United States v. John Allen Andrews

BARRETT, Before DOYLE SEY- MOUR, Judges. Circuit BARRETT, Judge. Circuit (Government) appeals from a final order of the District Court denying a Motion for Reconsideration after granted appellee the Court John Allen An- (Andrews) Sup- drews’ Motion to Second press Evidence. Jurisdiction is conferred pursuant to 28 U.S.C. § lodged against An indictment was An- 12, 1979, April charging drews on him with possession of cocaine with intent to distrib- same, ute the in violation of 21 U.S.C. 841(a)(1). filed a Motion to § evidence, Suppress the cocaine as contend- ing that it was discovered as a result of an package by unauthorized search of a an Miami, employee Florida. After while Andrews filed a vault and dressed uniform this motion clerk at Continental Airlines Continental’s Motion Second office, at about freight he met Andrews granted. m. him- 11:15 a. After Andrews identified self, Agent Roth Andrews to meet asked Background Factual An- hallway, him in the where Roth told 23, 1979, March On the afternoon duty drews that he had been on the follow- presented package a to man unidentified ing evening in a package when the arrived Cargo Service of- the Continental Airlines condition, opened and that while partially Miami, Florida, at International fice the it, resealing package he that discovered the Denver, Airport shipment to Colorado. for did machine even parts, not contain paper covering Writing wrapping the on freight though they were listed on the air as the sender “Inter- package the identified inquired Andrews he bill. Roth of whether and the in- Systems” American Autobar mislabeling. was of Andrews aware the Andrews, whose address tended as recipient responded affirmatively. Roth then re- Denver, writing de- was in Colorado. appeared the to con- package marked that package “dis- scribed the drugs reported be tain should Airlines penser housing”. The Continental was to prepared unless Andrews Supervisor, Kerry Galegher, Cargo Service make make it worth Roth’s while not to suspicious he became about testified that report. Thereupon a Andrews asked such goods by corpora- sent package the because Roth how much he- wanted. Roth stated ordinarily packaged cardboard tions then that was reasonable. Andrews $50.00 trade name bearing corporation’s boxes the get his went to vehicle his checkbook. logo, simply wrapped in or and were not return, Upon a his Andrews wrote Roth suspicion, Based on his Gal- paper. brown Agent check in the amount of Roth $50.00. egher opened package. the Inside he found inquired good. whether check An- the plastic bag containing powder. a white a he have replied might drews that while Florida, Galegher County, the notified Dade then, if Roth sufficient funds in his account discovery of the police authorities his of day plenty or waited a two there would be thereafter, powder. white Dade Soon two money of to cover took the the check. Roth County assigned to the Miami detectives the package check and then released Airport at Narcotics Unit arrived the Conti- Andrews, building. who As An- left station, they Cargo nental where Service car, arrest- drews walked toward his he was powder. They white con- field tested the agents ed DEA who had in radio been Thereup- cluded it contained cocaine. that communication with Roth. After Andrews’ phoned Agent Roth on detectives James arrest, physical custody of Roth resumed Drug Enforcement Adminis- federal package. opened it removed Roth (DEA) tration office in notified at DEA Denver. cocaine office in discovery a provided descrip- him of the package shipment tion of the delivered for First Motion to consulting After Andrews Denver. Roth, Agent hearing removed on detectives Evidence adduced plastic bag. Suppress,

some of first of Motions the cocaine from Andrews’ two illegal re-wrapped ship- alleged then directed at the search and package was airport. to Denver on a Continental seizure at the Miami Memorandum and flown p. filed. flight, which arrived at 9:10 March briefs were m. Court’s recognized Andrews Denver, opinion F.2d in United

