United States of America, Plaintiff-appellee, v. Brian A. Anderson, Richard Quentin Felts, and Paul Williamspicer,defendants-appellants, 500 F.2d 1311 (5th Cir. 1974)

Appellants Brian A. Anderson, Richard Quentin Felts, and Paul William Spicer appeal from convictions for violating various parts of the federal narcotics law.¹  Additionally, Spicer appeals his conviction for carrying a firearm during the commission of a felony.²  An informant's tip provided the initial impetus for the investigation leading to the arrests of the appellants, but additional evidence of the informant's credibility was provided by police surveillance and investigation. Because we find there was sufficient independent observation to corroborate the details of the tip and thus negate the possibility that the informer fabricated his report or passed on unreliable rumor, we affirm the judgment of the district court.³ 

As in most search and seizure cases, the facts here are extremely important. Although they are not in substantial dispute, they are recounted in some detail.

On February 4, 1973, at about 5:00 p.m., Customs Agent George H. Murray received information from an undisclosed but previously very reliable informant⁴  that five persons were in McAllen, Texas, for the purpose of purchasing narcotics, which they intended to transport to Fort Wayne, Indiana.⁵  The informant provided Murray with a list of names which consisted of 'Church,' 'Betz,' and the names of the three appellants. The informant further indicated that he had seen these persons in McAllen on a previous occasion when they had come to pick up narcotics and that they were using the same mode of operation that they had used on the previous trip: they rented two vehicles in McAllen, one to be used for local operations and the other to be taken to Fort Wayne.

Investigation by customs agents confirmed that Brian A. Anderson had rented a 1973 Pontiac from National Car Rental earlier that afternoon, the car to be returned to Fort Wayne. Gregory C. Church rented a 1973 Chevrolet for local use at the same time. Murray then located the appellants in McAllen using the information he gained from the informant and the auto rental agency. By checking motel records, he found that two rooms in the Rodeway Inn were rented in the names of 'Church' and 'Spicer,' respectively.

Murray then began an intermittent surveillance of the appellants which revealed no criminal activity. On February 26, a Monday, the three appellants, as well as Betz and an unidentified female who arrived the night of February 24, checked out of the Rodeway Inn and into the Quality Motel in Pharr, Texas. The three appellants occupied room 102 and the other persons room 103. The three appellants paid for their room in advance.

On the morning of Tuesday, February 27, Betz and the woman left the motel. Later that same morning, murray and two other officers saw three individuals load the two rented cars with boxes and other luggage and depart. As the Chevrolet passed the surveillance point, Murray recognized Spicer and Felts in the car; Murray followed the Pontiac, since that car was to be returned to Fort Wayne. At Donna, Texas, on Expressway 83, the car was stopped and searched. Anderson, the only occupant, was arrested. The search revealed four cardboard boxes containing marijuana.

Felts and Spicer were not followed from the motel, but were subsequently seen and photographed by other agents in downtown McAllen. Later that same day at the McAllen. airport, Murray observed Felts and Spicer check three pieces of luggage at an airline counter and return the 1973 Chevrolet to the National Car Rental. Both Felts and Spicer were arrested and searched. Murray took the baggage claim checks from Spicer's ticket and recovered the luggage Spicer and Felts had checked, which was already aboard the plane. Spicer and Felts each claimed one of the bags, but both disclaimed ownership of the third bag, although it was checked on Spicer's ticket and Murray had seen were taken to the police station where all the luggage was opened and searched without a warrant. Felts' suitcase contained marijuana; Spicer's luggage contained a book of addresses, along with other incriminating memoranda;⁶  the unclaimed suitcase, which was checked on Spicer's ticket, contained a pistol with Spicer's thumbprint on the holster and other incriminating paraphernalia.⁷ 

At trial to a jury, counsel for all defendants objected to the introduction of the evidence seized in the search of Anderson's car, claiming there was not probable cause for the search or for his arrest. Counsel for Spicer and Felts also objected to the introduction of evidence obtained from a warrantless search of the suitcases they checked at the airport, alleging the lack of exigent circumstances. All objections were overruled by the court and defendants were convicted on the counts charged. All defendants now appeal, alleging as error the introduction of evidence objected to at trial. We consider the issues seriatim.

While searches conducted without the prior issuance of a warrant are, for the most part, per se unreasonable, Katz v. United States,389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967), there are a few clearly delineated exceptions to the warrant requirement of the Fourth Amendment. Among these is the warrantless search of a moving automobile, long accepted and justified on the basis of exigent circumstances. See Chambers v. Maroney,399 U.S. 42, 90 S. Ct. 1975, 26 L. Ed. 2d 419 (1970); Brinegar v. United States, 338 U.S. 160, 69 S. Ct. 1302, 93 L. Ed. 1879 (1949); Carroll v. United States, 267 U.S. 132, 45 S. Ct. 280, 69 L. Ed. 543 (1925). A contemporaneous search of containers in the vehicle which could reasonably be employed in the illicit carriage of contraband is also constitutionally permissible. United States v. Soriano, 497 F.2d 147 (5th Cir. 1974) (en banc); United States v. Chapman, 474 F.2d 300 (5th Cir. 1973). Such searches of the automobile and containers therein may be performed only where officers conducting the search have probable cause to believe they will find evidence pertaining to a crime. Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216, 88 S. Ct. 1472, 20 L. Ed. 2d 538 (1968); United States v. Halliday, 487 F.2d 1215 (5th Cir. 1973); United States v. Troise, 483 F.2d 615 (5th Cir. 1973). We believe that the requirements of probable cause for a warrantless search are met in this case.

