United States v. Anthony Legato and Abraham Migdall
480 F.2d 408
5th Cir.
1973
Check Treatment

*2 Legato airport dale validated a Rust, Atty., Robert W. U. S. William Chicago return ticket to under the name Miami, Cagney, Dept Justice, P. U. S. “A. Martino.” Neither man had an Read, Atty., Fla., III, Frederick W. orange bag. shopping A few minutes Dept. Washington, Justice, C., for D. later, however, they a were seen Del- plaintiff-appellee. agent walking past ta ticket the counter GEWIN, Before GOLDBERG gate p. 4:10 m. toward the where the Judges. DYER, Circuit flight depart. Delta was scheduled to agent This time the noticed that GEWIN, Judge: bright orange shopping carrying a appellants, Anthony and bag gift wrapped package a which charged Migdall, Abraham were in a was visible. September 30, three-count indictment on following agent, criminal offens- At station who had Gate knowingly appellants’ (1) conspiracy es: in- arriv- been forewarned tentionally heroin, flight coupon al, from Le- distribute Schedule removed substance, assigned gato’s I 841(a)(1); him a seat on controlled U.S.C. ticket and § Meanwhile, knowingly airplane. Air- inten- Delta tionally possessing security agents, Bratton intent William with an lines Agent 841(a)(1); Brender, distribute, Barry Pa- and FBI 21 U.S.C. § intentionally Murray, proceeded (3) knowingly at- to the board- trick ing tempting heroin, There observed distribute 21 U.S.C. area. entering Migdall sitting wait- 841(a)(1), down in the After 846.1 §§ boarding engaged guilty pleas, ing were tried room of orange jury guilty charged. shop- and found in conversation with year bag them. ping Both received concurrent 10 sen- the floor on between addition, and, developments, response tences under each count to these $10,000. Agent Murray fined office We affirm. went to airline Navy aof to call for the assistance squad Bratton announced while system August 11, over address 1971 the FBI in Mi- On and that received ami, tip had been anonymous bomb threat Florida received an the tick- return to carry- passengers were to telephone over ing that someone baggage and area to reclaim et a bomb in an security search. attempt airplane to a submit leav- board an originally indictment, came 3. FBI 1. As to this Le- count another gato afternoon charged with the substantive However, lie told when attempt matter. offense threat, began take he charged the bomb IS as an aider abettor under activities in the surveillance active role 2.§ U.S.C. gate. telephone 2. At re- least calls were warning ceived bomb would carried aboard the aircraft. agreed Along passengers, to do the other allow so.4 Mur- ray walking appellants began took the toward the a scheduled area cautiously ticketing stopped he examined when area. counter, but it con- reached the contents. He found ticket orange shop- powdery carrying tained a white plastic substance then ping bag, out of the door of on the continued container basis of a *3 field the street into test was determined to be heroin the terminal and across originally parking and not He was followed as was lot. way feared.5 in 12 Delta securi- The actions officers Gate ty agent stopped handling package him and opening Brender who clear- bag. possession shopping took demonstrate that were fearful explosive At ing time this tak- about same was that an substance was con- place, was likewise taken tained therein. police custody. Both into men were op- escorted to office the Delta an II orange shopping erations bag appellants first contend that agent to FBI Mur- was turned over denying trial court erred their mo ray. suppress tion to use as evidence conducting interrogation, Prior to an They complain involved.6 that Murray apprised of their investigat search of the rights explained constitutional that ing officers violated the fourth amend anonymous phone call had been made ment since it incident to was an arrest advising to FBI them officials that a which was made without cause. Chicago flying p. man 4:00 m. They further contend that the search carrying would be a board investigative cannot be sustained bag. orange shopping said stop princi frisk under bag shopping that the did recognized ples Terry Ohio, 392 U. bomb, not contain a but rather a coffee 1, 1868, S. 20 L.Ed.2d 889 S.Ct. percolator gift which was a friend (1968) Williams, Adams v. U.S. supposed airport. he was to meet at the 1921, 92 S.Ct. 32 L.Ed.2d 612 friend, He denied that was the (1972). reject argu appellant’s We saying, however, “I’ve never seen that believing scores, ment on both that there my

