947 F.2d 951 (9th Cir. 1991), 90-50538, U.S. v. Malone
| Citation | 947 F.2d 951 |
| Date | 08 November 1991 |
| Docket Number | 90-50538. |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Martinez MALONE, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Page 951
Editorial Note:
This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Argued and Submitted Oct. 9, 1991.
Appeal from the United States District Court for the Central District of California, No. CR-90-0326-HLH-(01); Harry L. Hupp, District Judge, Presiding.
C.D.Cal.
AFFIRMED.
Before FLETCHER, D.W. NELSON and BRUNETTI, Circuit Judges.
MEMORANDUM [*]
Martinez Malone appeals from his conviction under 28 U.S.C. § 841(a)(1), possession of a controlled substance with intent to distribute. Malone argues that four errors by the district court must be remedied by dismissal of the charges or a new trial. We affirm.
FACTS
On April 12, 1990, appellant Martinez Malone and his friend Paul Peters were travelling by bus from Long Beach, California to St. Paul, Minnesota. Owing to transit delays, they spent several hours waiting for their connection at the Los Angeles bus station. Two narcotics detectives from the LAPD--Loren Mauerhan and Herb Maples--were patrolling the station for drug courier activity. Mauerhan and Maples focussed their attention on Malone and Peters; they were acting "nervous" and displaying other characteristics that suggested to the detectives that they may have been transporting drugs. The detectives claimed that there were two plastic shopping bags between Peters' feet, and a black nylon sportsbag ("the black sportsbag") under Malone's. Around 7:00 PM, Peters cut to the front of the line at Gate 9, leaving the shopping bags behind him; Malone also approached the front of the line. Mauerhan and Maples took this to be evasive action, so they approached Malone.
At the supression hearing, the detectives testified that Mauerhan approached Malone, identified himself as a police officer, told Malone he was not under arrest and was free to leave, and asked permission to ask Malone a few questions. He asked to see Malone's bus ticket, which was tendered and returned. He then asked Malone some questions about his trip and about his luggage. Malone said that the black sportsbag was his, but that "some other guy" had packed it. Malone's evasive answers fueled Mauerhan's suspicions. He asked permission to search the black sportsbag, and Malone said, "Go ahead and look officer, but I think that other guy may have put some rock cocaine in there." After the search revealed 437 grams of rock cocaine (crack) divided into small parcels and taped inside articles of clothing, the officers arrested Malone and Peters.
Malone's version of events is markedly different. He claims that the black sportsbag belonged to a man he and Peters met on the bus from Long Beach, who they knew only as "L.T." or "L.G." (the "third man"). Malone's only luggage was one of the two shopping bags, which bore the Canon camera trademark ("the Canon bag"). The third man went to make a phone call shortly before 6:30 and asked Malone and Peters to watch his black sportsbag, which he left on the floor near a row of lockers. Near 7:00, Malone and Peters approached the front of the line at Gate 9 in order to help a middle-aged woman load her many packages onto the bus. When Mauerhan approached Malone and told him he was free to leave, Malone attempted to do so. Mauerhan then grabbed Malone and pushed him face first into the lockers, near the black sportsbag, and told him not to turn around. Malone denied owning the black sportsbag, and denied giving consent to search it.
The district court denied Malone's motion to suppress, saying:
This is one of those unusual motions to suppress were [sic] you [defense counsel] are going to have a second crack at it with the jury. I'm going to deny the motion. I'm going to find that it was a consentual [sic] search and that Mr. Malone was not under detention and knew he wasn't under detention and that the officer asked for permission to search and he gave it.
Following the arrest, the shopping bags, the black sportsbag, and the defendants were taken to the police station. The black sportsbag was searched closely for more hidden drugs. The contents of the shopping bags and the items carried by Malone and Peters were handled carelessly. No inventory was taken. Items were mixed together in piles on the table. Malone's leather jacket was destroyed. Mauerhan and Maples turned all of the evidence over to DEA Agent Bryan Wammack, informing him that the black sportsbag belonged to Malone and that the shopping bags belonged to Peters.
In late April, Wammack sent Peters a letter stating that Peters could pick up the shopping bags within 30 days, after which time they would be discarded. Peters never claimed the bags, so Wammack threw them away. Malone's defense counsel did not learn of this until the eve of the trial. He moved to dismiss the charges based on the destruction of potentially exculpatory evidence, claiming that the ability to prove that Malone owned the Canon bag was essential to corroborating Malone's version of events. The district court found that the shopping bags were discarded in good faith and then denied the motion, relying on Arizona v. Youngblood, 488 U.S. 51 (1988) (failure to preserve potentially exculpatory evidence does not violate due process without bad faith).
At trial, Malone reiterated his testimony that the black sportsbag belonged to the third man, and that he was only watching it temporarily. The prosecution argued that there was no third man, and that Malone had been carrying the black sportsbag all along. Nonetheless, the prosecution succeeded in obtaining a jury instruction that "the length of time a person possesses the illegal drug is immaterial; a short period of possession is sufficient." Defense counsel objected that this instruction could allow the jury to convict even if they believed Malone's story about watching the black sportsbag for the third man. The district court declined to give other prosecution instructions on joint possession and aiding and abetting, agreeing with defense counsel that they were unsupported by any evidence that Malone was acting in concert with the third man.
While deliberating, the jury discovered in one of the side pockets of the black sportsbag an announcement of a homeowners' association meeting to be held in Long Beach at 3325 Santa Fe Avenue ("the homeowners' notice"). Malone's address--at nearby 3345 Santa Fe Avenue--had already been admitted into evidence. The homeowners' notice had not been mentioned at trial or admitted into evidence. The jury requested further instructions.
Defense counsel moved for dismissal or a mistrial, arguing that the jury, in its excitement over having found evidence apparently linking Malone to the black sportsbag, would overestimate its importance and would not reach an impartial verdict. The district court denied the motions but reopened to admit evidence explaining how the homeowners' notice got into the black sportsbag. The testimony suggested that the notice had been either in the Canon bag or on Malone's person at the time of the arrest, and that it clearly had not been in the black sportsbag at that time. Upon further deliberation, the jury brought in a guilty verdict.
Malone appeals.
DISCUSSION
I. Motion to Suppress
A. Standard of Review
The legality of a search and seizure is reviewed de novo. United States v. Linn, 880 F.2d 209, 214 (9th Cir.1989). Factual findings upon which the decision is based, however, are reviewed for clear error. United States v. Erwin, 803 F.2d 1505, 1508 (9th Cir.1986). Consent is a factual matter; a finding of consent is upset only if clearly erroneous. Id.
B. Discussion
Malone raises two objections to the police procedures that led to his arrest. First, he argues that his questioning by police was an unlawful detention without reasonable suspicion. Second, he argues that he did not consent to search of the black sportsbag. Both of these issues turn largely on credibility.
Detention. Malone argues that he was detained without reasonable suspicion. The issue of reasonable suspicion, however, does not arise when a suspect has freely consented to questioning. The Supreme Court has established that
law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions.
Florida v. Royer, 460 U.S. 491, 497 (1983).
The detectives' testimony indicates that they stayed within the bounds of Royer. Mauerhan testified that when he and Maples first approached Malone, they told him that he was not under arrest, not in trouble, and that he was free to leave. The officers returned Malone's bus ticket to him after they examined it, so he could board his bus. See Royer, 460 U.S. 491, 501 (1983)...
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