U.S. v. Withers, 89-3006
| Citation | 972 F.2d 837 |
| Decision Date | 14 August 1992 |
| Docket Number | No. 89-3006,89-3006 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Alice WITHERS, Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
Scott T. Mendeloff (argued), Barry R. Elden, Asst. U.S. Attys., Office of the U.S. Atty., Chicago, Ill., for plaintiff-appellee.
Stephen Levy (argued), Levy & Associates, Chicago, Ill., for defendant-appellant.
Before CUMMINGS and FLAUM, Circuit Judges, and LEE, District Judge. *
Alice Withers was stopped for questioning by members of the Chicago area Drug Enforcement Interdiction Task Force ("Task Force") at Eastern Airlines' baggage claim area in Chicago's O'Hare International Airport. Although Withers was not arrested at that time, after she was questioned, the officers detained Withers' garment bag. Shortly thereafter, a trained narcotics detection dog alerted to the presence of narcotics in the garment bag. On the following day, after obtaining a search warrant for the garment bag, Task Force officers opened the bag and discovered cocaine. After a hearing, the district court denied Withers' motion to suppress the evidence. Six days prior to the trial, Withers filed a motion to continue the trial, which was denied. A jury subsequently convicted Withers on the charge of possession with intent to distribute 500.29 grams of cocaine. Withers now appeals the denial of her motion to suppress, the alleged failure of the government to provide discovery material, and the denial of her motion to continue the trial. For the reasons stated below, we affirm.
At approximately 1:00 p.m. on the afternoon of May 12, 1988, Alice Withers had just arrived in Chicago at O'Hare International Airport, after a non-stop Eastern Airlines flight from Miami, Florida. Withers' nervous behavior attracted the attention of non-uniformed members of the Task Force who were monitoring the Eastern Airlines baggage claim area. Task Force member officer Michael Bobko of the Chicago Police Department moved to a position about ten feet from Withers, who seemed to be travelling alone. From this vantage Bobko observed Withers nervously smoke a cigarette, anxiously study an airport uniformed security guard, tensely pace back and forth along the baggage conveyor, and generally appear quite jittery. Officer Bobko then witnessed Withers remove a Samsonite garment bag from the baggage conveyor as Withers closely surveyed the nearby security guard. With her pulse visibly racing in her neck, Withers studied the area, drew a deep breath, hoisted the garment bag over her shoulder, and departed from the baggage claim area toward the center concourse.
Officer Bobko then approached Withers, displayed his credentials, and asked Withers to speak with him. 1 At Bobko's request, Withers produced her airline ticket, which was in Withers name. The ticket information indicated that it had been purchased on May 6, 1988, for round trip travel between Chicago and Miami, leaving Chicago on May 9, returning on May 12, 1988. 2 Withers further produced an Illinois driver's license to identify herself. Withers informed Bobko that she recently had two weeks vacation, and decided to spend the last two days of that vacation visiting friends at a condominium in Florida. Bobko next asked Withers whether she owned the items in the garment, to which she replied, "yeah, sure, it's all my stuff." Shortly thereafter, Bobko asked Withers if she were carrying any packages of which Withers did not know the contents. To this Withers initially indicated, "no", however, Withers quickly recanted, claiming that the bag felt heavier than when she packed it in her hotel that morning, and that she did not notice the weight difference earlier because the bellman at the hotel carried the bag to her taxi that morning. Detecting an inconsistency in Wither's story, Bobko then requested that Withers explain her previous statement that she had stayed at a friend's condominium. Withers had no reply. Next, Bobko asked Withers if Withers was carrying any narcotics in the bag. Withers denied knowledge of carrying any narcotics.
At this juncture, Task Force member Special Agent Steven Orr of the Drug Enforcement Administration ("D.E.A.") joined Bobko, displaying his credentials. Upon Bobko's request, Withers, physically trembling and becoming pale, declined to consent to a search of the garment bag. Bobko instructed Withers that they could search the bag without her consent. Withers then asked Bobko if she needed an attorney. Bobko explained that Withers was not under arrest, that she was free to leave, and could call an attorney. 3 Upon Bobko's request, Withers consented to a search of her purse, and Bobko discovered no contraband therein. Bobko then asked Withers if Withers had ever been arrested on drug charges. Withers replied that her last drug related arrest was in Chicago, for transporting three pounds of marijuana for a friend.
