985 F.2d 1095 (D.C. Cir. 1993), 91-3288, U.S. v. Carter

Docket Nº:91-3288.
Citation:985 F.2d 1095
Party Name:UNITED STATES of America, v. David CARTER, Appellant.
Case Date:February 23, 1993
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 1095

985 F.2d 1095 (D.C. Cir. 1993)

UNITED STATES of America,

v.

David CARTER, Appellant.

No. 91-3288.

United States Court of Appeals, District of Columbia Circuit.

February 23, 1993

Argued Jan. 19, 1993.

Appeal from the United States District Court for the District of Columbia (91cr00163-01).

Ellen Barry, Asst. Federal Public Defender, with whom A.J. Kramer, Federal Public Defender, was on the brief, for appellant.

Nancy E. Smith, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., John R. Fisher, and Roy W. McLeese, III, Asst. U.S. Attys., were on the brief, for appellee.

Before WALD, RUTH BADER GINSBURG, and D.H. GINSBURG, Circuit Judges.

Opinion for the Court filed by Circuit Judge D.H. GINSBURG.

Dissenting opinion filed by Circuit Judge WALD.

D.H. GINSBURG, Circuit Judge:

David Michael Carter was indicted on one count of possession with intent to distribute 50 or more grams of a mixture and

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substance containing cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(iii). Following an evidentiary hearing the district court denied Carter's motion to suppress evidence. Carter, who was later convicted and sentenced to ten years' imprisonment, appeals the denial of his motion to suppress evidence. We affirm the ruling of the district court.

  1. BACKGROUND

    Two plain-clothes detectives from the Narcotics Interdiction Unit of the Metropolitan Police Department boarded an Amtrak train during its brief stopover at Union Station. Detective William Buss noticed one passenger, viz. the appellant, "squirming" in his seat, turning to look out the train window and turning back to look down the aisle as the officers approached. Detective Buss approached Carter, showed his police identification folder, and asked him about his trip. Carter replied that he was travelling from New York City to Fredricksburg, Virginia to look for construction work. Detective Buss then asked to see his ticket, which Carter handed to him. The ticket was for a passenger named "C. Carter." Detective Buss asked to see Carter's driver's license, which gave his name as "Michael Carter." Carter was acting nervously throughout this transaction; indeed, when Detective Buss handed the license back to him, Carter's hands were trembling so much that he dropped it.

    Detective Buss then asked Carter if he was carrying any drugs and Carter said "No." Detective Buss asked Carter for permission to look in his tote bag and Carter said "Okay." When Detective Buss searched the bag he found an assortment of new construction tools. In response to a question, however, Carter stated that he had been working in construction all his life. Detective Buss, who has done a lot of construction work himself, thought that the tools were probably a mere prop because Carter was not carrying goggles or a hard hat and because he was carrying a level that would not be used in construction work. Detective Buss also believed that Carter "didn't have enough clothing to substantiate a trip of undetermined duration."

    As the detective rifled through the tote bag, Carter indicated that he himself would go through the bag and pull out items to show the detective. He tried at least twice to put his hands into the bag, causing Detective Buss to ask, "Do you mind if I do the searching?" Detective Buss then removed from Carter's tote bag a brown paper bag, which Carter snatched back from him saying, "There's food in there; I will show you." At that point, Carter put his hand inside the paper bag, felt around, and finally withdrew his hand--which was empty. He then rolled up the paper bag and stood looking at Detective Buss. The detective stated, "I take it you don't want me to search that?" and Carter replied, "That's right."

    Detective Buss told Carter that he was going to take the paper bag to a dog trained to detect narcotics by smell. Although Carter himself was not detained, he followed Detective Buss off the train and onto the platform. Detective Buss took the bag to a different section of the terminal.

    While Detective Buss was gone, another officer approached and asked Carter if he had been carrying drugs in the paper bag. Carter admitted that he had been carrying drugs but added that they were not his. The officer then placed Carter under arrest. Moments later, Detective Buss returned and informed the other officers on the platform that the dog's reaction to the bag was positive and that he had opened the bag and found seventy-nine ziplock bags of apparent crack cocaine.

    At his trial, Carter moved under the fourth amendment to the Constitution to suppress the drug evidence and his admission. The district court denied the motion, holding that Carter had consented to the search of his tote bag and that Detective Buss had a reasonable suspicion upon which to detain the paper bag for the purpose of a canine sniff test.

  2. ANALYSIS

    Carter presents two challenges to the district court's denial of his motion to

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    suppress. First, he argues that the district court erred in finding that he voluntarily consented to the search of his tote bag. "Because of the fact-bound nature of the inquiry [into voluntariness], we generally reverse a trial judge's finding only for clear error." United States v. Lewis, 921 F.2d 1294, 1301 (D.C.Cir.1990). Here Detective Buss testified that Carter said "Okay" when asked if he could search the tote bag. When, because Carter kept putting his hand into the bag, Detective Buss asked, "Do you mind if I do the searching?" Carter removed his hand and again said "Okay." On these facts, the district court did not err, much less clearly err, in finding that Carter had consented to the search. See United States v. Joseph, 892 F.2d 118, 122 (D.C.Cir.1989) (no reversible error in finding that by reaching into bag during search defendant neither rendered search...

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