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United States v. Bronstein

August 8, 1975

UNITED STATES OF AMERICA, APPELLEE,
v.
HOWARD M. BRONSTEIN AND DOUGLAS P. PENNINGTON, APPELLANTS



Appeal from a denial of a motion to suppress a quantity of marijuana which was detected in appellants' baggage through the use of a marijuana-sniffing police dog.

Clark, Associate Justice,*fn* Mansfield and Mulligan, Circuit Judges. Mansfield, Circuit Judge, concurring.

Author: Mulligan

MULLIGAN, Circuit Judge:

This is an appeal from a decision of Hon. T. Emmet Clarie, Chief Judge, United States District Court for the District of Connecticut, rendered on November 5, 1974, denying appellants' motion to suppress some 240 pounds of marijuana seized in a warrantless search at Bradley International Airport on July 6, 1974. The appellants, Howard Bronstein and Douglas Pennington, were indicted by a grand jury sitting in Hartford, Connecticut on July 19, 1974 on a single count of possession with the intent to distribute the marijuana in violation of 21 U.S.C. ยงยง 812 and 841(a)(1). On January 9, 1975 both appellants pleaded guilty, reserving the right to appeal the denial of the suppression motion.*fn1

I

On Saturday morning, July 6, 1974, two men purchased tickets for American Airlines Flight No. 10 from San Diego, California to Bradley International Airport in Windsor, Connecticut. The men's behavior attracted the attention of two ticket agents who alerted a Special Agent of the Drug Enforcement Administration (DEA). Each carried two new large suitcases all of about the same size, shape and weight and all equipped with combination locks. Although they did not purchase their tickets together and appeared to act as strangers to each other, they were later seen by the ticket agents to be talking together like old friends. The DEA agent, who had previous experience with the ticket agents and found them to be reliable informants, telephoned the Hartford, Connecticut office of DEA alerting it to the suspicions of the airline personnel. In addition to providing a full personal description of the men and their luggage, he also stated that their tickets had been purchased under the names B. Drake and H. Braun. The DEA in Hartford in turn advised the Connecticut State Police unit at Bradley field which had a German Shepherd, "Meisha", which was trained to detect marijuana. When Flight 10 arrived at the airport in Connecticut, the luggage was removed by carts to the baggage area where it was to be picked up by the passengers. About 50 pieces of luggage were lined up on the conveyor belt which was not moved until Meisha, the canine cannabis connoisseur, was given the opportunity to walk along the row of baggage, sniffing at the bags. Meisha reacted positively, i.e., sniffed vigorously and nipped and bit, at only two pieces of luggage, both new, about the same size and equipped with combination locks. While a state trooper and a DEA agent were occupied in observing Meisha, other DEA agents observed two men in the area where the passengers pick up luggage. They were the only two men fitting the description which had been received from California and each was observed picking up one of the bags identified by Meisha as well as another bag of comparable size with a combination lock.

Pennington was approached by agents who asked if he was "B. Drake" and if the luggage he was carrying belonged to him. When Pennington made these admissions, he was placed under arrest. Bronstein had walked to the rent-a-car parking area before agents intercepted him and asked if he was "H. Braun" and if he owned the baggage he was carrying. Upon his admissions, Bronstein was asked to proceed with the agents to the state trooper office in the terminal where he was also placed under arrest.

After their arrest both defendants were advised of their rights and stated that they did not wish to make any statement until they had consulted with a lawyer. Both indicated their desire to leave as quickly as possible and asked the agents what procedure would have to be followed to obtain their release. They were advised that an affidavit would have to be prepared and a United States Magistrate located before a search warrant could issue. He would then arraign them and set bail. They were also advised that if they wanted to give permission to open the bags, this would save time. The appellants then asked if they could speak privately. The agents left the room and the two men conferred together for about 15 minutes. They then agreed to open the bags if the agents would be willing to recommend a non-surety bond or a release without bond and the agents agreed. Judge Clarie found that the bond discussion was initiated by the appellants, and that there was no physical force, verbal abuse or guns drawn by the agents. He concluded: "Defendants freely and voluntarily consented to a search of their four suitcases . . . ."

