937 F.2d 1534 (10th Cir. 1991), 90-6304, United States v. Evans

Docket Nº:90-6304.
Citation:937 F.2d 1534
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Daryl Lee EVANS, Defendant-Appellant.
Case Date:July 08, 1991
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 1534

937 F.2d 1534 (10th Cir. 1991)

UNITED STATES of America, Plaintiff-Appellee,

v.

Daryl Lee EVANS, Defendant-Appellant.

No. 90-6304.

United States Court of Appeals, Tenth Circuit

July 8, 1991

Page 1535

Leslie Kaestner, Asst. U.S. Atty. (Timothy D. Leonard, U.S. Atty., with her on the brief), Oklahoma City, Okl., for plaintiff-appellee.

Jerome T. Kearney, Asst. Federal Public Defender, Oklahoma City, Okl., for defendant-appellant.

Before TACHA, BARRETT and BRORBY, Circuit Judges.

BRORBY, Circuit Judge.

This appeal arises from the district court's denial of Defendant Daryl Lee Evans's, motion to suppress evidence. Defendant states the issues presented for review as follows: "Whether the district court erred in denying appellant's motion to suppress evidence seized pursuant to an unlawful

Page 1536

employment of a drug courier profile and unlawful Terry investigation;" and "[w]hether the district court erred when it denied appellant's motion to suppress evidence seized pursuant to an unlawful search of the carry-on luggage without a search warrant." We affirm.

I.

On April 25, 1990, Detective Sergeants Gary Eastridge and Glenn Ring of the Oklahoma City Police Department were working at the Union Bus Station in Oklahoma City as part of an interdiction program to detect and deter the arrival of drugs into the area. At approximately 2:00 p.m. that day, the officers observed a bus, which had originated in Los Angeles, arrive at the station and its passengers disembark. Among the passengers observed by the officers was Daryl Lee Evans. Mr. Evans was carrying a gray, soft sided bag. As Mr. Evans proceeded through the terminal, the officers noticed him scanning the area and acting in a very nervous manner. Mr. Evans then placed the gray bag he was carrying between his feet as he watched the luggage being unloaded from the bus.

Based on these observations and Sergeant Ring's experience and training in detecting drug couriers, the officers approached Mr. Evans, identifying themselves as narcotics officers, asked Mr. Evans for identification, and explained their reason for speaking with him.

Mr. Evans produced his identification while the conversation ensued but became increasingly nervous. Sergeant Ring then asked if Mr. Evans would allow the officers to search his carry-on bag. Mr. Evans told the officers he did not have the keys to the bag but subsequently produced two claim tags for other luggage that he claimed contained the keys. Mr. Evans gave the tags to Sergeant Eastridge, who attempted, but was unable, to locate the other luggage. The officers continued their conversation with Mr. Evans. Sergeant Ring stated he thought it was unusual that Mr. Evans did not have the keys to the bag on his person, whereupon Sergeant Ring asked Mr. Evans if he could pat him down to try and find the keys, and Mr. Evans consented. Both officers then proceeded to pat down Mr. Evans, and Sergeant Eastridge discovered a lump near the calf of Mr. Evans's leg. When Sergeant Eastridge inquired about the lump, Mr. Evans responded that it was "weed."

Following this, Mr. Evans was advised he was under arrest and was taken to an interior office at the bus station. Sergeant Ring then informed Mr. Evans that due to his arrest his carry-on bag would be inventoried before submitting it to the Oklahoma City property room according to department policy. Sergeant Ring then pried open a zipper on the bag and removed from the compartment a taped plastic bundle. Sergeant Ring noticed the bundle was sealed and packaged like kilograms of cocaine he had seized in the past. Sergeant Ring then asked Mr. Evans if there were any additional narcotics, and Mr. Evans said there were two other packages similar to the one...

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