U.S. v. Han

• Decision Date: 05 February 1996
• Docket Number: No. 94-5865,94-5865
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Eldon HAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 537

74 F.3d 537

UNITED STATES of America, Plaintiff-Appellee, v. Eldon HAN, Defendant-Appellant.

No. 94-5865.

United States Court of Appeals, Fourth Circuit.

Argued Nov. 3, 1995.

Decided Feb. 5, 1996.

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. T.S. Ellis, III, District Judge. (CR-94-214-A).

ARGUED: Frank Salvato, Alexandria, Virginia, for Appellant. John Patrick Rowley, III, Assistant United States Attorney, Alexandria, Virginia, for Appellee. ON BRIEF: Helen F. Fahey, United States Attorney, Alexandria, Virginia, for Appellee.

Before ERVIN, Chief Judge, and WILKINS and LUTTIG, Circuit Judges.

Affirmed by published opinion. Chief Judge ERVIN wrote the opinion, in which Judge WILKINS and Judge LUTTIG joined.

OPINION

ERVIN, Chief Judge:

Defendant Eldon Han was convicted in federal district court of conspiracy to distribute heroin. He argues that the district court improperly admitted evidence discovered in a warrantless search of a bag that was in his possession when he was arrested. The district court found that probable cause existed for the arrest, the search was incident to the arrest, and Han abandoned his privacy interest in the bag. We agree, and therefore affirm.

I.

We must decide at the outset what facts we may consider. Han contends that, in our probable-cause inquiry, we should consider only the evidence that was before the district court at the suppression hearing. See 4 Wayne R. LaFave, Search and Seizure Sec. 11.7(c), at 520 (2d ed. 1987) (noting that "appellate court may be accepting as true certain testimony which conceivably neither the trial judge nor the jury believed or which neither judge or jury had any reason to assess."). His position is supported by a few state-court decisions, see Glover v. State, 14 Md.App. 454, 287 A.2d 333, 336 (1972), overruled by Goode v. State, 41 Md.App. 623, 398 A.2d 801 (1979); People v. Williams, 368 Mich. 494, 118 N.W.2d 391, 394 (1962), cert. denied, 373 U.S. 909, 83 S.Ct. 1297, 10 L.Ed.2d 411 (1963), but federal courts have held uniformly that an appellate tribunal may consider evidence adduced at trial that supports the district judge's ruling. See Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543 (1925); United States v. Villabona-Garnica, 63 F.3d 1051, 1055 (11th Cir.1995); United States v. Rios, 611 F.2d 1335, 1344 & n. 14 (10th Cir.1979); Washington v. United States, 401 F.2d 915, 919 n. 19 (D.C.Cir.1968); United States v. Longmire, 761 F.2d 411, 418; United States v. McKinney, 379 F.2d 259, 264 (6th Cir.1967); Rent v. United States, 209 F.2d 893, 896 (5th Cir.1954). Thus we consider testimony from both the hearing and the trial.

On March 28, 1994, in Washington, D.C., DEA agents arrested Reece Whiting on heroin charges. Whiting agreed to cooperate in the DEA's continuing investigation. He identified Tom Riley of San Dimas, California, as one of his sources. At the DEA's behest he called Riley, purportedly to arrange a meeting between Riley and a prospective buyer. On April 19, Whiting and the "prospective buyer"--DEA Special Agent Lisa Somers--met Riley at the Dulles Airport Marriott in Loudoun County, Virginia. Riley told Somers that he could supply two pounds of "white" heroin for $144,000. He said that, after seeing her money, he would call two Asian suppliers in Honolulu who would bring the heroin to the Washington area. Later that day, by telephone, Riley told Somers that his suppliers would not come to Washington, and he suggested that she travel to California.

On May 3, 1994, Somers and Special Agent Clyde Shelley went to California. Riley agreed to complete the transaction at the Hilton Hotel in Ontario, California, which is just outside Los Angeles. Somers, Shelley, and Riley met at the Hilton at about 5:15 on May 4. Riley said that his source was in Los Angeles, but would be able to supply only one and one-half pounds. He said the source wanted to conduct the sale in half-pound increments: Riley would pick up the source at his hotel and take him to Riley's residence; Riley then would bring one-half pound of heroin to the hotel, exchange it, and return the money to his source; he would repeat the process twice. Somers agreed to the arrangement, and Riley left the hotel.

Special Agent Michael Orton followed Riley from the Hilton. Riley stopped briefly at his residence, and then drove to the LAX Holiday Inn. Orton lost surveillance of Riley at the Holiday Inn; knowing by radio of Riley's plans, he returned to Riley's residence. Riley arrived before Orton did, and none of the agents conducting the surveillance actually saw whether anyone accompanied Riley into his residence.

