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UNITED STATES v. ELLIOT

December 14, 1992

UNITED STATES OF AMERICA, Plaintiff,
v.
NATHANIEL ELLIOT, Defendant.



The opinion of the court was delivered by: MILTON I. SHADUR

MEMORANDUM OPINION AND ORDER

 This Court, having heard the evidence, credits the testimony of the two United Air Lines ("UAL") employees who testified at the hearing, neither of whom had any motivation to bend (let alone break) the truth. In summary:

 1. On January 13, 1992 Elliot approached UAL O'Hare Terminal counter clerk Susan Farkas ("Farkas") with a request that she rewrite a round-trip ticket--from O'Hare to Detroit and back to O'Hare--that was dated two days earlier (not in itself an unusual occurrence). Elliot said that he wanted the ticket rewritten so that he could take the next available flight, with a return from Detroit that same afternoon. In addition, Elliot gave Farkas a large suitcase to be checked through to Detroit.

 2. Farkas told Elliot that he might not be able to make the flight with the bag--the 11 a.m. flight was about to leave, and Elliot had to run to catch it. Meanwhile Farkas' suspicions were aroused by the checking of such a large piece of luggage for a short trip, when the passenger was going to be returning to Chicago within two hours or so. So instead of putting the bag on the conveyor belt after Elliot had left, Farkas called John McDonald ("McDonald"), UAL's employee in charge of all phases of security at O'Hare. McDonald came over and took the bag to the special computerized color-coded x-ray machine that UAL uses to determine the presence of weapons or plastic explosives in luggage.

 3. Though UAL does have a reward procedure stemming from luggage searches, (a) that procedure does not apply to provide any such rewards to UAL's own employees (instead the only persons eligible to receive the awards are the operators of the screening machines, who are not UAL personnel) and (b) the rewards are granted for the detection of weapons (including plastic explosives), not drugs. Moreover, Farkas was entirely unaware of any such reward arrangements to begin with, while McDonald was aware that he himself would not be eligible for any type of award even if the screening disclosed that there was anything untoward in the bag. It is also highly relevant, under the circumstances, that no governmental agency has any involvement whatever in the reward program in any case.

 4. When McDonald had the bag screened, the x-ray machine (called an "E-scan") disclosed (a) an opaque object that could possibly have been a weapon and (b) the presence of another substance that from its appearance could possibly have been a plastic explosive. Accordingly McDonald opened the bag and found that the opaque object was a heavy coiled-up metal-studded belt *fn2" and that the other substance was a white powder (as it happens, plastic explosives and narcotics present the same type of visual appearance on the E-scan screening machine).

 5. McDonald then called the Chicago Police Department to look at the bag and its contents. At that point it was learned that the white powder was in fact heroin.

 Principles of Suppression

 It will be assumed for current purposes that if the search of the bag had been undertaken by any government agent, it would have been constitutionally invalid because neither probable cause nor a warrant supported the search. But even with that assumption, the principles announced in United States Koenig, 856 F.2d 843 (7th Cir. 1988) nevertheless doom Elliot's motion.

 Koenig began the relevant analysis by stating ( id. at 846-47 (citations omitted, and with the opinion adapted to this case)):

 Disclaiming any bright-line rule for its inquiry into that last-stated question, Koenig, id. at 847 then reconfirmed the approach that our Court of Appeals had taken the preceding year in United States v. Feffer, 831 F.2d 734 (7th Cir. 1987):

 In Feffer, this circuit agreed that "two critical factors in the 'instrument or agent' analysis are whether the government knew of and acquiesced in the intrusive conduct and whether the private party's purpose for conducting the search was to assist law enforcement agents or to further [its] own ends." Other useful indicators are whether the private actor performed the search at the request of the government and whether the government offered a reward. Feffer, 831 F.2d at 739-40. In all ...


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