Hastie, Aldisert and James Rosen, Circuit Judges.
These appeals have been taken from convictions on all four counts of an indictment predicated upon alleged trafficking in narcotics.*fn1
The incident that led to the indictment was the discovery of a quantity of heroin in the flight bag of Dolores Butler at the Pittsburgh Airport shortly after she and the appellants, Fields and Davis, had debarked from an incoming plane. Thereafter, Mrs. Butler had given the authorities a detailed account of the alleged wrongdoing, picturing herself and Fields as participants, under the direction of Davis, in the transportation of narcotics from New York to Pittsburgh. Her testimony and the narcotics that had been found in her possession were the major items of the case for the prosecution.
For the appellants it is argued that the narcotics should have been excluded from evidence because federal agents had obtained them by illegal search and seizure. That contention is our first concern.
The actual or constructive possession of the seized narcotics was an essential element of each of the two charges upon which Fields and Davis were sentenced to imprisonment. Therefore, within the meaning of Rule 41(e), Federal Rules of Criminal Procedure, they are persons "aggrieved by" and thus entitled to challenge the search and seizure that yielded the contraband.
Jones v. United States, 1960, 362 U.S. 257, 261-265, 80 S. Ct. 725, 4 L. Ed. 2d 697; United States v. West, 3d Cir. 1972, 453 F.2d 1351. Accordingly, they moved before trial for the suppression of the seized narcotics and, having failed in that effort, moved at trial, again unsuccessfully, to have this evidence excluded.
The following circumstances, disclosed at the suppression hearing or at trial, are relevant to a determination whether the search in question was lawful.
On Monday, December 22, 1969, at the Pittsburgh airport, special agents of the Federal Bureau of Narcotics and Dangerous Drugs observed the arrival of a TWA commercial plane from New York. They were on the lookout for certain black passengers who did not appear. However, they did observe the debarkation of three other Negroes, the appellants and a woman. The men carried no luggage. The woman carried a pocketbook and a TWA flight bag. One or more of the agents recognized Davis and Fields. None recognized the woman, who was identified later as Dolores Butler. Davis was known in the Bureau as a person believed to be illegally trafficking in narcotics and the Bureau had a similar report from the local police about Fields. The Bureau also had received a report from an informant, believed to be reliable, that Fields frequently went to New York and usually returned by plane on Monday accompanied by a woman who carried drugs for him. Because of this information the agents kept Davis, Fields and Mrs. Butler under observation as they passed through the airport. The three persons did not walk together or speak to each other. The agent who was observing Davis was able to observe Mrs. Butler at the same time. To him it seemed that Mrs. Butler recognized Davis but was intentionally avoiding contact with him. Davis left the airport without communicating with Fields or Mrs. Butler. Fields proceeded to the entrance of the passenger terminal where he ordered his car from the valet parking attendant. He had to wait some thirty minutes for the car. In the meantime Mrs. Butler waited nearby, avoiding any communication with Fields. To the agents observing her, she seemed nervous and ill at ease. When the car arrived Fields walked to the driver's side and Mrs. Butler to the car door on the opposite side.
At that point one agent accosted Fields and another accosted Mrs. Butler, each officer duly identifying himself. The agent who had approached Mrs. Butler asked her what was in her flight bag. She replied: "I don't know. It's Ronnie's," indicating Fields. With attention thus directed to him and without waiting for anything else to be said, Fields then exclaimed, according to his own testimony: "It is not! It is none of mine." Hearing these disclaimers, the officer who had introduced himself to Mrs. Butler asked her whether she would mind if he looked into the flight bag. She replied: "No, it is not mine." The officer then extended his hand toward Mrs. Butler. She extended her hand holding the bag toward him. He took the bag, looked into it and saw what appeared to be narcotics and associated paraphernalia. The agents then took possession of the drugs and placed Fields and Mrs. Butler under arrest.
Since the searching of the flight bag was the critical procedure, we have examined the record to see what it discloses about that item of hand luggage. Mrs. Butler, a resident of Pittsburgh, had taken the flight bag with her to New York where, according to her testimony, she had gone to Davis' apartment. On that trip she carried her cosmetic bag and "a couple of books" in the flight bag. She also testified that, at the apartment "I took my books out [of the flight bag] and I think my cosmetic bag was still in there." Then, she said, Davis "had some powder on the table and some capsules and he bundled them up and . . . told me to put them in my flight bag and carry them, I could carry them on the plane."
It is not clear whether Mrs. Butler owned the flight bag. She repeatedly referred to it as "my flight bag." In addition, there is some indication that Fields, who had purchased their tickets in Pittsburgh for the trip to New York, may have procured the flight bag for her at that time. In any event, it is clear that she had possession of the bag for use in carrying such small items as an air traveler would wish to have at hand during a flight. Of course it may also have been comtemplated that the flight bag, as a familiar article of hand luggage, would attract no attention and thus would safely conceal a quantity of narcotics on the return trip. In any event, the record establishes that the flight bag was owned by either Fields or Mrs. Butler and was in her possession for use as hand luggage on her trip from Pittsburgh to New York and return.
In this factual setting, we now consider the government's contention that Mrs. Butler and Fields so acquiesced in the inspection of the flight bag as to make what followed a "reasonable" ...