At approximately 9 p.m., Somers called Riley at his residence. Riley told her that the source was with him and that they were ready to complete the deal. He said he would meet Somers at the Hilton at 9:45. At about 9:05, Special Agent James Burns saw Riley speaking with an Asian male in front of his residence. He conveyed his observations, including a description of the man's clothing, to Orton. Riley arrived at the Hilton on time, handed one-half pound of heroin to Shelley, and was arrested immediately. He agreed to cooperate, and gave the agents permission to search his residence.

Accompanied by other agents, Orton knocked on the door of Riley's home. Riley's roommate, Laurie Bennett, answered and allowed the agents to enter. Orton saw Han seated on the living room couch, with a travel bag next to his feet. Orton asked if he could move the bag for safety purposes, and Han agreed; a sheriff's deputy moved it out of Han's reach. A sweep of the residence revealed that Bennett and Han were the only people inside. At that point, Orton testified, his safety concerns were alleviated.

Orton then interviewed Bennett in a back room. She told him that Han had brought the bag into the residence and it never had left his side. Orton returned to the living room, sat down next to Han, and picked up the bag. He asked Han if he could look at his bag. Han responded that it was not his bag, and Orton asked if Han had a problem with Orton looking inside. Han said that he did not. Inside the bag, Orton found heroin and a wallet containing Han's driver's license and other identification.

Han was charged with conspiracy to distribute heroin in violation of 21 U.S.C. Sec. 846. He was tried and convicted in the Eastern District of Virginia, and he timely appealed to this court under 28 U.S.C. Sec. 1291. Han raises two primary arguments to support his contention that the search was not a proper search incident to arrest. He argues that the arrest was invalid because the officers did not have probable cause before the search; and even if the arrest was valid, he contends, the search was not "incident" to the arrest because the search occurred before the arrest, the bag had been moved away from him, and the agents already had alleviated their safety concerns. The government responds that the officers did have probable cause before the search, and that the search was incident to the arrest. Alternatively, it asserts that Han abandoned his expectation of privacy in the bag, so Han had no standing to challenge the search.

II.

This court reviews pure questions of law de novo and pure questions of fact for clear error. United States v. McDonald, 61 F.3d 248, 254 (4th Cir.1995). Mixed questions of law and fact are evaluated under a hybrid standard. The court reviews the trial judge's ultimate conclusions de novo, but in reaching its independent resolutions construes the evidence in the manner most favorable to the government. See United States v. Elwood, 993 F.2d 1146, 1151 (5th Cir.1993). ¹

A.

Han argues that the arrest was invalid because it was prompted by the evidence Orton found in the bag. Because a search incident to arrest is permitted only when there is a valid arrest, the validity of the arrest cannot depend on evidence found during the search. This was not a search incident to arrest, Han asserts, but an "arrest incident to illegal search." Han is correct that the legality of the arrest cannot depend on the search, but it does not follow that the arrest must precede the search. A search may be incident to a subsequent arrest if the officers have probable cause to arrest before the search. Rawlings v. Kentucky, 448 U.S. 98, 111, 100 S.Ct. 2556, 2564-65, 65 L.Ed.2d 633 (1980), cited in United States v. Miller, 925 F.2d 695, 698 (4th Cir.), cert. denied, 502 U.S. 833, 112 S.Ct. 111, 116 L.Ed.2d 80 (1991).

This court, following the Supreme Court, has defined probable cause to arrest as

facts and circumstances within the officer's knowledge that are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense. The evidence needed to establish probable cause is more than a mere suspicion, rumor, or strong reason to suspect but less than evidence sufficient to convict.

United States v. Williams, 10 F.3d 1070, 1073-74 (4th Cir.) (internal quotations and citations omitted), cert. denied, --- U.S. ----, 115 S.Ct. 313, 130 L.Ed.2d 276 (1994). Examined in the light most favorable to the government, the evidence reveals that the agents knew the following facts before the search:

* Riley described his source as Asian;

* Riley said that he picked up his source and took him to his residence;

* Riley said that, when he delivered the first half-pound of heroin to the Hilton, his source would remain at his residence with the remaining pound;

* Shortly before Riley left for the Hilton, an agent saw him talking outside his residence with a man who appeared to be Asian. The agent conveyed the information and described the Asian man's clothing to Orton;

* Upon his arrest at the Hilton, Riley said that his source was still at his residence;

* The agents' search of the...