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September 21, 1972

Eric Wesley VALEN

Sheridan, Chief Judge.

The opinion of the court was delivered by: SHERIDAN

Eric Wesley Valen, defendant, was indicted for knowingly, intentionally and unlawfully possessing with intent to dispense and distribute about forty-four pounds of marihuana, a controlled substance, in violation of Title 21, U.S.C. ยง 841(a)(1). Defendant has filed a motion to suppress the marihuana as evidence.

 On May 25, 1971, at the Emery Freight Office in Tucson, Arizona, Dennis Thompson, an employee, observed two suitcases addressed from one Elaine Blanck, 432 Speedway, Tucson, Arizona, to Eric Valen, Scranton, Pennsylvania, for pickup at the Scranton Airport, Avoca, Pennsylvania. The suitcases were left with Emery for shipment to the Scranton Airport, and were scheduled to depart on American Airlines Flight No. 138, leaving Tucson at 12:35 P.M. on the same date. Sometime between 11:00 and 11:30 A.M., Thompson became suspicious because he was unable to verify the home address and telephone number of Elaine Blanck and because he detected an odor from the suitcases similar to marihuana. Subsequently, Thompson telephoned the United States Customs office at the Tucson Airport and asked to speak with Special Agent Donald Clements. Clements was in Nogales, Arizona, at the time, and Thompson asked that Clements be informed that there were two suitcases containing marihuana which were to leave the Tucson Airport on American Airlines Flight 138.

 At the hearing on the motion Thompson testified that after making the telephone call he opened one of the suitcases and found marihuana. He opened the suitcase solely on behalf of the Emery Air Freight Company and for his own protection as an Emery employee, and not on behalf of any governmental agency. He then delivered the suitcases to the American Airlines air freight office at the airport at around 12:00 o'clock noon for shipment on Flight 138. Thompson did not do anything to detain the shipment of the suitcases on Flight 138.

 Thompson had smelled marihuana once before and under similar circumstances. On that occasion Clements paid him approximately $375.00, and told him to communicate with him if his suspicions were aroused again. Clements paid Thompson $100.00 for the information he furnished in this case. Both Thompson and Clements emphasized there was no financial arrangement between them. Thompson did not expect payment, and Clements did not promise payment since this was not his decision but that of his superior in the Customs office.

 Clements, also detecting the odor of marihuana, opened the suitcases and discovered the marihuana. This occurred at approximately 12:20 or 12:25 P.M. He then seized the suitcases and notified the Airlines.

 Clements testified that from his experience it takes between four to six hours to acquire a search warrant in Tucson during the day. In fact, in the prior similar case in which Thompson was involved, it took six hours to obtain the warrant. Clements released the suitcases to agents of the Bureau of Narcotics at approximately 6:00 P.M. that evening, after which the suitcases were again reopened and the contents reexamined. The suitcases were put on American Airlines Flight 246 which left Tucson around midnight and arrived at the Scranton Airport on May 27, 1971, by way of New York City.

 Narcotics agents in Tucson notified agents in Scranton, and a surveillance was set up at the Scranton Airport to await the arrival of the suitcases and their eventual pickup. The suitcases arrived at approximately 10:20 A.M. and shortly thereafter a man, later identified as Valen, claimed the baggage at the Emery Freight office. Valen took the suitcases from the air terminal and proceeded to place them in the trunk of a car parked outside. He drove the automobile several hundred feet when he was stopped by narcotics agents at the airport gate. He was immediately arrested and one of the agents opened both the trunk and the suitcases. The agents did not have an arrest or search warrant.

 Clements had cause to search the baggage because of Thompson's message and the odor emanating from the suitcases. When Clements talked to Thompson at the airport there was no mention that one suitcase had been previously searched. In no way then can Clements' search be labeled a "fruit" of Thompson's search. Clements' search was independent of Thompson's search.

 The Supreme Court in Silverthorne Lumber Co. v. United States, 1920, 251 U.S. 385, 392, 40 S. Ct. 182, 183, 64 L. Ed. 319, laid down the rule regarding the admissibility of evidence acquired from an independent source:

". . . The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all. Of course this does not mean that the facts thus obtained become sacred and inaccessible. If knowledge of them is gained from an independent source they may be proved like any others, . . . "

 See also Nardone v. United States, 1939, 308 U.S. 338, 60 S. Ct. 266, 84 L. Ed. 307. In discussion of the meaning of the "fruit of the poisonous tree doctrine," the Court in Wong Sun v. United States, 1962, 371 U.S. 471, 487-488, 83 S. Ct. 407, 417, 9 L. Ed. 2d 441, stated:

". . . We need not hold that all evidence is 'fruit of the poisonous tree' simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is 'whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means ...

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