Bobko then informed Withers that he and Agent Orr were going to detain the garment bag at the airport D.E.A. office for a short period in order to allow a trained narcotics detection dog to conduct an external "sniff" of the bag to determine whether narcotics were in the bag. The officers told Withers that she could accompany them to the area where the canine sniff would occur, or that Withers could obtain a receipt for the bag and leave. Withers chose to get a receipt, agreeing to wait until Orr returned from the airport D.E.A. office with the receipt.
At Wither's request, she and Bobko moved to the side of the concourse and waited at a bench. 4 Approximately ten minutes later, Orr returned. Bobko then completed and handed the receipt to Withers. Withers asked Bobko what would happen if the narcotics detection dog alerted positively to the bag. Bobko explained that the officers would first seek a search warrant and would later seek an arrest warrant if the bag contained narcotics. At Bobko's request, Withers provided her driver's license and a credit card, so that the officers could make photo copies for identification purposes. Bobko then took possession of the garment bag. Withers informed the officers that she did not want to accompany them to the D.E.A. office for the canine sniff, but that she wanted to purchase some cigarettes and would return to their present location to wait for them to return her bag.
Approximately fifteen minutes later at the D.E.A. office, trained narcotics canine unit "Spike" positively alerted to Withers' bag, which was placed along side other similar pieces of luggage. Orr and officer Graham, also a member of the Task Force, then returned to the concourse where they had departed from Withers about twenty minutes earlier. The officers searched for ten to fifteen minutes but could not locate Withers. Withers says she went to an airport cocktail lounge for a drink and some cigarettes while she waited for the officers to return after checking her luggage. Withers claims that after waiting in vain for thirty minutes at the location of the confrontation, she went home since the officers did not return. However, after hearing the testimony, the district court found, "it is clear that she [Withers] did not return and remain at the baggage area to wait for the agents." 5
After obtaining a search warrant on May 13, 1988, Bobko and Orr opened the locked garment bag, and found 500.29 grams of cocaine, which was 95% pure. Withers was subsequently arrested and indicted for possessing with intent distribute cocaine, in violation of 21 U.S.C. § 841(a)(1).
Prior to trial, Withers moved to suppress the evidence related to her arrest at the airport. After a lengthy hearing on that motion, Judge Nordberg denied the motion on February 9, 1989, finding that the officers' testimony was credible, and with regard to Withers, "did not find her testimony to be persuasive." The district court found Wither's testimony was "disjointed" and inconsistent, and observed that Withers "did not give the impression that she was testifying from her natural memory of the events." 6 The district court also found that the initial encounter between Bobko and Withers was consensual, and that the consensual encounter developed into an investigative stop and seizure of the bag at the time officer Bobko informed Withers that he was going to detain the bag for an external canine "sniff" examination. Likewise, the district court found that at the time Withers' garment bag was seized, the officers had reasonable suspicion to detain the bag for the canine sniff, and that the fifteen to twenty minute detention of the garment bag was not undue delay.
At the time it denied the motion to suppress, the district court set Withers' trial for May 8, 1989. On May 3, 1989, Withers filed an emergency motion for continuance of the trial date. This motion was denied on the following day. After a jury trial, Withers was convicted and sentenced to eighty (80) months in prison and five (5) years of supervised release upon completion of the prison term. Withers now alleges the government failed to provide discovery material, although Withers did not argue this issue at trial.
Withers argues that shortly after she was stopped for questioning by officer Bobko, she and her baggage were illegally seized in violation of the Fourth Amendment, and therefore, the cocaine found in her garment bag should have been suppressed as evidence. Withers argues that the "investigative stop" encounter with officer Bobko was not based upon a reasonable suspicion, and argues that the encounter became an unconstitutional seizure of her person when officer Bobko maintained possession of Withers' airline ticket and driver's license, or at the very least when the officers asked Withers about any prior narcotics arrests. Therefore, Withers argues, the fruits of the seizure, the 500.29 grams of cocaine,...
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