Since the informant's tip initiated the investigation, it must be the focal point of the probable cause analysis. Use of an unnamed informant's tip to establish probable cause has been a cource of frequent litigation in the courts. Recent cases have relied upon what has come to be known as the Aguilar-Spinelli test-- drawn from two celebrated Supreme Court cases-- to assess the tip's usefulness for both searches pursuant to warrants and warrantless arrests and searches.⁸ 

Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964), held that the affidavit supporting the issuance of the search warrant must present sufficient objective evidence to enable a magistrate to conclude that the unnamed informant is credible or that his information is reliable, and the affidavit must set forth some of the underlying circumstances which reveal the source of the informant's information pertaining to criminal activity. The Aguilar test was modified in Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969) where the court held that the latter 'prong' of Aguilar can be met by description in the affidavit of criminal activity 'in sufficient detail that the magistrate may know (the informant) is relying on something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual's general reputation,' id. at 416, 89 S. Ct. at 589, and that even an undisclosed informant's tip found wanting under the Aguilar test may provide the basis for a finding of probable cause if parts of it have been corroborated by independent sources, id. at 415, 89 S. Ct. 584; see United States v. Squella-Avendano, 447 F.2d 575, 579 (5th Cir. 1971).

Recent applications of the Aguilar-Spinelli test indicate that less detailed information from a reliable source may be used as grounds for a finding of probable cause if independent investigation by law enforcement agents yields sufficient verification or corroboration of the informant's report to make it apparent the report was not fabricated. United States v. Squella-Avendano, supra, 447 F.2d at 580; accord United States v. Canieso,470 F.2d 1224, 1231 (2nd Cir. 1972); United States v. Acarino, 408 F.2d 512, 515 (2nd Cir. 1969). And the veracity of an unknown informer can be sufficiently determined by the searching officer's personal observation of some activity which is consistent with the tip but which would appear harmless without it. Thompson v. White, 406 F.2d 1176, 1178 (5th Cir. 1969); United States ex rel. Cunningham v. Follette, 397 F.2d 143 (2nd Cir. 1968); Bailey v. United States, 386 F.2d 1, 3 (5th Cir. 1967).

Since the informant in this case had provided information leading to the seizure of narcotics eight times within the preceding eight months, the first prong of the Aguilar test is met. Likewise, the independent corroboration of the informant's tip satisfies the second prong of the test as modified by later opinions. The informant told Murray that the appellants were in town and described their mode of operation. Murray's investigation revealed the appellants were in fact in McAllen, that they had rented cars, that one of the cars was for local use, and that the other car was to be returned to Fort Wayne. All of this confirmed the informant's tip.

We believe that this corroboration evinced a knowledge of the inner workings of the appellants' system sufficient to dispel any belief that the tip was based upon 'casual rumor,' 'suspicion,' or 'mere conclusion.' See United States v. Sellers, 483 F.2d 37 (5th Cir. 1973). Since the information supplied by the informant positively indicated that the defendants intended to violate the law in a specific and detailed manner, the fact that the informant did not supply the agent with personal knowledge that a purchase had taken place was of no consequence. See United States v. Drew, 436 F.2d 529, 533 (5th Cir. 1970). The corroborative evidence here is quite similar to factual bases found to support determinations of probable cause in recent undisclosed informant cases,⁹  and we therefore hold that the customs agents had probable cause for the search of Anderson's car.¹⁰ 

Appellants allege a lack of probable cause in challenging Anderson's arrest, as well as the search of his car. Although the record is not completely clear, it appears that the search of the car occurred prior to Anderson's arrest. If this was the case, the discovery of marijuana in the trunk of the car certainly provided probable cause for the arrest. Even if the search was performed subsequent to the arrest, however, there was still probable cause for an arrest without a warrant.

The probable cause element for a warrantless arrest, as in the case of a warrantless search, may be supplied by information acquired by the arresting officers which corroborates the informant's tip that the arrestees had committed or were in the process of committing a felony, even if the tip alone would not support a finding of probable cause. See Whiteley v. Warden of Wyoming Penitentiary, 401 U.S. 560, 91 S. Ct. 1031, 28 L. Ed. 2d 306 (1971). Indeed, numerous courts have applied the modified Aguilar test to warrantless arrest situations. See, e.g., United States v. Squella-Avendano, 447 F.2d 575 (5th Cir. 1971); United States v. Canieso, 470 F.2d 1224 (2nd Cir. 1972). Hence the corroboration of the informant's tip which contributed to a finding of probable cause for the search of Anderson's car will also justify his arrest. We therefore find that neither Anderson's arrest nor the search of his car violated the provisions of the Fourth Amendment.

