United States v. Thomas J. Licata, 761 F.2d 537

United States v. Thomas J. Licata

761 F.2d 537

9th Cir.

1985

Check Treatment

*2 NORRIS, еmployee challenged Circuit line agent’s Before SKOPIL au- STEPHENS,* thority to make such Judge. District a demand. He Judges, and then agent asked the if Licata going to take SKOPIL, Judge: Circuit flight. When he was informed that Licata would not be flight, posses- he Licata was convicted of Thomas package.1 retained the The two unregistered firearms violation sion *3 plane, then boarded the §§ and one identified 5861(d), 5845, and 5871. On 26 U.S.C. himself and plane. asked Licata to leave the argues appeal, he district court off plane Once and in thе boarding suppress denying erred in his motion to area, Licata was advised of his Miranda (1) guns package containing

because rights placed and posses- under arrest for seized; (2) unlawfully his consent to was unregistered sion of firearms. voluntary; open package was not and (3) post-arrest his statements were not vol- arrest, Immediately following the Lica- untary. We affirm. baggage ta’s ticket and claim check were agents. agents

seized and Lica- FACTS proceeded ta to the airline ticket counter оne agent custody pack- where took of the negotiated cooperating with a Licata age. government witness and with a Bureau of Alcohol, Tobacco and Firearms undercover package Licata and transported his agent illegal guns. for the sale of After agency to a local office. Enroute he was transactions, agreed several Licata to trav- again if legal asked he understood his Georgia “pen” guns. el to to deliver 100 rights and whether he ques- would answer Special agents surveilled Licata as he ar- regarding guns. tions respond- Licata There, airport. rived at the Licata checked rights ed that he understood his and admit- package small the airline’s coun- a ticket package guns. ted that the contained 100 package ter. The testified that the The lower court found that Licata consent- necessary was the size to contain the 100 ed to a search of the and that on guns. office, arrival signed at the local Licata a Consent to Search form and thereafter vol- proceeded When Licata to board the untarily provided signed awith plane flight, agent for his one went to the statement. per- ticket counter and advised the airline sonnel that Licata would not illegal be allowed to possession Licata was indicted for flight. agent requested unregistered take Then firearms. He made an un- pretrial that the airline hold the The air- suppress successful motion to * Jr., Well, Stephens, you Q: Lee The Honorable Albert the fact is that he ‘I told don't Judge States District Cаlifornia, for the Central enough authority,’ your District of think that’s iden- sitting designation. you? tification? Is that what he said to Specifically, say, A: I couldn’t but words to government agent 1. The testified at trial as fol- effect, just that he didn't believe that lows: my enough identification was sufficient you say agent? "Q: What did to that ticket to hold the for me. A. I asked him if Mr. Licata had checked a him, ‘Well, Q: you Isn’t it also true that told package with him. He said that he did. flight.’ Mr. Licata is not Didn’t I asked him to hold the for me. you say agent? that to the ticket minute, Backing up At first he balked— going A: He аsked me if he was to take the previously myself I identified to him as a said, ‘No, flight, and I he is not.’ Federal officer before I asked him if Mr. And, okay you Q: when said that he said Licata checked a He said went back and secured the box? he did. I asked him hold it for me. box, A: When he said he would secure the I balked, thought He he didn’t have the left. I don’t know what he did. authority my identification. to based on you going Q: But he did tell he to hold was Then he me Mr. Licata was asked if you, didn’t the box for he? going flight. I said that he to take A: That's correct." he would hold the not. Hе said (TR 208-209.) pp. me. basis, finding “may

