U.S. v. Caicedo

• Decision Date: 06 June 1996
• Docket Number: Nos. 95-3242,95-3513,s. 95-3242
• Citation: 85 F.3d 1184
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Anthony CAICEDO (95-3242); William A. Ryan (95-3513), Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1184

85 F.3d 1184

UNITED STATES of America, Plaintiff-Appellee, v. Anthony CAICEDO (95-3242); William A. Ryan (95-3513) Defendants-Appellants.

Nos. 95-3242, 95-3513.

United States Court of Appeals Sixth Circuit.

Argued March 18, 1996.

Decided June 6, 1996.

William E. Hunt (argued and briefed), Office of the U.S. Attorney, Cincinnati, OH, for Plaintiff-Appellee.

Mark B. Weisser (argued and briefed), Cincinnati, OH, for Defendant-Appellant Anthony Caicedo.

Harry P. Hellings, Jr. (argued and briefed), Hellings & Pisacano, Covington, KY, for Defendant-Appellant William A. Ryan.

Before: LIVELY, MARTIN, and MOORE, Circuit Judges.

LIVELY, Circuit Judge.

The principal question in this case is whether subsequent actions of police officers converted what began as a consensual encounter into unlawful "seizures" of two individuals under the Fourth Amendment. The search for an answer to this question requires a rather detailed statement of facts related to the entire encounter.

I.

A.

On August 11, 1994, Officer John E. Mercado of the Cincinnati, Ohio police force was assigned to drug interdiction duty at the Greyhound Bus Terminal in Cincinnati. He was in full uniform and was armed. Officer Mercado testified ¹ that he noticed a bus passenger, later identified to be the defendant Anthony Caicedo, "wading through the crowd" while still on a bus that had just arrived at the station in an effort to move quickly to the front of the bus. Caicedo made eye contact with Officer Mercado as he was leaving the bus, "jerked" as if startled, broke eye contact and then alighted from the bus. Caicedo walked "briskly" past the officer toward the front entrance of the terminal, "clenching" his hands around the shoulder straps of his backpack. According to Mercado, Caicedo was "shaking" and "looked over his shoulder numerous times."

Officer Mercado followed Caicedo, who was still walking rapidly, into the parking lot, where the defendant William Ryan was waiting in the driver's seat of a parked car with the engine running. Caicedo walked directly to the car. As Caicedo stepped into the vehicle, Ryan looked up from the steering wheel and made eye contact with Officer Mercado. Ryan's eyes widened and his jaw dropped, and he put the car in motion before Caicedo had fully seated himself and closed the passenger side door. As Ryan drove toward the parking lot exit, he passed Officer Mercado, who leaned toward Ryan's open window and asked something to the effect of "[d]o you mind if I talk to you for a minute?" Ryan apparently said he did not mind and stopped the car, leaving the engine running. Mercado testified that Ryan then "slumped his shoulders and dropped his head in a sighing motion."

The officer walked closer to the vehicle and said, "I work for the narcotics unit; do you mind if I talk to yourself and the passenger?" Both Ryan and Caicedo nodded and said "yes." Then, without any prompting, Caicedo got out of the car, "threw" his backpack onto the front passenger seat and walked toward the rear of the car. He continued to behave nervously. Officer Mercado met Caicedo at the rear of the car and again identified himself as a narcotics investigator.

When asked, Caicedo admitted the backpack in the front seat was his, whereupon Officer Mercado obtained Caicedo's consent to search the backpack. At some point, Mercado conducted a pat-down search of Caicedo. The pat-down search produced nothing, but the search of the backpack uncovered a purse wrapped in plastic containing what appeared to be blocks of cocaine. While Officer Mercado was going through the contents of the backpack, Caicedo put each item back into the bag as soon as the officer had examined it. Caicedo told the officer that he was coming from New York, that he was on his way to visit his girlfriend and that his girlfriend had asked Ryan to pick him up at the station. Officer Mercado was not certain whether the pat down occurred before or after the cocaine was discovered.

