U.S. v. Johnson, 88-1100

• Decision Date: 27 December 1988
• Docket Number: No. 88-1100,88-1100
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ricky JOHNSON a/k/a Richard Lamar Union and Durand M. Banner, Defendants- Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1135

862 F.2d 1135

UNITED STATES of America, Plaintiff-Appellee, v. Ricky JOHNSON a/k/a Richard Lamar Union and Durand M.

Banner, Defendants- Appellants.

No. 88-1100.

United States Court of Appeals, Fifth Circuit.

Dec. 27, 1988.

As Amended Feb. 1, 1989.

Rehearing and Rehearing En Banc Denied Feb. 10, 1989.

Daniel W. Sykes, Fort Worth, Tex. (court-appointed), for Johnson.

Jack Wayne Taylor, Arlington, Tex. (court-appointed), for Banner.

Randell P. Means, Asst. U.S. Atty., Marvin Collins, Fort Worth, Tex., for plaintiff-appellee.

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

Before GOLDBERG, HIGGINBOTHAM, and DAVIS, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Once again, the "war on drugs" raises Fourth Amendment issues concerning the reasonableness of a search. Appellants conditionally pled guilty to possession of cocaine with intent to distribute, invoking Fed.R.Crim.P. 11(a)(2) to appeal only the district court's denial of their motions to suppress evidence. Finding no error in the district court's decision, we affirm.

On August 19, 1987, the Fort Worth police dispatcher received a call from an unidentified female informant. The caller claimed that she had driven two black males, "Darrell" Banner and Ricky Johnson, from California to Fort Worth. She informed the dispatcher that Banner and Johnson were en route to the Trailways bus station, where they intended to retrieve two suitcases containing a large quantity of "drugs" from lockers 17 and 20. The informant described the men, detailing their appearance and dress, as well as describing one of the suitcases. A few minutes later, the informant called back, stating that Banner and Johnson intended to take the drugs to Houston and that the two men could be armed.

The dispatcher relayed all of this information to Officer Goley, a plainclothes operative in the Vice and Narcotics Unit. Goley and his partner, Officer Marshal, arrived at the bus station at 12:45 a.m., where they observed two men matching the informant's description standing in front of some lockers. Goley left his partner and went to the rear of the terminal, where he conveyed the informant's tip to Officer Stout, an off-duty Fort Worth police officer providing uniformed security for the bus company.

Goley rejoined Marshal and all three officers surreptitiously watched Banner and Johnson. The suspects attempted to make several phone calls before departing in a cab. Goley and Marshal spoke briefly to Stout and then attempted to follow the suspects. By the time the officers reached their car, however, the taxi was gone. They tried to radio a supervisor to begin the process of obtaining a search warrant, but failed to make contact before the suspects returned to the bus terminal.

Soon after the suspects reentered the station, all three officers observed Banner and Johnson take one suitcase out of locker 17 and another out of locker 20. One of the suitcases had green checks, matching the informant's description. The suspects each carried a suitcase to the Trailways counter where they purchased tickets on the next bus to Houston. Banner and Johnson checked their luggage with the clerk and a claim check was placed on each bag. A Trailways employee placed the bags on rollers, sending them to the rear of the terminal, out of public view. At that point, a porter intercepted the suitcases and, pursuant to Officer Stout's instructions, opened each one. ¹ The suitcases contained plastic bags filled with cocaine in base form, commonly known as "crack."

By this time, Banner had stepped outside, preparing to get on the bus, while Johnson remained in the terminal. Officer Stout told Goley the results of the search. When Banner saw Goley and Stout conversing, he began running away from the terminal. Goley chased and arrested Banner, while Johnson was arrested separately inside the bus station.

The original two-count indictment charged Banner and Johnson with conspiracy to distribute and with possession with intent to distribute over 50 grams of cocaine base. Both defendants moved to suppress evidence obtained from the warrantless search of their luggage. Upon denial of these motions, the defendants, pursuant to a plea bargain, pled guilty to a superseding information charging one count of possession with intent to distribute between 5 and 50 grams of cocaine base. Banner and Johnson preserved their right to appeal the district court's decision on the motions to suppress under Fed.R.Crim.P. 11(a)(2). The district court sentenced each defendant to nine years of imprisonment followed by four years of supervised release.

