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December 13, 1977


The opinion of the court was delivered by: LASKER


Alonzo Ester moves to suppress the introduction of eight ounces of heroin, found in his suitcase, as evidence against him in his prosecution for possession and distribution of narcotics. The motion is granted.

 On June 17, 1977, Special Agent John Pope of the New York Joint Drug Enforcement Task Force was notified by Special Agent Johnson of the Los Angeles office of the Drug Enforcement Agency that a confidential source had informed him that one Donnie Lewis was leaving Los Angeles for New York to purchase cocaine. Johnson informed Pope that he had learned from American Airlines that sequential reservations for "D. Lewis", "A. Ester", and "M. Jones" had been made on a flight from Los Angeles to New York on June 17th. Although surveillance was begun at JFK Airport on the 17th, no one was observed to arrive who matched Lewis' description. One June 20th, however, Johnson again contacted Pope, this time with information that Lewis and his companions were actually in New York and were staying at the Hilton Hotel.

 After ascertaining that a party of two, registered under the name "D. Lewis", was staying at the Hilton, federal narcotics agents began a regular surveillance of the hotel lobby and the area outside the hotel. Lewis was seen leaving the hotel, carrying luggage, on his way to the airport at 6:00 P.M. on June 20th, but he was not stopped by the agents who decided, after consultation with an Assistant United States Attorney, that they did not have probable cause to arrest him. When the agents learned from the hotel security police that the occupants of Room 1920, where Lewis had been staying, intended to remain, they booked the adjoining room in order to continue their observation. Their surveillance included looking through Room 1920's "fisheye" peephole and pressing a glass to the wall between the two rooms to listen for sounds.

 Room service supplied Room 1920 with food on the evening of June 20th and again on the morning of June 21st, at which time the agents saw a woman, later identified as Marguerite Jones, place a tray of dishes in the hallway. At 8:00 A.M. on June 21st, Alonzo Ster *fn1" knocked on the door of Room 1920 and was admitted. He was carrying no luggage. The agents heard through the wall a conversation about returning to Los Angeles and shortly later saw Jones leave the room. She returned at 12:15 P.M., carrying a shopping bag, and the agents this time heard a woman say, in a raised voice: "I don't give a damn about the order. I'm going back to Los Angeles." At 12:55 P.M., Jones left the hotel. During the next three hours, Ester twice summoned the bellman to his room and both times sent him away with instructions to return later. Finally, at 3:30 P.M., Ester gave the bellman a grey suitcase fastened with a piece of string, and followed him down to the hotel lobby.

 After Ester left his room, Agent Pope searched it and discovered a folded piece of paper in the trash can containing white powder. A cobalt field test established that the powder was cocaine.

 Ester apparently remained in the vicinity of the hotel lobby from 3:30 P.M. until 5:15 P.M. His suitcase was left at the bellman's desk during this period. At 5:15 he recovered his luggage and took a taxi to LaGuardia Airport. On arrival at the American Airlines Terminal, Ester left the cab and placed his suitcase and an attache case on the sidewalk where they were picked up by a skycap. Agent Pope then approached Ester, identified himself, placed Ester under arrest and retrieved the luggage which was only a few feet away. Ester was handcuffed and placed in the back seat of a government car next to an agent, while Pope and another agent seated themselves in the front of the car. Pope gave Ester his Miranda warnings and the following conversation took place:

 "I asked if he had a key to the suitcase. He said he did. I said where.He said in his pocket.And I said, 'what pocket?' He raised the side of his coat up, the key was removed from his pocket, he identified the key, and the bag was opened." (Testimony of John Pope, Transcript at 33)

 Ester was not advised, however, that he had a right to refuse to permit his suitcase to be opened. Pope unlocked the suitcase and found a brown substance among its contents which was later identified as almost eight ounces of heroin. Ester moves to suppress introduction of the heroin at trial for the following reasons: (1) the search of the suitcase without a warrant was invalid under United States v. Chadwick, 433 U.S. 1, 97 S. Ct. 2476, 53 L. Ed. 2d 538, 45 U.S.L.W. 4797 (June 21, 1977); (2) there was no probable cause for his arrest; and (3) the eavesdropping on Room 1920 constituted an unreasonable search in violation of the Fourth Amendment.

 I. The Search of Ester's Suitcase

 Ester argues that the heroin found in his suitcase must be suppressed under the ruling in United States v. Chadwick, supra, 45 U.S.L.W. 4797. The defendants in Chadwick were arrested at Boston's South Station by federal narcotics agents who suspected them of transporting drugs. The defendants had arrived on a San Diego to Boston train and were in the process of unloading their luggage, which included a double locked 200 lb. footlocker, when they were arrested. They had placed the footlocker in the trunk of the car but had not yet closed the trunk or started the car when the arrest occurred. They were then taken to the Federal Building in Boston where, approximately one hour and a half after the arrest, the narcotics agents opened the luggage without obtaining either a search warrant or the defendants' consent and found a large quantity of marihuana.

 At a hearing to suppress the marihuana, the government argued that the warrantless search was justified under either the automobile exception to the warrant requirement, Chambers v. Maroney, 399 U.S. 42, 26 L. Ed. 2d 419, 90 S. Ct. 1975 (1970), or as a search incident to arrest, Chimel v. California, 395 U.S. 752, 23 L. Ed. 2d 685, 89 S. Ct. 2034 (1969). The District Court rejected both arguments, finding that the relationship between the footlocker and the automobile was coincidental and that there was no danger that the defendants might have seized a weapon or destroyed evidence contained in the luggage, 393 F. Supp. 763 (D. Mass. 1975) (per Judge Tauro).

 On appeal, the government made the new argument that movable personalty lawfully seized in a public place was subject to a warrantless search if probable cause existed to believe that it contained evidence of a crime. A divided Court of Appeals rejected the argument, however, on the ground that such a theory had received insufficient recognition from the Supreme Court to be accepted as a valid exception to the warrant requirement. 532 F.2d 773, 781-82 (1st Cir. 1976). On grant of certiorari, the Supreme Court affirmed. Rejecting the government's argument that the Warrant Clause of the Fourth Amendment should be confined to interests identified with the home, the Court held that the warrant requirement protects "people from unreasonable government intrusions into their legitimate expectations of privacy." *fn2" 433 U.S. 1 at 7.

 The government now seeks to distinguish Chadwick on the ground of important factual differences between the cases. Specifically, it argues that Chadwick does not extend to a situation which involves the search of a suitcase rather than a large, double locked footlocker or to a search which is not remote in time or place from the arrest. (Government Memorandum at 15) However, the factual elements on which the Supreme Court relied in Chadwick are present here. Chief Justice Burger's opinion for the Court addressed the question of what privacy interest attaches to "luggage" in general and not simply to the ...

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