U.S. v. Robinson

Decision Date01 November 1982
Docket NumberNo. 81-7671,81-7671
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Michael Kelly ROBINSON, Defendant-Appellant.
CourtU.S. Court of Appeals — Eleventh Circuit

Kermish, Labovitz, Marcus, Brazier & Rosenberg, Stephen A. Kermish, David W. Davenport, Atlanta, Ga., for defendant-appellant.

Julie F. Carnes, Asst. U.S. Atty., Atlanta, Ga., for plaintiff-appellee.

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

Before GODBOLD, Chief Judge, and ANDERSON, Circuit Judges, and HOFFMAN, *, District Judge.

R. LANIER ANDERSON, III, Circuit Judge:

In this airport search case, appellant Michael Kelly Robinson was convicted in a nonjury trial for possession of cocaine with intent to distribute, in violation of 21 U.S.C.A. § 841(a)(1) (West 1981). Robinson argues that agents of the Drug Enforcement Administration ("DEA") seized the cocaine from him at Atlanta's Hartsfield International Airport in violation of his Fourth Amendment rights. A prior panel of the former Fifth Circuit remanded Robinson's first appeal to the district court for a new suppression hearing with respect to several issues. United States v. Robinson, 625 F.2d 1211, 1221 (5th Cir. 1980). On remand, the magistrate conducted a new evidentiary hearing on the motion to suppress, entered more detailed findings of fact, and again recommended the denial of the motion to suppress. The district court agreed, adopting some of the magistrate's findings and making further findings of its own. We reverse.

I. FACTS

On September 21, 1978, at the Atlanta airport, DEA agents Paul Markonni and Michael Dorsett were observing passengers departing from a nonstop flight from Miami, Florida. One of the passengers, Robinson, attracted the agent's attention by appearing to be nervous, perspiring, and, unlike other passengers, looking around the arrival area. Robinson carried only a standard-size briefcase. After first walking toward the main terminal, Robinson returned to the airline gate agent to inquire about his connecting flight to Birmingham, Alabama. After receiving directions for this flight, Robinson at various times stared at Markonni, walked to the wrong departure gate, spoke to another gate agent, and, with some hesitation, walked toward and then away from the security checkpoint of the main terminal.

Markonni then approached Robinson. Markonni observed that Robinson's airline ticket, which was strapped to his briefcase, had no baggage claim checks or staple holes, indicating that Robinson had no luggage other than his briefcase. Markonni then identified himself as a federal officer, displayed his credentials showing that he was an agent with the DEA, and asked if he could speak with Robinson and if he could see Robinson's ticket. Markonni did not physically contact Robinson. Robinson removed the ticket from the briefcase and handed it to Markonni.

Markonni observed that the ticket bore the name of "Michael Reilly." Markonni then asked Robinson what his name was. Robinson responded, "Michael Robinson," and claimed that he was using the ticket of someone else who could not make the trip. Markonni asked Robinson if he had any identification. Robinson handed Markonni a driver's license bearing the name of "Michael Robinson."

Markonni then stated that he was a federal narcotics agent looking for drugs coming into the airport. When Markonni asked whether Robinson carried any narcotics on his person or in his briefcase, Robinson asserted that he was not. Markonni asked Robinson whether he would consent to a search of his person and briefcase. Robinson responded affirmatively. Although the magistrate found that the agent did ask Robinson whether he was carrying drugs, he found that Markonni never told Robinson that he "had reason to believe" that Robinson was carrying drugs, one issue that prompted the prior panel to remand this case. 625 F.2d at 1217. 1

Markonni then asked Robinson whether he preferred to have the search conducted in a private downstairs office, so as to avoid conducting the search in public, or to have the search where Markonni and Robinson were standing. Robinson stated his preference for the office and, at the same time, placed his briefcase on a nearby table, opened it, and asked whether Markonni wanted to search it there. Markonni replied that if Robinson was willing to go to the office, he could search the briefcase there. Robinson closed the briefcase and proceeded with Markonni to the office. Markonni testified that on the way to the office, he and Robinson spoke about the weather in Miami.

It is undisputed that Markonni retained Robinson's airline ticket, which was needed for his continuing flight to Birmingham, during the interrogation in which Markonni asked for Robinson's name and then for identification (i.e., the driver's license). Markonni could not recall precisely when he returned the driver's license and ticket except that he knew he returned them before they started walking to the office. He testified that his "property procedure" at the time was to return such tickets before walking back to the office.

