U.S. v. Nordling
| Citation | 804 F.2d 1466 |
| Decision Date | 25 November 1986 |
| Docket Number | No. 85-5262,85-5262 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Roger NORDLING, Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Pat Swan, Asst. U.S. Atty., argued, Peter K. Nunez, U.S. Atty., Pat Swan, Asst. U.S. Atty., on the brief, San Diego, Cal., for plaintiff-appellee.
James Warner, San Diego, Cal., for defendant-appellant.
Appeal from the United States District Court for the Southern District of California.
Before CANBY, REINHARDT and NOONAN, Circuit Judges.
Roger Nordling appeals the district court's denial of his motion to suppress physical evidence as well as statements he made to law enforcement officers during his pre-arrest detention. Following the district court's ruling, Nordling entered a conditional guilty plea to one count of possession of cocaine with intent to distribute, 21 U.S.C. Sec. 841(a)(1).
At about noon on December 12, 1984, Nordling approached the PSA ticket counter at the San Diego Airport; he was carrying a gray tote bag. Using the name H. Sauer, he purchased for cash a ticket to Seattle on PSA Flight 855, which was scheduled to depart within the next half hour. The ticket agent, believing that Nordling resembled a person depicted in a published composite drawing of a suspected rapist-murderer, notified San Diego Harbor Police.
Harbor Police Officers Dunn and Moriarity responded to the call. The ticket agent verified Nordling's description and told the officers that he had been assigned to seat 27F. The officers proceeded to the gate and boarded the flight. They immediately recognized Nordling as the suspect despite the fact that he was seated in row 22. The officers noted that Nordling appeared nervous and was the only passenger who did not look at them as they moved through the aircraft.
The officers approached Nordling and asked him if his name was Sauer. He identified himself as Nordling, but told the officers that he had no identification and no ticket. 1 The officers told Nordling that they wished to ask him a few questions privately and requested that he leave the plane with them. Because there was a chance Nordling would miss the flight, the officers asked him if he had any luggage or carry-on baggage that he wished to bring with him. He replied that he did not, and he accompanied the officers off the plane, leaving his tote bag under his seat.
At the end of the jetway, the officers verified with the gate agent and the ticket agent that they were dealing with the correct person. They then informed Nordling that he was being detained as a homicide suspect. Nordling appeared relieved and agreed when the officers asked if he would accompany them to the Harbor Patrol office.
Once in the office, Moriarity advised Nordling of his Miranda rights. When asked if he were willing to waive his right to silence, Nordling responded, "Yes, if you call my attorney in Washington." Moriarity asked him why he wanted an attorney in Washington; and Nordling said, "He can identify me." Moriarity interpreted this as an equivocal response, and he told Nordling that he needed a "yes or no" answer. He then reread Nordling his rights, and Nordling unequivocally waived his rights.
During the next 15 to 20 minutes, Nordling told officers that his friend Hank Sauer had purchased the ticket for him. He also gave "vague, evasive" responses to questions about his identity, residence and occupation. He acted nervous and was at times "verbally abusive." Dunn contacted the ticket agent and confirmed that Nordling had purchased the ticket himself and had carried a gray tote bag with him. Even so, Nordling again denied that he had any luggage when he boarded the flight.
The inconsistencies between the ticket agent's statements and Nordling's responses led the officers to suspect that Nordling might be engaged in an illegal narcotics or currency transaction. They accordingly contacted the Narcotics Task Force office, located in another part of the airport. NTF Agents Jordan and Cooper checked Nordling on the Narcotics and Dangerous Drugs Information System (NADDIS) computer and learned he was suspected of being a cocaine dealer with violent tendencies. The NTF agents then responded to the Harbor Police call.
Meanwhile, the San Diego Sheriff's Office told the Harbor Police that Nordling did not match the description of the suspected murderer. Dunn then executed a certificate of release for Nordling and gave it to him shortly before Cooper and Jordan arrived.
Upon arrival, Dunn told the NTF agents that Nordling had been read his rights and had waived them. The agents identified themselves and told Nordling that he would be questioned concerning possible narcotics violations and that he was not free to leave. They asked him to accompany them to their office where they continued questioning him. They asked Nordling again whether he had any baggage. This time, Nordling told them that he had a gray tote bag on board but that he had left it with his girlfriend. He described both the girlfriend and the bag, but he refused to identify her. He indicated that he had not sat with his girlfriend on the plane because he was recently married and worried that he might be seen with another woman. He also repeated his story that his friend Hank Sauer had purchased his airline ticket for him.