When the arrived 1975) Agent it. He held that custody placed Roth took freight by airport employees in a office search the contents it vault at Continental’s airport. following freight package subsequent the Denver an air its morning, search and law enforcement offi- Roth took the seizure shipped constitutes to be on a commercial called in airline officials cers beyond protection private search flight. In Gooch we stated that United so, Even Andrews the Fourth Amendment. Chadwick, not involve the contended that Ford did (1977) recognized contained in the addition prohibitions greater right pri- a much (k) to 14 C.F.R. 121.538. § of Subsection vacy exists in relation to the contents of a (k) provides that an airline Subsection personal briefcase—since it is an item of transport goods if consent to refuse to luggage the contents of a commercial —than goods shipper. is refused cargo package. argued that did not control Andrews Ford August its denying In Order of predated it the addition of inasmuch as Suppress, Andrews’ First Motion to the Dis- (k). argued further Subsection light that in of the addition of Subsection rejected argument trict Court Andrews’ (k), placed imprimatur Government effectively federal freight procedures, implanting thus on air placed imprimatur freight proce- on air by personnel conducted airline searches by dures enactment the Air Transporta- Amendment; and that within Act of tion U.S.C. and the § regulations re- because federal statutes and regula- Federal Aviation Administration quire notify freight an air airline governing security tions air carriers and right that he to refuse consent shipper has cargo shipments. measures for See: 14 goods, to a search of its the airline’s failure 121.538(b),(d) (k). C.F.R. § shipper to advise the Miami in this case rejected holding The District Court in eliminates consideration of consent and subsequent Fannon, (9th renders warrantless search United States v. 556 F.2d 961 violative of the Fourth Amendment. 1977), strongly urged upon it An drews. Fannon held that the aforesaid Andrews,

Accordingly, argued the exclu- regulations statute and meant that Con sionary applied rule should be and the gress subject freight ship intended to air airport “fruit” of the Miami search conduct- (the personnel ed Continental Airlines packages containing ments such as heroin cocaine) suppressed must be government’s “to the administrative scheme .evidence plucked from use at trial because it was strengthen security transporta of air poisonous placed from “the tree”. Andrews rendering personnel tion” thus airline opinion substantial reliance on this Court’s pursuant pro searches conducted to the Gooch, in United 603 F.2d 122 gram subject to the Fourth Amendment. We there held that even Fannon, however, was in United overruled though the warrantless search of an air- Gumerlock, 590 F.2d 794 illegal transportation craft used in mari- 1979) (en banc), cert. juana from Mexico to the United States 60 L.Ed.2d 1052 justified on the basis of existence freight Ninth Circuit there held that air probable exigent cause and circumstanc- shipments subject security are es, the same apply rationale did not to a screening process mandated the Govern briefcase found plane by on board the carry-on ment for their passengers and United States Customs officers' which was possessions, and further that search of searched them without the benefit of a freight packages by personnel airline consti search warrant. striking factual dif- private tutes a search in which the Govern ference between Goochand the ease bar involved, respect ment is in no either direct Gooch, case, is that in unlike the instant ly indirectly as an en participant as a or police officers conducted the warrantless courager. Accordingly, the Ninth Circuit Further, search. Goochinvolved conducting pri held that an airline such a private briefcase aboard a noncommer- aircraft, subject vate search is not to the Fourth cial whereas the instant case in- volves the ostensibly corporate search of an Amendment. are under tariff rejected properly proceeding the Fan- who