statements made at the time of his arrest that officers seize a suppress guns the 100 found in the they container which have reasonable govern- contraband, package. At the conclusion of the cause to believe contains case, unsuccessfully again Licata they may possession ment’s hold it their until suppression of the evidence. moved for they such time as can ... a search obtain warrant.” ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍DISCUSSION agree We law enforcement Package. 1. Seizure authorities makе a warrantless seizure a seizure oc do not doubt that We have cause to believe that Jacobsen, curred. See United States a container holds contraband and the exi — -, gencies of the circumstances demand the (1984) (seizure occurs when L.Ed.2d 85 Sanders, seizure. See Arkansas v. there is interference with an individual’s *4 interests); v. possessory United States (1979). Further, L.Ed.2d 235 warrantless 696, 2637, 2645, Place, 462 U.S. 103 S.Ct. personal luggage seizures of from the cus (1983) (“no that 77 L.Ed.2d 110 doubt” tody of the owner can made on than be less they luggage seized when stated рrobable purpose cause for the of a limited they judge that it to a federal Place, 2644; investigation. 103 S.Ct. at warrant); v. to secure a United States Beale, 1289, United States v. 536, (9th Cir.1973) Ogden, 485 F.2d 540 (en (9th Cir.1984) banc). 1291-92 baggage pending a war- (holding checked seizure). We conclude that the seizure here general rant amounts to a As a beyond temporary, investigative a rule, “per went sei property seizure of is se unrea- zure. The did not seize Licata’s meaning of the Fourth sonable within the purposes investigation. pur- for of an accomplished Amendment unless it is purpose Their was to hold the judicial upon to a warrant issued suant cause____” they either Place, until obtained Licata’s consent probable 103 S.Ct. at open to it or a search warrant. Nor was exceptions While there exist to this temporary. the the detention While time requirement,2 Supreme warrant the Court brief, period from seizure to consent was emphasized exceptions has that these are established,” return “few,” the officers never intended to “specifically States, package to Licata. Under these circum “well-delineated.” Katz v. United stances, 347, 357, 507, 514, justified the seizure here cannot be 389 88 19 (1967). temporary under which deten Place allows L.Ed.2d 576 property investigative pur for tions of government seeks to base the war- poses. upon agents’ reason- rantless seizure however, say, that suspicion able and articulable That is not to package contained contraband and that de- seizure cannot otherwise be constitutional- proper ly justified. implies аt least tention was to allow further investi- Sanders property gation. police may The district court ruled on that seize and detain Arresting permitted exception is a search or seizure officers are not to lead the 2. One such Belton, place place pres- New v. incident 454, to arrest. York 453 accused from and use that 2860, (1981); Chi- 101 S.Ct. ence in each location to a search or 752, 2034, California, Whitten, mel v. 395 U.S. 89 S.Ct. 23 seizure. government here has L.Ed.2d 685 1000, Cir.1983) (9th (quoting 1016 United States attempt justify the abandoned its seizure Mason, (D.C.Cir.1975)); F.2d 1126 v. 523 probably рackage as incident to arrest be- Rothman, v. F.2d United States contemporaneous cause the seizure was not (9th Cir.1973). police circumvent Nor can and was remote in distance from with the arrest requirement by fourth amendment’s warrant Johnson, 722 the arrest. See United States v. luggage E.g., bringing to the accused. (9th Cir.1983) (valid search inci- F.2d Wright, Cir. v. within dent to arrest must be limited to areas 1978). arrested). person immediate control of the Corngold to believe con- v. United cause they have purpose (9th Cir.1966) (en banc) (warrantless of secur- sеi- contraband tains Although the search. ing a warrant luggage justified zure and search of there was unchal- property seizure of initial circumstances); the absence of see expressly noted that the lenged, the Court Martin, 562 also United States v. “com- only “properly” but acted not police (D.C.Cir.1977)(no exigent cir- 677-78 seizing a suitcase that mendably” in justify warrantless seizure cumstances to Sanders, drugs. believed luggage station). search of at bus 2591. The Court 99 S.Ct. at U.S. at immedi- police instead of reasoned that We are not unmindful of thе ar suitcase, should have tak- ately opening the im gument that different interests accused, it, police along to the en with a than a search. plicated seizure See a warrant for and there obtained station Jacobsen, 104 S.Ct. at 1660-61. The fourth 442 U.S. at 99 S.Ct. the search. provides protection amendment to the own also United States Chad- 2594. See every container conceals its con er of 2476, 2484, wick, 433 U.S. plain tents from view. (1977)(after initial seizure and L.Ed.2d 538 Ross, 456 U.S. footlocker, validity detention (1982)(citing L.Ed.2d 572 Robbins v. Cali contested, it was unreason- was not which fornia, warrant). to search without able But, (1981)). “it has upheld right courts have Several authority settled that an' officer’s been *5 personal property pend- police to seize package is from his au possess a distinct for a search warrant.3 ing application thority to examine its contents.” v. Walter convinces of these cases Our examination States, 447 100 S.Ct. U.S. United exception to the fourth us that no new 2400, (1980). 