Appeal from an order of the Eastern District of New York, Mark A. Costantino, Judge, suppressing the use of heroin seized from a third person as evidence against appellees in a trial of charges of conspiracy to possess heroin, 21 U.S.C. § 846 (Count One), possession, 41 U.S.C. § 841(a)(1) (Count Two), and travelling in interstate commerce to promote an unlawful activity, 18 U.S.C. § 1952(a)(3) (Count Three). The district court held that appellees had standing to attack the search of the third person and seizure of the heroin as violative of the Fourth Amendment. Reversed as to the non-possessory counts (One and Three) on condition that the Government will promptly seek dismissal of the possessory count (Two).
Before: LUMBARD, SMITH and MANSFIELD, Circuit Judges .
MANSFIELD, Circuit Judge:
The Government appeals from an order of the United States District Court for the Eastern District of New York, Mark A. Costantino, Judge, granting appellees' motion to suppress as evidence a quantity of heroin seized from a co-defendant.*fn1 All three men were charged in three counts with conspiracy to possess heroin with intent to distribute, 21 U.S.C. § 846 (Count One), possession of heroin with intent to distribute, 21 U.S.C. § 841(a)(1) (Count Two), and travelling in interstate commerce to promote and facilitate an unlawful activity, i.e., the possession of heroin with intent to distribute, 18 U.S.C. § 1952(a)(3) (Count Three). We reverse on the ground that neither appellee has standing to challenge the constitutionality of the seizure with respect to the non-possessory offenses (Counts One and Three) and the Government has represented to us that if the order is reversed it will promptly move to dismiss the possessory charge (Count Two).
On the morning of March 17, 1977, Eddie Riquelmy, Candido Riquelmy, and Felix Lopez arrived by plane at LaGuardia Airport from Chicago. Their arrival was observed by Gerard Whitmore, a federal narcotics agent who testified that when the defendants walked from the airplane ramp into the terminal they appeared to canvass the faces of the people standing nearby as if to detect whether they were being watched. They then walked "in a triangular fashion" through the airport, maintaining this apparently pre-designed formation in silence as they made their way toward the terminal exit. While walking through the airport both Candido and Eddie Riquelmy repeatedly looked back toward the arrival-departure area from which they had come, and as the men approached the uniformed security guard's station near their gate, Whitmore reported that they "hugged" the opposite wall, keeping themselves as far away from the security personnel as physically possible. The defendants did not claim any baggage and began to converse for the first time after their arrival as they left the terminal building and walked to a taxi stand outside.
While they were waiting for a taxi, Whitmore approached the men, identified himself, and asked them whence they had come and whether they were travelling together. Candido Riquelmy stated that they were travelling together and had just arrived from California. Whitmore asked to see their tickets and identification Candido Riquelmy showed Whitmore a ticket made out in the name of "C. Natal" and a Pennsylvania driver's license with his own name on it. Lopez presented his own New York driver's license and a ticket made out to a "T. Puente." Eddie Riquelmy produced a union membership card which bore his name, but claimed he had left his ticket on the airplane, although Whitmore testified that the ticket was visible protruding from Eddie Riquelmy's rear trouser pocket.
Whitmore asked the men to step out of the taxi stand line and into the terminal building where he could question them further. Once inside the terminal Whitmore called for assistance and asked Candido Riquelmy and Lopez to stand to one side next to a bank of telephones while he questioned Eddie Riquelmy, ostensibly about his identification, which Whitmore described as "looking homemade." Whitmore then asked Eddie Riquelmy to show him some further identification. Riquelmy, who was carrying a leather overcoat draped over his arm, responded to Whitmore's request by reaching into one of the pockets of the coat. Whitmore stopped Riquelmy's hand as it was reaching inside the pocket, and announced that he, Whitmore, would retrieve whatever papers were in the pocket.
Whitmore testified that in doing so he felt a hard, large bulge. From the pocket he withdrew a package, measuring approximately 2 1/2" by 6", wrapped tightly in masking tape. With his pen, Whitmore punched a small hole in the package, confirming his suspicion that it contained hereoin. At this point the Riquelmys and Lopez were arrested. Following the arrest, a bag of lactose, a dilutant for narcotics, was found above one of the telephones in front of which Lopez had been standing.
The only testimony at the hearing on appellees' motion to suppress was that of Agent Whitmore and Port Authority Police Officer William Towns, who responded to Whitmore's call for assistance and corroborated Whitmore's testimony.
In a three-page memorandum decision dated August 3, 1977, Judge Costantino suppressed, as against all three defendants on all three counts, the heroin seized from Eddie Riquelmy. Relying on its own earlier decision in United States v. Westerbann-Martinez, 435 F. Supp. 690 (E.D.N.Y. 1977), the court held that all three defendants had standing to challenge the seizure of the heroin. On the authority of United States v. Chadwick, 433 U.S. 1, 97 Sup.Ct. 2476, 53 L. Ed. 2d 538 (June 21, 1977), Judge Costantino held that once Whitmore had the taped package in hand he should have obtained either Eddie Riquelmy's consent or a search warrant before puncturing it. Since the question of standing is the only issue presented for our review, we limit ourselves to that issue, without minimizing the importance of the other questions taken up by the district court.
The sole claim on this appeal is that the district court erred in deciding that Candido Riquelmy and Felix Lopez had standing to contest the seizure of heroin from Eddie Riquelmy, since any invasion of his right to be free from unreasonable searches would not violate their rights.
As a general rule fourth amendment rights may not be asserted vicariously, Alderman v. United States, 394 U.S. 165, 174, 22 L. Ed. 2d 176, 89 S. Ct. 961 (1968), and "suppression of the product of a Fourth Amendment violation can be successfully urged only by those whose rights were violated by the search itself, not by those who are aggrieved solely by the introduction of damaging evidence." Id. at 171-72. See also United States v. Tortorello, 533 F.2d 809, 814 (2d Cir. 1976). A party seeking to suppress evidence on fourth amendment grounds must ordinarily demonstrate that the evidence was seized as a result of an unlawful invasion of his own legitimate expectation of privacy in the place searched or in his person, papers, or effects. Mancusi v. DeForte, 392 U.S. 364, 367-68, 88 S. Ct. 2120, 20 L. Ed. 2d 1154 (1968); United States v. Oates, 560 F.2d 45, at 52 (2d Cir. June 3, 1977), Dkt. No. 76-1100, slip op. at 6399-6400.Usually he establishes standing by showing that he owned or possessed the property alleged to have been illegally seized or had a substantial interest in premises unlawfully searched.
An exception to this general rule is the concept of automatic standing. Under this principle, as originally formulated by the Supreme Court in Jones v. United States, 362 U.S. 257, 4 L. Ed. 2d 697, 80 S. Ct. 725 (1960), a person has automatic standing to challenge the legality of a search or seizure where the same possession needed for standing is an essential element of the offense charged against him or he is "legitimately on premises where a search occurs . . . [and] its fruits are proposed to be used against him," 362 U.S. at 264, 267 (1960). The Court's rationale in support of this rule was two-fold: (1) the unfairness of requiring a defendant to assert his proprietary or possessory interest in the items seized or premises searched when his statements could then be used to prove the crime of possession at trial, and (2) the so-called vice of prosecutorial self-contradiction, i.e., ...