and a warrant obtained and the suitcases searched at either of these locations.
From the time Clements arrived at the American Airlines Air Freight terminal until the baggage arrived at the Scranton Airport, the suitcases were in effect under the control of government officials. The baggage had been transported from the Emery office to the airport by Thompson, the only Emery employee in the Tucson area. When Clements first came in contact with the suitcases they were being prepared for loading on the 138 flight which was to leave in just a few minutes. Presuming the shipper of the suitcases had a right to reclaim the baggage before flight, the suitcases were to be loaded on a plane which was to depart in a few minutes and Thompson who would have been able to assist the reclaimant was at the air freight terminal, and not at the Emery office. Even granting the presumption of the right and the possibility of a reclamation, Clements was present to prevent it. Once the plane departed, government agents at New York or Scranton had ample time to obtain a warrant before the suitcases arrived at Scranton nearly two days later.
This is not a case as suggested by the Government in which a later search may be impossible. See Carroll v. United States, 1924, 267 U.S. 132, 45 S. Ct. 280, 69 L. Ed. 543; Chambers v. Maroney, 1969, 399 U.S. 42, 90 S. Ct. 1975, 26 L. Ed. 2d 419, where warrantless searches of fleeing automobiles are involved. Here, government agents knew the exact route and destination of the suitcases. Control of the baggage was in Emery and in effect in government officials, and not in the shipper or Valen.
This is not a Romero v. United States
situation in which the passenger waiting for a train could reclaim his baggage before the Customs agent had the opportunity to obtain a search warrant. At the time Clements came upon the scene there was virtually no possibility of a reclamation until after the suitcases arrived at Scranton and were picked up by Valen. Unlike Romero, the baggage was transported by an independent shipper and not by a passenger in flight who could escape with the contraband. In addition, of controlling importance in Romero was the applicability of 19 U.S.C. § 482; here, there is no such applicability.
Hernandez v. United States, 9 Cir. 1965, 353 F.2d 624, is not controlling. Hernandez involved searches by state police officials before passengers carrying marihuana left the state's jurisdiction. An immediate search was necessary before flight so a lawful arrest could be made by state officers while the defendant remained in the state and where they had jurisdiction to make arrest.
In our case federal officials were involved and there was nationwide jurisdiction to search and arrest. Also, Valen was not present at the Tucson Airport, so it was not "exigent" that a search and arrest be made before the defendant with the contraband took flight. The arrest of Valen could only have been made at the time he actually claimed the suitcases, and not before. A lawful search with a warrant could easily have been made prior to this time.
The Government relies on Gold v. United States, 9 Cir. 1967, 378 F.2d 588, in distinguishing prior case authority, especially Corngold v. United States, 9 Cir. 1966, 367 F.2d 1. In Corngold, the court went on to say:
"The officers had no warrant, and there were no circumstances which might have justified a search without one. No arrest was made to which a search without a warrant might be incident. The government made no showing that the packages might be removed before a warrant could be obtained. Appellant was not threatening to remove them, nor was the airline, except under such conditions as the officers saw fit to impose. From the time appellant left the packages with the carrier in Los Angeles they were subject to the effective control of the customs agents. There was nothing to prevent the agents from securing a warrant on a proper showing, either before the packages were shipped from Los Angeles or after they arrived in New York. On this record, search without a warrant was not justified even if the customs agents had probable cause to believe the packages contained contraband. . . ." P. 3. (Emphasis supplied.) (Footnote omitted.)
Gold, however, involved a search by an airlines employee, not a government agent, and a subsequent search by government officers on information gained from this prior search. The court held the government search valid, not on any "exigent circumstance" principle, but because the private search was legal.
The Government has not shown why it would have been unreasonable for Clements to telephone ahead so a fellow agent could have obtained a proper warrant. The fact Clements had probable cause to search did not give him the right to do so absent any "exigent circumstances." Corngold v. United States, supra; Chapman v. United States, 1961, 365 U.S. 610, 613-616, 81 S. Ct. 776, 5 L. Ed. 2d 828.
Dicta in United States v. Van Leeuwen, 1969, 397 U.S. 249, 253, 90 S. Ct. 1029, 25 L. Ed. 2d 282, is suggested as a basis for the unreasonableness of telephoning ahead to secure a warrant and thus, the propriety of a warrantless search. Van Leeuwen involved a search with a warrant. Since postal officials had authority to detain certain mail sought to be searched, the Court stated it would be more prudent to detain the mail until the search warrant was obtained than to locate the mail en route. The facts are quite different from our situation, where there was a warrantless search, and limited detention is not an issue. The Court did not say that enlisting the help of distant federal officials was "unreasonable," but rather that it would not be "prudent" under the circumstances where merely a slight detention would enable government officers to acquire a warrant. Finally, undoubtedly because of the volume of mail and the various routing possibilities, law enforcement officials would have had a difficult task in keeping mail under surveillance while en route. It would not have been prudent to let the packages enter the mails until a warrant was acquired. Here, the suitcases were clearly distinguishable as part of Emery Air Freight baggage, and there was not a complicated transportation route or the possibility of an en route variance. Only when contraband is to be carried on a flight to a foreign country is a warrantless search permissible because of the exigent circumstances of losing all jurisdiction, including federal jurisdiction, once the contraband is transported outside of the country.
Therefore, the search by the Customs official in Tucson was unconstitutional as an unreasonable search and seizure, and the seizure of the marihuana from Valen at the Scranton Airport was the direct result of the unlawful search. Under the well-settled "fruit of the poisonous tree doctrine" of Wong Sun v. United States, supra, the evidence of the marihuana must be suppressed.