2395, A sei of intended. None these amendment was only the zure of a closed container affеcts necessity eliminates the for expressly cases not the possessory interests and owner’s exigent circumstances. probable cause or vested in the contents. privacy interests Indeed, missing, either is we have when Chadwick, 13-14, 8, at n. 97 S.Ct. 433 U.S. violation in the war- found a constitutional 2484-2485, between n. 8. The difference at property. E.g., United rantless seizure may, in privacy interests possessory 289, (9th Belcher, 290-91 685 F.2d States v. justify the warrantless seizures of part, Cir.1982) (seizure bag imper- of shoulder necessary secure a the time property fоr cause); probable for lack of Unit- missible as in situations such Sanders warrant Allen, v. 750-51 ed States a search was where warrantless Cir.1980) (warrantless Chadwick (9th seizure of brief- cause); held unjustified probable impermissible.4 for lack of case Corbitt, than hours on the basis less E.g., 629 detained for 29 United States v. 3. Cir.1982); probable reasoned that (4th Viegas, cause. The Court F.2d United States v. 639 Klein, in a interest mailed (1st 1981); main fourth amendment 626 Cir. United States v. 45 Palazzo, package privacy of its contents Cir.1980); attaches to the (7th 22 F.2d delivery. speed of its Id. (5th Cir.1974); and not to the v. United States 488 942 Thus, amendment at 1032. no fourth (5th Cir.1973); Lonabaugh, F.2d 1257 Unit 494 package by holding was violated (5th Cir.1973); interest Garay, 477 F.2d ed States v. 1306 Id.; forwarding see also day it. rather than (4th 1969); Peyton, Cir. Parish v. 408 F.2d 60 Hillison, (9th 696 (W.D. Painter, F.Supp. States v. 480 282 United 1984) (segregation mailed and detention of Cir. Moore, Mo.1979). Wash.App. Accord State v. 29 ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍amendment). package not violate fourth did (1981); Plantefaber, People v. P.2d 522 628 Place, that sei- Similarly, the Court reasoned in (1981); State v. Mich. 302 N.W.2d 557 410 may than property less intrusive zures of Jankowski, (Minn.1979); N.W.2d 717 Place, person. 103 S.Ct. at 2643- seizures of the Kaiser, 577 P.2d State v. 91 N.M. by the pоssessory interests 44. The intrusion on (1978). relinquished to the control property seizure Leeuwen, may When the party States v. Van be minimal. In United third of a small, (1970), fourth the Court teaches Place 25 L.Ed.2d intrusion is “strong yield to must upheld that was interests the seizure of a mailed amendment “[Ejven differing object interests between searches seizure. where the is con traband, fully explored in repeatedly and seizures were more this Court has stated in Segura police recent decision and enforced the basic rule that the the Court’s — -, not ... make а S.Ct. warrantless seizure.” Id.; There the see also Hayden, Warden v. Justice, 294, 300-01, join- 1642, 1646-47, Chief with Justice O’Connor (1967) ing, (eliminating seizure affects L.Ed.2d 782 concluded that since for fourth only privacy possessory analysis any interests and not amendment differences be interests, heightened protection accord- the seizure of tween evidential items and contraband). Moreover, privacy simply implicat- prior ed interests “is our decisions Segu- support requirement exigent ed where a seizure is ... at issue.” circum ra, See, e.g., at 3389. The Chief Justiсe stances. United States v. O’Con nor, (9th Cir.1981) reasoned that these different interests al- n. 6 property supported (probable low the seizure of cause alone cannot a war probable exigent cause even in the absence of exi- rantless seizure in the absence of gent circumstances); circumstances. Id. at 3388-89. United States v. Gonza lez-Rodriguez, 513 F.2d Cir. apply We hesitate to that distinction 1975) (no probable amount of cause can Admittedly, posses to this case. Licata’s justify a warrantless seizure absent exi >sory strong. interests were not He had circumstances). gent Accordingly, prevail checked the with the airline. The ing requires fourth amendment law a find seizure of the had no deleterious ing probable of both cause and plans effects on Licata’s travel since Lieata support circumstances to the warrantless Assuming had been arrested. in seizure this case. probable had cause to believe that contraband, the ra A. Probable Cause Segura might arguably support tionale in There is no dispute real the warrantless seizure. But the Chief had cause to believe that analysis Segura Justice’s received the *6 contraband. support only one other Justice. Three “[Pjrobable flexible, cause is a common joined strong others Justice Stevens’ dis Brown, sense standard.” Texas v. 460 U.S. remaining sent and the three elected not to 730, 742, 1535, 1543, 103 S.Ct. 75 L.Ed.2d join analysis. the Chief Justice’s seizure requires only 502 It that facts be Additionally, exigent the elimination of the available to the officers which would “war requirement circumstances even for mini caution,” rant a man of reasonable Carroll mally appears contrary intrusive seizures States, 132, 162, v. United 267 U.S. 45 past example, to several decisions. For in 280, 288, (1925), 69 L.Ed. 543 to S.Ct. be 443, Coolidge Hampshire, v. New 403 U.S. may lieve that certain items contraband be 468, 91 S.Ct. Brown, or evidence of a crime. 460 atU.S. (1971), the Court was faced with the war 742, ‘practical, at 1542. “A non In rantless seizure of an automobile. dec probability incriminating technical’ evi laring the seizure in violation of the Consti required.” dence is involved is all is tution, prin “familiar applied Court (quoting Brinеgar Id. v. United ciple” that “no amount of cause 176, 160, 338 69 93 seizure can a warrantless search or ” (1949)). L.Ed. 1879 ‘exigent absent circumstances.’ Cool 468, negotiated at 2039. The The had with Lieata idge, 403 U.S. at delivery pen guns. for the sale of the fact that the item seized was contraband They plan personally ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍legality of the knew of his to deliver made no difference as to simply countervailing governmental Id. At "is not a fourth amendment is- interests.” traveler lug- Puglisi, States v. 723 F.2d that a seizure of sue." United least one circuit has held (11th Cir.1984). gage on the air hаs deleterious effects no Maybusher, (9th was the size nec- 735 F.2d 371 n. 1 The container guns. Cir.1984); McConney, pen guns. The to contain essary (9th Cir.1984) (en banc). F.2d cou- agents’ observations legal While we have no knowledge conclusions to re- prior of Licata’s with their pled view, the factual record is sufficient is deliver the contraband plan personally apply principles enable us to settled requisite probable supply sufficient fourth amendment law to determine the cause.5

