U.S. v. McKennon

• Decision Date: 20 April 1987
• Docket Number: No. 86-8497,86-8497
• Citation: 814 F.2d 1539
• Court: U.S. Court of Appeals — Eleventh Circuit
• Parties: UNITED STATES of America, Appellant, v. Devon Harris McKENNON, Appellee.

Page 1539

814 F.2d 1539

55 USLW 2614

UNITED STATES of America, Appellant, v. Devon Harris McKENNON, Appellee.

No. 86-8497.

United States Court of Appeals, Eleventh Circuit.

April 20, 1987.

Stephen S. Cowen, U.S. Atty., Atlanta, Ga., Gloria C. Phares, U.S. Dept. of Justice, Criminal Div., Washington, D.C., for appellant.

Bruce W. Simon, Kansas City, Mo., for appellee.

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

Before FAY and KRAVITCH, Circuit Judges, and MORGAN, Senior Circuit Judge.

PER CURIAM:

This appeal challenges an order granting a motion to suppress. Devon Harris McKennon (hereinafter McKennon) was indicted

for violations of the Controlled Substance Act, 21 U.S.C. Secs. 841(a)(1) and 846 (1982) after a warrantless search of an article of luggage in the possession of an accomplice produced a quantity of cocaine. The United States District Court for the Northern District of Georgia granted McKennon's motion to suppress evidence of the cocaine. On appeal, the United States argues that McKennon lacks standing to contest the legality of the search. For the reasons that follow, we agree and reverse the district court's order.

I. BACKGROUND

On February 12, 1986, Drug Enforcement Administration (hereinafter DEA) Agent Paul Markonni ¹ and others were engaged in the investigation of drug trafficking at Hartsfield International Airport in Atlanta, Georgia. At approximately 2:40 p.m., Markonni observed Anthony Hugh Gardener (hereinafter Gardener) and McKennon deplane together from a flight arriving from Miami, Florida. ² Markonni initially suspected that Gardener and McKennon were attempting to disassociate themselves from each other, because McKennon followed Gardener down the concourse, both appeared nervous and neither gentleman initiated conversation. DEA Agent Bryan Sullivan positioned himself so that he could read Gardener's ticket as Gardener was requesting flight information at a ticket counter. With the aid of an airline agent, Sullivan ascertained that Gardener (1) made no flight reservations, (2) purchased his ticket with cash, (3) checked no luggage, and (4) left no Miami telephone number.

Sullivan followed Gardener and McKennon to a gate where the travelers were hoping to depart on a connecting flight to Kansas City, Missouri. Near the gate, Sullivan saw McKennon covertly pass a pack of cigarettes to Robin Marie Lee (hereinafter Lee) who was holding her hand behind her back. Markonni recalled seeing Lee deplane from the same flight that McKennon and Gardener took from Miami.

After receiving the cigarettes, Lee sat down in the passenger waiting area while McKennon and Gardener proceeded to a nearby cocktail lounge. With the assistance of an airline agent, Markonni discovered that an individual providing the name of "Sheila Brown" purchased a ticket from Miami to Kansas City with cash one minute after McKennon and Gardener purchased their tickets. ³ Markonni reassessed the situation and surmised that McKennon and Gardener were attempting to disassociate themselves from Lee.

Markonni approached Lee, identified himself as a Clayton County Police Officer and asked to see Lee's ticket along with some identification. Lee produced her ticket issued to "Sheila Brown" but alleged that she had no identification because her wallet had recently been stolen. When asked to state her name, Lee replied "Sheila Brown." Markonni noticed that Lee was becoming nervous and he asked her to look through her purse and find something with her name on it. After a cursory inspection, Lee informed agent Markonni that she could not find anything which would identify her.

Markonni asked Lee if she would consent to a search of her person and her carry-on bag. Lee refused. Markonni then asked Lee if she was traveling with anyone or if she had met anyone on the flight from Miami to Atlanta. Lee responded negatively. After a second request to search Lee's person and carry-on luggage was denied, Markonni asked Lee to accompany him to a private lounge approximately fifty to sixty feet away. When asked why Lee was being detained, Markonni stated that he did not believe Lee's assertion that she possessed no identification.

While waiting in the lounge, Lee admitted that she had some identification and produced some documents identifying herself as Robin Lee. Pursuant to Ga.Code Ann. Sec. 16-10-25 (1984), Markonni arrested Lee for giving a false name to a police officer. After reading Lee her Miranda rights, ⁴ Markonni searched Lee's carry-on bag and found a quantity of cocaine.

Meanwhile, Sullivan and another investigator interviewed Gardener and McKennon. A voluntary pat-down search produced no evidence of contraband. Gardener and McKennon voluntarily accompanied Sullivan towards the lounge where Lee had been taken. Markonni placed the gentlemen under arrest. Outside the lounge, Gardener and McKennon denied any knowledge of Lee or the cocaine. McKennon never made any attempt to exert ownership of Lee's carry-on bag.

