U.S. v. Bell

• Decision Date: 22 December 1989
• Docket Number: 88-1585,Nos. 88-1396,s. 88-1396
• Citation: 892 F.2d 959
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Sidney R. BELL, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Scott J. ZIEBARTH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 959

892 F.2d 959

UNITED STATES of America, Plaintiff-Appellee, v. Sidney R. BELL, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Scott J. ZIEBARTH, Defendant-Appellant.

Nos. 88-1396, 88-1585.

United States Court of Appeals, Tenth Circuit.

Dec. 22, 1989.

Kenneth R. Brown, Salt Lake City, Utah, for defendant-appellant Sidney R. Bell.

Ronald J. Yengich, Yengich, Rich, Xaiz & Metos, Salt Lake City, Utah, for defendant-appellant Scott J. Ziebarth.

Bruce C. Lubeck, Asst. U.S. Atty., Salt Lake City, Utah (Brent D. Ward, U.S. Atty., Salt Lake City, Utah, was also on the brief), for plaintiff-appellee U.S.

Before HOLLOWAY, Chief Judge, BARRETT and EBEL, Circuit Judges.

HOLLOWAY, Chief Judge.

These cases were companioned on appeal. Both defendants were found guilty by the court after waiving their rights to a jury trial. The trial court found defendant Scott Ziebarth (Ziebarth) guilty of possession with intent to distribute cocaine, a violation of 21 U.S.C. § 841(a)(1) (1982). Defendant Sidney Bell (Bell) was found guilty of attempt to possess with intent to distribute cocaine, a violation of 21 U.S.C. § 841(a)(1) and 846 (1982). Both defendants challenge the trial court's denial of their pre-trial motions to suppress and Bell additionally challenges the sufficiency of the evidence supporting his conviction. We affirm both convictions.

I. Factual Background

Utah State Narcotics Agent Mark Whittaker (Whittaker) was profiling flights arriving from Los Angeles at the Salt Lake International Airport when Ziebarth deplaned. Ziebarth walked to a group of phones, looked around, and then turned and walked across a hallway to another group of phones. While looking around he picked up two or three phones, but did not appear to be placing a call. Ziebarth then went into a restroom for approximately two minutes and after leaving, went back to the phones. II R. 7-8. Whittaker said that Ziebarth appeared to be dialing this time, but did not appear to be talking. Ziebarth was carrying a nylon shoulder bag and appeared to Whittaker to be nervous. II R. 8-9.

Whittaker followed Ziebarth as he walked toward the east exit of the concourse. As Ziebarth got to the top of the concourse ramp he went into a lounge, looked around and then walked toward the top of an escalator where he met a man later identified as Sidney Bell. They greeted each other and then rode down the escalator. Whittaker was behind them and said that on the way down they turned away from each other and stopped speaking. II R. 10.

When he reached the bottom of the escalator, Whittaker met Deputy Bart Palmer (Palmer) of the Salt Lake County Sheriff's Office and Police Officer Terry Steed (Steed) of Murray City and explained his observations. Ziebarth and Bell walked to the east side of the building, turned around, and walked back to the far west end of the building. Whittaker said that Ziebarth was again looking over his shoulder and that Bell was turning around and looking. II R. 11-12.

Neither Ziebarth nor Bell went to the luggage area before going out the west exit of the terminal. As they were walking toward a parking lot, Bell noticed Whittaker and Palmer walking toward him and Ziebarth, and he turned and walked away from Ziebarth. II R. 13. At that point Whittaker and Palmer approached Ziebarth. Steed, who was nearby, approached Bell.

A. Facts Leading to Bell's Arrest

Steed walked up to Bell with his badge showing and said "I'm a police officer, do you mind if I talk to you a minute" and Bell said yes. Steed testified that he then asked if Bell was a friend of Ziebarth's. III R. 50. When Bell said "No," Steed asked "Aren't you a friend of his, aren't you with him or a friend of his?" Bell responded "Not really". III R. 50. ¹ A brown paper bag was protruding from a rolled-up levi jacket under Bell's arm. Steed said that Bell was turning his right shoulder in an attempt to hide the jacket. III R. 50. When asked, Bell said there was nothing in the bag. Steed again inquired about the contents of the bag and Bell told him it was personal. III R. 51. Steed then asked: "Do you mind if I touch that bag for my own safety, assure myself that it's not a weapon or anything that could be used as a weapon?" Bell said "No, it's personal, it's not a weapon. You don't have to worry about it." III R. 51.