propriety of the seizure of the Calandrella, See United States v. Exigent B. Circumstances (6th Cir.1979) (reviewing sup- 247 n. 4 re exigent The circumstances pression grounds not raised below because greater concern. The quirement gives us presented appeal the issue on was of “con- heavy burden of dem government bears a stitution dimension” and the factual record exceptional circumstances onstrating that review). adequate departure from the warrant re justified Spetz, v. quirement. United States Ordinarily, airport setting, in the Cir.1983). 1457, 1465-66 (9th The bur F.2d apparent. circumstanсes are A de by speculation satisfied lay may den cannot be possible seizure mean loss or may might happened. or have what about destruction of contraband the own Hoffman, Exigent er. circumstances exist because a. (9th Cir.1979). “spe There must exist person prompt reasonable believes that ac which, facts taken to cific and articulable necessary prevent tion is the destruction ...,” sup inferences gether with rational prevent of relevant evidence or other con intrusion. port the warrantless sequences improperly frustrate (9th Dugger, legitimate law enforcement efforts. Ohio, Terry v. Cir.1979) (quoting McConney, 728 F.2d at 1199. possibility The faced (1968)). exigencies must be viewed that contraband not their control within totality of circumstances known

from the destroyed would lost or had not time of the warrant- to the officers instructed the airline to hold the People Territory less intrusion. Fuente, United States v. De La See Borja, Guam v. (5th Cir.1977) (apprehen 539 n. 13 Cir.1984). proved being sion of suitcase lost in transit findings founded when airline did indeed misr The district сourt made no well it). agent’s arguably no on exi oute action was and reached conclusions whether “seizure” of the that was neces gent circumstances existed.6 The issue Cf, exigencies. sary to terminate such questions raises mixed of law and fact sub *7 Corngold, novo review. (packages 367 F.2d at 3 checked to de ject assertions, charge agents apparent response the Contrary did in to the to Licata's the justified have ob- as incident not have sufficient information seizure could not be a search warrant in advance. Prior to tained did nоt mention the arrest. The district court agents observing package, Licata and the the proba- such as obvious and usual considerations package or cause, were not aware of how Licata would suspicion or cir- ble reasonable guns. ship the might type expect with this cumstances that one Nevertheless, application An for an advance search warrant these case. we believe that of not have been able to state with sufficient would properly are now before us on considerations particularity package the item or to be seized. constitutionality appeal. the seizure of The Gomez-Soto, See, e.g., United States v. during clearly placed package in issue the was (9th Cir.1984). 653-54 magistrate. de- proceedings before the The the objections again issue in his fendant raised the primarily whether 6. The district court addressed Furthermore, magistrate’s conclusions. to the package Licata’s consent to search the was free- supplemental requestеd brief- and received we ly given. Additionally, briefly the court de- ing parties issue of the existence the on the from package clared that the seizure of the occurred exigent circumstances. after Licata’s arrest. The latter declaration was danger being in no re- 2. to airline were Voluntariness of Consent to Search moved). Statements. Whether consent to search was assuming the Even seizure did not voluntarily question made is a of fact re agents physical place take until the took “clearly viewed under the erroneous” stan package, find control of the we would still Caicedo-Guarnizo, dard. United States v. requisite exigent circumstances. The the (9th Cir.1984). The agents pre- record shows that the knew of voluntariness of statements made to the Licata to ef- vious conversations with the agents clearly is also reviewed under the fect that he had a friend in Eastern Air E.g., erroneous standard. United States v. he, Licata, Freight, Lines and that could Dufur, (9th Cir.1980), 513-14 ship anything Freight Air under another denied, cert. agents Licata and name. As com- (1981); walking through airport menced to the Parker, (9th Cir.), 1220-21 package, ticket counter to retrieve the Lica- denied, cert. agents ta told the that he had friends that L.Ed.2d 365 employed airport by at the the airline argues Licata that his consent to search holding his The remark was in- right and his waiver of the justification tended as a for Licata’s re- remain silent were coerced and were made quest being to cover his handcuffs while knowingly neither intelligently. nor He as- through airport. escorted It con- also “totality serts that thе of circumstances” firmed what had learned earlier. (1) show that he had never been arrested package, The future of the un- left before; (2) he was not he told whether was Licata, claimed or would possession guns arrested for of the in the might It have been uncertain. have been prior possession or for his sent on to its destination where there was guns witness; (3) mailed to the he was it, present