The District Court acting Con “in col- regulations on the basis that who are not non rationale “[s]ince statutory private no are Airlines was under officials" tinental lusion federal deposited to search the compulsion Accordingly, the cocaine seized searches. case, govern requisite with it in in Miami County Dade detectives by the necessary to invoke participation mental under evidence was admissible in missing.” [R., protection is constitutional Fourth Amendment. so, I, Even p. agree. We Vol. 49]. Court, we are not Unlike the District opined that the activities District Court than commend those inclined to do other by Supervisor Galegher opening pursued employees undertake reasonable who prompted . package, “. . involved in air to find narcotics means solely by his desire to assist law enforce- by a freight shipments motivated desire to uncovering, perceived what he law in the enforcement of the under aid be, attempted of contra- distribution the Government is circumstances which though] . . . there band [even participant a direct or an indirect neither finding specific support evidence encourager. at the Galegher conducted this search be- control, hest, or direction of the Suppress Motion to Second though] even I find air [and freight subject such as that to the search in Andrews’ Motion to Second govern- was not question included 18,1979. July granting It is the Order filed directives in the “Air mental enumerated subject this motion which is the of this 1974”. . Transportation Security Act of appeal. practical result ... is that self- Suppress pertains The Second Motion to policemen appointed vigilantes or demon- of the to the contraband contents protected strate conduct which is from con- following his taken from Andrews arrest scrutiny. encourages type stitutional It departure upon his from the Continental by private of behavior individuals that Freight Air office in inasmuch as performed would not be if tolerated that warrantless search conducted Thus, officials. and Andrews, again, relies agents. upon DEA rights by per- the exercise of all property Gooch, supra. subject to by private sons are invasion indi- granted viduals who are trained to The District the Second neither minimize Court subject discipline invasions nor such to to without the benefit of a Motion perpetration However, which fails conduct to memorandum. the Dis- written [R., I, meet constitutional Vol. standards.” orally trict Court stated reasons for pp. arguments following 52]. granting Motion counsel, as follows: Predicated on that which Dis me the case was THE COURT: To “what the trict Court determined to be law against Ar- clearly controlled Sanders presently is rather what it than be second Motion kansas. Motion—the the First come” Motion to Dismiss was de of the Suppress, the contents boxes recognizes nied. Andrews that the District nothing in granted, just there is the rec- correctly applied Court interpreted exigent ord to establish circumstances. present state of the law in this Circuit to probable There is to establish plenty the issue involved First Motion in the cause, teaching but that’s the Sanders Following Dismiss. the District Court’s Arkansas, got motion, against you’ve have August ruling on the law, Court, Gibbons, It’s been the but the always both. United States v. 607 F.2d you to— 1320, (10th Court has clear that have 1979) re-affirmed its made hold I see differ- ing supra. Thus, luggage in that case in United States v. —and freight air freight law in this ence here between the Circuit is that delivering over to inspections by suspicious airline officials Government apply “suitcase” searches do not facts agent, who was through the case. circumstances of the instant Roth, posing time at the Agent time involved, here, initial The None of those cases employee. Airlines as a Continental beyond searches commands private make luggage air don’t cargo and the air contrary, On the the Fourth Amendment. to me at this meaningful distinction police those cases authorities ques- in each of respect to It would with point. Thus, were, times, solely all involved. Airlines whether the Continental tion of each, Gov- of the direct and sole involve- acting under because person in Miami was officials, got here we’ve it was held authority. But ment of Government ernmental authority in the search warrantless arrests were valid Governmental cause, the ar- upon probable that was made after the existence of and seizure based personal rest of Mr. Andrews. warrantless searches of but the possession per- of the luggage found in this, that I have not been say I would were violative of persons son or arrested when I to criticize the D.E.A. hesitant the warrant commands deserving of it. In this thought it was them, opinions those con- I think Amendment. Each of sorry for because case I feel thing exigent there were no circum- exactly the same cluded that I have done would preventing And we have also a the Government officers in this case. stances they did law. But warrants before con- obtaining application retroactive Thus, opinions also about. The ducting is what Gooch is the searches. those retroac- applied firmly proposition Tenth Circuit Sanders were anchored ways. have it both tively. you solely And can’t that because the officers string, and possession have on a You can’t completely in control and dominion posses- say it back and it was pack- take the actors and the suitcases and/or time. all the sion of the Government exigent ages, there were no circumstances it at the Conti- They