U.S. v. Kelly, 88-5970

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Citation913 F.2d 261
Docket NumberNo. 88-5970,88-5970
PartiesUNITED STATES of America, Plaintiff-Appellant, v. Edward KELLY, Defendant-Appellee.
Decision Date11 September 1990

W. Hickman Ewing, Jr., U.S. Atty., Timothy R. DiScenza, Asst. U.S. Atty. (argued), Office of the U.S. Atty., Memphis, Tenn., for plaintiff-appellant.

Edward Witt Chandler (argued), Memphis, Tenn., for defendant-appellee.

Before MERRITT, Chief Judge, BOGGS, Circuit Judge, and CONTIE, Senior Circuit Judge.

BOGGS, Circuit Judge.

The United States appeals the district court's order suppressing evidence seized in this airport drug search case. The district court found that Kelly gave consent to a search of his bag. However, independent of the search of the bag, Kelly was improperly searched and arrested before the search of the bag was carried out. For these reasons, the district court held that the consent was revoked as a matter of law. We reverse and remand for a factual inquiry into whether the consent was ever actually revoked.

I

On April 28, 1988, appellee Edward Kelly was observed by Sheriff's Department officers Forrest Roberts and Beverly Archer, who were assigned to the Airport Drug Task Force at Memphis International Airport. Kelly was disembarking from an airplane arriving from Los Angeles. Officer Roberts testified that he began observing Kelly when another member of the Airport Drug Task Force, Officer Bevel, advised him that she believed that Kelly had been transporting drugs between Memphis and Los Angeles. According to Roberts's testimony, Bevel also told Roberts that Kelly had at one time been an employee of Delta Airlines.

Thereafter, Roberts and Archer decided to follow Kelly down the concourse toward the baggage area. Officer Roberts testified that Kelly walked slowly, and was "turning around and looking." At the baggage claim area, Roberts testified Kelly "went to the Northwest belt ... and started talking to a tall, slender, male black."

After retrieving his bag, Kelly was approached by officers Archer and Roberts and asked if he objected to talking to them. Kelly said no, and Officer Roberts then asked him if he were from Memphis. Kelly replied yes. When Officer Roberts then asked for identification, Kelly produced an expired Delta employee card. He further explained that he had been laid off from Delta for approximately two years. When asked if he had other identification, he produced a California driver's license, explaining that he had been in Los Angeles for some time. Kelly could not produce his ticket, saying that he had probably left it on the airplane.

At this point, the officers asked Kelly if he had any objection to a search of his luggage, and he consented. Roberts looked through one bag while Archer looked through another. A third bag, however, was locked. Roberts testified that Kelly expressed surprise that the bag was locked and said that he didn't lock it and didn't have a key. (Kelly admitted at the hearing that he lied about the key. Archer testified that Kelly then told the officers: "you can break it open." Roberts thought that to be an unusual statement, but asked Kelly if he would accompany them to an office in order to get into the suitcase. Kelly contends that he did not consent to a search of the third, locked bag, but the district court stated that it "accepts the officers' version as to this consent issue [that Kelly did give consent] as more credible."

Officer Bevel accompanied Roberts and Archer as they escorted Kelly to the office. When the group reached the office, the phone was ringing. Roberts answered the phone, and Archer and Bevel accompanied Kelly into a second room in the office. While Roberts was talking on the phone, Archer asked Kelly if he minded being patted down, as she had lost sight of him in the baggage claim area and wanted to check him for weapons. Archer testified that she wanted to check for weapons because she had lost sight of Kelly for a short time and because "he went behind the baggage area and met up with another male black." 1 Kelly stated that he did not give consent, but Officer Archer claims that consent was given. The district court believed Kelly's version that consent for the pat-down was not given. Archer found some money in Kelly's pocket and some marijuana in his socks.

At this point, Officer Archer arrested Kelly and read him his Miranda rights. Then, according to Officer Archer, she said something about "hat[ing] to break that lock" on the suitcase, and Kelly replied that it was unnecessary and gave her the key from his wallet. Kelly contends that Officer Archer simply took the key from his wallet. Using the key, Archer opened the suitcase, and found eleven brick-size packages, which tested positive for cocaine.

The Grand Jury for the Western District of Tennessee returned a one-count indictment charging Kelly with possession with intent to distribute eleven kilograms of a substance containing cocaine, in violation of 21 U.S.C. Sec. 841(a)(1). After an evidentiary hearing on Kelly's Motion to Suppress Evidence, the district court ordered the evidence suppressed, based on its finding that the search of Kelly's person and locked suitcase violated the fourth amendment. The United States appeals from this order.

