UNITED STATES of America, Plaintiff-Appellee, v. Thomas Frederick JOHNSTON, Defendant-Appellant

United States Court of Appeals for the Ninth Circuit1974-05-01No. No. 73-3499

497 F.2d 397

Summary · law.co

Holding. The conviction for possession of a controlled substance with intent to distribute is affirmed. The court held that sniffing luggage does not constitute a Fourth Amendment search, and exigent circumstances—the imminent departure of the train—justified the warrantless forced opening of the suitcases.

Thomas Johnston purchased a one-way Amtrak ticket from San Diego to New York City and placed two heavy suitcases in a vestibule between train cars. A federal drug agent, acting on a profile of suspected marijuana couriers, observed Johnston and then approached his luggage. The agent bent down and smelled a strong odor of marijuana from both suitcases, then forced them open without a warrant or consent, discovering approximately 50 pounds of marijuana inside. Johnston was arrested and convicted of possession with intent to distribute.

Johnston challenged the conviction, arguing that both the agent's sniffing of his luggage and the forced opening of the suitcases violated the Fourth Amendment. He contended that sniffing constituted a warrantless search without probable cause, and that even if sniffing was permissible, opening the locked luggage required a warrant because no emergency circumstances justified bypassing that requirement.

The court rejected both arguments. It held that sniffing luggage does not constitute a Fourth Amendment search because Johnston had no reasonable expectation of privacy from such activity, particularly when his bags were in a public train vestibule where other passengers and railroad employees might handle them. The court further determined that exigent circumstances justified the warrantless opening of the suitcases, since the train was departing in approximately three minutes and Johnston might have removed the luggage at an intermediate stop or transferred it to an accomplice.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether sniffing sealed luggage constitutes a Fourth Amendment search
Whether a reasonable expectation of privacy exists for luggage in a public train vestibule
Whether exigent circumstances justify warrantless search and seizure of luggage

Procedural posture

The defendant appealed his conviction for drug possession with intent to distribute after the trial court denied his motion to suppress evidence obtained from the warrantless search of his luggage.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

OPINION

BURNS, District Judge:

Johnston appeals from a conviction for possession of a controlled substance (50 pounds of marijuana) with intent to distribute in violation of 21 U.S.C. § 841(a)(1). We affirm.

Johnston purchased a one-way Amtrak ticket from San Diego to New York City on June 14, 1973, with roomette accommodations from Los Angeles to New York. Acting on a previous request to inform him of persons making such arrangements, Amtrak personnel notified a federal drug agent of Johnston’s ticket purchase. The agent proceeded to the San Diego Amtrak station and commenced observation of Johnston.

The agent noted that Johnston fit an informal “profile” of suspected marijuana couriers he had previously developed in that Johnston: (a) bought tickets of the sort described above; (b) carried heavy luggage (two suitcases); and (c) handled his luggage himself rather than checking it with the railroad. The agent maintained his surveillance and followed Johnston as the latter boarded the train.

The train was crowded and the luggage compartments in the coach were filled. Hence, like many passengers that day, Johnston placed his luggage in the vestibule area between two cars. After Johnston left the vestibule area, the agent approached the luggage, visually examined its exterior, and then, bending down, sniffed the strong odor of marijuana coming from each suitcase. Not having keys to open them, he forced open the locked suitcases. They contained a number of kilos of marijuana in the usual wrappers. This discovery occurred about three minutes before the train was to leave San Diego. The agent then approached Johnston, advised him of his official identity, and then arrested and removed him and his luggage from the train. The agent had neither a search warrant nor Johnston’s consent.

All these facts were brought out on the motion to suppress, which was denied by the District Court. Thereafter, Johnston waived his right to jury trial and submitted the case to the Court on a stipulated set of facts, which incorporated, by reference, the facts developed at the hearing on the motion to suppress. The Court found Johnston guilty; this appeal followed.

Johnston claims the action of the narcotics agent in approaching his luggage and bending down and sniffing constituted a search forbidden by the Fourth Amendment because it was without warrant or probable cause. Alternatively, Defendant contends, that even if the sniffing activity was lawful and appropriate, the forcing of the locks and opening of the luggage itself was an illegal search absent a warrant, because no exigent circumstances existed which would justify an exemption from the warrant requirements of the Fourth Amendment.

We reject Johnston’s argument that he had a reasonable expectation of privacy from drug agents with inquisitive nostrils. He admits he should have reasonably expected fellow passengers or railway employees to handle his luggage. While we have held that squeezing a suitcase is a search under some circumstances, Hernandez v. United States, 353 F.2d 624, 626 (9th Cir. 1965), we are not prepared to hold that, under the circumstances here, suitcase sniffing (whether the sniffer is erect or bending over) is a search within the meaning of the Fourth Amendment. United States v. Martinez-Miramontes, 494 F.2d 808 (9th Cir. 1974).

We also reject Johnston’s claim that the agent, upon detecting the presence of marijuana in the suitcases, should then have secured a warrant. The train was due to leave in three minutes. Even though Defendant had a ticket from San Diego to Los Angeles and thereafter to New York City, the agent was not required to assume that Defendant would stay on the train with the marijuana in the suitcases all the way to New York City. The agent could properly have believed that Defendant would depart with the suitcases at some stop along the way. Indeed, the agent could properly have believed that Defendant might well discharge one or both suitcases at some intermediate point to an accomplice in the criminal enterprise. We conclude that the circumstances here were sufficiently exigent to justify the warrantless search. Hernandez v. United States, supra at 627.

The conviction is affirmed.