effectively seized undertaking the preventing them from Air- place Stapleton nental Airlines search warrants steps required to secure port. proceeding before with the searches. IV, [R., pp. Yol. 16-17]. consideration, our Andrews submitted for Gibbons, supra. Andrews v. States Appeal on The Issue not, course, with its “sympathy” of in by the appeal, posited issue on However, holding. attempts he to distin- Government, agent DEA is whether a the guish Ford from case Gibbons and of a controlled deliv- point the termination decisions in- bar on the basis that those ery required to secure a search warrant was search, only single volved a whereas re-opening package a that had been before police separate instant case involves two co- lawfully opened and found to contain seizures. prior delivery. caine to the controlled argues Andrews that even should granting An- The District Court’s order cargo the initial “search” at the Continental was drews’ Second Motion beyond the office in Miami be treated as re-opening that the predicated on its view Amendment, reach still the of Fourth package person taken from the of of was, by Denver seizure as found and search Agent by Andrews DEA Roth violated Court, ac the District direct Government Sanders, v. 442 dictates of Arkansas implicating tion the strictures of the Fourth 2586, (1979). 753, 99 S.Ct. 61 L.Ed.2d 235 heavy em places Amendment. dictates of United Sanders followed the possessed he a rea phasis on the fact that Chadwick, supra. v. States expectation privacy relative sonable of Sanders, was supra, after it package In our view v. Arkansas Chadwick, in Col supra, possession United delivered into his United States v. Illinois, 439 Gooch, v. supra, many v. other orado. He relies on Rakas 128, 99 (1978). involving validity cases of warrantless U.S. S.Ct. into his actual age once it was delivered admissibility of shells involved Bakas Denver, necessitating a the war- compartment possession in glove in the found the front seat Amend- under of the Fourth requirement rifle found rant sawed-off following an armed rob- DEA by car getaway prior re-opening a to its of ment passen- petitioners were bery report. The of its subsequent search agents and the that, as They contended gers in the car. contents, merit. It is difficult is without on the they “legitimately passengers, pri- of expectation any “reasonable envision legiti- and thus had premises” the car] after part [of existing on Andrews’ vacy” from admission privacy of expectation mate that he knew informed him Agent Roth had trial of the shells evidence at their Notwith- drugs. package contained contention This Fourth Amendment rifle. physi- took claimed and standing, Andrews justify not rejected. Bakas does package. possession cal priva- “legitimate expectation claim of a protections recognize that We There could be no the case at bar. cy” in violated can be the Fourth Amendment following the initial lawful expectation such Hoffa v. United by force. guile as well as subse- in Miami and the opening and search States, 385 U.S. in Denver quent claim of Oakes, v. (1966); L.Ed.2d he had been informed Andrews after 1977), cert. 564 F.2d 384 drugs. An- that it contained Agent Roth 55 L.Ed.2d 435 U.S. S.Ct. it is the fact of his drews contends that “right intrusion on Whatever prior in Denver possessionof the trigger implicated here cannot gave privacy” was and search that its warrantless seizure simply because the Fourth Amendment rise to his reasonable violation protection. taken in requiring Fourth Amendment action was Government disagree. We Amendment’s commands. of the Fourth Amend focus in Fourth The central bar, In the case at unlike Sanders and of “reasona challenge is the standard initially opened when progeny, the Thus, good just as the bleness”. employees Miami Continental Airlines property found inventory personal faith unquestionably beyond the reach of the was classified impounded in an automobile exclusionary Amendment and the Fourth police” intrusion South as “reasonable consistently rule. This Court has held that 364, 96 Opperman, 428 U.S. Dakota by private searches individuals undertaken so, too, (1976), 49 L.Ed.2d officers”, with federal without “collusion by an under misrepresentation intentional Harding, States v. 475 F.2d 480 [United agent “Jimmy the cover federal narcotics 1973)], or “at the behest of marijua officials”, dealing purchase Pollock” Government [United Gibbons, supra, p. 1324], implicate price na at a discounted which led to do the petitioner’s Amendment inasmuch as no into home where invitation Governmental action is involved. also: agent marijuana, See was held not to purchased Ford, supra. United v. Decisions States Fourth Amendment’s “reasona violate the from other courts have held likewise: Unit States, bleness” Lewis v. United standard. Rodriguez, (6th ed v. States 596 F.2d 169 206, 424, 17 L.Ed.2d 312 385 U.S. 87 S.Ct. 1979); Gumerlock, Cir. United v. States su rejected the con opinion The Lewis Lamar, pra; United States v. 545 F.2d 488 warrant, that, the absence of a tention 1977), denied, 959, cert. Cir. 430 97 U.S. into the privacy official intrusion 1609, (1977); 51 S.Ct. United induced fraud and home “invitation” Issod, v. 1975), 508 F.2d 990 a violation of the deception constitutes 916, 1578, 421 cert. U.S. 95 43 S.Ct. specially Amendment. The Court Fourth (1975); 783 L.Ed.2d v. De United States vitality language of this recognized the Berry, (2nd 487 F.2d 448 States, 435, v. United U.S. Sorrells 212-213, 441-442, 77 L.Ed.

