United States v. Carlo J. Mazzelli and Michael J. Conway

595 F.2d 1157 UNITED STATES of America, Plaintiff-Appellant, v. Carlo J. MAZZELLI and Michael J. Conway, Defendants-Appellees. No. 78-2280. United States Court of Appeals, Ninth Circuit. April 27, 1979. Eric J. Swenson, Asst. U. S. Atty., San Francisco, Cal., for plaintiff-appellant. Thomas H. Steel, San Francisco, Cal., for defendants-appellees. Appeal from the United States District Court for the Northern District of California. Before MERRILL and CHOY, Circuit Judges, and BONSAL, * District Judge. MERRILL, Circuit Judge: 1 The sole issue presented by this appeal is whether Conway's Fourth Amendment rights were violated by the search of a suitcase in the possession of a codefendant, and the seizure of cocaine found in it, so as to give Conway standing to move to suppress the cocaine as evidence. 2 On March 1, 1978, law enforcement officers in San Francisco were notified by officers in Miami, Florida, that Conway and one Mazzelli were suspected of smuggling drugs and could be expected to arrive in San Francisco on a particular flight. On their arrival, they gave the appearance of traveling separately. Officers approached them separately, and detained and questioned them…

The sole issue presented by this appeal is whether Conway’s Fourth Amendment rights were violated by the search of a suitcase in the possession of a codefendant, and the seizure of cocaine found in it, so as to give Conway standing to move to suppress the cocaine as evidence.

On March 1, 1978, law enforcement officers in San Francisco were notified by officers in Miami, Florida, that Conway and one Mazzelli were suspected of smuggling drugs and could be expected to arrive in San Francisco on a particular flight. On their arrival, they gave the appearance of traveling separately. Officers approached them separately, and detained and questioned them separately. Mazzelli was ar *1158 rested on outstanding traffic warrants. His suitcase was searched and cocaine was discovered. Conway was then arrested.

In due course, Mazzelli was indicted on charges of possession and conspiracy, and Conway was indicted for conspiracy. Mazzelli moved to suppress the cocaine as the fruit of an unlawful search. Conway joined in the motion. After a hearing, the motion was granted as to both defendants. The government appeals. The appeal as to Mazzelli has been dropped, as the government now concedes…

(dissenting):

I respectfully dissent. The majority holds that Conway has standing to contest the illegal search of the suitcase carried by Mazzelli when he arrived at San Francisco Airport. Implicit in this holding is that under the Fourth Amendment Conway had a reasonable expectation of privacy in Mazzelli’s suitcase because of his uncorroborated statement that he had a proprietary interest in the suitcase and the cocaine contained therein, and the fact that his fingerprints were found on the package of cocaine.

At argument, appellant’s counsel was asked if Mr. Conway’s Fourth Amendment rights would have been violated if the Government, having obtained a search warrant for Mazzelli’s suitcase, had searched it and found the cocaine. Counsel replied that the situation would be the same.

The narcotics business has often been characterized as one of “concealment and guile” and I think that the holding of the Court constitutes a dangerous precedent if narcotic traffickers are to be apprehended. It suggests to traffickers that they travel in tandem, each carrying the other’s suitcase, so that the suitcase of the person apprehended and the contraband contained therein always belongs…