The NTF agents contacted narcotics officers in Seattle and asked them to await the plane's arrival. Meanwhile, for approximately three hours, Nordling was held at the NTF office even though he was not formally under arrest. At some point in the afternoon, Agent Jordan decided that he should verify Nordling's identity and asked Nordling who could identify him. Nordling responded that his lawyer could and that he wanted to speak with his lawyer. Jordan denied the request.
In Seattle, narcotics officers placed Flight 855 under surveillance, looking specifically for a blonde woman matching the description Nordling had provided. No such woman was observed, and no one leaving the plane was seen carrying a gray tote bag. Shortly thereafter, a PSA employee turned the bag over to the officers, saying it had been left on the plane under a seat in row 22 or 23. The bag had no external identification.
A trained narcotics dog alerted when presented with the bag. Back in San Diego, the NTF agents asked Nordling whether he would consent to a search of the bag. When told that officers would seek a warrant if he did not consent, Nordling agreed to permit the search. Inside, they found nearly one pound of cocaine 2 plus Nordling's wallet, complete with several pieces of identification, and other personal effects. Nordling was then placed under arrest. When Nordling was searched incident to arrest, the plane ticket in Sauer's name was found in his back pocket.
The district court held that the tote bag and its contents were admissible against Nordling because he had abandoned the property and so had relinquished any expectation of privacy in the bag. 3 A determination of abandonment is a factual finding that we review for clear error. United States v. Mendia, 731 F.2d 1412, 1414 (9th Cir.), cert. denied, 469 U.S. 1035, 105 S.Ct. 509, 83 L.Ed.2d 399 (1984). Because warrantless searches or seizures of abandoned property do not violate the fourth amendment, e.g., Abel v. United States, 362 U.S. 217, 241, 80 S.Ct. 683, 698, 4 L.Ed.2d 668 (1960), persons who voluntarily abandon property lack standing to complain of its search or seizure, United States v. Jackson, 544 F.2d 407, 409 (9th Cir.1976).
On the record before us, the district court's finding of abandonment was not clearly erroneous. We have recognized that abandonment is a question of intent. The inquiry should focus on whether, through words, acts or other objective indications, a person has relinquished a reasonable expectation of privacy in the property at the time of the search or seizure. E.g., United States v. Cella, 568 F.2d 1266, 1283 (9th Cir.1977); Jackson, 544 F.2d at 409. This determination is to be made in light of the totality of circumstances, and two important factors are denial of ownership and physical relinquishment of the property. Both of these factors are present here.
Nordling twice denied having any carry-on baggage with him on Flight 855. Although the first denial was equivocal, the second was clear. Nordling indicated he had no such baggage when Harbor Police officers asked him to leave the plane and advised him that he might well miss his flight. He repeated his denial when confronted with the conflict between his statement and the report from the PSA ticket agent that he had a gray tote bag. These denials objectively demonstrate an intent to abandon the property. E.g., United States v. Veatch, 674 F.2d 1217, 1221 (9th Cir.1981), cert. denied, 456 U.S. 946, 102 S.Ct. 2013, 72 L.Ed.2d 469 (1982); Jackson, 544 F.2d at 411.
Beyond his denial of ownership, Nordling physically relinquished control of the tote bag when he left it on the airplane where anyone, including the PSA employee who found it in Seattle, could have access to it. That act of relinquishment, under the circumstances in which Nordling found himself, also supports an inference that he intended to abandon the bag. See Mendia, 731 F.2d at 1414. While everyone who leaves luggage on an airplane cannot be said to have abandoned it, Nordling deliberately chose to leave the bag behind when requested by officers to leave the plane. The district court could well find that his actions were inconsistent with a continued expectation of privacy in the property. See, e.g., United States v. Dela Espriella, 781 F.2d 1432, 1437 (9th Cir.1986) (); United States v. Jones, 707 F.2d 1169, 1171 (10th Cir.) (satchel left on ground during pursuit), cert. denied, 464 U.S. 859, 104 S.Ct. 184, 78 L.Ed.2d 163 (19...
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