U.S. v. Ayarza

• Decision Date: 09 May 1989
• Docket Number: No. 88-3123,88-3123
• Citation: 874 F.2d 647
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Miguel Gabriel AYARZA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 647

874 F.2d 647

UNITED STATES of America, Plaintiff-Appellee, v. Miguel Gabriel AYARZA, Defendant-Appellant.

No. 88-3123.

United States Court of Appeals, Ninth Circuit.

Argued Jan. 10, 1989.

Submitted April 21, 1989.

Decided May 9, 1989.

Joseph W. Bottini, Asst. U.S. Atty., Anchorage, Alaska, for plaintiff-appellee.

Nancy Shaw, Asst. Federal Public Defender, Anchorage, Alaska, for defendant-appellant.

Appeal from the United States District Court for the District of Alaska.

Before WRIGHT, TANG and WIGGINS, Circuit Judges.

WIGGINS, Circuit Judge:

Appellant Miguel G. Ayarza appeals his conviction of possession of cocaine with intent to distribute, in violation of 21 U.S.C. Sec. 841(a)(1) (1982), and his sentence of 78 months imprisonment, four years of supervised release, and a $3500 fine. Appellant entered a conditional plea of guilty, reserving his right to challenge the district court's denial of his motion to suppress evidence seized by Alaska State Troopers after they exposed his carry-on luggage to trained narcotics detection dogs. Further, Appellant challenges the propriety of his sentence, which the district court imposed according to the terms of the Sentencing Guidelines. The district court had jurisdiction of this case under 18 U.S.C. Sec. 3231 (1982). We have jurisdiction under 28 U.S.C. Sec. 1291 (1982). We affirm.

I

A

One month prior to arresting Appellant, Trooper Al Storey had observed him conversing with United Airlines ticketing agents. Trooper Storey's attention had been drawn to Appellant because the agents had denied him access to a flight bound for New York, believing him to be under the influence of a controlled substance. One month later Trooper Storey's attention was again drawn to Appellant after ticketing agents told Trooper Storey that Appellant had returned and was again bound for New York, but that his ground time would be less than eight hours. Trooper Storey did not see Appellant board the aircraft, but the agents at the gate described Appellant and told him that Appellant's luggage consisted only of a small carry-on bag.

Through the use of airline reservation computers Trooper Storey was able to determine that Appellant arrived in, and departed from, New York according to his itinerary. Trooper Storey was able to determine further that Appellant's flight arrived in Seattle, Washington too late for him to catch his connecting flight to Anchorage, but that Appellant had been reassigned a seat in row eleven of a flight that would arrive in Anchorage the following afternoon. Trooper Storey was waiting at the gate when Appellant was the first passenger to disembark from this flight.

Trooper Storey followed Appellant as he walked quickly through the concourse, leaving the other passengers far behind. Trooper Storey noticed that slung over Appellant's shoulder was a large garment bag that he believed did not match the description of the small carry-on bag that Appellant had with him when he departed from Anchorage. Trooper Storey further observed that Appellant's pace quickened as he walked through a glassed-in hallway, and that Appellant repeatedly glanced at the window, which by that time of day reflected the interior of the concourse. Trooper Storey also observed Appellant walk to the far left of the exit area where the airport's security monitor was posted.

Appellant proceeded to the first available exit on the upper level of the terminal and, as he passed through the door, he looked over his shoulder to see that Trooper Storey was following him. Appellant stopped at the curbside and looked to his left as though expecting somebody to pick him up. Trooper Storey approached Appellant at that time, identified himself as a law enforcement officer, and asked Appellant if he could speak to him. Appellant gave an affirmative response. Trooper Storey advised Appellant that he was not under arrest and that he could leave without saying anything more. Appellant declined to leave.

Trooper Storey first asked appellant if he could see some identification. Trooper Storey observed Appellant sort through various documents in his billfold, including what appeared to be an Alaska identification before extracting a California driver's license. Trooper Storey asked Appellant where he had traveled from and Appellant replied that he had come from Seattle. Trooper Storey then asked Appellant the purpose of his visit and Appellant replied that he had visited a sick aunt. When Trooper Storey asked Appellant if his aunt lived in Seattle, Appellant replied that his aunt lived in New York and had recently had an operation for the removal of corns on her feet. Appellant explained that he had gone for two days. Trooper Storey noticed that Appellant's nervousness heightened when, in response to Appellant's query, Trooper Storey explained that he was conducting a drug investigation. Appellant then explained to Trooper Storey that he had come directly outside of the terminal in order to catch a cab. Trooper Storey knew, however, that cabs usually pick up passengers at the lower level of the terminal.