The contention had a rea- stratagem may be (1932): “Artifice sonable privacy pack- in the .and in crimi- engaged those together sode and must be considered employed to catch appropriate . . The enterprises. . purposes. Illegality Fourth nal Amendment activity, frequently object permitted of this would place in either be fatal law, is of the to the enforcement essential . Since . government’s Boyd case. . design; expose the the criminal to reveal States, U.S. [Boyd v. United traffic, publication, the prohibited illicit 524, 29 L.Ed. and Weeks S.Ct. 746] mails, illegal con- use of the fraudulent States, U.S. v. United [Weeks offenses, and thus to dis- spiracy, or other 652], 58 L.Ed. numerous cases the law.” violators of close would-be the phrase have construed “unreasonable 426.) (385 p. n. 87 S.Ct. at searches and seizures” with little consist- put Mr. Justice White ency. the warrantless . . . it The “reasonableness” of case at bar is dissenting opinion search and seizure in the well in a when he ob- view, quite directly supported, and in our served: “It clear that effects determined, Ford, by su- probable cause but the be seized without very similar pra. That case involved facts required law as to when a warrant is case at bar. In presented to those in the validate the seizure is confused and con- an Ameri- package a was delivered to Ford, fusing.” . . . [w]e, thus have [Here] Francisco, freight agent can in San Airlines private in inspection which was both wrapped paper, in brown and addressed to a govern- motivation and manner. The City, Oklaho- Miss Linda in Oklahoma Ford agents only after the sus- appeared agent airline opened by ma. It was picion possible presence of contra- nervously when the woman who delivered it discovery of band was confirmed [the] responded that not know its con- she did prophylactics. point, At this it was agent gave tents and otherwise the airline duty province and indeed the when inquiry. package, cause for investigate open to further officers opened by agent, was found to box, any invasion they did without powdery police Local contain substance. protected rights police in. conducted an were called Having that no constitu- determined that the on-the-spot field test which showed rights Mrs. Ford were violated tional police powdery substance was heroin. search, proceed analysis we with an package which was then resealed of the seizure. apparent- Ford Appellant shipped flight City, on a to Oklahoma seizure occurred in ly contends that had been where law enforcement officers and distinct City, separate Oklahoma alerted. When arrived in California, in. and that from the search mother, City, Oklahoma Linda Ford’s Ka- to obtain a warrant since there was time case, thryn, appellant in the claimed it at seizure, City before the Oklahoma proceeded, the airline office. under She violated the Fourth warrantless seizure surveillance, waiting with the to a We think this Amendment. . . pack- with the entering car. After the car analysis the facts and re- misapprehends age, it a window when she she threw out alities of the situation. approaching. The observed officers pack- officers arrested retrieved the Realistically, the contraband was seized age and secured its contents. The trial before it was the officers in California suppress court overruled motion shipped ever to Oklahoma. See from admission in (2nd DeBerry, 487 F.2d 448 perti- evidence. This Court affirmed and 1973). marked The California officers nently observed: card placed a business Upon receiving it. assurances validity