no one to claim or where it apprised right telephone his coun- possible would have been for someone to rejected argu- sel. The district court these picked up. have it Common sense would ments. that, indicate since Licata had been arrest- government bears the bur ed flight, and would not be proving den of that the consent to search accompany should him. The ac- was freely obtained and that it was cess that pack- Licata’s friends had to the voluntarily given. Royer, Florida v. age and what knew of its contents 75 L.Ed.2d were unknown and troublesome factors. (1983); Impink, record, upon Based ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍it would not have (9th Cir.1984). Whether governmеnt been unreasonable for voluntary consent to search was indeed or agents to have been concerned that Lica- product of duress or coercion is to might ta’s friends obtain the totality be determined from the of all the agents presented the claim check to the circumstances. Schneckloth v. Busta employee airline and the was sur- monte, 412 U.S. rendered to them. The usual risk of loss of (1973). Similarly, contraband left unsecured and the overall post-arrest voluntariness of statements circumstanсes this case constitute exi- must assessed of the totali review *8 gent circumstances sufficient to the ty Dufur, of the circumstances. possesso- warrantless intrusion on Licata’s voluntary, at a confession 513-14. To be course, ry package. interest in the Of product must be “the of a rational intellect the reasons discussed Chadwick Tingle, free and a will.” United States Sanders, agents (9th Cir.1981) the could not have consti- (quoting tutionally Alabama, searched the without ei- Blackburn v. (1960)).