Upon arriving at the office, Markonni, Robinson and another officer went to an adjacent room. Markonni again requested Robinson to allow a search of his person and briefcase. Reading from a card he carried, Markonni said

You have the right to allow or refuse to allow a search to be made of your person and personal property that you have with you. Do you understand?

Robinson replied affirmatively. Upon searching Robinson, Markonni discovered cocaine hidden inside a paraplegic diaper that Robinson wore. The time between Markonni's initial encounter with Robinson and the discovery of the cocaine was no more than eight minutes.

II. ISSUES

This case presents four issues: (1) whether the law of the case doctrine precludes our review of the prior panel's conclusion that Robinson voluntarily consented to accompany Markonni to the airport office, (2) whether United States v. Berry, 670 F.2d 583 (5th Cir. 1982) (en banc), applies retroactively to Robinson's case, (3) whether Robinson voluntarily consented to go to the airport office; and (4) whether the discovery of the cocaine was the tainted fruit of an illegal arrest.

III. LAW OF THE CASE

The prior panel held that "Robinson's consent to accompany Markonni to the airport police precinct office was voluntary." 625 F.2d at 1218. Robinson urges that we should reconsider this ruling. The government contends that we should adhere to the prior panel's conclusion under the law of the case doctrine. We conclude that we must reconsider the question of whether Robinson voluntarily consented to go to the airport office.

Under the law of the case doctrine, both the district court and the court of appeals generally are bound by findings of fact and conclusions of law made by the court of appeals in a prior appeal of the same case. United States v. Burns, 662 F.2d 1378, 1384 (11th Cir. 1981); Conway v. Chemical Leaman Tank Lines, Inc., 644 F.2d 1059, 1061 (5th Cir. 1981); EEOC v. International Longshoremen's Association, 623 F.2d 1054, 1058 (5th Cir. 1980), cert. denied, 451 U.S. 917, 101 S.Ct. 1997, 68 L.Ed.2d 310 (1981); De Tenorio v. Lightsey, 589 F.2d 911, 917 (5th Cir.), cert. denied, 444 U.S. 831, 100 S.Ct. 59, 62 L.Ed.2d 39 (1979). However, the law of the case doctrine does not apply to bar reconsideration of an issue when (1) a subsequent trial produces substantially different evidence, (2) controlling authority has since made a contrary decision of law applicable to that issue, or (3) the prior decision was clearly erroneous and would work manifest injustice. EEOC v. International Longshoremen's Association, 623 F.2d at 1058; United States v. McClain, 593 F.2d 658, 664 (5th Cir.), cert. denied, 444 U.S. 918, 100 S.Ct. 234, 62 L.Ed.2d 173 (1979); Morrow v. Dillard, 580 F.2d 1284, 1292 (5th Cir. 1978); Schwartz v. NMS Industries, Inc., 575 F.2d 553, 554-55 (5th Cir. 1978); White v. Murtha, 377 F.2d 428, 431-32 (5th Cir. 1967). In our view, the first of these exceptions applies to this case.

In deciding the issue of Robinson's consent to go to the airport office, the prior panel relied upon what has turned out to be, after the proceedings on remand, an erroneous view of the facts. Quoting from United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980), and inserting bracketed material to demonstrate the perceived identity between the facts of Mendenhall and the facts of this case, the prior panel stated:

As in Mendenhall, Robinson "was not told that (he) had to go to the office, but was simply asked if he would accompany the officer( ). There were neither threats nor any show of force. (Robinson) had been questioned only briefly, and (his) ticket and identification were returned to (him) before (he) was asked to accompany the officers."

625 F.2d at 1218 (quoting United States v. Mendenhall, 446 U.S. at 557-58, 100 S.Ct. at 1878-79). From this passage, it is clear that the prior panel assumed that Robinson's ticket and driver's license were returned to him before he was asked to accompany the officers to the airport office. This interpretation of the facts could readily have been implied from the findings of the magistrate that were before the prior panel. See 625 F.2d at 1213. However, after conducting a new evidentiary hearing on remand, as mandated by the prior panel, the magistrate entered more detailed findings of fact, "focus(ing) on the circumstances surrounding the initial encounter." 625 F.2d at 1217. These findings indicate that Markonni may have retained the items up to the point that he and Robinson began to walk to the airport office. In light of this new evidence and its effect on the issue of consent, we decline to adhere to the prior panel's ruling on Robinson's consent to go to the office.

IV. RETROACTIVITY

Before addressing the merits of the consent issue, we consider the...

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