U.S. v. Bueno, 93-6083

• Citation: 21 F.3d 120
• Decision Date: 11 April 1994
• Docket Number: No. 93-6083,93-6083
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jose B. BUENO, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 120

21 F.3d 120

UNITED STATES of America, Plaintiff-Appellee, v. Jose B. BUENO, Defendant-Appellant.

No. 93-6083.

United States Court of Appeals Sixth Circuit.

Argued March 1, 1994.

Decided April 11, 1994.

David Bunning, Asst. U.S. Atty., (briefed), Lexington, KY, Frederick A. Stine, V, Asst. U.S. Atty. (argued), Covington, KY, for plaintiff-appellee.

Martin S. Pinales (briefed), Edmund McKenna (argued), Sirkin, Pinales, Mezibov & Schwartz, Cincinnati, OH, for defendant-appellant.

Before: KENNEDY and GUY, Circuit Judges; and CONTIE, Senior Circuit Judge.

CONTIE, Senior Circuit Judge.

Defendant-appellant, Jose B. Bueno, appeals his conviction and sentence for violation of 21 U.S.C. section 841(a)(1) for possession with intent to distribute approximately 5.2 pounds of cocaine. For the following reasons, we affirm in part and reverse in part.

I.

On January 20, 1993, Sergeant Bunning of the Cincinnati/Northern Kentucky International Airport Police Department was conducting routine surveillance at the Delta terminal of the airport, watching an arriving flight from New York, which is a known source city for narcotics. Defendant caught Sergeant Bunning's attention because of the people departing from a businessman flight, he was the only person wearing faded blue jeans, an LA Raiders shirt, and a leather jacket. Bunning observed defendant walking past the flight attendants stationed at the gate, who were to direct passengers to connecting flights, and going down the concourse. Before approaching another gate, defendant made a three-hundred-sixty degree turn, looking around as if to see if anyone were watching him. Defendant spoke to a flight attendant at another gate and then proceeded onward. Sergeant Bunning followed defendant in the direction he was walking and saw him check into a flight at gate 15 and then walk away. Sergeant Bunning then went to the gate-15 Delta ticketing agent and checked the list of inbound connections in order to determine which passengers were connecting from New York. There were only two passengers who were connecting from New York. Their tickets had been issued in the names of H. Cabot Lodge and Ralph Alicia. Sergeant Bunning discounted Mr. Lodge upon learning that he was a Delta frequent flyer using first class. Upon further checking on Ralph Alicia's reservation, Sergeant Bunning learned that he had purchased a one-way ticket for $749.00 cash forty-one minutes before the flight, which had a final destination of Anchorage, Alaska with a connection in Salt Lake City. Sergeant Bunning recalled that about one month earlier, a bag that was supposed to be transported from New York to Anchorage had ended up in Cincinnati by mistake and was found to contain a kilogram of cocaine. Bunning also knew that a large amount of cocaine was being transported from New York to Anchorage, Alaska.

Based on his suspicion that defendant was dealing in narcotics, Sergeant Bunning decided to approach defendant and requested that Detective McKenzie accompany him to ask defendant some questions. They found defendant leaving a gift shop. Bunning showed defendant his credentials and badge and asked to talk to him a few minutes. Defendant agreed to speak to Sergeant Bunning and when asked, produced a certified identification with the name of Ralph Alicia on it with a New York address and photograph. However, Sergeant Bunning recognized that the identification was one that could easily be obtained from a street vendor and was not issued by an official authority. Sergeant Bunning testified at the suppression hearing that this type of identification further indicated to him the possibility that defendant was involved in criminal activity. Upon questioning, defendant could not recall the city of his final destination until prompted by Sergeant Bunning. Sergeant Bunning then asked to see defendant's airline ticket; defendant consented and handed Sergeant Bunning the ticket. When Sergeant Bunning examined the ticket, he noticed that it had a baggage claim attached to it. The name on the ticket was Ralph Alicia, matching the name on the in-bound flight connection sheet. The officers testified that they immediately gave defendant back his plane ticket and his identification. During the course of this interview, the conversation was entirely in English, although defendant spoke with a heavy Spanish accent. During the time they spoke with defendant, Sergeant Bunning and Detective McKenzie did not display any weapons or touch defendant in any way.

