Unpublished Disposition, 899 F.2d 19 (9th Cir. 1987)

Nos. 88-5307, 88-5308.

United States Court of Appeals, Ninth Circuit.

Before SCHROEDER and BEEZER, Circuit Judges, and JOHN P. VUKASIN,^*  Jr., District Judge.

MEMORANDUM^** 

Defendants Jose Avelino Valenzuela and Paublino R. Ortiz (Valenzuela and Ortiz are sometimes collectively referred to as "defendants") appeal a district court order denying their motion to suppress evidence. We affirm the judgment of the District Court.

JURISDICTION

The jurisdiction of this Court is invoked pursuant to 28 U.S.C. section 1291 and Rule 11(a) (2) of the Federal Rules of Criminal Procedure.

RELEVANT FACTS

On September 7, 1987, defendants purchased two one-way tickets from Los Angeles to Chicago. Each of the defendants was carrying one suitcase. Pei Lin Lee, an American Airline ticket agent who sold the defendants their tickets, accepted these suitcases as checked baggage. After her suspicion was aroused by defendants' nervous behavior and furtive glances, Lee believed that the defendants fit within a behavioral profile issued by the Federal Aviation Administration ("FAA") to identify highjackers and terrorists. She also believed that the suitcases might contain material capable of endangering passengers. Acting on these beliefs and pursuant to an FAA regulation¹ , Lee opened the first suitcase and found a substantial quantity of marijuana. No longer looking for a bomb, Lee opened the second suitcase and discovered several grams of cocaine.

Defendants were charged in a three count indictment with 1.) conspiracy to possess cocaine and marijuana, in violation of 21 U.S.C. § 846 and Sec. 846(a) (1), 2.) possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a) (1), and 3.) possession with intent to distribute marijuana in violation of 21 U.S.C. § 841(a) (1). Pursuant to Rule 41 of the Federal Rules of Criminal Procedure, defendants moved the trial court to suppress the marijuana and cocaine found in their luggage. The trial court, in a carefully reasoned order, denied the defendants' motion to suppress. The Court reasoned, with respect to the marijuana, that although the search violated the Fourth Amendment, the evidence of the marijuana should be admitted because Lee was acting in objective reasonable reliance on a governmental regulation (citing Illinois v. Krull, 107 S. Ct. 1160 (1987)). With respect to the cocaine, the Court found that Lee acted as a private individual and the seizure of cocaine was not governed by the Fourth Amendment proscriptions (citing United States v. Stevens, 601 F.2d 1075 (9th Cir. 1979), cert. denied, 100 S. Ct. 232-33 (1979)). Pursuant to F.R.Crim.P. 11(a) (2), defendants conditionally pleaded guilty and now appeal the District Court's ruling.

STANDARD OF REVIEW

This Court reviews the legality of a search or seizure de novo. United States v. Linn, 880 F.2d 209 (9th Cir. 1989). Findings of fact related to the legal issues are reviewed for clear error. Id.

DISCUSSION

A. Reliance on FAA Regulation.

1. The suitcase containing marijuana.

The defendants argue that the District Court incorrectly relied on Illinois v. Krull, 107 S. Ct. 1160 (1987) in deciding not to suppress the marijuana discovered in the defendants' first suitcase. Defendants contend that this is because, unlike Krull, the instant case does not involve reliance upon an unconstitutional statute. The defendants' analysis of Krull is too limited. In Krull, the good faith exception to the exclusionary rule was triggered by police officers' objective reasonable reliance on a statute coupled with an unconstitutional search. The exception was not triggered, as the defendants contend, by an element or elements that render a search unconstitutional, e.g., a statute later declared to be unconstitutional. Defendants here solipsistically search for a distinction where there is no difference.

Nonetheless, this case involves an unconstitutional search. The District Court found that upon X-raying the bags and discovering suspicious items, the Fourth Amendment required Lee to ask defendants for consent, to steer them indirectly through a magnetometer (thereby providing them with a choice not to proceed), to ask for a photo identification to match with their tickets, to wait until defendants boarded the plane before putting their luggage on board, or to summon a law enforcement officer. The officer then had the choice of requesting consent to search the luggage, or if the officer believed there to be sufficient indicia of the luggage containing a bomb, incendiary device or contraband, securing a search warrant. The District Court pointed out that this is a simple application of the Fourth Amendment requirement that the search be no more intrusive than necessary (citing Florida v. Royer, 103 S. Ct. 1319, 1325-26 (1983)). According to the District Court, Lee did not pursue any of these avenues of conduct thus rendering her search unconstitutional.

However, the District Court did find that Lee relied in good faith on the FAA regulation²  which she thought allowed her to inspect the defendants' luggage if she felt that it contained material capable of endangering passengers. This reliance coupled with the unconstitutionality of the search fits well within the ambit of Krull, and given no showing that the District Court clearly erred in its factual findings, the marijuana discovered in the defendants' first suitcase is properly admissible.

2. The suitcase containing cocaine.

Defendant's argue that Lee's search of the suitcase containing cocaine (the second suitcase) was governmental and thus subject to the limitations of the Fourth Amendment. In United States v. Gumerlock, 590 F.2d 794 (9th Cir. 1979), the court held that if federal regulations authorize a private party to conduct a search pursuant to a federal regulation and the party takes one step further than the regulations allow, the search is no longer governmental but is deemed private. See also United States v. Stevens, 601 F.2d 1075 (9th Cir.), cert. denied, 100 S. Ct. 232-33 (1979) (stating same proposition). In this case, after Lee discovered marijuana in the first suitcase, the District Court found that her suspicion that defendants were terrorists or highjackers should have been sufficiently overcome.

Defendants have not demonstrated that the District Court's finding as to Lee's status as a private party with respect to the second suitcase is clearly erroneous especially given her comment that she was not looking for explosives in the second suitcase.

B. Reasonableness Of The Search.

Defendants' second argument assumes that both searches were governmental and that the cocaine and marijuana should be suppressed because the searches were unreasonable. In affirming the District Court's application of Krull and Stevens, this court need not address this argument.

Finally, this Court sua sponte vacates the $50 assessment imposed by the trial judge pursuant to 18 U.S.C. § 3013. See United States v. Anguiano, 873 F.2d 1314, 1321 (9th Cir. 1989) (court vacated assessment having raised the issue sua sponte) ; United States v. Munoz-Flores, 863 F.2d 654 (9th Cir. 1988) (court held 18 U.S.C. § 3013 unconstitutional as its enactment was in violation of the origination clause).

Save the special assessment, the ruling of the District Court is AFFIRMED.