846 F.2d 983 (5th Cir. 1988), 87-1827, United States v. Galberth

Docket Nº:87-1827
Citation:846 F.2d 983
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Patsy Marie GALBERTH, Defendant-Appellant.
Case Date:May 26, 1988
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 983

846 F.2d 983 (5th Cir. 1988)

UNITED STATES of America, Plaintiff-Appellee,

v.

Patsy Marie GALBERTH, Defendant-Appellant.

No. 87-1827

United States Court of Appeals, Fifth Circuit

May 26, 1988

Page 984

Michael L. Ware, Ft. Worth, Tex. (court-appointed), for defendant-appellant.

Jimmy L. Tallant, Asst. U.S. Atty., Marvin Collins, U.S. Atty., Ft. Worth, Tex., for plaintiff-appellee.

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

Before GEE, RUBIN, and SMITH, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Patsy Marie Galberth entered a conditional guilty plea to possession with the intent to distribute cocaine in violation of 21 U.S.C. Sec. 841(a)(1), and was sentenced to ten years' imprisonment and a three-year special parole term. She asserts on appeal that the warrantless search of her person violated her constitutional rights, in that her acquiescence was not valid voluntary consent and even if it were, her consent was tainted by her improper detention and interrogation. We AFFIRM with reference to our recent en banc opinion in United States v. Bengivenga, 845 F.2d 593 (5th Cir.1988) (en banc) and the compatible prior panel decision in United States v. Gonzales, 842 F.2d 748 (5th Cir.1988).

I. FACTS.

On the morning of June 26, 1987, Drug Enforcement Administration (DEA) officers at the Dallas/Fort Worth International Airport were watching passengers disembarking from American Airlines Flight 6 arriving from Miami, Florida, when they observed an "extremely nervous" male passenger deplane. This passenger kept looking back toward the jetway as if he were waiting for someone. The Appellant, Patsy Marie Galberth, got off the same flight shortly after he did. DEA Officer Kirk Griffith observed Galberth and the male passenger appear to look at one another, and then observed Galberth walk about 20 to 30 feet behind the male passenger down the concourse toward another airline's ticket counter. The male passenger continually kept turning and looking at Galberth as they were walking down the concourse. She appeared to be nervous, and kept looking ahead at the male, but remained approximately 20 to 30 feet behind him as they walked from Gate 30 to Gate 36E. Galberth walked to the unsecured area of

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the terminal, and then to the American Eagle section of the terminal.

As another DEA officer approached the male passenger, Officer Griffith approached Galberth, identified himself as a narcotics officer, and asked if he might speak with her. Galberth was "startled and rather nervous," but she voiced no objection. Officer Griffith asked to see Galberth's airline ticket, which she took from her purse and handed to him. It was a one-way cash fare from Miami, Florida, to Lawton, Oklahoma, via Dallas/Fort Worth International Airport, issued that day in the name of "Betty Davis." Officer Griffith returned Galberth's airline ticket and asked to see some identification. Galberth produced a hospital card with her real name on it. Officer Griffith noticed that the defendant's hands were shaking, and her voice was quivering during their conversation.

When questioned about the difference in the names on the ticket and the hospital card, Galberth stated that her maiden name was Davis. When he asked her why the two first names were different, she replied that her sister-in-law in Miami had purchased the ticket for her. Officer Griffith then returned the hospital card, and upon questioning, Galberth stated that she had been in Miami for twenty-four hours and had visited her sister-in-law and other friends.

Officer Griffith again identified himself as a narcotics agent and then asked to look in Galberth's purse and carry-on bag. Again, she consented. As Officer Griffith examined Galberth's purse and carry-on bag, another officer came and stood about ten feet away.

As Officer Griffith examined the contents of the purse and bag and engaged Galberth in conversation, he observed a bulge on her lower abdomen under her clothing, that did not appear to be a part of her body. When asked if she was carrying anything under her clothing, Galberth "became visibly more nervous" and appeared "scared"; she was shaking, the artery in her neck began to throb, and her voice was quivering, but she replied that she was not carrying anything under her clothes. Officer Griffith asked Galberth to press her hands against her abdomen in three different places, and on the third request Officer Griffith testified he could clearly see that the bulge was not part of her body.

