U.S. v. Glover

Decision Date18 February 1992
Docket NumberD,No. 300,300
Citation957 F.2d 1004
PartiesUNITED STATES of America, Appellee, v. Reginald GLOVER, Defendant-Appellant. ocket 91-1339.
CourtU.S. Court of Appeals — Second Circuit

Herbert L. Greenman, Buffalo, N.Y. (Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria, of counsel), for defendant-appellant.

Thomas S. Duszkiewicz, Asst. U.S. Atty., W.D.N.Y., Buffalo, N.Y. (Dennis C. Vacco, U.S. Atty., W.D.N.Y., of counsel), for appellee.

Before OAKES, Chief Judge, LUMBARD and ALTIMARI, Circuit Judges.

ALTIMARI, Circuit Judge:

Defendant-appellant Reginald Glover appeals from a judgment of conviction, entered in the United States District Court for the Western District of New York (Richard J. Arcara, Judge), finding him guilty of possession with the intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1) (1988).

The contraband forming the basis of Glover's conviction was recovered from his luggage after an encounter between Glover and members of a Drug Enforcement Administration ("DEA") Task Force at the Niagara Frontier Transit Authority ("NFTA") bus terminal in Buffalo, New York. On appeal, Glover contends that his conviction should be reversed because the district court erred in concluding that his Fourth Amendment rights were not violated during the encounter and, consequently, in denying his motion to suppress the narcotics recovered from his suitcase. Specifically, Glover argues that the officers had no objective level of suspicion to justify For the reasons set forth below, we affirm the judgment of the district court.

seizing him or his bags, thereby tainting the evidence found during the subsequent consensual search of his luggage.

BACKGROUND

For approximately the past one and one-half years, Investigator Paul Terranova of the Erie County Sheriff's Department and Agent William Spencer of the United States Border Patrol have been members of a DEA Task Force that enforces drug, immigration, and currency laws at the NFTA bus terminal and at other transportation centers in Buffalo. As part of their duties, Task Force members regularly observe passengers arriving on the early morning express bus from New York City. Interest in this particular bus is not accidental. As this Court previously has observed, "New York City is the principal source for drugs sold in western New York," United States v. Montilla, 928 F.2d 583, 584 (2d Cir.1991), and the express bus is used by drug traffickers to transport narcotics to the Buffalo area. See United States v. Torres, 949 F.2d 606, 607 (2d Cir.1991); Montilla, 928 F.2d at 584. Indeed, the Task Force's questioning of select express bus passengers yields approximately three to four arrests per month. Montilla, 928 F.2d at 584-85.

On May 16, 1990, Terranova and Spencer were on patrol at the NFTA bus terminal when the morning express bus arrived from New York City and parked at Gate 5. All of the passengers disembarked the bus and entered the terminal through Gate 5, except defendant-appellant Glover, who entered through Gate 4. Because Glover had separated himself from the main flow of traffic, Terranova and Spencer continued to observe him. They noticed that Glover appeared nervous, continually looked over his shoulders, and, though outside on a somewhat cool day, was the only passenger sweating from his face and brow. As he entered the terminal building carrying his two unchecked bags (a shoulder bag and a small suitcase), Glover walked extremely slowly and continually scanned the entire terminal area in a jerky fashion that Terranova believed was calculated to detect possible surveillance. Glover proceeded in this manner toward the terminal exit.

At that point, as a result of his observations, Terranova approached Glover, identified himself as a police officer, and asked if he could question Glover. Glover agreed to be questioned. During the subsequent questioning, Spencer stood silently several feet behind Terranova. Terranova began by asking Glover for identification. In response, Glover reached into his sock, retrieved his wallet, and handed Terranova a handwritten employee identification card. After asking Glover his name, Terranova requested additional identification. Glover produced a photocopied Social Security document with an illegible number. Terranova noticed that the identification Glover provided contained two different addresses.

Terranova then asked Glover why he was visiting Buffalo. Glover answered that he was in town to pay a surprise visit to his aunt. Because of the nature of the identification Glover provided--one handwritten, one illegible, and each with a different address--Terranova asked if he could phone Glover's aunt to confirm his identification. Glover refused, stating that the phone call would ruin the surprise. Glover also refused to allow Terranova to phone his employer, explaining that his employer wrongly believed that Glover had taken a sick day. Throughout this encounter with Terranova, Glover was sweating heavily, shaking nervously, and continually looking toward the exit.

