the
without
be made
such
was taken
S. Customs office
U.
circumstances,
the ab
above-mentioned
agents al-
Phoenix where the
downtown
such words
indicates
sence
аttorney in Chi-
lowed him to call his
merely
in
detained for
Scheiblauer was
cago.
vestigative questioning.
1972, hearing
April 12,
held
was
On
Circuit,
In
deten
this
brief
in the district
on
court
Scheiblauer’s
persons
police
for
tion
officers
pre-trial
suppress thе mari-
motion to
investigative inquiry is well-es
limited
he had
huana
statements which
for
detention
However,
such
tablished.
agents. Mr.
made to the
Femia
Customs
police
legal,
must have
be
officers
mo-
and the three
The
testified.
suspicion”
a “reаsonable
that criminal
tion was denied.
activity is afoot.
States
Jen
United
v.
later,
Two weeks
Scheiblauer waived
nings,
(C.A.9,1972);
468
111
F.2d
Unit
right
jury
to a
be-
his
and stood trial
Davis,
458, 459,
ed States
459
F.2d
judge
fore the same district court
who
(C.A.9, 1972);
fn.
States v.
3
By
suppress.
had denied
motion
his
1970);
Brown,
702,
(C.A.9,
436 F.2d
705
stiрulation,
testimony
taken at the
States,
4,
F.2d
Arnold v. United
382
7
hearing
suppress
on his motion to
was
(C.A.9,
States,
1967);
v. United
Gilbert
incorporated by
gov-
reference into the
923,
1966);
(C.A.9,
366 F.2d
928
Wil
only
ernment’s case-in-chief. The
fur-
(C.A.9,
Porter,
son v.
361 F.2d
Agent
testimony
Lough-
ther
was
1966).
ridge pertaining
timing оf
to the
Scheib-
case, Agents
lauer’s
his
admissions as
related to
In
this
Adams
request
attorney.
possessed
for his
Scheiblauer
a reasonable sus
Paulsen
such
any
producing
initially
rested
picion
his case without
time
restrain
at the
Subsequently,
companion.
evidence of
own.
his
he
ed
and his
attorney
sponded
request
for an
in-
Agent
the
relayed by telling
had verified
one
could contact
that he
been
which had
formation
continuing
question
told “later” and
through
and had
Tucson office
addition,
personal
led to
data,
about
Agent
In
about
Paulsen
it.
warn-
that their earlier Miranda
believe
Adams about
Femia had told
Mr.
ings
formality
and that
were mere
inconsistent behavior
Scheiblauer’s
garding
request.
luggage.
did not intend
honor his
Adams
therefore,
mari-
and He reasons
had rendezvoused
Paulsen
incriminating
subsequent
huana
view of
pooled
information.
their
agents’
“fruit” of this al-
information,
were the
those
statements
all of this
leged
in-
“search.”
to detain Scheiblаuer
decision
vestigative questioning
well-found-
rejected
con-
this
district court
seriously
contended
ed.
cannot
be
It
mo-
tention when it denied Scheiblauer’s
arbitrary
in either an
acted
expressly
suppress
found
tion to
harassing
or
mannеr.
lug-
voluntarily opened his
gage
exposed
to the
may have
That Scheiblauer
Agents.
plain
Pre-
of the Customs
view
thought
is
he had
arrested
been
finding
sumably,
led
the dis-
the same
consequence.
are convinced
of no
We
guilty
trict court’s
vеrdict.
circumstances,
under similar
The record contains sufficient evi-
average,
person,
not
would
reasonable
finding.
support
dence
such a
Scheib-
thought
arrested.
he had been
*5
have
warnings
did,
Miranda
lauer received two
event,
any
he
such
even if
affirmatively
he under-
why
stated that
person
have asked
would at least
accosting
stood
Paulsen reinforced
agents
and whether
them.
were
he could
Scheiblauer’s
awareness
or not he
under arrest.
properly refuse to
his
own,
For
Scheib
reasons of his
telling
necessary,
if
search
Instead,
differently.
he
lauer reacted
voluntarily accompanied
warrant
for the
would be ob-
agents
through
Attorney.
tained
the U. S.
giv
where,
being
lobby
to thе main
already
Scheiblauer had
admitted
warning,
he
en
stated that
a Miranda
his
contained marihuana
warning
would an
understood the
had revealed
and destina-
both its source
place,
swer
At that time
throwing
into
tion.
acts of
his arms
His
ownership
suspicious
he admitted
of
pro-
gesturing violently,
air
luggage (i. e.,
I have
“You know what
being
fane
“burned”
statements about
bag”).
Immediately thereafter,
in the
kicking
sev-
and his acts
while
escorted to the airlines’ se
suggest
prior
opening it
eral timеs
investigative
curity office for further
belatedly
realized
that Scheiblauer
lug
questioning, he admitted that his
caught
and volun-
he had been
redhanded
gage
making
By
contained marihuana.
give up.
tarily decided to
admissions,
provided
these
the Cus
Affirmed.
agents
information
toms
with sufficient
probable
to constitute
to arrest
cause
Judge (concur-
CHAMBERS, Circuit
Zubia-Sanchez,
him. United States v.
ring) :
(C.A.9, 1971);
West, Frontier, Trans World Phoenix, would
and Cochise airlines smug- one in a thousand if
be about some
gling not involved. The chartered were
plane in Tucson could be obtained hangar,
a remote the main air unlike terminal, not under the full time sur- оfficers. Then
veillance customs highly suspicious method
there was the plane transfer from the chartered plane All commercial at Phoenix.
this lead belief would to an articulable “monkeybusiness” was customs I think
afoot. there was immediate
probable any ques- cause to search before
tioning. Certainly ques- little after a
tioning, got the basis for a search better. fully Judge Byrne’s opin-
I concur
ion, foregoing I set forth the but ground uphold sequence
alternate arrest. search and the ultimate *6 America,
UNITED STATES of Appellee, NAZZARO, Appellant.
James Louis 350,
No. Docket 72-1791. Appeals,
United States Court of
Second Circuit.
Argued 13, Dec. 1972.
Decided Jan. 1973.