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UNITED STATES v. NORMAN

August 15, 1978

UNITED STATES of America
v.
Terry Dale NORMAN



The opinion of the court was delivered by: ROSENBERG

The defendant, Terry Dale Norman, moves to suppress a list of evidence seized by arresting State officers in control and supervision of the airport in Pittsburgh, Pennsylvania, and to suppress confessions or admissions. These officers were directly responsible for the public safety relating to air travel.

On February 22, 1978, the defendant, prior to boarding a plane, placed on a moving conveyor counter of the security check, an embassy case and a separate piece of luggage for passing through the magnetometer. The magnetometer is a device which reveals upon a scope of approximately 6 inches by 9 inches the image of the metallic contents of the baggage in an X-ray like fashion. When the luggage moved through the magnetometer, a TWA security guard observed what she believed to be a gun in one of the suitcases of the defendant. The guard put the bag through the magnetometer again for confirmation, and then called an Allegheny County policeman who also had the bag put through. At this point, the defendant was taken into custody and detained at the Airport Police Station, and the defendant's two suitcases were seized. At the station, the defendant was given his rights and he was asked to open his luggage. The defendant denied that he was the owner but admitted possession of the luggage for transportation to Phoenix to another person. Then the officers told the defendant that if he did not open the luggage, they would procure a warrant to open and search the luggage. The defendant opened the snaps and revealed the contents, which consisted of contraband for obvious illicit purposes in violation of federal law. Thereupon the State and Federal law enforcement agencies were notified and proceeded with the prosecution of this case.

 The difficulty with the defendant's contentions for his motion is that (1) the federal jurisdiction does not depend upon what a State court might or might not do under the circumstances; (2) a warrant under these circumstances was not necessary because when the authorities took the defendant into custody with his luggage, they arrested the defendant, together with his luggage. United States ex rel. Clouthier v. Maroney, 238 F. Supp. 161 (D.C.Pa. 1964), affirmed 341 F.2d 295, C.A. 3, 1965; and (3) the entire episode at that time was founded on probable cause.

 The law is that when an officer, for instance, sees a gun through the window of a stopped automobile, he has a right to search and seize the contents of the automobile. Vaughn v. United States, 382 U.S. 855, 86 S. Ct. 107, 15 L. Ed. 2d 93. Here the magnetometer revealed the contents of the luggage and the gun in the same manner as if the luggage had been open and visible to the naked eye of those in charge of the examination of the luggage.

 Having seen a crime being committed and having taken custody of the suitcases containing the firearms in a legal fashion, it then matters little how the officer got the firearms out of the suitcases carried by the defendant. Objects falling in plain view of an officer who has the right to be in the position to have that view are subject to seizure under the "clear view doctrine" and may be introduced in evidence. United States v. Davis, 423 F.2d 974, C.A.D.C., 1970, cert. den. 400 U.S. 836, 91 S. Ct. 74, 27 L. Ed. 2d 69; Ker v. State of California, 374 U.S. 23, 42-43, 83 S. Ct. 1623, 10 L. Ed. 2d 726.

 In Davis, supra, at page 977, Judge Gewin asserted a clarification of the principle involved that "The main consideration in applying this rule is to determine whether the observing officer had a "right to be in the position to have that view'." No one here may question the right of the magnetometer checker, the security officers, the County Police and the federal prosecuting officer.

 Probable cause can be no plainer than this as it is with a roentgenologist, who by his roentgen ray plainly observes a broken bone and the many other densities which he may find in detecting the human physical makeup or its defects. Neither will the law dispute the microbiologist who sees through a particularly modern microscope the miniature world of life and its atomic existence.

 Thus, the defendant's attack of lack of probable cause is, in reality, frivolous. Neither does the defendant present any support in the many cases which he cites, since there is a clear distinction between an arrest or seizure begun by police and not followed through, and one in which, as in this case, the police arrest, seizure of the luggage and immediate follow through with an examination in as short a time as it took to convey the defendant to the police office or station to process him.

 This is not a case where as in Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971), an automobile is seized and taken to a police station for a period of time out of the control of the defendant and later searched. Neither is this a case like United States v. Chadwick et al., 433 U.S. 1, 97 S. Ct. 2476, 53 L. Ed. 2d 538, where the agents had no knowledge of what the contents of a locked footlocker were and at a later time opened it without a search warrant. Here the defendant in his brief admits that "(t)he defendant was in custody and the police had exclusive control of his luggage."

 In Chadwick, it was said,

 
". . . there may be other justifications for a warrantless search of luggage taken from a suspect at the time of his arrest; (as where) officers have reason to believe that luggage contains some ...

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