man before in life.” con- legal concepts upon are at least curred in that statement and also upheld. which the be search can clared that he and been sitting together in the Gate 12 AIRPORT SEARCH point, employee area. At that a Delta flying informed was Moreno, In United States 475- under the name of “A. Martino.” 1973) [1973], F.2d 44 Although Migdall open recognized danger refused to court gift wrapped package himself, readily posed by he piracy air has transformed the suppression hearing, 4. At Migdall spontane- 5. At the sheriff’s office phase ously described this of his con- stated: “Ten more minutes and it versation with as follows: “Also would have been in the air.” spoke time I came back and I trying Legato points out, quite correctly Mr. to find out about package. think, charged I asked him if he would since he open possession contraband, it. no. He said him if asked he has stand- said, ing by I could. He ‘Sure. Go ahead and virtue Court’s open percolator. States, it. It’s a coffee decision in Jones v. It’s for a friend mine.’ He said it U.S. L.Ed.2d going suppression friend for the to move Chicago.” transcript (p. suppres- fourth the evidence on hearing). grounds sion though he even was not actu- ally searched. do, negative, finding spe- the in- as we into zone where a “critical vestigating officers had reasonable considerations cial Though grounds that the action taken believe apply.” 475 F.2d at appropriate. Terry fol- decisions were and Adams rejected case,7 the in that court lowed After the of the bomb announcement security “airport officials view that leaving Migdall appeared search ‘pat always themselves to a must confine the terminal with proper ba- search there down’ had been until that which investigation.” piracy air sis for an Legato’s possession. The holder ticket such at 51. It indicated that while significance con- turn of of this events authority to per se restriction on Mig- Legato’s light sidered protect a sufficient reaction, that an element dall’s police en- harm street officer from supplied tend- corroboration was *4 counter, necessarily ade- it not be would support of inform- ed to the details the safety in quate the of those to ensure report conduct which ant’s of criminal protection piracy. In air of from need less been certain. theretofore words, though that it was realized other facing circumstances then gating the investi- intrusion incident the fourth amendment only left two available officers greater might airport to an be of make courses One was to action. resulting degree the or- than that investigative long enough stop an frisk, dinary stop the court Moreno inquiry to into the duration allow is it that such intrusion made clear possibility of criminal behavior. upon it is if not unconstitutional based letting nothing, towas do other Migdall escape thus particularized facts which reason- set of possible the conse- investigating ably the offi- substantiates only quence that he and be the individual searched cer’s belief that plans. temporarily in thwarted their hence some fashion and was armed safety the current threat to Given security. 50. to air 475 F.2d at threat by posed piracy air the inher- as well as potential bomb, of ent destructive is Relating principles the an us that officers inconceivable to the hand, in Moreno to the at nounced case the latter would choose alternative.8 question the before this court is whether circumstances, the clear it was Under apprehension the in the context only to that with minimal inconvenience of of the search inquiry concerned, stop and all a brief their the violated the rights. into the of contents are com We conclusively quickly resolve could pelled question in the to answer Meulener, far, Terry Ohio, 8. F. United v. 351 States Thus v. 392 U.S. Supp. (C.D.Cal.1972) 1284 the search 20 L.Ed.2d 889 passenger’s controlling by was held invalid suitcase has been deemed separate fourth two amendment the circuits have the considered grounds. grounds question security the One of searches in the air given oppor- port not the defendant was See States v. Slo context. United tunity 1972); (3d cum, to to submit to the search decline 464 F.2d 1180 Cir. upon Bell, (2d that he not be allowed condition United v. 464 667 States F.2d plane. 