According to the testimony of the officers, after their initial conversation with defendant, they asked if they could search his carry-on bag and defendant consented. Sergeant Bunning then suggested to defendant that the search be conducted in a side hallway of the airport rather than on the main concourse, which was very crowded. Defendant agreed that he preferred to move into the hallway. Defendant's version of the story is that he was asked to move into the hallway before the officers asked to see his identification, his ticket or permission to search his carry-on bag. In order to get into the hallway, Sergeant Bunning had to unlock the door by entering numbers on an electric keypad. Although the door had to be unlocked electronically in order to proceed from the terminal into the hallway, once in the hallway, one did not need to unlock the door in order to get back out to the concourse; the door simply opened. Defendant testified that he was unaware of this and believed he was locked in the hallway. The hallway was a stairwell landing area which was approximately ten by fourteen feet.

After entering the stairwell, the officers testified that they again asked defendant if they could search his carry-on bag and that he agreed. In the bag they found baby clothes, diapers, children's crayons, and a pair of pants. According to the officers, Sergeant Bunning then asked defendant if he could search his person and defendant agreed. After conducting a pat-down search, Sergeant Bunning located defendant's wallet, removed it, and then asked his permission to search the wallet, which defendant granted. Inside defendant's wallet, Sergeant Bunning found a New York driver's license with defendant's photograph and the name Jose Bueno on it. Sergeant Bunning then advised defendant that Kentucky state law prohibited giving a false name to a police officer, and defendant admitted that his real name was Jose Bueno. Defendant alleged that he was using the fictitious name of "Alicia" in order to check into hotels after he argued with his wife. Officer Bunning testified that he asked defendant if he could search his checked baggage, remembering that he had seen a baggage claim check when he had examined defendant's airline ticket earlier. Defendant first denied that he had any checked baggage, but after being reminded that there was a claim check on his ticket, he acknowledged that he did have checked baggage. Sergeant Bunning testified that defendant consented to the search and that he had checked a small green bag.

According to defendant, he was questioned in the stairwell, asked to produce his ticket which he handed over, and then asked for identification, which he took out of his wallet. Defendant testified that Sergeant Bunning then took the wallet from him and searched through it without his permission, finding his driver's license under the name of Bueno. Defendant also stated that the officers asked him where his checked luggage was, but never asked permission to search it.

After receiving permission to search his checked bag, the officers advised defendant that he could board his flight. From the area of aircraft operations, they retrieved the bag which corresponded to the claim check number on defendant's ticket. The bag was a three-foot high black canvas bag, and inside they found a detergent box with approximately five pounds of cocaine wrapped in cellophane with coffee grounds around it. The officers then boarded the Salt Lake City flight and placed defendant under arrest. Defendant was not advised of his Miranda rights until after he was arrested.

On February 10, 1993, defendant was indicted by a federal grand jury for the Eastern District of Kentucky. He was charged with one count of possession with intent to distribute approximately 5.2 pounds of cocaine in violation of 21 U.S.C. section 841(a)(1). Defendant filed a motion to suppress evidence on March 3, 1993. On March 11, 1993, an evidentiary hearing was held, and on May 28, 1993, the motion to suppress was denied. On June 3, 1993, defendant entered into a conditional plea of guilty pursuant to Rule 11(a)(2), reserving his right to appeal the district court's order on the suppression motion. A presentence investigation report was filed, which defendant objected to for giving him a two-level increase under the obstruction of justice guideline. The district court overruled the objection and on August 12, 1993, sentenced defendant to 66 months imprisonment, five years supervised release, and a mandatory assessment of $50.00. Defendant timely filed this notice of appeal.

II.

Defendant first argues that he was seized by officers Bunning and McKenzie in violation of the Fourth Amendment and that this seizure tainted any consent to search his luggage which he might have given.

We will first determine if an unreasonable seizure occurred. Under the Fourth Amendment, there are three types of permissible encounters between the police and citizens: consensual encounters in which contact is initiated by a police officer without any articulable reason whatsoever and the citizen is briefly asked some questions; a temporary involuntary detention or Terry stop which must be predicated upon "reasonable suspicion;" and arrests which must be based on probable cause. United States v. Flowers, 909 F.2d 145, 147 (6th Cir.1990); United States v. Ushery, 968 F.2d 575, 579 (6th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 392, ...