U.S. v. Alvarez-Sanchez

• Citation: 774 F.2d 1036
• Decision Date: 25 October 1985
• Docket Number: ALVAREZ-SANCHE,No. 83-5612,G,83-5612
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Luis Albertouillermo Leon Ruiz-Azendano, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1036

774 F.2d 1036

UNITED STATES of America, Plaintiff-Appellee, v. Luis Alberto ALVAREZ-SANCHEZ, Guillermo Leon Ruiz-Azendano Defendants-Appellants.

No. 83-5612.

United States Court of Appeals Eleventh Circuit.

Oct. 25, 1985.

Irwin G. Lichter, Yolanda Morales and Theodore R. Dempster, Miami, Fla., for defendants-appellants.

Stanley Marcus, U.S. Atty., Linda Collins-Hertz, Asst. U.S. Atty., Miami, Fla., for plaintiff-appellee.

Appeals from the United States District Court for the Southern District of Florida.

Before KRAVITCH and HATCHETT, Circuit Judges, and THOMAS ^*, District Judge.

KRAVITCH, Circuit Judge:

Appellants Ruiz-Azendano (Ruiz) and Alvarez-Sanchez (Alvarez) both were convicted of possession of cocaine with intent to distribute. ¹ 21 U.S.C. Sec. 841(a)(1). In this appeal, Ruiz seeks reversal of his conviction, claiming that the evidence is insufficient to sustain the jury's verdict. Alvarez contends that the district court improperly denied his motion to suppress evidence that he argues was tainted by his unlawful seizure. We affirm.

I. BACKGROUND

On April 5, 1984, shortly before 11:00 p.m., United States Border Patrol Agents Stephen Lotakas and Donald Harty entered the Miami Greyhound Bus Terminal to look for illegal aliens. During the previous year, Lotakas had checked the terminal for illegal aliens numerous times, making approximately sixty arrests. ² When the agents entered the station, they looked over the seating area and saw approximately forty people. Agent Lotakas soon focused upon appellant Ruiz, who appeared to be Hispanic. The other seats in the row of chairs where Ruiz sat were empty; the closest person to him was approximately ten feet away. On the floor to Ruiz' right and within his arm's reach was a yellow plastic shopping bag. After observing Ruiz and others in the bus terminal for approximately fifteen minutes, the two agents approached a man sitting in the row of chairs behind Ruiz, and questioned him about his immigration status. Satisfied that this man was lawfully in the country, the agents approached Ruiz. As they did, Ruiz left his chair and began to walk past the two agents. Lotakas stepped in front of Ruiz, identified himself as an immigration officer, and asked Ruiz his citizenship. Ruiz responded that he was married. When Lotakas repeated the question, Ruiz told Lotakas to call his wife who was in Tampa. Lotakas asked Ruiz the same question again; this time Ruiz replied that he was a Colombian and that his wife had his passport as she was making arrangements for his immigration papers. Lotakas placed Ruiz under administrative arrest for lack of travel documents and told him to pick up his bag. Ruiz responded that the yellow shopping bag was not his. Lotakas picked up the bag and escorted Ruiz to an administrative office in the bus station where the two agents further questioned him about his citizenship. Inside the bag, the agents found men's clothing and grooming articles, and a teddy bear.

While questioning Ruiz, Harty noticed another Hispanic male, appellant Alvarez, sit down in a chair directly in front of the office. The agents had not noticed Alvarez in the station when they first entered; apparently he had arrived shortly thereafter. Harty walked back into the terminal area and approached Alvarez with his badge in hand. At first, Harty spoke to him in English; when Alvarez did not respond, Harty questioned him in Spanish about his nationality. Alvarez said he was from Colombia. Harty then asked him if he had any immigration documents. Alvarez began to unzip a side compartment on his luggage, but Harty stopped him and requested that he step inside the office, which was approximately fifteen feet away. Alvarez agreed and carried the bag to the office where Lotakas was questioning Ruiz. Inside the office and without any direction from the agents, Alvarez again unzipped his suitcase and produced his documents. Observing that Alvarez' travel visa had been expired for approximately five months, Harty placed him under administrative arrest.

At that point, Harty asked Alvarez what else was in the suitcase. Alvarez responded that he had some dirty clothes and began emptying the suitcase; after he removed a portion of the contents he began returning them to the suitcase. Harty took the suitcase from Alvarez and emptied it himself, finding two spherically shaped packages wrapped in tape with the letters RR written in magic marker on the wrapping.

