23 F.3d 409 (6th Cir. 1994), 93-5356, U.S. v. Lartigue
| Citation | 23 F.3d 409 |
| Party Name | UNITED STATES of America, Plaintiff-Appellee, v. Xavier Cardel LARTIGUE; and William E. Haney, Defendants-Appellants. |
| Case Date | April 26, 1994 |
| Court | United States Courts of Appeals, U.S. Court of Appeals — Sixth Circuit |
Page 409
Editorial Note:
This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA6 Rule 28 and FI CTA6 IOP 206 regarding use of unpublished opinions)
On Appeal from the United States District Court for the Eastern District of Kentucky; No. 92-00037, Bertelsman, J.
E.D.Ky.
AFFIRMED.
Before: BOGGS and NORRIS, Circuit Judges; BELL, District Judge. [*]
PER CURIAM.
Defendants-Appellants, Xavier Cardel Lartigue and William E. Haney, appeal their convictions for Conspiracy to Possess with Intent to Distribute Cocaine in violation of 21 U.S.C. § 846 (Count I), and Aiding and Abetting in the Possession with Intent to Distribute Cocaine in violation of 21 U.S.C. § 841(a)(1), and 18 U.S.C. § 2 (Count II).
The issues on appeal include the denial of the defendants' motions to suppress evidence, the denial of Haney's motion for judgment of acquittal, and the denial of Haney's motion for new trial. For the reasons that follow, we affirm the convictions of both defendants.
I.
Prior to trial Defendants filed motions to suppress evidence which they claimed was obtained in violation of their constitutional rights. The district court denied the motions, reasoning that at the time the officers sent for the warrant, they had probable cause for the same, and that any information obtained after the defendants were informed they were not free to leave was not essential to the warrant. On appeal Defendant Lartigue contends that the detention of his suitcase for over four hours while a search warrant was obtained exceeded the time permitted for a seizure of property on less than probable cause. Defendant Haney contends that his post-search detention constituted an arrest without probable cause.
In reviewing a district court's denial of a motion to suppress, this court must accept the findings of fact upon which the district court relied unless those findings are clearly erroneous; however, the district court's application of the law to the facts, such as a finding of probable cause, is reviewed de novo. United States v. Thomas, 11 F.3d 620, 627 (6th Cir.1993).
A.
The facts pertaining to the seizure at issue in this case are not disputed. Officer David Bunning's testimony at the evidentiary hearing was not contraverted. This evidence must be reviewed in the light most likely to support the district court's decision. United States v. Williams, 962 F.2d 1218, 1221 (6th Cir.), cert. denied, 113 S.Ct. 264 (1992).
On the morning of July 1, 1992, Officer Joe Jones briefed Officer Bunning and several other members of the Cincinnati/Northern Kentucky International Airport Narcotics Interdiction Unit regarding information he had just received from the Los Angeles Airport Narcotics Task Force. He advised that two black males had purchased one-way tickets from Los Angeles to Cincinnati via Chicago, Illinois, using 8 one-hundred dollar bills. The tickets were purchased, under the names Terrance Wright and Benjamin Wright, one hour before the flight left." He gave a description of Terrance Wright and of his checked luggage. He also advised that Terrance Wright was on probation for a previous drug offense, and that Benjamin Wright was an alias for Gregory Smith, who was on parole for drug offenses.
Several months earlier Officer Bunning had received information from the DEA in Louisville, Kentucky, that an organization headed by an individual named Troy McFarland was moving cocaine and cocaine base from Oakland, California into Louisville and Indianapolis, Indiana. The organization was known to be using the Cincinnati airport and the couriers were posing as students at the University of Louisville.
On the morning of July 1, 1993, several officers set up surveillance at the airport to await the arrival of the 9:30 a.m. flight from Chicago. Officer Bunning observed Terrance Wright (later identified as Defendant Xavier Cardel Lartigue) deplane and walk toward the baggage claim area. He appeared to be very nervous and repeatedly turned to look behind him. About 35-40 seconds later Benjamin Wright (later identified as Defendant William E. Haney) deplaned pulling a carry-on bag. He remained 10 to 15 feet behind Terrance Wright. The two did not converse or acknowledge each other's presence. Benjamin Wright walked over to the telephones and attempted to make several long distance calls to the 502 area code which encompasses Louisville and Western Kentucky. He walked back toward Terrance Wright, but the two showed no sign of recognition. A suitcase matching the description received from Los Angeles was retrieved by Terrance Wright. At that time Benjamin Wright and Terrance Wright had a brief conversation. Benjamin Wright then walked away towards the front doors of the terminal.
