United States v. Allman, Thomas

In the
United States Court of Appeals
For the Seventh Circuit
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No. 02-1859
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
THOMAS ALLMAN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 98 CR 453-2—Wayne R. Andersen, Judge.
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ARGUED FEBRUARY 20, 2003—DECIDED JULY 15, 2003
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Before BAUER, POSNER, and WILLIAMS, Circuit Judges.
POSNER, Circuit Judge. The defendant pleaded guilty to
possessing a prohibited weapon (an M-16 rifle), and re-
lated crimes, and was sentenced to 144 months in prison,
but in his plea reserved the right to appeal from the denial
of his motion to suppress.
An employee in the postal service’s Phoenix, Arizona
airmail center noticed a package from which protruded an
object that he recognized as the “pivot pin” of an M-16. An
army veteran, he had become intimately acquainted with
the M-16 during his military service. The pivot pin connects
the lower to the upper part of the gun and is prominent
2 No. 02-1859
when the gun is disassembled. The employee squeezed the
package and felt the outline of the lower part of the gun,
to which the pin is attached. He noticed at about the same
time a box with the same Chicago address and in the
same handwriting. He notified a postal inspector in the
airmail center who in turn called a postal inspector in
Chicago and was directed to send the two parcels to
Chicago. The inspector in Chicago who examined them
when they arrived was also an army veteran and he thought
that the box was too short to contain the upper part of
the gun, the lower part being in the package. (It’s as if
one parcel had contained a headless body, and the other
was too small to contain the head.) By this time he had
learned that both Thomas Allman, who had mailed the
two parcels and is the defendant in this case, and his broth-
er Michael, the addressee, had histories of violent crimes
and might have ties to right-wing organizations. Putting
two and two together (although it is unclear that the sum
he derived was four), he decided that the box might con-
tain an explosive device of some sort, or ammunition,
and so he x-rayed it and discovered that it contained the
upper part of an M-16 after all. A warrant to search the
two parcels was obtained and executed, confirming their
contents. The warrant also authorized the insertion of a
transmitter in them, which was done and led federal offi-
cers to Michael Allman’s apartment. He too pleaded guilty
to federal firearm violations, but his case is not before us.
The pivot pin was in plain view and created probable
cause to believe that Thomas Allman was violating federal
firearm laws. Texas v. Brown, 460 U.S. 730 (1983); Arkansas
v. Sanders, 442 U.S. 753, 764 n. 13 (1979); United States v.
Eschweiler, 745 F.2d 435, 440 (7th Cir. 1984); State v.
Youngblood, 786 P.2d 551, 556 (Idaho 1990). The identical
handwriting and address on the second parcel and the
fact that the two parcels were traveling together created
No. 02-1859 3
probable cause to search the second parcel as well. We
could stop right there. The defendant contends that the
squeezing of the package from which the pin was pro-
truding, and the x-raying of the box, violated the Fourth
Amendment. Even if he is right, there was an ample
basis for the search warrant that was issued and so, the
evidence having been obtained lawfully by virtue of the
warrant, the motion to suppress was properly denied.
We do not think a warrant was even necessary. Although
the Supreme Court has held that feeling luggage to deter-
mine its contents is a search within the meaning of the
Fourth Amendment, Bond v. United States, 529 U.S. 334(2000), and although the general rule is that a search is
unlawful without a search warrant, there are a number of
exceptions. See, e.g., Pennsylvania v. Labron, 518 U.S. 938,
940 (1996) (per curiam) (automobile searches supported
by probable cause); United States v. Ramsey, 431 U.S. 606,
616-18 (1977) (search at international border); South
Dakota v. Opperman, 428 U.S. 364, 372-73 (1976) (inventory
search of impounded car); United States v. Robinson, 414
U.S. 218, 224 (1973) (search incident to a lawful arrest);
Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973) (search
after consent); Terry v. Ohio, 392 U.S. 1, 27 (1968) (pat-down
search for weapons based on reasonable suspicion). There
ought also to be an exception for packages about to be
placed on an airplane. See United States v. Oriakhi, 57 F.3d
1290, 1303 (4th Cir. 1995) (concurring opinion). When
we consider that all persons, with all their belongings,
who travel by air are subject to search without a warrant,
see, e.g., National Treasury Employees Union v. Von Raab, 489
U.S. 656, 675 n. 3 (1989) (collecting and approving cases);
United States v. Edwards, 498 F.2d 496, 498 n. 5, 500 (2d Cir.