II
A

This court can only overturn the district court's factual findings in a suppression hearing if they are clearly erroneous. United States v. Breen, 419 F.2d 806 (6th Cir.1969). The court below found that Kelly consented to the initial questioning, and to a search of his bags. However, the court further found that the subsequent search of Kelly's person and then the locked bag were unlawful, because no consent was given to permit the otherwise unlawful search of the person, and that the unlawful search tainted the pre-existing consent to search.

The district court found that Kelly was not "seized" under the fourth amendment during the initial questioning or by the request to follow the officers back to the office. We agree. Initial questioning, without more, is not unlawful. United States v. Mendenhall, 446 U.S. 544, 555, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980). The initial questioning led the officers to suspect Kelly of criminal activity, and they asked him to accompany them to their office. Kelly consented, and under these circumstances the trip to the office was reasonable.

B

The search of Kelly's person that led immediately to his arrest was, however, not reasonable under the circumstances. We agree with the district court that this search was unlawful. The officers alleged that such a search was justified because they were checking Kelly for weapons. An officer can legally search for weapons if a reasonably prudent officer in the circumstances would be warranted in the belief that the officer's safety or that of others was in danger. Terry v. State of Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889 (1968).

In the present case, the district court found that a reasonable officer would not have been concerned about safety and that this was simply a pretext for the illegal search. The subject had just disembarked from a plane where it is very difficult to have a weapon because of security devices. Furthermore, the police had only lost sight of Kelly for an extremely short time, if at all. Most convincing of all to the district court was that Officer Archer did not search Kelly's groin area for weapons. Since this is a common area for weapons to be hidden, this omission made belief in the officer's story difficult, though she testified that a weapon in the groin "would have been harder to get to than it would in his leg or pocket...." Based on the facts the district court's finding was not clearly erroneous. 2

No circumstances existed to make the search of Kelly's person reasonable. A frisk of Kelly at the baggage claim area, absent his consent, would not have been reasonable. No change of circumstances occurred, before the officers searched the locked suitcase pursuant to Kelly's consent, that would have justified the search of Kelly's person in the office.

C

Because this initial search was unlawful, the subsequent arrest and the search of the locked suitcase pursuant to the arrest would also be unlawful since, absent exigent circumstances or consent, an officer is not to search a locked suitcase without a search warrant. See United States v. Chadwick, 433 U.S. 1, 11-12, 97 S.Ct. 2476, 2483-84, 53 L.Ed.2d 538 (1977). There is no argument that exigent circumstances existed.

The officers contend, however, that consent for the search of the bag was given. A warrantless search, although generally considered unreasonable, is valid if conducted pursuant to the person's consent. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854 (1973). However, the burden of proving that consent is on the government if there is no warrant. Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 1323, 75 L.Ed.2d 229 (1983). The consent must be freely and voluntarily given, and this must be proven by "clear and positive" proof. United States v. McCaleb, 552 F.2d 717, 721 (6th Cir.1977). Therefore, coercion, such as ordering detention until a warrant can be obtained, obviates the consent. United States v. Jefferson, 650 F.2d 854, 858 (6th Cir.1981). Consent is a question of fact, and the district court's decision regarding consent will not be overturned unless clearly erroneous. McCaleb, 552 F.2d at 720.

In the present case, the district court concluded that consent was not given for either the personal search or the search of the third suitcase. The government counters that the district court's own factual findings show that the defendant stated that the officer could break open his suitcase and that this "consent" was never withdrawn.

The district court's opinion treats it as axiomatic that the consent in the terminal may not be used to justify the search of...

To continue reading

Request your trial
32 cases
  • Albea v. Bunn
    • United States
    • U.S. District Court — Western District of Tennessee
    • November 16, 2017
    ...United States v. Ivy , 165 F.3d 397, 402 (6th Cir. 1998) (citing Schneckloth , 412 U.S. at 219, 93 S.Ct. 2041 ; United States v. Kelly , 913 F.2d 261, 265 (6th Cir. 1990) ). And while the Courts of Appeals disagree on which party bears the burden of proof regarding voluntary consent in a ci......
  • U.S. v. Paulino
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • June 3, 1991
    ...safety or that of others was in danger. Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889 (1968); United States v. Kelly, 913 F.2d 261, 264 (6th Cir.1990). In Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983), the Supreme Court held that these safety c......
  • U.S. v. Taylor
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • February 10, 1992
    ...v. Winfrey, 915 F.2d 212, 216 (6th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 709, 112 L.Ed.2d 698 (1991); United States v. Kelly, 913 F.2d 261, 264 (6th Cir.1990) ("Initial questioning, without more, is not unlawful."). Existing precedent teaches that a "seizure" occurs during a pol......
  • U.S. v. Beauchamp
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • October 25, 2011
    ...free and voluntary consent. See Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); United States v. Kelly, 913 F.2d 261, 265 (6th Cir.1990). The government bears the burden of proving, through “clear and positive testimony” that the consent to search was giv......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT