U.S. v. Miller

• Decision Date: 25 August 1992
• Docket Number: Nos. 91-1250,91-1252 and 91-1768,s. 91-1250
• Citation: 974 F.2d 953
• Parties: 36 Fed. R. Evid. Serv. 541 UNITED STATES of America, Plaintiff-Appellee, v. Ginger A. MILLER, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Toni A. HAMPTON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Jay L. NASH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 953

974 F.2d 953

36 Fed. R. Evid. Serv. 541

UNITED STATES of America, Plaintiff-Appellee, v. Ginger A. MILLER, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Toni A. HAMPTON, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Jay L. NASH, Defendant-Appellant.

Nos. 91-1250, 91-1252 and 91-1768.

United States Court of Appeals Eighth Circuit.

Submitted Feb. 10, 1992.

Decided Aug. 25, 1992.

Annette Krause, Joliet, Ill., argued, for defendant-appellant, Miller.

Carol A. Zuschek, Kansas City, Mo., argued, for defendant-appellant, Hampton.

J. Richard Lake, Holton, Kan., argued, for defendant-appellant, Nash.

E. Eugene Harrison, Kansas City, Mo., argued (Jean Paul Bradshaw II and Anita L. Mortimer, on the brief), for plaintiff-appellee, U.S.

Before McMILLIAN, LOKEN, and HANSEN, Circuit Judges.

LOKEN, Circuit Judge.

Ginger A. Miller, Toni A. Hampton, and Jay L. Nash appeal their convictions for conspiring to distribute cocaine and possessing cocaine with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and 846. They claim an illegal airport search and seizure, insufficiency of the evidence, improper refusal to sever, errors in the admission of evidence, and prosecutorial misconduct. Concluding that the district court ¹ correctly resolved each of these issues, we affirm.

I.

On February 15, 1990, Miller, Nash, and co-defendant John McMurray ² arrived at the Ontario, California airport with three America West tickets for a late-night trip to Kansas City. They were interviewed by two Los Angeles police officers working narcotics interdiction. Nash then walked to the airplane, but left the airport; Miller and McMurray boarded the flight that began their journey to Kansas City International Airport. One of the Los Angeles officers telephoned DEA Special Agent Carl Hicks in Kansas City, alerted him to their suspicions, and briefed him concerning the interview in California.

Agent Hicks, Customs Agent Kantazar, and Platte County Detective Kessler arrived at the flight's gate area in the Kansas City airport at 5:30 A.M. The only person there, Ronnie Kirtdoll, watched the agents nervously and waved the next two to arrive--Hampton and Clifton Jones--to a different entrance, where the three men caucused until Kessler approached. When Kirtdoll returned to his seat in the gate area, Agent Hicks interviewed and detained him.

The America West flight then arrived. Before passengers deplaned McMurray's brother arrived in the gate area, looked at Kirtdoll, and demanded to know what the officers were "doing to my Uncle Ronnie." A moment later McMurray and Miller emerged from the plane. After greeting McMurray's brother, Miller agreed to speak with Agent Hicks.

Hicks first asked to see Miller's ticket. As Miller opened her purse Agent Hicks could see a plane ticket on top; however, in an apparent stall for time, Miller reached her hand under the ticket and explored the depths of her purse while the McMurray brothers headed for the baggage carousel. Hicks asked Miller if she had checked a bag on the plane, and she said no. Hicks knew, however, that the California officers had seen a claim check for this flight in Miller's purse. Hicks directed Miller to sit down next to Kirtdoll, told her that he knew she had a baggage claim check, and asked her for it. Miller handed him a claim check.

Leaving Customs Agent Kantazar with Kirtdoll and Miller, Agent Hicks started toward the baggage carousel, but he doubled back after a few steps and handcuffed Kirtdoll and Miller. Hicks and Kessler then approached the carousel, where Hampton waited with the crowd that had gathered to claim luggage. Hicks retrieved the bag with the matching claim check number and carried it back to Miller in the gate area. When Agent Hicks asked if he could look in the bag for drugs, Miller said that he could do whatever he wanted because it was not her suitcase. Hicks then opened the bag and found just over 1300 grams of cocaine.

Miller was arrested and later confessed. ³ She was indicted and tried with Hampton, Nash, and McMurray on identical charges of cocaine conspiracy and possession with intent to distribute. The district court denied severance motions by Nash and Hampton but admitted only a redacted version of Miller's confession that eliminated all references to her codefendants. The jury convicted the four on each count, but it acquitted a fifth defendant, Harry Christopher. These appeals followed.

II.

A. Fourth Amendment Issues. Miller argues that the district court erred in denying her motion to suppress the cocaine Agent Hicks found in the checked bag. This issue turns upon the Fourth Amendment validity of Agent Hicks's detention of Miller in the gate area and his subsequent search of the checked bag.