Next we of the inside consider officers, search, arrest, City process in cooperation from Oklahoma and seizure San shipment. This action City. Francisco and Oklahoma they authorized its It seems of control and constituted the initial act to us that the events which occurred in contraband, with- dominion over the epi- California and Oklahoma were one vio- fectively Fourth Amendment insulates government authorization out Andrews, I must challenge by lations shipped the con- from not have could officials respectfully contin- dissent. dominion This official traband. close surveillance because ued unbroken decision in majority The relies on our contraband, insuring the seized

followed (10th Ford, v. 525 F.2d 1308 United States possession. within official that it remain 1975), we reviewed a similar where Cir. was in fact reas- physical control Actual of narcotics after air- governmental seizure City police when by the Oklahoma serted contraband. line officials had discovered the completed. . process was the arrest separate there was no holding In . the official seizure . . [Thus] place the heroin or seizure at the search in Francisco the contraband occurred San delivered, that “offi- this stated was court government asserted dominion when the because continued unbroken cial dominion judged it. seizure must be over The the seized con- close surveillance followed as of Amendment against traband, remain within offi- insuring that it place time and . 1313; and see Unit- possession.” cial Id. at private, was search [California] Gibbons, 1320,1325 n. 607 F.2d ed v. States ensuing warrantless seizure [Califor- 1979). recognizing that (10th While Cir. upon probable cause under was made nia] except by an en overturned Ford cannot be [Emphasis sup- exigent circumstances. court, agree I cannot banc decision of plied]. reasoning its or result. with pp. 525 F.2d at 1310-1313. inquiry is whether proper fully applies We hold that Ford conducted a new or different government Here, Ford, as in the case at bar. delivery pack- of the point at the search private. search conducted in Miami was in Ford that there is age. The conclusion officials were called When the Government assumption on the no second search is based while in Continental Airlines officials in “official the contraband remained Miami, yet was completed. until the arrest was possession” upon probable made cause seizure there was However, posses- charged is Thus, exigent and under circumstances. It with intent to distribute. sion of cocaine Denver, shipment of the delivery in Denver only point at the there, delivery over to Andrews and its committing capable that Andrews were, taking just subsequent from Andrews charged. The with which he is the crime “ constituting as in actions suf- may not claim that it had official dominion continued unbroken be the cocaine to obviate ficient dominion over cause close surveillance followed the seized Fourth Amend- consideration of Andrews' contraband, insuring that it remain within the same time it is rights while at p. possession.” official 525 F.2d at pos- in which prosecuting him for a crime Sanders, v. See also: United States evidence is itself an session of the seized (5th 1979) (U.S.App. Pndg.); F.2d 788 “Proper essential element. administration Issod, supra; v. United justice such of criminal should not include DeBerry, supra; v. governmental contradictory assertions of Ogden, 1973). 485 F.2d Kelly, 529 F.2d power.” United States 1370-1371 Because REVERSED AND REMANDED for fur- charged with the Andrews could not be proceedings. ther pack- until he was arrested with the crime SEYMOUR, there Judge, dissenting: age police activity Circuit separate apart viewed as must be majority holds that there is no search original seizure Miami. point the termination or seizure at and, therefore, Moreover, delivery” regardless nature “controlled crime, complete results in required. analysis Because the Ford warrant protection “single ef- denial of Fourth Amendment majority’s analysis search”

