USA v. Perdoma

Decision Date09 November 2010
Docket NumberNo. 09-3394.,09-3394.
Citation621 F.3d 745
PartiesUNITED STATES of America, Appellee, v. Jesus PERDOMA, Appellant.
CourtU.S. Court of Appeals — Eighth Circuit

OPINION TEXT STARTS HERE

Denise Ellen Frost, argued, Omaha, NE, for appellant.

Thomas J. Kangior, AUSA, argued, Omaha, NE, for Appellee.

Before BYE, JOHN R. GIBSON and GRUENDER, Circuit Judges.

GRUENDER, Circuit Judge.

Jesus Perdoma was indicted on one count of possession with intent to distribute fifty grams or more of a substance containing methamphetamine, in violation of 21 U.S.C. § 841(a)(1). Perdoma entered a conditional guilty plea under Federal Rule of Criminal Procedure 11(a)(2), reserving the right to appeal the denial of his motion to suppress. The district court 1 sentenced Perdoma to 120 months' imprisonment. Perdoma appeals, and for the following reasons, we affirm.

I. BACKGROUND

On the morning of November 17, 2008, Investigator Alan Eberle of the Nebraska State Patrol (“NSP”) was on duty in plain clothes at a Greyhound bus terminal in Omaha, Nebraska. At approximately 6:00 a.m., Investigator Eberle saw a black SUV pull up to the terminal. Jesus Perdoma exited the vehicle carrying a small bag and walked into the terminal without gesturing to the driver of the vehicle. Eberle decided to follow Perdoma into the terminal.

Perdoma walked to the ticket counter and began speaking with an agent while Investigator Eberle watched from four or five feet away. Eberle overheard Perdoma request a one-way ticket to Des Moines, Iowa, using the name Jesus Cruz. When Perdoma retrieved cash from his wallet to pay for the ticket, Eberle saw a government-issued identification card in the wallet, but he could not read the name on the card. According to Eberle, Perdoma's hands were shaking and he appeared nervous throughout the transaction.

Investigator Eberle approached Perdoma as he walked away from the ticket counter. Without touching Perdoma, Eberle identified himself as a police officer and asked Perdoma if he would answer a few questions. Eberle assured Perdoma that he was “not under arrest or in any kind of trouble,” and Perdoma agreed to speak with Eberle. In response to Eberle's questions, Perdoma said that he was on his way from Denver to his home in Des Moines and that he had arrived at the terminal by cab.

During the brief conversation, Investigator Eberle smelled the odor of marijuana emanating from Perdoma. Eberle asked to see Perdoma's identification, but Perdoma claimed that he did not have any identification with him. Having already seen a form of government identification in Perdoma's wallet, Eberle then asked to see Perdoma's wallet. As Perdoma reached for his wallet, he was breathing rapidly, trembling, and looking around the terminal. Based on Perdoma's answers, his nervous behavior, and the smell of marijuana, Investigator Eberle suspected that Perdoma was engaged in criminal activity.

Perdoma paused after taking the wallet out of his pocket. Instead of handing the wallet to Eberle, Perdoma put it back in his pocket and ran. Investigator Eberle ordered him to stop and grabbed his jacket, but Perdoma continued running. After a brief chase, Eberle and NSP Investigator Scott, who was also on duty at the bus terminal that morning, wrestled Perdoma to the ground and placed him under arrest. The officers handcuffed Perdoma and escorted him to an area at the rear of the terminal. Investigator Eberle searched Perdoma and discovered approximately four grams of marijuana in the coin pocket of Perdoma's pants. Meanwhile, Investigator Scott found approximately 454 grams (one pound) of methamphetamine in Perdoma's bag.

A federal grand jury returned an indictment charging Perdoma with one count of possession with intent to distribute fifty grams or more of a substance containing methamphetamine. Perdoma moved to suppress the methamphetamine found in his bag, arguing that his initial encounter with Investigator Eberle was not consensual, that the officers had no basis to detain him, and that the warrantless search of his bag was not a valid search incident to arrest. After conducting a suppression hearing, the magistrate judge 2 recommended denying Perdoma's motion, concluding that Investigator Eberle acted properly in approaching, detaining, and arresting Perdoma. The magistrate judge also recommended upholding the search of Perdoma's bag, because [t]he right to conduct such a search incident to arrest is absolute.” After reviewing Perdoma's objections to the magistrate judge's report and recommendation, the district court rejected the magistrate judge's reasoning that the search incident to arrest exception was absolute and held that, after Arizona v. Gant, 556 U.S. ----, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009), the search incident to arrest exception “cannot legitimize a warrantless search in the absence of a need to protect officers and safeguard evidence.” Nevertheless, the district court concluded that the search was valid under Gant because, given the discovery of marijuana in Perdoma's pocket, “it was reasonable for the officer to believe the defendant's bag would contain evidence of a drug crime.” Accordingly, the district court denied Perdoma's motion to suppress.

