United States of America, and v. Lindsay Martell, and United States of America, and v. Joseph Minneci, And

Appellants Martell and Minneci were convicted of “conspiracy to possess cocaine with intent to distribute” and “possession of cocaine with intent to distribute” in violation of Title 21 U.S.C. §§ 841 (a)(1) and 846. They appeal from an order of the trial court refusing to suppress as evidence narcotics seized at the time of their arrest. Finding that the motion was properly denied, we affirm.

I. FACTUAL BACKGROUND

On September 30, 1979, DEA agent Charles Kenerson, based in San Diego, received a telephone call from a DEA agent in Anchorage, Alaska. Kenerson understood the other agent to say that two subjects, one a known drug trafficker (Martell) who had been arrested eight months earlier with approximately a pound of cocaine and $109,000 in cash 1 had made arrangements to fly from Anchorage to San Diego. Mar- ' tell was traveling under the name of A. Brewer.

Kenerson and other agents began surveillance of the San Diego airport on Septem *1358 ber 30, 1979. Minneci arrived that night carrying two suitcases. He was observed making two phone calls, and then taking a cab to the Sheraton Harbor Island Hotel. Martell arrived at 7:10 the next morning, made a phone call to the Sheraton…

dissenting:

Today this Circuit breaks new constitutional ground in a troublesome interpretation of fourth amendment law. Going beyond even the First Circuit in United States v. Viegas and the Seventh Circuit in United States v. Klein, the majority finds in a Supreme Court case concerned with the delay of mail the authority to justify seizure of a suitcase — seizure not' only without a warrant but without even probable cause. Furthermore, in order to apply this new doctrine, the majority must disregard the simultaneous unlawful arrest of the defendants. In examining the seizure of the suitcases as a separable, independent action, the majority seeks to legitimize part of what was clearly a single, integrated instance of unconstitutional police conduct. I must respectfully dissent. While I can understand, and indeed share, the reluctance of the majority to release these defendants when the police conduct involved seems so “reasonable,” we cannot ignore the doctrinal framework of decided fourth amendment law in search of a particular result.

I. Seizure of the Suitcases

The majority’s analysis begins by indicating that the “real issue” here is whether government agents could…

654 F.2d 1356 UNITED STATES of America, Plaintiff and Appellee, v. Lindsay MARTELL, Defendant and Appellant. UNITED STATES of America, Plaintiff and Appellee, v. Joseph MINNECI, Defendant and Appellant. Nos. 80-1163, 80-1154. United States Court of Appeals, Ninth Circuit. Argued and Submitted Oct. 9, 1980. Decided Aug. 31, 1981. As Amended Nov. 6, 1981. 1 Michael J. McCabe, Savitz & McCabe, San Diego, Cal., for defendants-appellants. 2 Raymond Edwards, Jr., Asst. U. S. Atty., argued, M. James Lorenz, U.S. Atty., Bruce R. Castetter, Asst. U. S. Atty., San Diego, Cal., for plaintiff-appelle. 3 Appeal from the United States District Court for the Southern District of California. 4 Before FARRIS and NELSON, Circuit Judges, and CURTIS, * District Judge. CURTIS, District Judge: 5 Appellants Martell and Minneci were convicted of "conspiracy to possess cocaine with intent to distribute" and "possession of cocaine with intent to distribute" in violation of Title 21 U.S.C. §§ 841 (a)(1) and 846. They appeal from an order of the trial court refusing to suppress as evidence narcotics seized at the time of their arrest. Finding that the motion was properly denied, we affirm. I.…