United States v. Hammonds, 070914 FED3, 13-4610

Docket Nº:13-4610
Opinion Judge:SHWARTZ, Circuit Judge.
Party Name:UNITED STATES OF AMERICA v. DAMIEN HAMMONDS, a/k/a Hondo, Appellant
Judge Panel:Before: SMITH, VANASKIE, and SHWARTZ, Circuit Judges.
Case Date:July 09, 2014
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

UNITED STATES OF AMERICA

v.

DAMIEN HAMMONDS, a/k/a Hondo, Appellant

No. 13-4610

United States Court of Appeals, Third Circuit

July 9, 2014

NOT PRECEDENTIAL

Submitted Under Third Circuit LAR 34.1(a) July 8, 2014.

On Appeal from the United States District Court for the Middle District of Pennsylvania No. 1-11-cr-00166-001 District Judge: Hon. Christopher C. Conner

Before: SMITH, VANASKIE, and SHWARTZ, Circuit Judges.

OPINION

SHWARTZ, Circuit Judge.

Damien Hammonds was convicted for his role in a crack and powder cocaine distribution conspiracy. His only argument on appeal is that the District Court erred by denying his motion to suppress evidence. The District Court properly denied the motion so we will affirm.

I

As we write principally for the parties, we recount only the essential facts. On June 2, 2010, Marcelo Calderon-Ortiz and Richard Rondon-Diaz, two of Hammonds's co-defendants, flew from Philadelphia to San Juan, Puerto Rico. When they went through security at Philadelphia International Airport, TSA officers observed that they had significant amounts of cash in their carry-on luggage. The TSA officers attempted to contact the DEA team at the Philadelphia airport, but failed to do so before the flight to San Juan departed. The Philadelphia DEA team then contacted the DEA airport interdiction group in San Juan, Puerto Rico, provided descriptions of Calderon-Ortiz and Rondon-Diaz, and told the San Juan team they were carrying cash.

A team of four or five plainclothes agents from the San Juan airport interdiction group identified Calderon-Ortiz and Rondon-Diaz as they got off the plane and approached them in the baggage area of the terminal. As the agents spoke to Calderon-Ortiz and Rondon-Diaz in Spanish, Hammonds—who was, until then, unknown to the agents—approached the group and volunteered in English that he was traveling with Calderon-Ortiz and Rondon-Diaz.1 The agents then told Hammonds that they were from the DEA and asked him for identification. When Hammonds reached in his pocket to retrieve his identification card, one of the agents saw that he had "bundles of U.S. currency in his pants pocket." App. 97. In response to a question from the agent, Hammonds confirmed that he had money in his pocket. An agent then asked Hammonds, Calderon-Ortiz, and Rondon-Diaz if they would accompany the team to the DEA office. The agent told the three men that they were free to leave, that they were not under arrest, and that the questioning was "just an administrative procedure."2 App. 97. The three men agreed to go with the agents.

The team then escorted the three men to the DEA office, which was located in a secure part of the airport, with agents in front of and behind the three men. The three men retained control of their baggage, identification documents, airline tickets, and currency. The three men were then placed in separate rooms. When Hammonds sat down, the agent accompanying him told him again that he was not under arrest and that he could leave at any time.3 The door to the windowless room where Hammonds sat remained open during the discussion. The agents then asked Hammonds a few biographical questions and copied his identification card before questioning him about the source of the currency he was carrying.4 He first said the money was from his construction job. In response to follow-up questions, he then added that "some of it's from savings." App. 102.

After more questioning, Hammonds changed his story again, saying some of the cash came from his aunt. Hammonds asked to call the aunt to verify his story, and the agents permitted him to use the speakerphone in the room. The first call went to voicemail. On the second call, Hammonds told the woman on the other end that he had been stopped in Puerto Rico, and the woman hung up the phone. Hammonds called again, and began explaining to the woman that he had been stopped. The agents told the woman that the money would be subject to forfeiture if it was drug proceeds. She denied that the money was related to drugs, explained that she had given some money to Hammonds, and said that he had taken a few thousand extra dollars from her without her knowledge.

After hearing Hammonds's inconsistent explanations for the money, the agents sought his consent to search his luggage, which he gave, and he removed the money— about $6, 000—from his pocket. The agents then brought a dog trained to detect drugs. The dog walked past Hammonds's luggage and the currency, which had been placed in an envelope. The dog alerted only to the odor of drugs emanating from the envelope.

The agents then met to discuss their conversations with the three men, and "realized there was a very big difference in terms of what these guys were telling [them]." App. 106. Calderon-Ortiz and Rondon-Diaz told the agents that they were traveling with Hammonds, that all of the money they possessed belonged to Hammonds, and that they were in Puerto Rico to purchase a kilogram of cocaine. The agents then seized the cash, which totaled a little over $22, 000, and provided the three men receipts, after which the three men left the DEA office. Hammonds later called the DEA office for assistance with a return ticket to Philadelphia (as the agents had confiscated his money), and the agents tried to work with the airline to get Hammonds a ticket back to Philadelphia that same day.

II

Hammonds was indicted, along with eight other co-defendants.5 The indictment charged Hammonds with one count of distribution and possession with the intent to distribute at least 280 grams of crack cocaine and 5 kilograms of powder cocaine, in violation of 28 U.S.C. § 841(a)(1), and one count of conspiracy to do the same, in violation of 21 U.S.C. § 846. Before trial, Hammonds moved to suppress the evidence the San Juan agents obtained, which he contended violated the Fourth Amendment. After a hearing, the District Court denied the motion, concluding that Hammonds was not seized and, in the alternative, that any seizure did not violate the Fourth Amendment because it was supported by a reasonable, articulable suspicion that Hammonds was committing or was about to commit a crime, and the detention was no more intrusive than necessary to confirm or dispel that suspicion.

Hammonds proceeded to trial, the jury convicted him on both counts, and the District Court sentenced him to concurrent terms of 240 months' imprisonment on each count.

III

Hammonds appeals only the denial of his motion to suppress, arguing that the agents' investigatory stop evolved into a seizure without an arrest warrant or probable cause.6 We review a district court's factual findings for clear...

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