1974) (Friendly, J.), we have trouble making sense of a
rule that would forbid such a search if a parcel is travel-
ing by itself, also by air, as part of a mail shipment.
4 No. 02-1859
Apropos is United States v. Ramsey, supra, 431 U.S. at 620,
where the Supreme Court held that the warrantless
search of envelopes mailed from Thailand and containing
heroin was justified by the border-search exception to
the warrant requirement. Had the defendants carried
the envelopes on their persons there would have been no
doubt that custom officials could search the envelopes
when the defendants entered the country. The defendants
were entitled to claim no greater right of privacy in the
contents of the envelopes simply because they mailed
rather than carried them. If anything, there is a stronger
justification for searching parcels that are traveling alone
on a plane than for searching those that are part of a
passenger’s baggage, since in the first case, if there is a
bomb in the parcel set to explode during the flight, there
is no personal risk to the bomber.
Regarding the second parcel, the box containing the
rest of the gun, we do not accept the government’s argu-
ment that opening the package in Chicago was justified
by the rule that permits a search without a warrant if
there is an emergency or other urgent need (“exigent
circumstances”). Had the postal authorities feared that
the box might contain an explosive device, they would
hardly have flown it to Chicago without inspection, as
they did; or when it arrived have x-rayed it rather than
calling the bomb squad. Certainly, though, they had
probable cause to believe that it contained contraband or
evidence of crime, and the question is whether x-raying,
though a form of search, United States v. Montoya De
Hernandez, 473 U.S. 531, 541 n. 4 (1985); Brent v. Ashley, 247
F.3d 1294, 1303 (11th Cir. 2001); Thompson v. City of Los
Angeles, 885 F.2d 1439, 1447 (9th Cir. 1989); United States
v. Haynie, 637 F.2d 227, 230 (4th Cir. 1980), requires a
warrant when it is conducted on a parcel in transit. Airline
passengers and their luggage are searched on embarking,
No. 02-1859 5
not arriving; and numerous cases hold that a parcel may
not be opened by the authorities without a warrant even
if there is probable cause to believe that it contains con-
traband or evidence of crime. United States v. Place, 462
U.S. 696, 701 (1983); Walter v. United States, 447 U.S. 649, 654-
55 (1980); United States v. Rodriguez, 888 F.2d 519, 523 (7th
Cir. 1989); United States v. Bulacan, 156 F.3d 963, 968 (9th Cir.
1998). But a prima facie case of violation of the Fourth
Amendment requires that there be a “reasonable expecta-
tion” of privacy in the property searched, Kyllo v. United
States, 533 U.S. 27, 33 (2001), and we have trouble seeing
how, in this age of routine, soon to be universal, x-raying of
containers shipped by air, the defendant could have had
a reasonable expectation that his package would not be
x-rayed at any point during transit. United States v. Bron-
stein, 521 F.2d 459, 462 (2d Cir. 1975); United States v. Oriakhi,
supra, 57 F.3d at 1303 (concurring opinion). If anything, it
was irresponsible of the postal authorities to ship the box
to Chicago without first x-raying it, and we do not see why
their lapse should give the defendant a constitutional claim.
Whether a more intrusive search of the box than merely
to x-ray it would have been permissible without a warrant
we need not decide.
AFFIRMED.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-15-03