Officer Griffith next asked Galberth if she would mind if a female officer patted her down for possible narcotics. She responded affirmatively by saying only "Okay." Officer Griffith had the other officer who was nearby contact a female customs inspector to perform the search. From the time Officer Griffith first approached Galberth until the time she consented to be searched, approximately five minutes had elapsed. Officer Griffith and Galberth then waited an additional ten minutes in a lounge area of the airport for the customs inspector to arrive. She changed her shoes, and they engaged in "small talk," during which Galberth appeared to become more calm. At no time did she act as if she wished to withdraw her consent, although she had approximately ten minutes to reconsider her decision to cooperate.

When customs inspector Vicky Lovell arrived, she took Galberth into the women's public restroom. Inspector Lovell had Galberth place her hands on the side of the first available stall, and she conducted a pat-down. She felt a bulge in the midriff section and asked Galberth if it was part of her body. Galberth said it was not, and Inspector Lovell then removed a small package from between Galberth's pantyhose and underwear.

While she now says she voiced resistance to having her dress pulled up or otherwise being searched under her clothing, at no time did Galberth ask to leave the restroom or withdraw consent to the pat-down. At no time was Galberth asked to remove items of clothing, and Inspector Lovell did not directly touch her body except through her outer garments. Inspector Lovell thereafter gave the package to Officer Griffith, who inspected the pound-and-a-quarter bundle and its contents and identified the powder apparently to be cocaine. Galberth was placed under arrest and advised

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then of her Miranda rights. All of her incriminating oral statements were made after the contraband was discovered and she had been formally arrested and Mirand ized. 1

Galberth was indicted for possession with intent to distribute 447 grams of 91%-strength cocaine. The district court denied Galberth's motion to suppress the evidence of the warrantless search of her person, whereupon Galberth entered a conditional plea of guilty pursuant to Fed.R.Crim.P. 11(a)(2). She was sentenced to ten years' imprisonment plus a three-year special parole term and a $50.00 special mandatory assessment.

The facts of this case present the issue of whether the warrantless search of Galberth's person violated her constitutional right to be free from unreasonable searches and seizures. Galberth argues that she did not voluntarily consent to the warrantless pat-down of her body, and that even if she had voluntarily consented, such consent was tainted by her previous illegal seizure. We agree with the district court that the government proved that Galberth voluntarily consented to both the initial questioning by Officer Griffith and the ultimate search of her person by Inspector Lovell. Finding the remaining issues disposed of by the closely analogous recent decisions in United States v. Bengivenga (non-custodial interrogation) and United States v. Gonzales (asking an airline passenger for her ticket), the conviction and sentence are AFFIRMED.

II. THERE WAS VALID CONSENT.

The district court denied Galberth's motion to suppress because of her consent to being searched. Such a finding of consent will not be overturned unless clearly erroneous. 2 In view of the totality of the circumstances, the district court's finding of a valid consent is not clearly erroneous.

The initial question is whether the government has proven that Galberth's consent to the search of her person was voluntary. Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 1791, 20

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L.Ed.2d 382 (1968); see Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973); Davis, 749 F.2d at 294; United States v. Parker, 722 F.2d 179, 182 (5th Cir.1983). The Supreme Court has said:

[T]he question whether a consent to a search was in fact 'voluntary' or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances.

Schneckloth, 412 U.S. at 227, 93 S.Ct. at 2047-48. 3

This court has outlined six primary factors for consideration in determining whether consent to a search is knowing and voluntary: (1) the voluntariness of the defendant's custodial status; (2) the presence of coercive police procedures; (3) the extent and level of the defendant's cooperation with the police; (4) the defendant's awareness of his right to refuse consent; (5) the defendant's education and intelligence; and (6) the defendant's belief that no incriminating evidence will be found. United States v. Ruigomez, 702 F.2d 61, 65 (5th Cir.1983). "Cognizant at all times of the fact that acquiescence cannot substitute for free consent," United States v. Gonzales, 842 F.2d at 754 we have concluded that, although all of the above factors are highly relevant, no one of the six factors is dispositive or controlling of the voluntariness issue. Id.; Ruigomez, 702 F.2d at 65; United States v. Phillips, 664 F.2d 971,...

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