878 F.2d 469 (D.C. Cir. 1989), 88-3029, U.S. v. Colyer

Docket Nº:88-3029.
Citation:878 F.2d 469
Party Name:UNITED STATES of America v. William G. COLYER, Appellant.
Case Date:June 27, 1989
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

Page 469

878 F.2d 469 (D.C. Cir. 1989)



William G. COLYER, Appellant.

No. 88-3029.

United States Court of Appeals, District of Columbia Circuit.

June 27, 1989

Argued Jan. 10, 1989.

Page 470

Appeal from the United States District Court for the District of Columbia (Criminal Action No. 87-00360-01).

Louis J. Salerno, II, with whom Robert Lee Muse, Washington, D.C., was on the brief, for appellant.

Sharon M. Collins, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., Michael W. Farrell, and Robert G. Andary, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.

Page 471

Before SILBERMAN, WILLIAMS, and SENTELLE, Circuit Judges.

Opinion for the Court filed by Circuit Judge SENTELLE.

SENTELLE, Circuit Judge:

William G. Colyer appeals his conviction for unlawful possession with intent to distribute 500 grams or more of cocaine in violation of 21 U.S.C. Sec. 841(a) (1982). During pretrial proceedings, Colyer moved that certain physical evidence and statements be suppressed on the grounds that they were obtained in violation of his Fourth Amendment rights. By order dated October 20, 1987, the District Court denied the motions. Colyer subsequently withdrew his plea of not guilty and entered a conditional guilty plea on November 30, subject to his right to appeal the denial of the motions. See FED.R.CRIM.P. 11(a)(2). Appellant renews his contentions of constitutional violation. Finding no infirmity, we affirm.


    This appeal again brings before us the particular talents of one Max 25, a highly trained narcotics detection dog, in order that we may examine the constitutional ramifications of his use as an investigatory medium. On a previous occasion, United States v. Tartaglia, 864 F.2d 837 (D.C.Cir.1989), we held that an "alert" from Max was one of several facts establishing probable cause to believe that a passenger in an Amtrak sleeper compartment possessed narcotics. Id. at 842-43. We further held that the ensuing warrantless search of the suspect's roomette was justified under the exigent circumstances exception to the Warrant Clause. Id. at 845.

    In this case we are called upon to address two questions unresolved by Tartaglia: (1) whether, by using Max to sniff a sleeper compartment of an Amtrak train for narcotics from the public corridor, the government agents conducted a search for purposes of the Fourth Amendment; and (2) whether the agents were required to possess some level of suspicion that appellant was trafficking drugs before they could invoke Max's services.

    Briefly stated, the salient facts are as follows: On August 7, 1987, appellant aroused the suspicion of an Amtrak drug enforcement unit investigator in Baltimore, Maryland, who was monitoring the computerized reservations list for passengers aboard Amtrak Train 92 en route from Palm Beach, Florida, to New York City via Washington. The investigator observed that Colyer (1) departed from a "source city;" (2) was traveling to a Northeastern "use" city; (3) made his reservation the day before departing; (4) purchased his ticket within a few minutes from the train's scheduled departure; (5) purchased a one-way ticket (when a round-trip ticket costs the same amount); (6) paid the $210 fare with cash; and (7) left a Florida "callback" phone number.

    Acting upon his suspicion, 1 the agent phoned the listed number, reaching only a recorded message from an unidentified voice. The agent then contacted the Drug Enforcement Agency, which indicated that Colyer had no criminal record of which it was aware. The agent nevertheless requested that DEA send its detail to Washington's Union Station, where the train was scheduled to stop briefly.

    When the train arrived at Union Station, the Amtrak agent, a DEA special agent, and a Maryland Police Department detective were on hand. The detective was accompanied by Max 25, a 1982 graduate (first in his class) of the Maryland Police Department's canine narcotics detection school, trained in detecting marijuana, heroin, and cocaine. 2 Together they boarded

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    the train and approached the compartment reserved by Colyer. As they did, the agent directed Max toward the eight-by-ten inch mesh ventilation holes of other compartments in order to ensure that Max was not falsely "alerting."