Officer Bunning approached Benjamin Wright, identified himself as a police officer, and asked to speak to him. Benjamin Wright said he was coming from Los Angeles. When he was asked for his ticket he said his cousin had it and pointed to Terrance Wright. He identified himself as Rolling B. Wright, and confirmed the spelling as R-O-L-L-I-N-G. He said he had no identification because he left it in California. He said he lived in Louisville and had been in Los Angeles visiting relatives. On further questioning he said his name was Benjamin Wright, that he had a Kentucky driver's license and that he lived on Muhammad Ali Drive in Louisville. He said he could not remember his driver's license number or his social security number. He then changed his story and said that he lived in Oakland, California and was on his way to the University of Louisville to start attending classes. During the questioning Haney broke into a sweat, his hands were shaking and his voice was quivering.
While Officer Bunning was talking to Benjamin Wright, Officer Carl Parker spoke to Terrance Wright. In response to questioning, Terrance Wright produced both airline tickets, which proved to be one-way cash tickets, and a California driver's license with an Oakland, California address.
At this point Officers Bunning and Parker identified themselves as narcotics investigators and asked both defendants for consent to search their bags and persons. The defendants initially agreed to the search and followed the officers to the first aid room. Terrance Wright refused to go into the room. Officer Bunning told the defendants that if they refused the search he would try to obtain a federal search warrant. Both refused the search. Officer Bunning reiterated that they would be detained while he tried to obtain a search warrant. Benjamin Wright then reentered the room, emptied his bag out on the bed, and said the officers could search his bag since he had nothing to hide. He also consented to a search of his person. The officers found no contraband drugs.
Since Terrance Wright continued to refuse to allow a search, Officer Bunning advised both defendants that they would be detained while the officers attempted to obtain a search warrant. Officer Swauger came into the room and read the defendants their Miranda rights. At that point less than 10 minutes had elapsed since the officers first approached the defendants.
Within the next several minutes, before leaving the airport terminal, the officers received conflicting stories from the defendants regarding their reasons for sitting separately on the plane and who would be picking them up from the airport.
The defendants were transported to the Airport Police Department. Officer Bunning contacted the United States Attorney's office for assistance with the warrant application and began drafting the affidavit in support of search warrant. In the meantime the defendants were interviewed further by Officer Swauger. The defendants gave conflicting information regarding how the tickets were purchased and how they obtained their California driver's licenses. Swauger also established that Terrance Wright had given a false telephone number on his baggage tag.
The affidavit and warrants for a search of Terrance Wright's bag and person were typed and presented to a magistrate at the federal court in Covington, Kentucky. The warrant acknowledged that a narcotics canine had been run over Lartigue's bag and did not alert. The warrant was signed at 12:50 p.m. and was executed at 1:50 p.m., approximately 4 hours after the initial stop. Two kilograms of cocaine wrapped tightly in brick form in layers of plastic wrap were found in the suitcase. Defendants were arrested for possession of a controlled substance.
B.
Defendant Lartigue contends that the detention of his suitcase exceeded the time permitted for a seizure of property on less than probable cause and that the warrant improperly relied on evidence obtained after the defendants were unlawfully detained. The analysis of Lartigue's claims requires this Court to evaluate what the officers knew, when they knew it, and how they obtained that knowledge.
The Fourth Amendment does not prohibit police officers from approaching individuals at random in airport lobbies to ask them questions and to request consent to search their luggage, so long as a reasonable person would understand that he or she could refuse to cooperate. Florida v. Bostick, 111 S.Ct. 2382 (U.S.1991). "As long as the person to whom questions are put remains free to disregard the questions and walk away, there has been no intrusion upon that person's liberty or privacy as would under the Constitution require some particularized and objective justification." United States v. Mendenhall, 446 U.S. 544, 554 (1980). See also United States v. Ushery, 968 F.2d 575, 578 (6th Cir.), cert. denied, 113 S.Ct. 392 (U.S.1992). "Only...
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