655 1, Chadwick, con- the In United States 433 U.S. package a where of addressee 2476, (1977), 97 53 it S.Ct. L.Ed.2d 538 was previously have been package that tents of legitimate expectation held that one has a As the point shipment. of at the discovered privacy Recently, of in a locked footlocker. recognized, reluctantly court below district expectation held that of the Court such an Fourth applauds, the majority here and the privacy also exists in an unlocked suitcase. point of inapplicable at the is Amendment Sanders, 753, Arkansas v. 442 U.S. pack- shipper opens shipment where the 2586, (1979). 61 L.Ed.2d 235 the contents over age turns con- was search government, because a opening Here the search involved the of Nevertheless, I private party. by package ducted a sealed addressed to Andrews picked search him at the The mere private up by airport. a lawful do not believe ac- subsequent police package surrender of the to a carrier always insulate should circumstances, held shipment from has been not to forfeit tion, regardless right privacy pack guarantees afforded constitutional 727, age. Jackson, 24 Furthermore, Ex Parte 96 U.S. Amendment. Fourth (1877); Corngold L.Ed 877 v. United ship- point at of had the search even States, 1, 1966). 367 F.2d 7 Al governmental, the case of purely ment been though permits inspec the law the carrier’s Illinois, 439 99 U.S. S.Ct. Rakas v. package, regulation tion of Andrews’ (1978), decided 58 387 which was L.Ed.2d may providing right not be extended to Ford, extremely it doubtful makes after legitimate priva remove all of expectation package has a suffi- an addressee that cy governmental pack from intrusion into expectation privacy of ciently legitimate ages shipped. that have been Fourth point shipment of to raise v. Kelly, 529 F.2d 1365 Cer questions concerning a search Amendment tainly expectation privacy an individual’s at that time. made legitimate a sealed is as his analysis, although the Ford Under expectation privacy unlocked suit in an ripened rights point have at the addressee’s Sanders, case. 99 at 2592 n. 9. See S.Ct. delivery, there is search or seizure Dien, And see United 609 F.2d States v. Thus, challenged. be has no addressee (2d 1979) (by marijuana sealing 1038 point at which he a violation of assert box, plain inside a cardboard the defendants my his rights. Fourth Amendment It is contents expectation manifested an that the opinion majority’s both the result and inspection). free public would remain from reasoning impinge on unconstitutionally majority states Andrews could rights. I Andrews’ would hold privacy not have had an different in a different “after he informed had been a different time a new state at constituted it Agent drugs.” Supra Roth that contained conclusion, majority’s based on search. However, know Andrews did not exception carves an to the Fourth government agent. Simply was a be- Roth where no is warrant- exception Amendment privacy cause an individual shares his ed. others, has few it does not follow that he Turning validity of the “second” voluntarily legitimate surrendered his ex- search, this time officials in pectation privacy govern- improper question is DeForte, determinative mental intrusion. 392 Mancusi whether the search was unreasonable 20 L.Ed.2d 1154 U.S. S.Ct. (1968). Thus, States, proscribed by Amend in Katz v. therefore 351-52, 507, 511, if ment. The search not unreasonable U.S. S.Ct. (1967), the Court stated: expecta have a legitimate Andrews did not tion of in the sealed exposes to the person knowingly “What a Illinois, office, to him. Rakas v. public, even in his own home or delivered 128, 99 subject pro- Amendment L.Ed.2d Fourth 656 evidence, States, out- of loss or destruction 385 v. United Lewis tection. See prior reasons for recourse to a 312, weigh the 424, 17 L.Ed.2d 206, 210, 87 S.Ct. U.S. v. magistrate. See United States neutral 559, Lee, 274 315; v. U.S. United States Court, supra District United States [407 1202, 1204. 746, 71 L.Ed.2d 47 563, S.Ct. 2125, 2137, at 32 at 318 U.S. S.Ct. [92 297] private, preserve as to But what he seeks excep- each But because L.Ed.2d 752]. public, to an area accessible even in requirement invari- the warrant tion to constitutionally protected. See may be pro- to some extent on ably impinges 253, States, 80 U.S. 364 v. United Rios Fourth Amend- purpose of the tective 1688; parte Ex 1431, 4 L.Ed.2d S.Ct. ment, in which a few situations 877, 733, 727, 24 L.Ed. Jackson, 96 U.S. in the absence be conducted added). (Emphasis 879.” carefully deline- warrant have been Roth Moreover, paid Agent $50 Andrews seeking those and ‘the burden is on ated report the agree not to the need for it.’ exemption to show Rakas, 439 In U.S. police. 48, Jeffers, 342 51 United v. U.S. 433, 149, the Court considered 99 at at S.Ct. 93, 95, (1951). 96 L.Ed. See S.Ct. 59] [72 352, Katz, 88 389 at that in U.S. it relevant 752, California, 395 762 Chimel v. U.S. [89 his 511, paid for the defendant at S.Ct. 2034, 2039, (1969); 23 L.Ed.2d S.Ct. 685] privacy: States, supra, at Katz v. United U.S.] [389 Moreover, 357, 507, we at S.Ct. Katz, occu- 514]. the defendant [88 “Likewise in exception the reach of each have limited booth, the door telephone shut pied the necessary that which is to accommo- paid all others and him to exclude behind society. date the identified needs of See toll, to assume ‘entitled [him] Arizona, 385], supra Mincey v. U.S. [437 into the he that the words utter[ed] 2414, 2408 at 57 L.Ed.2d at 393 S.Ct. [98 broadcast mouthpiece not be [would] Chadwick, supra 290]; 352, Id., the world.’ U.S.] [88 [389 (1977); at 15 S.Ct. 2476] [433 U.S.] [97 507, . . could 512], Katz S.Ct. supra Coolidge Hampshire, v. New [403 privacy in the areas legitimately expect 2032, 443], 2022 at 29 U.S. at 455 S.Ct. [91 subject of the search and which were the L.Ed.2d 564].” (Empha- sought to contest.” seizure [he] us, ad- In the case before added). sis exigencies argument mitted in oral that in Rios v. The Rakas Court also noted and, impounding the present after States, 80 S.Ct. U.S. easily could have been package, a warrant (1960), the defendant had L.Ed.2d 1688 “knowledge” While Roth’s of the obtained. taxicab, thereby distinguishing “hired” on package, which- is based contents at 149 n. Rios from Rakas. 439 U.S. from Miami and not telephone information case, In the instant at 433 n. 16. S.Ct. knowledge, provides ample personal his own pri- similarly paid to maintain his cause, it cannot be a substitute for probable circumstances, I would vacy. these Under teaches us that: a search warrant. Sanders hold that Andrews’ po- case —the present “Where —as in the' legitimate and reasonable. lice, endangering themselves or without this case is con- my opinion