The agents opened the 4 pieces of luggage and each contained about 60 pounds of marijuana as well as moth balls, apparently utilized to disguise the marijuana odor. The appellants were then arraigned and released on personal recognizance, non-surety bonds.

II

The appellants' first contention is that the law enforcement officers' action which we have described constituted a warrantless search and seizure "without probable cause in the use of a trained German Shepherd dog." Appellants' argument here hinges upon the proposition that the sniffing, nipping and biting at the luggage by Meisha at the airport was a search within the protection of the Fourth Amendment. This contention, apparently made for the first time to a district court in this circuit, was described as "nonsense" below and termed "frivolous" by the District of Columbia Circuit in United States v. Fulero, 162 U.S. App. D.C. 206, 498 F.2d 748 (1974). In that brief opinion it appears that another marijuana detecting dog, "Chief," had sniffed the air around a busline terminal locker room and had discovered the presence of the drug in a footlocker. The court found ample probable cause for the issuance of a search warrant and characterized the conduct of the police as "a model of intelligent and responsible procedure."*fn2

In view of the tip received from the airline-employee informants previously found to be reliable by the West Coast DEA agent, who in turn alerted the Connecticut officers here, there was ample cause for the agents to pursue the lead and to place under surveillance the fully described passengers and their luggage. See United States v. Ventresca, 380 U.S. 102, 111, 13 L. Ed. 2d 684, 85 S. Ct. 741 (1965); United States v. Sultan, 463 F.2d 1066, 1069 (2d Cir. 1972). It is well understood that marijuana, like hashish, has an offensive and pungent aroma. See United States v. Falley, 489 F.2d 33, 37-38 (2d Cir. 1973). The danger of the detection of the drug by reason of its odor undoubtedly was the reason for packing the moth balls in the luggage. If the police officers here had detected the aroma of the drug through their own olfactory senses, there could be no serious contention that their sniffing in the area of the bags would be tantamount to an unlawful search. United States v. Johnston, 497 F.2d 397, 398 (9th Cir.); United States v. Martinez-Miramontes, 494 F.2d 808, 810 (9th Cir. 1974), cert. denied, 419 U.S. 897, 95 S. Ct. 176, 42 L. Ed. 2d 141 (1974); United States v. Halliday, 487 F.2d 1215, 1217 (5th Cir. 1973). We fail to understand how the detection of the odoriferous drug by the use of the sensitive and schooled canine senses here employed alters the situation and renders the police procedure constitutionally suspect.

Since the dogs have not yet at least been trained to talk, their response to the presence of the drug is conveyed by nosing along the seams of the bags where they would open and then nipping and biting at the bags. This biting did not expose the contents of the bag and while it may well have constituted a technical trespass, see United States v. Artieri, 491 F.2d 440, 445-46 (2d Cir.), cert. denied, 419 U.S. 878, 95 S. Ct. 142, 42 L. Ed. 2d 118 (1974), it cannot be sensibly characterized as a search or seizure. The canine surveillance conducted here occurred in a public airline terminal and the subject was baggage shipped on a public air flight. There can be no reasonable expectation of privacy when one transports baggage by plane, particularly today when the menace to public safety by the skyjacker and the passage of dangerous or hazardous freight compels continuing scrutiny of passengers and their impedimenta. See United States v. Edwards, 498 F.2d 496, 500 (2d Cir. 1974); see also Air Line Pilots Ass'n, Int'l. v. CAB, 516 F.2d 1269 slip op. at 3757 (2d Cir., 1975). "What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection." Katz v. United States, 389 U.S. 347, 351, 19 L. Ed. 2d 576, 88 S. Ct. 507 (1967); and see United States v. Johnston, supra, 497 F.2d at 398.

We cannot agree with the contention that the police are limited to the resources of their physical senses and that the use of scientific or, in this case, canine assistance in pursuit of the criminal is impermissible. The law is settled contrariwise.*fn3 The appellants here rely however upon United States v. Albarado, 495 F.2d 799, 802-03 (2d Cir. 1974), where Judge Oakes characterized the magnetometer airport search process as a search within the protection of the Fourth Amendment. (Cf. United States v. Bell, 464 F.2d 667, 673 (2d Cir.), cert. ...


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