At this point Steed told Bell that he was a narcotics officer assigned to keep narcotics from entering Utah through the airport. Steed testified that Bell's "level of nervousness seemed to increase dramatically. I noticed that he was breathing--started breathing a little heavier." III R. 51-52. Steed then asked Bell why he was so nervous and Bell said, "I'm always nervous when I'm confronted by police." Bell then changed the word confronted to "talked to." III R. 52. Steed asked if there was anything in the bag to cause him to be nervous and he said no, almost blurting it out, according to Steed. III R. 52. Steed then motioned Whittaker over, introduced him to Bell, and told him about the package. He also told Whittaker that Bell had first denied knowing Ziebarth and then, when asked again, said that he did not really know him. III R. 52.

Whittaker told Bell that he was going to "detain the package and that [they] would go over into the other building right next to [them], and [that he] was going to run his narcotics dog over the package at that time." III R. 16-17. Whittaker testified that Bell "didn't want me to do it at first" and that Bell asked if Whittaker could legally talk to him and if he could detain the package. III R. 17. Whittaker said he could and told Bell that he could either have a receipt for the package and could get it back when the dog was done, or could accompany him to the office. III R. 17. ² Bell said "I don't want you to look at the package...." III R. 43. Whittaker did not tell Bell he was free to leave, III R. 42, but he did tell him that it would only take a few minutes for the dog to go over the package. Whittaker said that Bell agreed to go to the office. III R. 17-18.

Carrying his package, Bell walked to the security office, located approximately 200 feet away in the main terminal. When they got to the office Whittaker told Bell that he would "take the package upstairs and run the dog over it." III R. 17-19. Whittaker said that Bell "didn't want me to take the package. He knew I was going to have the package." III R. 19. Bell told Whittaker that he wanted to go with him to the office and was advised that "it was just [Whittaker's] policy that [he] did not have anyone else around the dog when [he] was working...." III R. 20. Whittaker said: "He told me, again, that I wasn't going to have the package. At this time I took out my radio and I was going to call for assistance. He said, 'oh well, never mind,' and he handed me the package." III R. 20. By now Whittaker and Bell had been together for approximately two or three minutes. III R. 25.

The narcotics dog, "Blue," alerted to the package. Blue was then taken to the far side of the room and let go and again alerted to Bell's package. Whittaker had placed the package on the floor among two other pieces of luggage. This process took approximately one and one half minutes. III R. 21, 25, 26.

Whittaker then went downstairs and told Bell that he wanted him to come up. They went upstairs to the security office and Whittaker informed Bell that Blue had alerted to the package. Bell again denied that the package contained narcotics. Whittaker told Bell that because Blue had alerted to the package, he would place Bell under arrest. He then read Bell his Miranda warnings. At that point Bell told Whittaker that the package contained money. III R. 27-28.

During this time the package was on the floor, five to ten feet away. Whittaker said that he would open the package, count the money, and give Bell a receipt, and Bell indicated that would be fine. III R. 28. ³ The package contained $13,800. III R. 30. ⁴ Bell was given a receipt for the money, he asked a few questions, and was released. III R. 30.

B. Facts Leading to Ziebarth's Arrest

As officer Palmer approached Ziebarth, he identified himself and asked Ziebarth if he would mind talking for a moment. Ziebarth said no, and Palmer asked if he was waiting for someone. Ziebarth responded that Bell had picked him up and that he was not waiting for anyone. Palmer then asked if he could see Ziebarth's plane ticket. II R. 38, 39. Whittaker, who at that point had not yet gone over to help with Bell, said that Ziebarth was "just a little nervous" at this point. II R. 28. Ziebarth found the ticket and showed it to Palmer, who then checked Ziebarth's driver's license to verify the name on the ticket. II R. 39.

Palmer handed the license back to Ziebarth and told him that he was a narcotics officer and that he often stopped people in an attempt to locate narcotics. According to Palmer, Ziebarth then became "visibly nervous" and started looking around. II R. 39-40. Palmer asked if he could look through Ziebarth's nylon bag and advised him of his right to refuse. II R. 29, 40. Ziebarth handed the bag to Palmer who searched it, found nothing, and returned it to Ziebarth. II R. 30, 40. It was at this point that Whittaker went to help Steed with Bell. II R. 30.

Palmer noticed some zippered pockets on the shoulder of Ziebarth's jacket and he asked if he could search them. Ziebarth asked why and was told by Palmer that he was looking for drugs. II R. 40. Ziebarth reached up to unzip one of the pockets and as he did, Palmer noticed his hand "shaking very badly and he was unable to get a hold of the zipper for a couple of seconds...." He pulled out partially what appeared to be a manila envelope. Palmer asked what was in it and Ziebarth said money, about $3,000. II R. 41. Palmer questioned Ziebarth about the money (Ziebarth had previously said he did not have large amounts of money), and Ziebarth responded, "well, it's not a large...