II. DISCUSSION

We examine the factual findings underlying the district court's denial of [a] motion to suppress for clear error,” United States v. Williams, 577 F.3d 878, 880 (8th Cir.2009) (quoting United States v. Walsh, 299 F.3d 729, 730 (8th Cir.2002)), and we review the district court's “legal conclusions about probable cause and reasonable suspicion de novo,” United States v. Herrera-Gonzalez, 474 F.3d 1105, 1109 (8th Cir.2007) (citing United States v. Washington, 455 F.3d 824, 826 (8th Cir.2006)).

Perdoma first argues that his initial encounter with Investigator Eberle was not consensual and that he was therefore unlawfully seized. We disagree. [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, 115 L.Ed.2d 389 (1991). “So long as a reasonable person would feel free to disregard the police and go about his business, the encounter is consensual and no reasonable suspicion is required.” Id. (internal citation and quotation marks omitted). Here, Investigator Eberle approached Perdoma and identified himself as a police officer. Without touching Perdoma or displaying a weapon, Eberle told Perdoma that he was not under arrest and asked him if he would answer a few questions. Nothing about this initial encounter would have caused a reasonable person in Perdoma's situation to believe that he was not free to disregard Eberle's questions and walk away. See United States v. Mendoza-Cepeda, 250 F.3d 626, 628 (8th Cir.2001) (concluding that the defendant's encounter with the police was consensual because “only two officers ... were present, no weapon was displayed, [the defendant] was not physically touched until after he consented to the touching of his torso, and the language used by [the approaching officer did] not indicate that [the defendant's] compliance was compelled”).

Perdoma also argues that Investigator Eberle had no legal basis for arresting him. Again, we disagree. Although the initial encounter was consensual, Eberle had probable cause to arrest Perdoma for marijuana possession once he detected the odor of marijuana emanating from Perdoma. 3 See United States v. Humphries, 372 F.3d 653, 659-60 (4th Cir.2004) (holding that “if an officer smells the odor of marijuana in circumstances where the officer can localize its source to a person, the officer has probable cause to believe that the person has committed or is committing the crime of possession of marijuana” and thus has “authority to arrest him without a warrant in a public place”). Perdoma contends that his possession of less than one ounce of marijuana was merely an “infraction” under Nebraska law, see Neb.Rev.Stat. § 28-416(13), and that the arrest was therefore invalid. Whether the offense was an infraction or a misdemeanor is irrelevant, however, because ‘if an arrest is otherwise reasonable, the fact that it is not for an “arrestable” offense [under state law] does not make it unconstitutional.’ See United States v. Burtton, 599 F.3d 823, 830 (8th Cir.2010) (quoting Thomas v. City of Peoria, 580 F.3d 633, 637 (7th Cir.2009)) (upholding an arrest for an infraction under Nebraska law); see also Virginia v. Moore, 553 U.S. 164, 176, 128 S.Ct. 1598, 170 L.Ed.2d 559 (2008) (We conclude that warrantless arrests for crimes committed in the presence of an arresting officer are reasonable under the Constitution, and that while States are free to regulate such arrests however they desire, state restrictions do not alter the Fourth Amendment's protections.”). Because Eberle had probable cause to believe that Perdoma possessed marijuana in violation of Nebraska law, we conclude that the arrest did not violate the Fourth Amendment.

Finally, Perdoma argues that Investigator Scott's warrantless search of his bag was not justified under any exception to the warrant requirement. The Government asserts that the search of the bag was a valid search incident to arrest. [S]earches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment-subject only to a few specifically established and well-delineated exceptions.” Arizona v. Gant, 556 U.S. ----, 129 S.Ct. 1710, 1716, 173 L.Ed.2d 485 (2009) (quoting Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)). “Among the exceptions to the warrant requirement is a search incident to a lawful arrest.” Id. A search incident to arrest may lawfully extend to “the arrestee's person and the area within his immediate control,” that is, “the area into which an arrestee might reach in order to...

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