46 F.3d 1064 (10th Cir. 1995), 94-3117, United States v. Lambert

Docket Nº:94-3117.
Citation:46 F.3d 1064
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Robert LAMBERT, Defendant-Appellant.
Case Date:February 01, 1995
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 1064

46 F.3d 1064 (10th Cir. 1995)

UNITED STATES of America, Plaintiff-Appellee,

v.

Robert LAMBERT, Defendant-Appellant.

No. 94-3117.

United States Court of Appeals, Tenth Circuit

February 1, 1995

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Lanny D. Welch, Asst. U.S. Atty. (Randall K. Rathbun, U.S. Atty., with him on brief), Wichita, KS, for plaintiff-appellee.

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Daniel E. Monnat, Monnat & Spurrier, Chartered, Wichita, KS, for defendant-appellant.

Before BRORBY and McWILLIAMS, Circuit Judges, and BURCIAGA, [*] Senior District Judge.

BRORBY, Circuit Judge.

Pursuant to Fed.R.Crim.P. 11(a)(2), the defendant, Robert Lambert, entered conditional pleas of guilty to three counts of unlawful possession with intent to distribute controlled substances, 1 reserving his right to appeal the district court's denial of his motion to suppress evidence allegedly obtained in violation of the Fourth Amendment. We have jurisdiction under 28 U.S.C. Sec. 1291, and reverse.

BACKGROUND

The facts, as found by the district court, are as follows. At 5:10 a.m., on December 11, 1992, Mr. Lambert made a one-way reservation for a seat on a flight from Los Angeles, California, to Wichita, Kansas. He purchased the $360 ticket with cash at the Los Angeles Airport at 9:25 a.m. Mr. Lambert's flight departed at 10:03 a.m., and he deplaned at the Mid-Continent Airport in Wichita shortly after 5:00 p.m. Upon his arrival in Wichita, Mr. Lambert went to the baggage claim area of the airport and waited for his suitcase.

Also at the baggage claim area were three agents of the Drug Enforcement Agency (DEA): Gerard Joyce, Craig Stansberry, and M.W. McDonald. The agents were at the airport in response to a telephone call received that afternoon from Jim Hughes, a DEA agent at the Dallas/Fort Worth Airport in Texas. Agent Hughes provided the following information to Agent Joyce:

[A] person by the name of Robert Lambert had purchased a cash, one way ticket on American Airlines from Los Angeles to Wichita. The ticket was purchased shortly before flight time. Lambert had checked one piece of luggage, tag number 176056. Hughes gave Joyce the flight number, the time of arrival, and the baggage claim number.

Following the arrival of Mr. Lambert's flight, the agents located his suitcase in the non-public area behind the baggage carousel. The suitcase bore Mr. Lambert's name and address and the tag number given to Agent Joyce by Agent Hughes. The agents then went to the baggage claim area to see who would claim the bag. While waiting, Agent Joyce saw a man, later identified as Mr. Lambert, who appeared to be extremely nervous. Mr. Lambert retrieved his bag from the belt and left the airport very quickly.

After retrieving his luggage, Mr. Lambert headed to the parking lot where his car was parked. As Mr. Lambert approached his car with keys in hand, Agents Joyce and Stansberry approached, identified themselves as agents of the DEA, and said they wanted to speak with him. The agents inquired whether Mr. Lambert had just flown in, and asked to see his airline ticket. After examining the ticket which bore his name, they returned it. They then asked for his driver's license which he turned over. The license was issued by Iowa and bore his name, an address in Spirit Lake, Iowa, and a photograph. The information on the driver's license matched that on the identification tag on Mr. Lambert's suitcase. "[T]he agents retained Lambert's [driver's] license from the time he was requested to present identification until the time he was allowed to leave," i.e., twenty to twenty-five minutes.

The agents then began questioning Mr. Lambert about the nature and purpose of his travel. Mr. Lambert stated he was in Wichita on business and produced a business card indicating he worked at an automobile service company in Spirit Lake. Mr. Lambert continued to cooperate with the agents as they questioned him further. 2 Finally, the

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agents asked if they could search his suitcase. Mr. Lambert asked if he had a choice in the matter, and after informing him that he did, Mr. Lambert refused to consent to a search of the bag. The agents then said they were going to take his suitcase from him and try to get a dog to sniff the bag. Mr. Lambert said that would be "against his will." After one of the agents informed Mr. Lambert they were seizing his bag, his driver's license was turned over to an airport safety officer to run a computer check on it. The check revealed no outstanding warrants. The agents then returned Mr. Lambert's license and told him he was free to leave. Mr. Lambert got into his car and left the parking lot without his suitcase at approximately 6:00 p.m.

