U.S. v. Nobles, 94-2561

Decision Date01 November 1995
Docket NumberNo. 94-2561,94-2561
Citation69 F.3d 172
Parties43 Fed. R. Evid. Serv. 233 UNITED STATES of America, Plaintiff-Appellee, v. Corey NOBLES, Defendant-Appellant.
CourtU.S. Court of Appeals — Seventh Circuit

Frances Lupima (argued), Office of the United States Attorney, Criminal Division, Chicago, IL, Barry Rand Elden, Chief of Appeals, Office of the United States Attorney, Criminal Appellate Division, Chicago, IL, for Plaintiff-Appellee.

Jeffrey J. Levine (argued), Chicago, IL, for Defendant-Appellant.

Before CUDAHY, ESCHBACH and COFFEY, Circuit Judges.

COFFEY, Circuit Judge.

The appellant, Corey Nobles, and his father, Willie Townsend, were arrested at O'Hare International Airport in Chicago, Illinois, on March 21, 1992, and charged with possession with intent to distribute cocaine and cocaine base (crack cocaine). On May 13, 1992, a grand jury returned an indictment against Nobles and Townsend, charging each defendant with conspiring to possess with intent to distribute cocaine and cocaine base in violation of 21 U.S.C. Sec. 846, possession with intent to distribute cocaine in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2, and possession with intent to distribute cocaine base in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2.

Nobles filed a motion to suppress which was denied. Subsequent to the hearing on the motion, the government discovered that one of the Drug Enforcement Agency (DEA) Task Force officers who testified at the hearing, Officer Granias, had made false representations in the past to the Circuit Court of Cook County in cases to obtain search warrants. 1 The court, on stipulation from both parties, reopened the suppression hearing and received testimony from Officer Pamela Triner, a member of the DEA Task Force, who was also involved in Nobles' arrest. Thereafter, the district court record states that the court, basing its decision solely on the testimony of Officers Triner, Opiola, 2 and Nobles, denied the defendant's motion to suppress, finding that the officers' encounter with Nobles and his father was consensual. 3

Prior to trial, the government moved to dismiss Count I of Nobles' indictment, the conspiracy to possess and distribute cocaine charge, and the district court granted the motion. 4 The case was tried before a jury, and Nobles was convicted of possession with intent to distribute cocaine, but acquitted of possession with intent to distribute cocaine base. The district court entered a judgment of guilty in accordance with the jury's verdict and subsequently denied Nobles' motions for acquittal and a new trial.

Nobles was sentenced to a term of 100 months incarceration, to be followed by five years supervised release, and ordered to pay a mandatory special assessment of $50. Nobles appeals the denial of his motion to suppress, his conviction and sentence. We AFFIRM.

I. FACTS

On March 20, 1992, Corey Nobles reserved two seats on the 11:44 p.m. American Airlines flight from Los Angeles International Airport (LAX) to Chicago, Illinois, making the reservations in his and his father's (Willie Townsend) names. Nobles and Townsend arrived at the airport just minutes before the scheduled departure time of the 11:44 p.m. flight, and when Nobles went to the ticket counter to pay for his tickets, with cash, he was informed that the flight was secured and ready for departure. He proceeded to purchase two tickets on the 12:40 a.m. American flight 580 to Dallas, with a connection to O'Hare, and paid for the tickets with $1,346 in cash.

At approximately 7:30 a.m. on March 21, Officer Pamela Triner, a Chicago Police Officer assigned to the DEA O'Hare Task Force, received a telephone call from a Deputy Sheriff from San Bernadino, California who had reviewed the American Airlines flight manifest 5 for flight 580. He informed Triner that two individuals named Corey Nobles and Willie Townsend had paid cash for tickets at LAX, less than an hour before their plane was due to depart, and were arriving in Chicago on American Airlines flight 580. The deputy did not provide Triner with any other description other than the individuals' names. Officer Triner met Officer Tom Granias, who was also a member of the Chicago Police Department and the DEA Task Force, at O'Hare. Triner testified that she and Granias wore civilian clothing, were neither armed nor carrying handcuffs, and that a third officer, Anthony Opiola, assigned to their detail, was stationed near the escalators and the exit from the concourse, observing the activities as she and Granias were waiting for flight 580.