It evidence, have risking lawfully loss of Sanders, suspected trolled Arkansas U.S. of criminal activi- detained one suitcase, 2586, 2590-91, they should ty and secured his judi- after delay the search thereof until noting ordinarily After In this approval has been obtained. cial pursu- both reasonable and search must be right sus- way, the unconstitutional warrant, properly ant to a obtained of searches pects prior judicial review Court said: fully protected.” will be carefully drawn’ ‘jealously few “[A] Id. at 2594. provide for cases where exceptions those warrant, searches, we obtaining considering societal costs of In warrantless Bradley’s Mr. Justice the risk must be mindful of danger such as to law officers or States, 116 Boyd v. United admonition 616, 635, 29 L.Ed. 746 Coolidge v. New repeated

(1886),which

Hampshire, (1971):

2031, L.Ed.2d 564 “ and unconstitutional ‘[Ijllegitimate footing . get first

practices their slight approaches and deviations

by silent procedure. This can legal modes of adhering to the rule

only be obviated provisions the se-

that constitutional

curity person property should be

liberally construed. A close literal deprives of half

construction them their deprecia- gradual

efficacy, and leads to right, if it consisted more in

tion of the duty than in substance. It is

sound courts to be watchful for constitu- citizen, rights against

tional ” stealthy thereon.’ encroachments grant- court’s

I would affirm the district Suppress.

ing of Andrews’ Motion to

INTERNATIONAL UNION OF OPERAT- AFL-CIO, ENGINEERS,

ING LOCAL Hill, Plaintiffs-Ap-

NO. and Charles

pellants, REFINING

KERR-McGEE

CORPORATION,

Defendant-Appellee.

No. 78-1679. Appeals,

United States Court of

Tenth Circuit.

Argued Jan. 1980.

Decided March

Case Details

Case Name: United States v. John Allen Andrews

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Mar 19, 1980

Citation: 618 F.2d 646

Docket Number: 79-1963

Court Abbreviation: 10th Cir.