The agents decided to take the two men to Border Patrol Headquarters in Miami for processing. There they discovered that each of the packages found in Alvarez' suitcase contained a kilogram of cocaine; approximately four kilograms of cocaine were stuffed inside the teddy bear found in the yellow shopping bag. The cocaine was packaged similarly. ³ Both appellants possessed bus tickets to New York City, and Ruiz had no baggage claim attached to his ticket or on his person.

II. WHETHER THE EVIDENCE WAS SUFFICIENT TO CONVICT APPELLANT RUIZ

Appellant Ruiz contends that the government did not introduce sufficient evidence to convict him of the substantive offense of possession with intent to distribute cocaine. In reviewing this claim, we must examine the evidence, together with all logical inferences flowing from the evidence, in the light most favorable to the government, United States v. Monaco, 702 F.2d 860, 880 (11th Cir.1983), and affirm the conviction if "a reasonable trier of fact could find that the evidence establishes guilt beyond a reasonable doubt." United States v. Bell, 678 F.2d 547, 549 (5th Cir.1982) (Unit B en banc), aff'd on other grounds, 462 U.S. 356, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983). ⁴ The evidence may be sufficient though it does not "exclude every reasonable hypothesis of innocence or [is not] wholly inconsistent with every conclusion except that of guilty.... A jury is free to choose among reasonable constructions of the evidence." Id. Possession of a controlled substance with intent to distribute may be proved by circumstantial evidence as well as by direct evidence. United States v. Pruitt, 763 F.2d 1256, 1264 (11th Cir.1985).

Appellant Ruiz specifically contends that the government failed to establish any connection between himself and the cocaine found in the yellow shopping bag. We disagree. Although the proximity of the bag to Ruiz, in and of itself, would not be sufficient for the jury to have concluded beyond a reasonable doubt, it is a factor to be considered with other evidence presented. The agents did not see Ruiz enter the bus station or hold the shopping bag, but they did observe him for approximately fifteen minutes before they approached him. During that time, the bag remained on the floor close to Ruiz, within his reach, and no one else made any attempt to exercise ownership over the bag. Nor was anyone else sitting in the same row or within ten feet of him. It is true that the government made no attempt to introduce fingerprint evidence or other evidence of identification. The bag, however, did contain men's clothing and grooming articles, in addition to the teddy bear, and as the court below admitted the bag and its contents into evidence, the jury had the opportunity to consider whether the clothes might have fit Ruiz. Moreover, Ruiz possessed a bus ticket to New York City, but had neither a baggage claim nor other luggage. In addition, the fact that the bag contained four kilograms of cocaine, a not insignificant amount, would discount the possibility of the bag having been abandoned by another passenger, especially as the INS agents were in plain clothes. Although it is a close question, considering the totality of the circumstances and drawing all reasonable inferences in favor of the government, we conclude that the jury could have determined beyond a reasonable doubt that the bag belonged to Ruiz, and that he knowingly possessed the cocaine.

III. WHETHER THE ENCOUNTER BETWEEN ALVAREZ AND THE AGENTS AMOUNTED TO AN ILLEGAL SEIZURE

In the court below, Alvarez filed a motion to suppress the cocaine found inside his luggage, arguing that he was seized without reasonable suspicion at the time he was taken to the terminal office, thereby tainting the subsequent search of his bag and discovery of the cocaine. ⁵ In denying the motion to suppress, the district court found that the agents acted reasonably, under the circumstances, in conducting their investigation in the terminal office and that there was no coercion in requesting that Alvarez enter the office for examination of his documents. Alvarez seeks review of the denial of the motion to suppress. The government counters that Alvarez was not seized until Harty actually placed him under administrative arrest.

Not every encounter between law enforcement officers and an individual constitutes a seizure within the meaning of the fourth amendment. INS v. Delgado, 466 U.S. 210, 104 S.Ct. 1758, 1762, 80 L.Ed.2d 247 (1984). Communications between police and citizens involving no coercion or detention are outside the scope of the fourth amendment. United States v. Berry, 670 F.2d 583, 591 (5th Cir. Unit B 1982) (en banc ). An initially consensual encounter, however, can ripen into a detention requiring reasonable suspicion or probable cause. Delgado, 104 S.Ct. at 1762. If an officer, by means of physical force or show of authority, has restrained the liberty of a citizen, we must conclude that a seizure requiring an objective level of justification has occurred. Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 1879 n. 16, 20 L.Ed.2d 889 (1968). The crucial inquiry in determining whether a person has been seized within the meaning of the fourth amendment is whether, considering all the circumstances, "a reasonable person would have believed that he was not free to leave" if he failed to respond to the questions. United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980) (opinion of...