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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 particular item before it in that case. In rejecting the government's analogy to an automobile search, the opinion specifically speaks in terms of luggage:

 "Luggage contents are not open to public view, except as a condition to a border entry or common carrier travel; nor is luggage subject to regular inspections and official scrutiny on a continuing basis. Unlike an automobile, whose primary function is transportation, luggage is intended as a repository of personal effects. In sum, a person's expectations of privacy in personal luggage are substantially greater than in an automobile." 433 U.S. 1, at 13.

 The one ground for distinguishing between luggage on the basis of size which is suggested by Chadwick is not justified on the facts of this case. The Court noted that the traditional reasons for allowing a search incident to arrest specified in Chimel v. California, supra, 395 U.S. 752, -- to safeguard the arresting officer and to prevent the destruction of evidence -- were not disturbed by its ruling. Thus, in a situation where a defendant retains easy access to his belongings even after arrest, which is more likely to be the case with smaller possessions, a warrantless search might be permissible. However, the Court set this limit:

 "Once law enforcement officers have reduced luggage or other personal property not immediately associated with the person of the arrestee to their exclusive control, and there is no longer any danger that the arrestee might gain access to the property to seize a weapon or destroy evidence, a search of that property is no longer an incident of the arrest." 433 U.S. 1, at 15 (footnote omitted)

 Here, when Ester was handcuffed at the time of search and the suitcase was in the hands of one of the arresting officers, the search could not be justified as incident to the arrest.

 The government's next argument, that Chadwick does not apply to a search which was not remote in time and place from the arrest, is no more persuasive. Chadwick's requirement of a warrant does not depend on the amount of time or space between the arrest and the search but on the extent to which the property is within the control of the police:

 "In our view, when no exigency is shown to support the need for an immediate search, the Warrant Clause places the line at the point where the property to be searched comes under the exclusive dominion of police authority." 433 U.S. 1 at 15.

 Ester's luggage was immediately placed in the possession of the federal narcotics agents and no exigent facts are suggested which required that the suitcase be searched at once. Under the circumstances, Ester is entitled to the safeguards of Chadwick.

 The government argues, however, that even if Agent Pope could not lawfully search the suitcase as an incident to arrest, the search was valid because Ester consented to it. But the facts surrounding the search do not indicate that Ester did anything more than display the passive acquiescence to be expected from someone surrounded by federal agents and sitting in a government car. Although he answered Pope's questions as to the whereabouts of the key to his luggage, Ester was not asked for permission to search the suitcase or told that he had any choice but to permit the search. Indeed the behavior of the agents in asking for the key without advising him that he need not tell them where it was, or consent to opening the luggage, would have suggested to any uninformed citizen that the agents had the right to search, and that there was nothing an arrestee could do about it. A citizen has the right to assume that a law enforcement officer will not propose illegal behavior, and the agent's questioning about the key could only be construed as a proposal to open the suitcase. The cases relied on by the government, which involve explicit grants of permission to search, are therefore inapposite. United States v. Watson, 423 U.S. 411, 46 L. Ed. 2d 598, 96 S. Ct. 820 (1976). Schneckloth v. Bustamonte, 412 U.S. 218, 36 L. Ed. 2d 854, 93 S. Ct. 2041 (1973). Accordingly, since we do not find that the search was consented to, the motion to suppress the heroin is granted.

 II. Probable Cause to Arrest

 Whether the government had probable cause to arrest Ester presents a more difficult question. Probable cause exists when "the facts and circumstances within [the arresting officers'] knowledge and of which they had reasonably trustworthy information were sufficient in themselves to warrant a man of reasonable caution in the belief that" an offense was being committed. Carroll v. United States, 267 U.S. 132, 162, 69 L. Ed. 543, 45 S. Ct. 280 (1925). The government argues that the sum total of the circumstances surrounding the arrest gave the agents reason to believe that Ester was participating in a narcotics conspiracy. Ester counters that the only information Agent Pope had about a narcotics transaction related to Donnie Lewis, and that the government acted on mere suspicion in connecting Ester with the transaction and arresting him. Since the decision to suppress the heroin disposes of this motion, we do not reach the question of whether probable cause existed to arrest Ester. Strong arguments, however, are offered by both the government and the defense on this point.

 III. Eavesdropping at the Hilton Hotel

 Ester also questions the legality of the agents' actions in eavesdropping on the conversations in Room 1920. The introduction of these conversations goes to the question of probable cause for the arrest, which we are not deciding in this motion. However, we note that Ester's argument that eavesdropping accomplished by pressing a glass to a wall falls within the holding of Katz v. United States, 389 U.S. 347, 19 L. Ed. 2d 576, 88 S. Ct. 507 (1967), is dubious. Katz held that a person making a telephone call from a public booth justifiably relies that his conversation will not be electronically overheard. On the other hand, this circuit has ruled that there is no justified reliance against eavesdropping by the naked ear on a conversation in an adjoining room. United States v. Ortega, 471 F.2d 1350, 1361 (2d Cir. 1972); cert. denied, 411 U.S. 948, 36 L. Ed. 2d 409, 93 S. Ct. 1924, 93 S. Ct. 1925 (1973); United States v. Llanes, 398 F.2d 880, 883-84 (2d Cir. 1968). Here there is no violation of the Fourth Amendment because Ester has not shown that his expectation of privacy was interfered with any more by listening through a glass rather than with the naked ear.

 The motion to suppress the heroin is granted.

 It is so ordered.


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