(1) The parties agree that Miller was not seized for Fourth Amendment purposes until Hicks told her to sit with Kirtdoll while Hicks went to the baggage area to retrieve the checked bag. At that point, Miller argues that her detention in handcuffs in the gate area was an unlawful arrest that tainted Hicks's subsequent search of the bag. The government contends that Hicks detained Miller pursuant to a valid investigative stop and only arrested her after the cocaine was discovered.

Under well-settled Fourth Amendment case law, both investigative stops and arrests are "seizures," but an investigative stop must be supported by reasonable, articulable suspicion that criminal activity may be afoot, whereas an arrest must be supported by probable cause. See, e.g., Terry v. Ohio, 392 U.S. 1, 25-31, 88 S.Ct. 1868, 1882-85, 20 L.Ed.2d 889 (1968). An investigative stop may become an arrest if it lasts for an unreasonably long time or the officers use unreasonable force in executing it. See Dunaway v. New York, 442 U.S. 200, 212, 99 S.Ct. 2248, 2256, 60 L.Ed.2d 824 (1979). We review such seizure questions de novo. See United States v. McKines, 933 F.2d 1412, 1426 (8th Cir.) (en banc), cert. denied, --- U.S. ----, 112 S.Ct. 593, 116 L.Ed.2d 617 (1991).

There is no bright line of demarcation between investigative stops and arrests. See United States v. Sharpe, 470 U.S. 675, 685-86, 105 S.Ct. 1568, 1575, 84 L.Ed.2d 605 (1985); United States v. Jones, 759 F.2d 633, 636 (8th Cir.1985). During a Terry stop, officers may check for weapons and may take any additional steps "reasonably necessary to protect their personal safety and maintain the status quo during the course of the stop," United States v. Hensley, 469 U.S. 221, 235, 105 S.Ct. 675, 684, 83 L.Ed.2d 604 (1985), but they must employ the least intrusive means of detention reasonably necessary to achieve the Terry stop's purposes. See Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 1325, 75 L.Ed.2d 229 (1983). Without disputing that Agent Hicks had reasonable suspicions, Miller argues that the use of handcuffs was excessive and turned a valid Terry stop into an unlawful arrest.

At the suppression hearing, Officer Hicks testified that he decided to handcuff Miller and Kirtdoll because the suspects in the vicinity outnumbered the officers by six to three, and because he doubted that Customs Agent Kantazar could effectively control two suspects while Hicks and Kessler went to the baggage claim area. The record supports these concerns. Agent Hicks's doubling back to handcuff Miller and Kirtdoll further suggests that his safety concerns were instinctive and sincere. Noting that Miller had lied about the claim check and that Hicks needed to act quickly to intercept the checked bag, the district court concluded that "handcuffing Miller was reasonable and was the least intrusive means available for Agent Hicks to safely maintain the status quo in order to achieve the purposes of the investigative detention, i.e., determine if there was probable cause to arrest any of the suspects for a drug offense."

After carefully reviewing the record, we agree. Numerous cases have held that a police officer's use of handcuffs can be a reasonable precaution during a Terry stop. ⁴ The nature of the crime Hicks suspected, drug trafficking, created a wholly credible concern that at least some of the suspects might be armed. ⁵ See, e.g., United States v. Lyles, 946 F.2d 78, 81 (8th Cir.1991). Given Hicks's legitimate concern for the safety of the officers, the need to detain Miller until the bag could be obtained, and the minimal time Miller spent in handcuffs before the cocaine was discovered, we will not second-guess Hicks's decision that this use of handcuffs was the least intrusive means reasonably necessary to achieve the purposes of his lawful investigative stop.

(2) Though Hicks was justified in seizing and detaining the checked bag, the Terry stop permitted him only "a limited investigation, short of opening the luggage, that would quickly confirm or dispel [his] suspicion." United States v. Place, 462 U.S. 696, 702, 103 S.Ct. 2637, 2642, 77 L.Ed.2d 110 (1983) (emphasis added). The district court found, however, that Agent Hicks's opening and search of the bag did not implicate Miller's Fourth Amendment rights because she had abandoned it. We review this finding for clear error. United States v. Ruiz, 935 F.2d 982, 984 (8th Cir.1991).

During the initial consensual phase of their encounter, Miller told Agent Hicks that she did not have a checked bag on the flight. After Miller handed over the claim check, Agent Hicks retrieved the bag and asked her if he could open it. Hicks testified at the suppression hearing, "She said I could do whatever I wanted to because it was not her suitcase," virtually the same words that were held to constitute a disclaimer or abandonment of the defendant's shoulder bag in United States v. Torres, 949 F.2d 606, 607 (2d Cir.1991).

Miller argues that her abandonment was "vitiated" by her unlawful arrest. There are two obvious answers to this contention. First, Miller initially abandoned the bag during the consensual phase of the...