1972); Epperson, to board This issue States v. Cir. United Moreno, prop- directly 1972); raised nor is 769 United erly before court But we Lindsey, (3d now. v. 451 F.2d States Oir. implication 1971). recently Although observe the broad district become Moreno that once facts to be courts have held searches justify piracy invalid, air inves- sufficient have rec decisions likewise tigation, Terry has ognized applicability a law enforcement official authority to conduct similar instant rationale cases regard Meulener, the individual’s search without ease. United States F.Supp. (C.D.Cal.1972); lack of consent. Kroll, F.Supp. (W.D. States v. Mo.1972). extraordinarily percolator contained a coffee not a appeared to be an what bomb, justi- opinion, we believe dangerous In our situation. story. Midgall refusing accept fied stopping is clear- Moreover, we think that his decision Moreover Moreno. sanctioned at precisely kind search officers’ conduct urgency response police found to manded sheer sit- of intermediate Ohio, supra, Terry uation. appropriate Not did have his safety safety Williams, supra, own consider but and Adams many vicinity requisite neces- others level of information injured sary be killed or if a was deto- to arrest is lack- cause ing. nated was involved as On the Adherence to the commands well. amendment, society’s facts of this case interests fourth were, greater said, self-protection anything, if has does not mean that a law Court shrug “simply than in Moreno. enforcement must shown official Accordingly, to occur hold his shoulders and a crime this search allow appellants’ escape.” did not fourth a criminal to Adams v. Wil- violate rights. liams, 145-146, supra, S. 407 U.S. Ct. at 32 L.Ed.2d Throughout discussion, preceding implied We next determine have that it is of no conse- must wheth we quence er the in reached in this deci- amendment intrusion result fourth *5 triggered anonymous package tip volved in the search of the sion that an leading up to the consistent with the chain of events likewise recognized principles stopping the in Moreno. of and the began protective ques package Once for ex- search tioning Legato argue, plosives. two addi how- light ever, by came to tended the taken the offi- tional facts action already upheld tip to reinforce his substantial sus cers should not because the picion package in the the the failed to meet standards of informer shopping bag First, reliability Aguilar Texas, v. contained a bomb. set forth knowing 108, 1509, both men denied spite being each other de 378 U.S. 84 12 L.Ed.2d S.Ct. States, Spinelli told that were seen sit v. 723 United ting together 410, 584, 393 89 S.Ct. 21 L.Ed.2d U.S. assuming tip Second, (1968). minutes 637 the earlier.9 Even brought Murray's Aguilar Le to attention that was insufficient under Spinelli,10 gato flying agree of “A. under the name we cannot this ar- though Migdall Thus, gument. Martino.” even The criteria to de- established attempted explain reliability to the termine informer in the of an 1972) ; Dzialak, 9. The trial evidence adduced show- v. 441 United States 212, (2d 1971); ed that had met F.2d 216 Cir. United day Viggiano, (2d before his Miami States v. 433 F.2d 716 planned departure. Migdall brought 1970). purposes, prin also For Cir. cipal point our high probative to the on the occasion is the value question. place upon police these decisions tips applying corroboration of such Spinelli Aguilar assump 10. The fact that we make This standards. emphasis keeping tion not be taken as a is in should conclu corroboration recognize sion that we be the law. Court’s decision Indeed, appears Draper States, 307, reverse be true. United 358 v. U.S. (1959). 329, There are a number of recent cases 79 3 S.Ct. L.Ed.2d 327 investigation leading up case, the instant there was extensive by triggered original tip the arrest or search of corroboration tip unwilling of in an untested or unknown thus we are to concede that See, Spinelli Aguilar operate g., formant. v. e. United States Berry, 187, by U.S.App.D.C. 463 invalidate the action taken the offi 1278, (1972); detaining Legato Zone cers in Gov’t Canal explosives. Wright, (5th searching v. 460 F.2d 1402 Cir. may applies only constitute cases when the Consent those two rights, Zap probable fourth amendment question waiver of is whether there was 624, States, U.S. v. cause to arrest or cause United (1946), L.Ed. 1477 but of a in the cir- issuance search warrant intelligent re valid waiver must be an under cumstances there consideration. right privi or linquishment of a known The instant case does not fall into either Zerbst, categories lege, question v. 304 U.S. since the Johnson those (1938). 