Terranova then told Glover that he was concerned with drug smuggling in the Western New York area and asked Glover if he was carrying narcotics. Glover responded that he was not. Glover then refused Terranova's request to search his bags, stating that Terranova did not have "probable cause" to search his luggage. While still holding Glover's identification, Terranova asked if Glover would accompany him to the NFTA office for a further check on his identification. Glover agreed to go.

When Glover, Terranova, and Spencer arrived at the NFTA office, which was located approximately thirty feet from the terminal exit, Glover was asked, among other things, his birth date and whether he had a criminal history. Glover stated that he was born on November 3, 1968, and that he had no criminal history. Within minutes, a computer check of Glover's identification revealed that Glover's birthday was November 2, and that he had a criminal history of narcotics-related arrests and had used aliases. When asked to explain why he had lied regarding his criminal history, Glover responded that he believed Terranova's question pertained only to crimes in the Buffalo area.

At that point, Glover again refused a request to have his bags searched. Terranova then informed Glover that his bags would be detained until a narcotics detection dog arrived to conduct a "sniff test." Another agent present in the office told Glover that, although his bags would be detained, he was free to leave. The agent also told Glover that if the dog reacted positively to the bags, the officers would apply for a search warrant. Glover immediately refused to leave, insisting that he wanted to remain to make sure the officers obtained a warrant.

When the narcotics dog arrived, approximately thirty minutes had elapsed from the time Terranova had asked Glover to go to the NFTA office. In a controlled inspection involving several different pieces of luggage, the dog "hit on" Glover's bags. Once informed of the dog's reaction, Glover picked up his shoulder bag, threw it onto a desk, and told the officers to search it. After confirming that Glover wanted the bag searched, Terranova examined its contents and discovered a package containing a quantity of marijuana. At that point, Task Force Investigator June Bradley, who had entered the office, asked Glover if she could search his other bag. Glover responded "[y]ou might as well look in that one too." After opening the bag, Bradley discovered a package containing a white powder that was subsequently determined to be cocaine. Glover was then arrested and subsequently charged with one count of possessing with the intent to distribute a controlled substance in violation of 21 U.S.C. § 841(a)(1).

In district court, Glover moved to suppress the marijuana and cocaine, arguing that the search of his luggage was undertaken following an encounter with the police that violated his Fourth Amendment rights. After a suppression hearing, Judge Arcara first concluded that the initial encounter between Glover and the officers was entirely consensual. The District Judge further found that by the time the officers seized Glover's bags in the NFTA office by holding them for a "sniff test," they clearly "had reasonable suspicion based on articulable facts that [Glover] was carrying contraband." Finally, the court concluded that after the narcotics dog "hit on" Glover's bags, Glover voluntarily consented to the search that yielded the drugs. Accordingly, the district court denied Glover's motion to suppress. Glover subsequently entered a conditional plea of guilty, reserving his right to appeal the denial of his suppression motion. This appeal followed.

DISCUSSION

In considering a district court's ruling on a suppression motion, this Court reviews the district court's factual findings under a "clearly erroneous" standard, see, e.g., United States v. Springer, 946 F.2d 1012, 1015 (2d Cir.1991); United States v. Hooper, 935 F.2d 484, 489 (2d Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 663, 116 L.Ed.2d 754 (1991); United States v. Montilla, 928 F.2d at 588, construing all of the evidence in the light most favorable to the government. See, e.g., United States v. Villegas, 928 F.2d 512, 517 (2d Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 137, 116 L.Ed.2d 104 (1991); United States v. Jackson, 652 F.2d 244, 246 (2d Cir.), cert. denied, 454 U.S. 1057, 102 S.Ct. 605, 70 L.Ed.2d 594 (1981). "We review de novo questions of law such as whether a seizure occurred and, if so, whether reasonable suspicion justified it." Springer, 946 F.2d at 1015; see also Hooper, 935 F.2d at 489; Montilla, 928 F.2d at 588.

Our analysis begins with some preliminary observations. As we stated in Hooper, there are three types of encounters between police and individuals, each with different ramifications under the Fourth Amendment. See 935 F.2d at...

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