On February 25, 1986, a federal grand jury indicted Lee, Gardener and McKennon for conspiracy and possession of cocaine with intent to distribute in violation of 21 U.S.C. Secs. 846 and 841(a)(1) (1982). McKennon filed a motion to suppress the cocaine as evidence and claimed that the search of Lee's carry-on bag violated his Fourth Amendment rights. McKennon alleged that he had a reasonable expectation of privacy in Lee's bag because he had packed the bag with his personal effects. The United States opposed the motion and a magistrate conducted a hearing on April 3, 1986.

During the suppression hearing, McKennon testified that he and Lee traveled from Kansas City, Missouri to Miami, Florida and shared a hotel room for three nights. On February 12, before checking out of the hotel, McKennon packed a medium-sized, soft-sided bag with a quantity of cocaine, a change of clothing and some personal articles belonging to Lee. McKennon gave the bag to Lee and told her "not to let anybody go in the bag except for me." Lee, who knew the bag contained cocaine, was informed that if she was delayed or detained on the way to Kansas City, McKennon intended to go on to Missouri without claiming the bag or acknowledging her.

Based upon this testimony, the magistrate found that McKennon had a reasonable belief that he maintained control over the carry-on bag and thus had standing to contest the seizure of the cocaine. The magistrate rejected the government's argument that McKennon had abandoned a reasonable expectation of privacy in the article of luggage because the magistrate noted that McKennon was never afforded the opportunity to affirmatively abdicate his interests prior to the search. Finding that the warrantless search of Lee's bag was incident to an unlawful arrest, the magistrate recommended that McKennon's motion to suppress be granted. Without further elaboration, the district court adopted the report and recommendation submitted by the magistrate. Pursuant to 18 U.S.C. Sec. 3731 (1982), the United States appealed.

II. DISCUSSION

The United States alleges that the district court erred by ruling that McKennon had standing to challenge the search of Lee's carry-on bag. With all due respect to the district court, we agree. In order to have evidence suppressed based on a violation of the Fourth Amendment, a claimant has the burden of proving (1) that the search was unlawful and (2) that the claimant had a legitimate expectation of privacy. Rawlings v. Kentucky, 448 U.S. 98, 104, 100 S.Ct. 2556, 2561, 65 L.Ed.2d 633 (1980). In this case, the United States has not appealed the district court's ruling that Markonni did not have probable cause to arrest Lee. The legality of that search is not before us. Therefore, the only remaining issue which this court must address is whether McKennon had a legitimate expectation of privacy in Lee's bag when the search was conducted.

In California v. Ciraolo, --- U.S. ----, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986), the United States Supreme Court reiterated a two-part test for determining whether an individual has a "constitutionally protected reasonable expectation of privacy." Ciraolo, 106 S.Ct. at 1811 (quoting Katz v. United States, 389 U.S. 347, 360, 88 S.Ct. 507 516, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring)). First, the individual must manifest a subjective expectation of privacy in the object of the challenged search. Ciraolo, 106 S.Ct. at 1811. Second, society must be willing to recognize that expectation as legitimate. ⁵ Ciraolo, 106 S.Ct. at 1811; New Jersey v. T.L.O., 469 U.S. 325, 338, 105 S.Ct. 733, 742, 83 L.Ed.2d 720 (1985); Hudson v. Palmer, 468 U.S. 517, 525, 104 S.Ct. 3194, 3199, 82 L.Ed.2d 393 (1984). The first inquiry is a factual determination which is generally reviewed under a clearly erroneous standard. ⁶ See United States v. Edmondson, 791 F.2d 1512, 1514 (11th Cir.1986); see e.g., Ciraolo, 106 S.Ct. at 1811-12; United States v. Brown, 731 F.2d 1491, 1495 (11th Cir.) modified, 743 F.2d 1505 (11th Cir.1984). The second, and perhaps more important inquiry, is a question of law subject to de novo review. See e.g., Ciraolo, 106 S.Ct. at 1812-13; New Jersey v. T.L.O., 469 U.S. at 338-40, 105 S.Ct. at 742-43; Hudson, 468 U.S. at 525-26, 104 S.Ct. at 3199-3200.

A. The Legitimacy of McKennon's Privacy Interest.

In this case, the magistrate and the district court found that McKennon's testimony regarding the precautions taken to maintain secrecy evinced a subjective expectation of privacy. After reviewing the record, we agree with this finding of the district court. Nevertheless, a legitimate expectation of privacy "means more than a subjective expectation of not being discovered." United States v. Whaley, 779 F.2d 585, 590 (11th Cir.1986) cert. denied, --- U.S. ----, 107 S.Ct. 931, 93 L.Ed.2d 982 (1987) (quoting Rakas v. Illinois, 439 U.S. 128, 143 n. 12, 99 S.Ct. 421, 430 n. 12, 58 L.Ed.2d 387 (1978)). Assessing the...