82 L.Ed. 1461 presented S.Ct. here the line of arises under person growing Terry Ohio, Where a is under arrest out of v. decisions sought custody supra. and consent to search is emerged police, the rule has Moreover, v. Adams Williams reveals Canseco, 465 circuit. United States v. very plainly tip inadequacy that the (5th 1972), F.2d ers, well as oth- Cir. Aguilar Spinelli under not neces- g., see, Candella, e. United States sarily investigative stop fatal (2d 1972); 469 F.2d 173 Cir. if other search based thereon (3d Menke, 468 F.2d 20 States Cir. give tip present some factors are 1972); Cox, 464 F.2d United States v. reliability.” “indicia two factors 1972); (6th Cir. United States prominently most in Adams mentioned Noa, 1971), 443 F.2d 144 past reliability were the of the infor- proof that absent of actual coercion or mant existence on-the-scene consent intimidation such constitutes although tip. Here, verification of his rights valid waiver nothing at all was known about prior warnings if Miranda anonymous tipster’s reliability, there given. Moreover, are it is clear under was on-the-scene corroboration almost validity of these cases that every plus report, innocent detail his waiver is not affected a failure in- suggested strongly circumstances which warnings specific clude in the Miranda possibility activity. of criminal reference to fourth amendment. gave report This corroboration suf- *6 reliability Ad- ficient indicia of under squarely principles are These justify Williams, supra, ams surrounding point the facts conduct the officers. case. Both search in instant given Migdall Miranda warn were CONSENT ings upon their in the office arrival ground As a second and alternative They they questioned. were were holding properly that the heroin was for their also informed of the reasons evidence, into admitted Migdall hold we opportunity given detention and were consented to search of the airport. presence explain in the thereby Finally, Mur when asked rights. waived his fourth amendment It pack ray permission to search should also be noted that dis- answered, go age, Migdall “Sure, ahead.” any package, claimed interest appellants no coer The make claim possessed nied that he ever ap pressure none is cion parent undue or any acquaintance denied The conclusion the record. from develop- the time of the Before search. Migdall’s inescapable re is (cid:127) consent ing further, however, his fourth sulted in a waiver of valid should be noted that our conclusion Therefore, rights. under regard upon our rests determination law the and the established facts initial decision detain proper yielded the search was Thus, the fol- was valid. against both into evidence admitted lowing discussion is included refute Legato Migdall. any possible claim that the beyond went the bounds of Ter- Ill ry Ohio, supra, and Adams Wil- press interpreted appellants additional liams, supra, arguments seeking of their con- reversal applied in Moreno. They various insuffi- victions. claim in the evidence and that

ciencies closing argument prosecutor was prejudicial re-

so quired. that a new trial is carefully reviewed

We have

record in case and find both to be merit.

these contentions without judgments

Accordingly, the of conviction

against

are affirmed.

Judgment affirmed. Judge

GOLDBERG, (specially

concurring): Moreno I con-

Under commands of exigencies

cur result. skyjacking bombing, however real dire, should not leave

its environs enclave where

Fourth Amendment has taken its leave. strange passing

It of these that most searches find narcotics and

bombs, pause in cause us malleating Fourth

our rush toward keep in order to the bombs

Amendment Seeking prevent exploding. crime, standing alone, never detect has right eroding privacy,

justified hope soon will and continue days halcyon

return to the hallowed

of the Fourth Amendment. *7 LeRoy Appellee, IVERSON,

James DAKOTA,

STATE OF NORTH Appellant.

No. 72-1600. Appeals,

United States Court Eighth Circuit.

Submitted Feb.

Decided June