ther consent or a warrant. Airport. Angeles Los International The magistrate found that Lica The agents the contained hearing that he believed acknowledged at the ta opened clearly smuggled They one of and that he watches. to the search consented packages, found that it contained a not suf the rights. his Licata did understood watches, large quantity of and resealed the intelligence or lack of education from a fer packages then render The were flown his consent and vitiate would that York, agents where customs main- involuntary. Finally, thе New his statements they constant surveillance until were nothing deemed tained that could be agents did later. Lica claimed three weeks so as to render coercive impermissibly or consent to answer to search ta’s consent court, banc, sitting en held that the Our involuntary. questions justi- airport search was not warrantless agents proba- customs had the fied even the magistrate apparently believed The packages never ble cause to believe the agents that Licata testimony of the stop 367 F.2d at 3. The court attorney sought or contraband. call his asked to holding fact Li- based its on the On cross-examination questioning. showing government made no acknowledged that he understood the cata packages might removed have been before warnings, that his consent Miranda obtained, a warrant could be that neither that the voluntary, was search the box appellant threatening to nor the airline was throughout him courteous to agents were them, appel- remove and that from the time this, magis- on quеstioning. Based packages left the with the carrier in lant con- trate determined “defendant’s subject to Angeles Los were the effec- provided fol- search and statements sent to Thus, agent. the customs tive control of rights were lowing of his Miranda advice exigency teaching Corngold is that voluntarily given.” These find- freely and justify a warrantless search of does not depend on the district court’s ings, which temporarily has packages when the owner credibility of the wit- assessment custody of them to a carrier surrendered nesses, are supported by the record and are are destined for another packages and the clearly erroneous. Caicedo-Guar- not See city. A warrant could have been obtained nizo, (upholding district 723 F.2d at packages upon their arrival to seize on credibility determinations volun- court’s their destination. search) Dufur, of consent to tariness (upholding credibility deter- 648 F.2d at 514 only conceivable distinction between resolving conflicting evidence minations and those here is Corngold the facts of confession). voluntary found a that Licata had a knew Lines at Eastern Air friend who worked CONCLUSION record, Freight. how- Supra at 544. seizure of the The warrantless ever, yields evidence on the issue wheth- no post-arrest con- improper. Lieata’s concerned that were in fact er the officers were volun- search and statements sent to might taken Licata’s tarily made. surprising given that This is not friend. was not the issue of circumstances

AFFIRMED. Indeed, argued for litigated it was below. re- supplemental time in briefs NORRIS, Judge, dissenting: the first Circuit result, there is panel. this As a quested holding that from the court’s I dissent issue whether no evidence on the justified the war- exigent circumstances friend that Licata’s concerned case I believe this seizure because rantless ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍might remove by Corngold v. United is controlled Although Cir.1966) (en banc). government In conceivably could have pack- made a agents opened showing of exigent customs Corngold, cir- cumstances Trans had it raised appellant below, had left at a the issue age that the I find, would based loading platform at on the cargo us, Airlines’ record World before *9 that there is no meaningful way to distin-

guish this case from Corngold. There was

ample time to seek a warrant authorizing

seizure of the package upon its arrival in

Georgia. POLAND,

John Michael Lead Underwrit

er For Those Certain Underwriters

Lloyds, Subscribing London to Policies

Numbered HJ 27213 and HJ

Plaintiff/Counterdefendant/Appellee, Dorothy

Dean Paul MARTIN and Martin,

Hamill Defendants/

Counterclaimants/Appellants.

No. 84-5739. , Appeals States Court of

Ninth Circuit.

Argued and Submitted Feb. 1985. May

Decided