United States v. Joseph A. Wilkerson , 478 F.2d 813 ( 1973 )

PER CURIAM.

Defendant, Joseph A. Wilkerson, was charged in a one-count information with possession with intent to distribute forty-nine pounds of marijuana in violation of 21 U.S.C. § 841(a)(1). Preliminary to trial, two motions to suppress were filed and overruled by Chief Judge Meredith of the United States District Court for the Eastern District of Missouri. Upon trial to a jury defendant was found guilty and sentenced to a term of five years in the custody of the Attorney General. We affirm the judgment of conviction.

The crucial issues at the trial and on this appeal involve a warrantless search in the San Diego, California International Airport and the subsequent war-rantless arrest, search and seizure at Lambert Field, St. Louis, Missouri.

There is very little dispute concerning the facts which we briefly summarize. On the night of Saturday, April 1, 1972 a young unidentified female purchased a ticket in the San Diego, California International Airport to travel on American Airlines flight #88 which was scheduled to depart momentarily. The woman checked a suitcase and a duffel bag through to her destination, St. Louis, Missouri, and then asked directions to the restroom. After the plane had left the airport loading gate, airline officials learned that the unidentified woman had not boarded the plane. Since American Airlines’ regulations require that a passenger accompany his checked luggage and since the woman partially fit the passenger security profile, American’s San Diego Supervisor of Airport Services recalled the plane before it took off. The suitcase and duffel bag checked by the young woman were removed from- the aircraft and it was allowed to depart.

Pursuant to American Airlines’ security regulations, the removed luggage was taken by airlines employees to the baggage area for inspection. Upon opening the suitcase¹ the airline employees observed some opaque green plastic bags which appeared to contain many brick-shaped objects. On one corner of one of the plastic bags there was a small tear surrounded by traces of vegetable matter. At this point the airlines employees left the suitcase open and called the airport office of the San Diego Harbor Police. ' When the San Diego officer arrived in the luggage area the appearance of the open suitcase convinced him that the luggage contained several bricks or kilos of marijuana. The San Diego officer felt the outline of the plastic bags and of the duffel bag to ascertain the number of kilos contained in the luggage. The officer also called in a state narcotics agent who, by similar observation, confirmed the San Diego officer’s conclusions. The luggage was then impounded by the police to await transshipment the following day. By use of special expediting tags the luggage was forwarded to St. Louis. The luggage arrived in St. Louis in the early mora-ing hours of Monday, April 3. Shortly thereafter the baggage was claimed by defendant who was arrested by waiting police officials as he carried the luggage out of the airport. Upon arresting the defendant, the police officers opened the suitcase and, with defendant’s consent, broke open the padlock on the duffel bag. It is stipulated that the luggage contained some forty-nine pounds of marijuana.

The San Diego Search. Defendant concedes that the recall of the plane and the initial search of the luggage for guns or explosives was justified by the necessity to protect life and property from the apparent threat of violence. Defendant contends, however, that this initial search by airline employees was, in legal effect, a governmental search because of the federal government’s regulatory involvement in commercial airline security. We have recently been confronted with this same argument on two separate occasions and on both occasions we rejected the claim raised here by defendant. United States v. Echols, 477 F.2d 37 (8th Cir. 1973); United States v. Burton, 475 F.2d 469 (8th Cir. 1973). These two cases stand for the proposition that searches of luggage by airline employees are private searches that are invulnerable to fourth amendment attack so long as the searches are conducted by the carrier for its own purpose and without the instigation or participation of government officers. We will not burden this opinion with a repetition of the analysis in those two cases, which is dispositive of the argument made by defendant here.²

The St. Louis Search. Defendant’s primary challenge to the St. Louis arrest, search and seizure is that they are fruit of the poisoned tree, the allegedly invalid San Diego search. This argument, of course, is disposed of by our conclusion that the San Diego search was proper. Defendant raises a second argument with respect to the St. Louis arrest, search and seizure. According to this argument the police officials in St. Louis had sufficient time to obtain a warrant to search and seize the luggage. While we doubt that the span of time from sometime Sunday morning to early Monday morning is sufficient to automatically require a warrant, we find it unnecessary to decide this issue. Defendant concedes that the search in San Diego, if valid, gave officials in St. Louis probable cause to arrest the defendant. Further, defendant concedes that the difficulties inherent in obtaining a “John Doe” warrant made the war-rantless nature of the arrest reasonable. Since these factors compel the conclusion that the arrest of defendant was legal, we sustain the legitimacy of the St. Louis search and seizure as a search and seizure incident to a lawful arrest.

Defendant also argues that the district court erred in allowing the government to introduce testimony about the resale value of forty-nine pounds of marijuana. This testimony about monetary value, of course, was relevant to the intent of the defendant. From the proof regarding value the jury could infer whether defendant possessed the marijuana with intent to distribute or merely with the intent to use the contraband himself.³ As was said in United States v. Mather, 465 F.2d 1035 (5th Cir. 1972):

“The question of the validity of the inference turns on whether the amount of cocaine was such as will support an inference of intent to distribute as distinguished from mere possession for personal use.” Id. at 1037.

Finally, defendant contends that the section of the code under which he was charged is unconstitutionally vague or overly broad under the instructions given by the trial court. We have considered this contention but find no merit in it.

For the reasons stated above, the judgment of conviction is affirmed.

1 . The airline employees’ search of the suitcase was facilitated by the use of a skeleton key. The duffel bag, however, was never opened in San Diego because it was secured by a padlock. The primary inspection of the duffel bag for explosives was accomplished by the somewhat bizarre procedure whereby a baggage attendant ran with the duffel bag for about four feet and hurled it onto the concrete floor. As explained by the Baggage attendant, who was fortunately still available at the time of the trial to testify, this procedure was not contemplated by airline regulations but was instead his own personal “shock” treatment.

2 . There is no dispute that the search in San Diego was a private search by American Airlines’ employees. After the suitcase was opened, it remained open and it was only then that the police were called.

3 . The testimony was that the forty-nine pounds of marijuana when first broken down had a value of $58,000.00, and when broken down to “sticks” or “joints” it would sell for $71,500.00, the “street” value in the area we are concerned with.