Similar reasoning leads us to the conclusion that the arrests of Spicer and Felts were constitutionally permissible. Certainly the corroborative evidence supplying the basis for a finding of probable cause for Anderson's arrest applies with equal force to the arrests of Spicer and Felts. Moreover, after the marijuana was found in Anderson's car, an even stronger argument could be made as to the arrests of Spicer and Felts because they were constantly seen with Anderson during the previous four day period, and the informant's tip, now proven completely accurate as to Anderson, implicated them as well. Hence there was probable cause for their arrests without a warrant.

The warrantless search of Spicer's and Felts' luggage, occurring after their arrests, presents a more difficult problem. However, the gun which serves as the basis of the third count of the indictment, as well as almost all of the incriminating material found in Spicer's and Felts' possession, was taken from the piece of luggage which neither Spicer nor Felts would claim.

Our conclusion as to the materials taken from that suitcase would appear to be directly controlled by United States v. Colbert, 474 F.2d 174 (5th Cir. 1973) (en banc). In Colbert, the two defendants, one of whom fit the description of a wanted suspect, were seen carrying briefcases by policemen. As the officers approached the defendants to question them, the defendants set their briefcases on the sidewalk. They subsequently denied that they owned the briefcases or had any knowledge of them, and began to walk away leaving the briefcases on the sidewalk. The officers arrested the defendants for failure to carry a Selective Service registration certificate, and placed them in the patrol car. The officers then opened the briefcases, finding sawed-off shotguns. The defendants were later convicted of possession of unregistered sawed-off shotguns. The Fifth Circuit affirmed the convictions holding the weapons properly admitted into evidence because the defendants abandoned the briefcases.

Here, as in Colbert, the defendants abandoned the luggage before the search took place. As in Colbert, the defendants here, in response to questions from authorities, disclaimed any knowledge of the bag. Finally, in neither case did the officers compel the defendants' actions. Hence, in accordance with the result in Colbert, we find that Spicer and Felts could have entertained no reasonable expectation of privacy in the unclaimed suitcase. They therefore lack standing to challenge the search of the unclaimed bag. See Lurie v. Oberhauser, 431 F.2d 330 (9th Cir. 1970).

The search of the claimed baggage is more troubling. Two recent decisions of this court have held the product of a search of luggage checked at an airport inadmissible in the absence of a search warrant-- where, as here, the owners of the luggage are arrested or detained by authorities. See United States v. Lonabaugh, 494 F.2d 1257 (5th Cir. 1973); United States v. Garay,477 F.2d 1306 (5th Cir. 1973). Lonabaugh and Garay make it quite clear that when officers, through their possession of baggage checks or in some other manner, have effective control over the movement of checked luggage, as they did here, there is a lack of exigent circumstances upon which to justify a warrantless search, probable cause notwithstanding. Hence the search of the claimed baggage was impermissible and the products of the search were inadmissible. This conclusion, however, does not change the outcome of the case.

Since the search of the claimed luggage was unconstitutional, we must determine whether the court's admission of the fruits of the search was harmless by asking whether we can 'declare a belief that it was harmless beyond a reasonable doubt.' Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 828, 17 L. Ed. 2d 705 (1967). The Supreme Court has found harmless error-- even where constitutional rights were at issue-- in a case in which the tainted evidence did little to prove a defendant's guilt and the valid evidence was strong. See Harrington v. California, 395 U.S. 250, 89 S. Ct. 1726, 23 L. Ed. 2d 284 (1969). Likewise, in United States v. Steinkoenig, 487 F.2d 225 (5th Cir. 1973), a panel of this court held that evidence improperly admitted as a result of an unconstitutional search was harmless in a situation quite similar to the one before us.

In Steinkoenig, the defendant and three accomplices were implicated by an informant's tip. Pursuant to a valid border search of the van used by the defendant, agents discovered 190 pounds of marijuana. Agents then arrested the defendant and searched the motel room next to which the van was parked, finding a small amount of marijuana. The defendant was charged with and convicted of conspiracy to import, and possession with intent to distribute the 190 pounds of marijuana found in the van. On appeal, the court, assuming the warrantless search of the motel room to be unconstitutional, found the error harmless.

The record here indicates that Felts' suitcase contained but a small amount of marijuana;¹¹  Spicer's suitcase contained only the names and addresses of Church, Betz, and Felts, and a listing of radio frequencies. As in Steinkoenig, these items 'shrink into insignificance' when compared with the properly admitted evidence. We therefore conclude that any error in admitting the product of the search of the claimed luggage was harmless beyond a reasonable doubt. Cf. United States v. Bankston, 424 F.2d 714 (5th Cir. 1970).

The judgment of the district court is therefore

Affirmed.