Roughly thirty minutes later, Mr. Lambert's suitcase was subjected to a drug detection dog who alerted after smelling the bag. Apparently uncertain as to the dog's qualifications to detect controlled substances, the agents arranged for a second dog sniff which occurred about one hour after the first. That dog too alerted after smelling the bag. The agents prepared an application for a search warrant, which the magistrate issued later that night. When searched, the cocaine, methamphetamine, and marijuana, upon which this prosecution is based, were found.

DISCUSSION

On appeal from the denial of a motion to suppress, we review the evidence in the light most favorable to the government and we review the district court's factual findings only for clear error. We review de novo, however, the district court's conclusions as to when a seizure occurred and whether the officers had reasonable, articulable suspicion of criminal activity at the time of the seizure. The ultimate determination of reasonableness under the Fourth Amendment is also a question of law that we review de novo.

United States v. Carhee, 27 F.3d 1493, 1496-97 (10th Cir.1994) (citations omitted).

Of the three types of citizen-police encounters identified by the Supreme Court, see United States v. Bloom, 975 F.2d 1447, 1450-51 (10th Cir.1992), only two are implicated by this case: consensual encounters that do not implicate the Fourth Amendment, e.g., Michigan v. Chesternut, 486 U.S. 567, 574-76, 108 S.Ct. 1975, 1979-81, 100 L.Ed.2d 565 (1988), and investigative detentions that are Fourth Amendment seizures of limited scope and duration and must be supported by a reasonable suspicion of criminal activity, e.g., United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989). The question before is whether the encounter between Mr. Lambert and the agents was a consensual encounter or an investigative detention and if the latter, whether the agents had reasonable suspicion to detain Mr. Lambert.

It is beyond dispute that "a seizure does not occur simply because a police officer approaches an individual and asks a few questions." Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 2386, 115 L.Ed.2d 389 (1991). Officers may approach an individual and ask questions randomly or on a hunch. United States v. Manuel, 992 F.2d 272, 274 (10th Cir.1993). If a "reasonable person would feel free 'to disregard the police and go about his business,' " the encounter is consensual and the Fourth Amendment is not implicated. Bostick, 501 U.S. at 434, 111 S.Ct. at 2386 (quoting California v. Hodari D., 499 U.S. 621, 628, 111 S.Ct. 1547, 1552, 113 L.Ed.2d 690 (1991)). Whether a police-citizen encounter constitutes a seizure turns on a consideration of "all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers'

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requests or otherwise terminate the encounter." Bostick, 501 U.S. at 439, 111 S.Ct. at 2389.

There is no doubt that at its inception the encounter between the agents and Mr. Lambert was permissible and in no way implicated the Fourth Amendment. This is true even of the officers' request to examine Mr. Lambert's ticket and driver's license. See Florida v. Royer, 460 U.S. 491, 501, 103 S.Ct. 1319, 1326, 75 L.Ed.2d 229 (1983) (permissible for agents to request and examine passenger's ticket and driver's license); United States v. Mendenhall, 446 U.S. 544, 555, 100 S.Ct. 1870, 1877-78, 64 L.Ed.2d 497 (1980) (same).

However, what began as a consensual encounter quickly became an investigative detention once the agents received Mr. Lambert's driver's license and did not return it to him. In Royer, the Court rejected the argument that an encounter between DEA agents and an air passenger in the concourse of an airport was consensual. The Court first concluded that "[a]sking for and examining Royer's ticket and his driver's license were no doubt permissible in themselves." Royer, 460 U.S. at 501, 103 S.Ct. at 1326. However, "[c]ritical to the Plurality's holding [that the encounter was not consensual] was the officers' retention of the defendant's identification and ticket because 'as a practical matter, [the defendant] could not leave the airport without them.' " Bloom, 975 F.2d at 1452 (quoting Royer, 460 U.S. at 503 n. 9, 103 S.Ct. at 1327-28 n. 9). See also United States v. Werking, 915 F.2d 1404, 1408 (10th Cir.1990) (seizure in Royer due to agents' retention of defendant's driver's license and ticket). Accord United States v. Jordan, 958 F.2d 1085, 1087 (D.C.Cir.1992). Though not directly on point in the context of this case, the Tenth Circuit has consistently held that the undue retention of an individual's driver's license during a traffic stop renders the encounter nonconsensual. Compare United States v. Gonzalez-Lerma, 14 F.3d 1479, 1483 (10th Cir.) ("This Circuit follows the bright-line rule that an encounter initiated by a traffic stop may not be deemed consensual unless the driver's documents have been returned to him."), cert...

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