Triner stated that she and Granias watched passengers leaving the airplane, and while looking for two men traveling together, they observed two men, later identified as Nobles and Townsend, deplane. They were among the last passengers to leave the aircraft, but were the first pair of men to deplane together. The officers commenced surveillance of the pair. According to Triner, one man (Nobles) was carrying a black canvas bag with the word "Guess" printed thereon and the other man (Townsend) had no luggage.

As the two men walked in the direction of the main terminal, Triner informed the court that she observed Nobles walking several steps behind Townsend, with the black, canvas bag over his right shoulder. Nobles continuously patted the bag with his right hand and Officer Triner stated that she observed both men frequently "looking over both shoulders and looking at people passing by [them]." The two men stopped at the front of the concourse where it joins the main terminal, and "began looking all around them, looking back from the way they just came from." At this time, Triner and Granias approached Nobles and Townsend.

Triner stated that she and Granias walked up to the two men, immediately identified themselves as police officers, and engaged the pair in a conversation by asking Nobles and Townsend if they would answer a few questions. The officers were standing two to three feet away from the two men, and were not blocking their paths to the escalators or exits. Opiola, who was standing about twenty feet from them, testified that he saw Triner and Granias display their police identification and Triner observed that Nobles' hands began shaking as he looked at the officers' identification (badge).

Nobles and Townsend agreed to speak with the officers and Granias asked if the officers could see their plane tickets and identification. Triner testified that Nobles and Townsend looked in their pockets and Townsend replied that he had he left the tickets on the plane and must have lost his wallet. Nobles also was without identification. At that time, Triner observed two plane tickets sticking out of Nobles' back pocket, contrary to Townsend's statement that the tickets were still on the plane.

After Nobles and Townsend told the officers their names, Granias asked the men how long they had been in California, to which Townsend responded that he and his son 6 were in Los Angeles for about two days. Triner informed the court that Granias told the suspects that he and Triner were Chicago police officers and stated that they were conducting what he termed narcotics "interdictions" at the airport, and further advised the two men that they were not under arrest and were free to leave at any time. Granias also stated that he would like to ask them a few more questions; Townsend replied "Okay," and Nobles nodded his head in assent.

Triner testified that by this time Townsend appeared to be sweating profusely. When the officers asked him "what was wrong," (i.e., why was he perspiring so much) Townsend replied he had too many Long Island Iced Teas, an alcoholic beverage. Triner observed that the terminal building was not warm, did not notice any alcohol on Townsend's breath, nor that he was slurring his speech, nor did any of his movements indicate that he was intoxicated. 7

Opiola testified that although he was unable to hear any of the exchange between the officers and the men, he noticed that Nobles and Townsend acted nervously during the conversation; they were "standing in place, but they were moving, constantly moving their bodies. They were looking at each other--it appeared to me that when a question was asked, before a question was answered, they would look at each other, and then an answer would be given."

Triner informed the court that Officer Granias asked Nobles if the bag he was carrying belonged to him. Nobles, again after looking over at his father, responded in the affirmative. Officer Granias next inquired of Nobles if he "had packed [the bag] himself," and "if anybody had given [him] any packages to carry that [he] didn't know the contents of." Nobles, who according to Triner was now breathing rapidly and whose hands were visibly shaking, glanced at his father before responding no. Granias repeated that Nobles and Townsend were not under arrest and were free to leave and asked them if he could ask a few more questions. Nobles and Townsend each agreed to continue speaking with the officers.

Triner also testified that Granias asked Nobles for permission to search his black bag inscribed "Guess." Nobles looked toward his father, dropped the bag from his shoulder and told the officer, "Go ahead." Opiola testified that he witnessed Nobles drop the bag from his shoulder and that neither of the officers touched the bag until it was on the floor. Officer Triner stated that she bent down to search the bag and in it, under some clothing, she found a large white plastic bag, which contained several clear packets of white powder, one she described as a clear packet with a "tan, rocky substance," and she also related that she discovered two packages sealed with blue duct tape. Officer Triner stated that at that time, based upon her experience, she believed that the clear bags contained cocaine and crack cocaine (cocaine base). 8 Officer Opiola testified that...

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