It is undisputed that the officers had probable cause to seize the suitcases and probable cause to arrest the appellants. ² Appellants argue only that once the police controlled the suitcases, no search could take place without a warrant. The distinction between search and seizure, of course, has ample support in Fourth Amendment jurisprudence:

Different interests are implicated by a seizure than by a search. A seizure affects only the person's possessory interests; a search affects a person's privacy interests. Recognizing the generally less intrusive nature of a seizure, the [Supreme] Court has frequently approved warrantless seizures of property, on the basis of probable cause, for the time necessary to secure a warrant, where a warrantless search was either held to be or likely would have been impermissible. ³

Appellants argue that this case falls within that class of cases justifying a warrantless seizure, but not a search, of property.

In particular, appellants suggest that our decision is controlled by two Supreme Court opinions, United States v. Chadwick ⁴ and Arkansas v. Sanders. ⁵ In Chadwick, federal narcotics agents had probable cause to believe that a footlocker possessed by suspected drug traffickers contained a controlled substance. The agents arrested the suspects and seized the footlocker, which had been placed in the trunk of a waiting car. An hour and a half after the arrests, agents performed a warrantless search of the footlocker at the federal building. Inside, they found a large quantity of marihuana. On appeal, the government did not allege that any exigency justified the warrantless search. It also did not argue for application of the automobile exception to the warrant requirement. Rather, it argued that the rationale of the automobile exception justified a new luggage exception, since luggage, like automobiles, can be highly mobile. It also contended that the search could be justified as incident to a lawful arrest. The Court rejected both arguments, holding that "when no exigency is shown to support the need for an immediate search, the Warrant Clause places the line at the point where the property to be searched comes under the exclusive dominion of police authority." ⁶ Thus, the Court found the warrantless search violated the Fourth Amendment since it took place after the government had exclusive control of the footlocker.

In Sanders, Arkansas police officers faced a situation similar to the narcotics agents in Chadwick. Suspected drug traffickers placed a suitcase, believed to contain a controlled substance, in the trunk of a taxi. The suspects entered the vehicle, which began driving away. The officers stopped the taxi and, without permission, searched the suitcase on the spot, finding marihuana inside. Once again, the government alleged no exigent circumstance justifying failure to seek a warrant. ⁷ Instead, the government asserted that the search fell within the automobile exception to the warrant requirement since the suitcase came from a vehicle stopped by the police. The Court rejected this argument, relying on Chadwick to hold that where the police "lawfully have detained one suspected of criminal activity and secured his suitcase, they should delay the search thereof until after judicial approval has been obtained." ⁸

Appellants assert that, as in Chadwick and Sanders, the Fort Worth police had exclusive control of the suitcases checked with the cooperative bus company. Thus, the decision to search the suitcases at the station without first obtaining a warrant violated the defendants' Fourth Amendment rights. Therefore, appellants argue, the district court should have suppressed the evidence obtained from the search, in this case the only evidence sustaining defendants' convictions.

The answer to appellants' contention lies in the factual distinctions between this case and the Chadwick and Sanders decisions, resulting in a different balancing of interests under the Fourth Amendment. In Chadwick and Sanders, the suspects had already been detained by police at the time the searches were performed. Here, on the other hand, the government had seized defendants' suitcases, but had made no contact with the defendants. Further, these suspects were preparing to leave within minutes on a bus for Houston.

As the government correctly contends, we have previously recognized that the risk of losing criminal suspects can create exigent circumstances justifying a search of luggage. United States v. Kreimes, 649 F.2d 1185, 1192-93 (5th Cir. Unit B July 1981). Kreimes is indeed similar to this case, and provides support for the officers' course of action here. The impending departure of Johnson and Banner created an exigency. Nonetheless the government may not rest on Kreimes alone. In that case the search of the suitcase might have been necessary to determine the identity of the suspects. Were the police in Kreimes not to have opened the suitcase, they might not have known whom to arrest. Of course, the suitcases of Banner and Johnson might have contained information that would have facilitated arrest, and reduced the danger to bystanders at the bus station. Yet in Kreimes the police did not know where the suspects were. The officers did not have the option of immediately arresting the suspects...