At this point Trooper Storey asked Appellant if he would allow his bag to be exposed to a scent detection canine. Appellant hesitated, replying that he wanted to contact his attorney. Trooper Storey allowed him to make a phone call, but required him to position the garment bag so that it was not concealed from Trooper Storey's view. When Appellant returned he told Trooper Storey that his attorney advised him not to allow the search unless he was placed under arrest. Trooper Storey then told Appellant that he was free to go, but that he was going to detain the garment bag and expose it to a scent detection canine. He further explained that Appellant could accompany him and that at most the procedure would take thirty to forty minutes. When Appellant declined, Trooper Storey advised Appellant that the bag would be returned immediately if the dog did not alert to its contents. Trooper Storey offered Appellant a receipt for the bag, but Appellant declined to accept one.

Trooper Storey took possession of the bag and a few minutes later exposed it to "Irma," who alerted positively to the odor of a controlled substance contained in the bag. Trooper Bowman, who had joined Trooper Storey toward the end of his conversation with Appellant, then exposed the garment bag to "Meik," who also alerted positively to the odor of a controlled substance contained in the bag. The Troopers then obtained a search warrant, opened the bag, and found a large, rectangular object rolled up in some clothing items. White crystalline powder found inside the object field-tested positive for the presence of cocaine. A subsequent analysis confirmed that 1005.7 grams of cocaine were contained in Appellant's garment bag.

B

Appellant filed a motion in the district court to suppress the evidence of cocaine on the grounds that Trooper Storey's conduct in detaining Appellant's garment bag amounted to an unreasonable search and seizure, contravening the fourth amendment to the United States Constitution. The district court referred the matter to a magistrate who, after conducting an evidentiary hearing, recommended that the motion be denied. The magistrate reasoned that Trooper Storey had reasonable, articulable suspicion to believe that criminal conduct was in progress, and that many of the so-called "drug courier profile" factors supported this suspicion. Over Appellant's objection the district court adopted the magistrate's recommendation.

Before receiving his sentence Appellant filed a motion challenging the constitutionality of the 1984 Sentencing Reform Act. The district court ruled that the Act was constitutional, and therefore denied Appellant's motion. Appellant also filed a motion for a downward adjustment of the sentence required by the Sentencing Guidelines, arguing that his cooperation with the authorities warranted an exemption. Over Appellant's due process objection, the district court ruled that the exemption could not be made except by motion of the Government. Pursuant to his conditional plea of guilty, Appellant appeals the district court's denial of each of these motions.

II

A

We review de novo to determine whether under the stated facts ¹ Trooper Storey had reasonable and articulable suspicion for detaining appellant's garment bag. United States v. Erwin, 803 F.2d 1505, 1509-10 (9th Cir.1986). At bottom, this issue involves "balancing the amount of intrusion upon individual privacy," Florida v. Royer, 460 U.S. 491, 515, 103 S.Ct. 1319, 1333, 75 L.Ed.2d 229 (1983) (Blackmun, J., dissenting), against the public's "compelling interest in detecting those who would traffic in deadly drugs for personal profit," United States v. Mendenhall, 446 U.S. 544, 561, 100 S.Ct. 1870, 1881, 64 L.Ed.2d 497 (1980) (opinion of Powell, J.). The problem is best illustrated by envisioning a three-tier structure, at the bottom of which lies the government's authority to stop and question any individual, for any reason, "[a]s long as the person to whom questions are put remains free to disregard the questions and walk away." Mendenhall, 446 U.S. at 554, 100 S.Ct. at 1877 (opinion of Stewart, J.). At the top of the structure lies the government's authority to effectuate an arrest, but only for "probable cause." Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225-26, 13 L.Ed.2d 142 (1964). And in between these two extremes lies the government's authority to detain an individual or his possessions for purposes of furthering a valid investigation, the scope of which is circumscribed by the officer's reasonable and articulable suspicion. Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1879-80, 20 L.Ed.2d 889 (1968); United States v. Place, 462 U.S. 696, 706, 103 S.Ct. 2637, 2644, 77 L.Ed.2d 110 (1983).

Each of these three tiers may be implicated in a single sequence. For example, an officer may initiate a conversation with an individual who...