Unpublished Disposition, 918 F.2d 181 (9th Cir. 1990)

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U.S. Court of Appeals for the Ninth Circuit - 918 F.2d 181 (9th Cir. 1990)

UNITED STATES of America, Plaintiff-Appellee,v.Michel Kerry ANDERSON, Defendant-Appellant.

No. 89-50035.

United States Court of Appeals, Ninth Circuit.

Submitted Nov. 9, 1990.* Decided Nov. 16, 1990.

Before WILLIAM A. NORRIS, CYNTHIA HOLCOMB HALL and RYMER, Circuit Judges.


MEMORANDUM** 

Defendant Anderson appeals the district court's denial of his motion to suppress evidence gathered from a warrantless search of taped packages found in luggage he had checked at Los Angeles Airport. The only contested issue1  is whether the impending departure of the flight constituted an exigent circumstance justifying the officers' decision to open taped packages found in appellant's suitcase, which had already been opened by an airline employee pursuant to a non-governmental search.2  The district court found that exigent circumstances existed, and dismissed appellant's suppression motion. We affirm.

We review de novo the district court's determination that exigent circumstances existed. United States v. McConney, 728 F.2d 1195, 1205 (9th Cir.) (en banc), cert. denied, 469 U.S. 824 (1984).

One of the few exceptions to the Fourth Amendment's warrant requirement is the existence of "exigent circumstances." On facts quite similar to those in the instant case, our court has explicitly held that " [w]hen the exigencies of time and the possible removal of the contraband to another state create an emergency, no warrant is required." United States v. Ogden, 485 F.2d 536, 540 (9th Cir. 1973). Ogden affirmed the constitutional validity of a warrantless search of luggage checked with an airline, when the scheduled departure of the flight made it impossible to obtain a search warrant.3  As we find no principled basis for distinguishing that case, we hold today that exigent circumstances existed justifying the warrantless search of the contents of appellant's already-open luggage.4 

Appellant offers what he describes as three "less intrusive options" to the search which he claims "fully vindicate [ ] law enforcement concerns." Appellant's Brief at 6. First, he claims that the authorities could have allowed appellant and his luggage to complete the flight, while alerting authorities in the destination city, with the expectation that those authorities would have time to obtain a search warrant before intercepting appellant and his luggage upon arrival. Id. at 7. However, in United States v. Licata, 761 F.2d 537, 543 (9th Cir. 1985), our court noted the possibility that contraband allowed to leave the authorities' control in an air travel situation might be lost or destroyed, and, in order to prevent that result, approved the seizure of a parcel defendant had checked with the airline. See also United States v. McConney, 728 F.2d 1195, 1199 (9th Cir.) (en banc) (defining exigent circumstances "as those circumstances that would cause a reasonable person to believe that [a search] was necessary to prevent ... the destruction of relevant evidence [or] the escape of the suspect ..."), cert. denied, 469 U.S. 824 (1984); United States v. De La Fuente, 548 F.2d 528, 539 and n. 13 (5th Cir. 1977) (court, apprehensive about suitcase containing contraband being lost in transit, approves warrantless search of checked baggage and notes airline in fact later lost baggage in question). The circumstances of our case fit easily within McConney 's definition of exigent circumstances, as applied by Licata.

Second, appellant claims that the authorities could have seized the luggage and given appellant the option of continuing on his flight or remaining until a warrant was obtained to open the package. Appellant's Brief at 7. However, appellant cites no authority requiring law enforcement authorities to give an individual the option of leaving the jurisdiction when they have probable cause to arrest him, and we decline to do so here.5  Finally, appellant suggests that the officers simply could have arrested him, seized the luggage incident to the arrest, and (presumably) searched the luggage after obtaining a warrant. Id. This suggestion can hardly be taken seriously as a "less intrusive option [ ]" to a search of the luggage. Given the circumstances of this case, we refuse to invalidate a search undertaken as the more restrained course of action when the officers could have arrested appellant based on what they saw in the already-open suitcase.

The judgment of the District Court is AFFIRMED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a) and Ninth Circuit Rule 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3

 1

Appellant briefs the question of whether the cocaine found in the bricks located in the suitcase was in "plain view." At the suppression hearing the government announced its intention to abandon this ground for validating the search, and we do not reach the issue

 2

Appellant argued at the district court level that the employee's opening of his luggage constituted a government search, implicating Fourth Amendment concerns. Excerpts of Record ("ER") 13-15. The district court rejected this argument, ER 118 (Court's Findings of Fact and Conclusions of Law), and appellant does not raise it on appeal

 3

In our case the police officers were called to the ticketing area 40 minutes before the scheduled departure of the flight. The trial court found the minimum time necessary to obtain a telephonic search warrant to be 45 minutes, with the process often taking more than one hour. ER 117-18 (Court's Findings of Fact and Conclusions of Law). In Ogden the federal agent arrived 35 minutes before the scheduled departure of the flight

 4

In Ogden, luggage defendant-appellant checked with an airline was opened by an airline employee, evidently out of curiosity, after a supervisor had singled out appellant as a potential hijacker. Upon opening the bag the employee observed brick-shaped objects and smelled marijuana, whereupon he reclosed the bag. A federal agent was called, who directed airline personnel to reopen the bag. Our court upheld the federal agent's search on the grounds that the lack of sufficient time before the scheduled departure of the flight to procure a warrant, and the imminent departure of appellant and the luggage to another jurisdiction, created exigent circumstances. 485 F.2d at 540. These grounds exist in our case as well

 5

It must be remembered that when the police officers arrived at the ticketing area, they confronted an already-open suitcase containing bricks of the type they believed "invariably contain [ed] cocaine." ER 52-53 (declaration of Officer Dresser); ER 55-56 (declaration of Officer Enos). Such a discovery clearly establishes probable cause to arrest appellant, as he himself concedes, Appellant's Brief at 8