    Upon their arrival at appellant's compartment, Max alerted. The investigators then knocked, and when Colyer appeared, they displayed their credentials and asked to see his ticket and identification. Appellant complied. The Amtrak investigator then explained their presence and the alert from Max. He then asked whether appellant would permit the investigators to search Colyer's luggage. Appellant initially denied their request, but when the investigators informed him that failure to consent would cause his removal from the train in order to obtain a search warrant, Colyer acquiesced. The search revealed a green vinyl pouch containing a white powder and a gift-wrapped package containing both white and green powders and loose rice. When asked their nature, appellant confirmed that the white powder was cocaine.

    On September 3, 1987, an indictment was issued charging Colyer with possession of cocaine in excess of 500 grams in violation of 21 U.S.C. Sec. 841(a). Appellant pleaded not guilty and filed a pretrial Motion to Suppress Evidence. By memorandum dated October 20, 1987, the District Court denied appellant's motion. See United States v. Colyer, Crim. No. 87-0360 (D.D.C. Oct. 21, 1987); Joint Appendix ("J.A.") at 8. Appellant thereafter changed his plea to guilty and on February 24, 1988, filed a notice of appeal to this Court.


    The First Clause of the Fourth Amendment protects the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." A search within the meaning of the Clause "occurs when an expectation of privacy that society is prepared to consider reasonable is infringed." United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 1656, 80 L.Ed.2d 85 (1984) (citing, inter alia, Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct. 1868, 1873, 20 L.Ed.2d 889 (1968)). See also Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).

    In United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983), the Supreme Court for the first time extensively examined the Fourth Amendment implications of a canine sniff. 3 The Place Court emphasized that as an investigative procedure, "the canine sniff is sui generis." Id. at 707, 103 S.Ct. at 2644. Because it was "aware of no other investigative procedure that is so limited both in the manner in which the information is obtained and in the content of the information revealed by the procedure," id., the Court held that in the context before it--"exposure of respondent's luggage, which was located in a public place [an airport], to a trained canine"--the sniff was not a search within the meaning of the Fourth Amendment. Id. 4

    After noting that a person possesses a privacy interest in his personal luggage, the Place Court went on to consider whether a canine sniff impinges that interest:

    A "canine sniff" by a well-trained narcotics detective dog ... does not require opening the luggage. It does not expose noncontraband items that otherwise would remain hidden from public view, as does, for example, an officer's rummaging through the contents of the luggage. Thus, the manner in which information is obtained through this investigative technique is much less intrusive than a typical search. Moreover, the

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    sniff discloses only the presence or absence of narcotics, a contraband item. Thus, despite the fact that the sniff tells the authorities something about the contents of the luggage, the information obtained is limited. This limited disclosure also ensures that the owner of the property is not subjected to the embarrassment and inconvenience entailed in less discriminate and more intrusive investigative methods.

    462 U.S. at 707, 103 S.Ct. at 2644.

    By the same token, our inquiry does not end with the recognition that Colyer possessed a privacy interest in his sleeper compartment. Place requires that we consider the minimal intrusion occasioned by the canine sniff, as "no other investigative procedure ... is so limited both in the manner in which the information is obtained and in the content of the information revealed by the procedure." Id. See also Smith v. Maryland, 442 U.S. 735, 741, 99 S.Ct. 2577, 2581, 61 L.Ed.2d 220 (1979) (noting that under Katz v. United States, "it is important to begin by specifying precisely the nature of the state activity that is challenged").

    In so doing, we recognize that we must apply these principles in a different context--a sniff of the exterior of an Amtrak roomette rather than of personal luggage. As the Second Circuit recognized in United States v. Thomas, 757 F.2d 1359, 1366 (2d Cir.1985), "[i]t is one thing to say that a sniff in an airport is not a search, but quite another to say that a sniff can never be a search." Thus, "[t]he question always to be asked is whether the use of a trained dog intrudes upon a legitimate expectation of privacy." Id. (citing Katz, 389 U.S. 347, 88 S.Ct. 507). See also United States v. Chadwick, 433 U.S. 1, 7, 97 S.Ct. 2476, 2481, 53 L.Ed.2d 538 (1977) (the Fourth Amendment "protects people from unreasonable government intrusions into their legitimate expectations of privacy").

    1. Legitimacy of Privacy Expectation

      Our Fourth Amendment inquiry focuses on the legitimacy of Colyer's expectation of privacy, and whether the sniff dashed any such legitimate expectation. While our determination must be informed by the teachings of the Supreme Court on this subject, there is no talisman that determines the privacy expectations that society deems reasonable; rather, the Court has given weight to a variety of...

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