Appeal from the United States District Court for the Northern District of Illinois, Eastern Division - No. 73 CR 763 Richard B. Austin, Judge.
Hastings, Senior Circuit Judge, Cummings and Stevens, Circuit Judges.
HASTINGS, Senior Circuit Judge.
Defendants-appellants Tommie Lee Newton and Willie Stokes were tried and convicted on a single count of an indictment charging a violation of Title 21, U.S.C. § 841(a)(1).*fn1 The count charged that defendants "knowingly and intentionally did possess with intent to distribute approximately 1,077 grams [2.2 pounds] of a substance containing heroin, a Schedule I Narcotic Drug Controlled Substance." Following defendants' knowing written waiver of trial by jury, the case was tried to the court. Ms. Newton was sentenced to three years imprisonment with three years special parole to follow. Mr. Stokes was sentenced to five years imprisonment with three years special parole to follow. Both defendants have appealed.
The essential issue presented for review concerns the validity of the search and seizure of the heroin in question and the court's denial of defendants' motion to suppress the heroin seized in the initial search of Ms. Newton's luggage on July 29, 1973, at Chicago O'Hare Airport. Following an evidentiary hearing the trial court expressly predicated its denial upon the lack of governmental participation in the search.*fn2
The undisputed facts reveal the following relevant circumstances surrounding the warrantless search and seizure, as well as the warrantless arrest of defendants.
On Sunday, July 29, 1973, a Continental Airlines flight from Los Angeles, California, arrived at O'Hare Airport in Chicago, Illinois, about 8:00 a.m. Several pieces of luggage were misplaced and did not arrive with the rest of the luggage from the flight. Among the misplaced bags was a blue suitcase which had been checked by Ms. Newton. Shortly after 8:00 a.m. Ms. Newton went to Continental's lost and found baggage counter to report that her luggage had been misplaced. She spoke with Ms. Shava Spector, a Continental employee, who sought to complete a lost baggage claim slip for Ms. Newton. Spector requested Newton's claim check number, a description of the lost bag, and the name, address and telephone number of the claimant. Newton refused to provide the requested information and left the counter.
About thirty minutes later, Ms. Newton, accompanied by Willie Stokes, returned to the claim counter. After a dispute with Ms. Spector concerning a blue suitcase at the counter, which was shown not to belong to Newton, Newton handed Spector her claim check and Spector began to copy its numbers on the lost baggage claim form. Stokes took the claim check from Spector and told Newton, "Don't tell her anything. Don't give her any information." After learning that the next Continental flight would arrive about 2:00 p.m. Newton and Stokes advised Spector that they would wait around for the bag. About 10:00 a.m. an unnamed male person called Continental inquiring about the same luggage but refused to leave his telephone number so that his call could be returned.
At about 10:30 a.m., Ms. Spector, being suspicious because of these circumstances, related the events to her superior, Mr. Lauren Anderson, supervisor of passenger service. Ms. Spector had also called the Drug Enforcement Administration (DEA) in Washington, D.C., and related the events concerning Ms. Newton's bag. She was told that a local agent on duty in Chicago would be notified. Anderson believed that defendants' conduct was "different," and told Ms. Spector that he would attempt to locate the bag and open it to ascertain its contents. Anderson testified at the hearing concerning Civil Aeronautics Board Regulation No. 142 which he said allowed luggage searches at the sole discretion of airline personnel.
About 1:30 p.m. DEA Agents David Haight and Robert Fanter arrived at the airport. They were informed by Spector and Anderson of the morning's events. Anderson told the agents he was going to meet the 2:00 p.m. flight from Los Angeles to see whether the suitcase was on the plane, and of his plan to search the luggage. They waited in a room at the terminal where the bag was brought and where they met another Continental employee, Elmer Rossini.
At that time Agent Haight told the Continental employees that the agents had no authority to conduct such a search. Haight testified that he reached this conclusion in view of the total absence of any probable cause to believe the suitcase contained contraband. Anderson had the claim check number given by Newton and matched it with the suitcase claim check. Anderson and Rossini opened the suitcase with a passkey in the presence of Agents Haight and Fanter. Anderson searched the suitcase and withdrew a brown paper bag which contained two plastic bags filled with a brown powdery substance. Anderson handed the two plastic bags to Haight. Agent Haight was prepared to conduct a field test on the brown substance with a Marquis Reagent. He field-tested the substance at that time, producing a positive reaction, indicating the presence of heroin. Anderson then replaced the brown paper bag with its brown substance in the suitcase, closed it and sent it to the baggage claim area.
At about 3:00 p.m., defendants Newton and Stokes claimed the suitcase from the public viewing area. Both were arrested by the DEA Agents as they attempted to leave the airport with the bag in their possession. They were charged with possession of heroin with intent to distribute, as hereinabove set out.
FOURTH AMENDMENT QUESTION
At the outset, we are faced with the question of whether the search of defendants' luggage at O'Hare Airport on July 29, 1973, was in violation of defendants' Fourth Amendment protections against unreasonable searches and seizures*fn3 and required the suppression of the use of the seized matter in a subsequent criminal prosecution. The controlling subsidiary question here is whether, under the facts of this case, the subject search was a government ...