U.S. v. Troutman, 78-5597

• Citation: 590 F.2d 604
• Decision Date: 28 February 1979
• Docket Number: No. 78-5597,78-5597
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Nathaniel TROUTMAN, Defendant-Appellant. Summary Calendar. *
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 604

590 F.2d 604

UNITED STATES of America, Plaintiff-Appellee, v. Nathaniel TROUTMAN, Defendant-Appellant.

No. 78-5597

Summary Calendar. ^*

United States Court of Appeals Fifth Circuit.

Feb. 28, 1979.

Richard R. Kirby, Decatur, Ga., for defendant-appellant.

William L. Harper, U. S. Atty., Robert A. Boas, Asst. U. S. Atty., Atlanta, Ga., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before AINSWORTH, GODBOLD and VANCE, Circuit Judges.

PER CURIAM:

Defendant Nathaniel Troutman was convicted in the United States District Court for the Northern District of Georgia for possession with intent to distribute ninety-two grams of heroin hydrochloride in violation of 21 U.S.C. § 841(a) (1). He appeals to this court complaining of the legality of the search during which the heroin was discovered.

The record shows that on February 23, 1978, Paul J. Markonni, a Special Agent for the Drug Enforcement Administration, and two other officers were on duty at the Atlanta airport. At about 3:30 p. m. on that date the three officers were observing the arrival of a non-stop flight from Los Angeles, California. The defendant deplaned from that flight. Various characteristics of the defendant made the officers suspicious of him. They accosted Troutman at a taxi stand outside the terminal and asked for his identification. The court below found that there was insufficient cause to justify a stop and ruled that the stop was illegal. The government does not now challenge that ruling. We accept as correct the conclusion that Troutman was illegally stopped.

After he identified himself, Troutman was asked by Agent Markonni if he would object to a search of his person and tote bag. From this point the evidence is in sharp conflict. According to Agent Markonni's testimony Troutman said that he did not mind and started to open the bag out on the sidewalk. Markonni suggested that they step inside the terminal where they might have more privacy. Troutman stopped opening his bag and started walking back toward the terminal. They walked into the office of the Atlanta Police Bureau inside the terminal. Markonni again advised him that he was a narcotic agent, asked Troutman's permission to check both his person and his bags for narcotics, and pulled out a card from which he read Troutman his right to allow or refuse to allow a search. Troutman acknowledged that he understood his rights. Markonni said that Troutman then asked how long it would take for him to get a search warrant. Markonni replied that it would probably take a couple or three hours but that "I don't even know whether the judge would give me one," at which time Troutman said, "All right, go ahead and look." Because Markonni considered this an ambiguous answer he again stated, "All right, I have your permission to look in your bag and also to search you?" Troutman said, "Yes."

No contraband was discovered inside the tote bag. When he conducted a pat down search of Troutman he discovered something concealed in the area of his crotch. He asked Troutman to drop his trousers and found ninety-two grams of 6.5% Heroin.

Troutman contends that he never gave any consent to the search, that it was conducted without his permission, that he instructed the officers to get a search warrant but that they went ahead and searched him without his permission and without a warrant.

Credibility judgments, of course, are made by the district court. On appeal we must view the evidence in the light most favorable to the government, and must accept the lower court's findings if they are supported by substantial evidence. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942).

Substantial evidence clearly supported the district court's findings that Markonni's version was correct. The precise question which is presented to this court, therefore, is whether a search conducted with consent, as testified to by Agent Markonni, removed the taint of the initial stop of Troutman that was clearly illegal.

Bretti v. Wainwright, 439 F.2d 1042 (5th Cir.), Cert. denied, 404 U.S. 943, 92 S.Ct. 293, 30 L.Ed.2d 257 (1971) presented a fact situation that was quite similar to that now before the court. Bretti was arrested after which his home was searched. Bretti contended that his arrest was illegal and that any consent to search that he might have given was vitiated because it was predicated upon an illegal arrest. This court concluded that even if the arrest was illegal the subsequent consent was untainted under the reasoning of Phelper v. Decker, 401 F.2d 232 (5th Cir. 1968). The evidence supported the conclusion that Bretti was warned of his rights prior to his giving consent. Speaking through Judge Goldberg ...