866 F.2d 147 (6th Cir. 1989), 86-6110, United States v. Garcia

Docket Nº:John GARCIA (86-6110), and Alan David Wolfe (86-6111),
Citation:866 F.2d 147
Party Name:UNITED STATES of America, Plaintiff-Appellee, v.
Case Date:January 10, 1989
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 147

866 F.2d 147 (6th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,

v.

John GARCIA (86-6110), and Alan David Wolfe (86-6111),

Defendants-Appellants.

Nos. 86-6110, 86-6111.

United States Court of Appeals, Sixth Circuit

January 10, 1989

Argued Aug. 18, 1987.

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Steven Jugo, Miami, Fla., Kathryn Murphy (argued), for John Garcia.

Andrew T. Coiner (argued), Lexington, Ky., for Alan David Wolfe.

Louis DeFalaise, U.S. Atty., Lexington, Ky., Barbara Edelman (argued), for U.S.

Before: GUY and BOGGS, Circuit Judges; and SUHRHEINRICH, District Judge. [*]

BOGGS, Circuit Judge.

John Garcia and Alan David Wolfe appeal their convictions, after a jury trial, for possession of cocaine with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1). Garcia specifically appeals the denial of his motion to suppress the cocaine found pursuant to the search of his luggage, which he claims violated the fourth amendment.

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Wolfe challenges the admission of testimony regarding his breeding of pit bulls for sale to drug dealers, as well as the sufficiency of the evidence in general. We affirm the trial court's decisions, finding that the district court was correct in determining that: (1) the search of Garcia's luggage was consensual; (2) the admission of testimony regarding Wolfe's breeding and sale of pit bulls was error, but that the error was harmless; and (3) the evidence was sufficient to support Wolfe's conviction.

I

John Garcia and Alan David Wolfe were found guilty after a jury trial in the Eastern District of Kentucky of possession with intent to distribute cocaine in violation of 21 U.S.C. Sec. 841(a)(1).

Garcia and Wolfe were stopped by Agents William Engelman and Michael Starnes of the drug unit of the Hamilton County Sheriff's Department at the Greater Cincinnati Airport as they were arriving on an early morning flight from Miami. The agents' suspicions appeared to be aroused mainly by the defendants' attire. They were both wearing black t-shirts and bib overalls in contrast to the majority of business travellers, who wore suits. The agents followed the defendants to the baggage claim area where Wolfe rented a car from Budget Car Rental after going to several different car rental booths. Garcia waited for Wolfe by leaning against a railing a short distance away. Neither man claimed any baggage; they were both carrying gym bags as carry-on luggage. They had walked at a normal pace through the airport, but Agent Engelman testified that Garcia appeared nervous and kept glancing over his shoulder, and that he continued to glance at Engelman during the time he was waiting for Wolfe. Garcia testified that he was merely watching the woman with whom Engelman was talking.

Wolfe signalled to Garcia after renting the car and they proceeded to the parking lot to pick up the car, followed by the agents. When they located the car, Garcia placed his bag on the back passenger seat. At that point, the agents approached the defendants and identified themselves as police. They asked to see identification and plane tickets. Garcia's ticket indicated that he had a ticket for a return flight to Miami later that day, although he told Engelman that he was not returning until the next day. Engelman asked if Garcia knew anything about drug trafficking through the airport to which Garcia replied in the negative.

Wolfe consented to a search of his carry-on luggage, which revealed nothing connected to drugs. However, he was carrying $4000 in cash when he was arrested. Garcia's consent to the search of his gym bag is in dispute. Garcia testified that Engelman asked him: "Can I search your luggage?" and he replied: "No." Engelman testified that he asked Garcia: "Would you mind if I looked through your luggage?" to which Garcia replied: "No." Engelman also testified that the standard consent request suggested by DEA agents was: "Will you give us consent to search your luggage?" Garcia refused to sign a consent form after the search was completed. Engelman reported the exchange verbally to DEA agent William Modesitt, who filed a written report stating the "Detective Engelman asked GARCIA for permission to search his person and his luggage. GARCIA states, 'YES.' " The search of Garcia's bag revealed four plastic bags inside the pocket of a grey vest, containing 1,168 grams of cocaine. Defendants were then arrested and taken to the airport police station.

II

Garcia argues first that the magistrate and the trial court erred in denying his motion to suppress because the government did not carry its burden of proving consent. He claims that the agents did not have a warrant to search his bags and did not have probable cause for an arrest at the time they searched the bag. Thus, Garcia alleges that the warrantless search violated his fourth amendment rights, and that the evidence obtained therefrom should have been suppressed. Garcia further argues that the burden of proving that

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consent was freely and voluntarily given is on the government, Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S.Ct. 2041, 2045, 36 L.Ed.2d 854 (1973), and that it did not meet that burden in this case because of the confusion surrounding Engelman's question and Garcia's answer.

The principles governing the permissibility of searches of this type are reasonably clear. It is the application of these principles to the infinite variety of specific and very slightly differing facts that arise in the airport search context that has caused this and other circuits to grapple repeatedly with such cases. In Terry v. Ohio, 392 U.S. 1, 16-19, 88 S.Ct. 1868, 1877-79, 20 L.Ed.2d 889 (1968), and its progeny, the Supreme Court laid down the principle that police can make a brief stop or detention based on an articulable suspicion that amounts to less than probable cause. In United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980), the Court also made clear that police officers can, for any reason, approach a person and merely request to speak to the citizen.

In the airport stop context, it is also clear that an officer may approach a traveller and request to speak to him, and may continue that conversation up to the point that a reasonable person would no longer feel that the person was free to go. Ibid. Once that point of detention has been reached, the officers must have a reasonable articulable suspicion, or else the stop or detention is illegal, and fruits of that search must be suppressed. Id. at 549, 100 S.Ct. at 1874; Reid v. Georgia, 448 U.S. 438, 440, 100 S.Ct. 2752, 2753, 65 L.Ed.2d 890 (1980). Consent to any search subsequent to a Terry -stop must be proven by clear and positive testimony, United States v. McCaleb, 552 F.2d 717, 721 (6th Cir.1977); United States v. Williams, 754 F.2d 672, 675 (6th Cir.1985), and must be unequivocal, specific, and intelligently given, uncontaminated by any duress or coercion. McCaleb, 552 F.2d at 721. Thus, we must first determine whether the initial contact between Garcia and the agents was permissible; whether any subsequent detention was supported by a reasonable, articulable suspicion. Mendenhall, 446 U.S. at 549, 100 S.Ct. at 1874; and, finally, whether the resulting warrantless search of Garcia's bag was consented to, as we believe it was.

United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980), is generally thought to be the leading case on this issue. In Mendenhall, the Court stated that a "person is 'seized' only when, by means of physical force or a show of authority, his freedom of movement is restrained." 446 U.S. at 553, 100...

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