While Officer Mercado was searching the backpack, Agent Sweeny and Sergeant Michael J. Bogenschutz approached the vehicle to provide assistance. Agent Sweeny, with the help of his narcotics dog, confirmed the presence of narcotics. Officer Mercado placed Caicedo under arrest, handcuffed him and advised him of his Miranda rights.

Meanwhile, Sergeant Bogenschutz spoke with Ryan, who was still in the driver's seat. According to Bogenschutz's testimony, Bogenschutz asked Ryan if he could speak with him, and Ryan answered in the affirmative. Further questioning prompted Ryan to state that he was at the terminal to meet Caicedo, that they were driving to the house of Caicedo's brother, that he knew only that the house was located on Corbly Road and that Caicedo was to provide him with the necessary directions. Ryan also told Sergeant Bogenschutz that his former girlfriend, then Caicedo's girlfriend, had asked him to pick Caicedo up at the bus terminal. Bogenschutz said Ryan would not make eye contact with him during the interview, answered his questions very slowly and appeared "somewhat nervous." At the request of his colleagues, who had just discovered the cocaine, Sergeant Bogenschutz placed Ryan under arrest and handcuffed him. Ryan was advised of his Miranda rights when he arrived in custody at the police station.

Based on an affidavit prepared by Sergeant Bogenschutz, a state judge issued a search warrant for Ryan's residence on Duck Creek Road in Cincinnati. In executing the warrant, police found incriminating evidence linking Ryan to drug trafficking and financial transactions with Caicedo.

B.

Each defendant was indicted by a federal grand jury for a single count of possession with the intent to distribute more than 500 grams of cocaine in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B) and 18 U.S.C. § 2.

Both defendants moved to suppress the evidence and statements obtained as a result of the August 11, 1994, encounter with Officer Mercado on Fourth Amendment grounds. Ryan also sought to suppress evidence obtained from the search of his apartment. After a hearing, the district court concluded that Officer Mercado's encounter with the defendants was consensual and did not become a seizure subject to Fourth Amendment protections until after the drugs were discovered and the defendants were arrested. With respect to the arrest of Ryan, the court found that evidence of Ryan's nervousness and the subsequent discovery of contraband provided probable cause to arrest Ryan without a warrant. Furthermore, the court held that the affidavit drafted by Sergeant Bogenschutz provided a sufficient basis to find probable cause for a warrant to search Ryan's residence. The district court also noted that even if the warrant had been defective, the evidence found at Ryan's residence was obtained through good faith reliance on a facially valid warrant. Accordingly, the court denied the defendants' motions to suppress.

Following the court's ruling, the defendants entered conditional pleas of guilty, reserving their right to appeal the denial of their suppression motions.

II.

In reviewing a district court's ruling on a motion to suppress, we will accept the court's factual findings unless clearly erroneous, and we consider its legal conclusions de novo. United States v. Dotson, 49 F.3d 227, 229 (6th Cir.) (citations omitted), cert. denied, --- U.S. ----, 116 S.Ct. 141, 133 L.Ed.2d 87 (1995). In our review of the court's findings of fact, we will consider the evidence in the light most favorable to the government. United States v. Buchanon, 72 F.3d 1217, 1223 (6th Cir.1995) (citing United States v. Garza, 10 F.3d 1241, 1245 (6th Cir.1993)).

A.

At two places in the order denying Caicedo's motion to suppress evidence, the district court stated that Officer Mercado patted Caicedo down after Caicedo had given consent to search his backpack. See J.A. at 66 ("After the defendant had given consent to the search, Officer Mercado patted down the defendant."); J.A. at 69 ("It was a reasonable exercise of official authority for Officer Mercado for his own safety to pat down the defendant to discover if he had a weapon after defendant consented to the search but before he began the search."). As noted, however, Officer Mercado testified that he could not remember exactly when he performed the pat-down search. The only other testimony regarding the time of this search came from Caicedo who stated that Mercado "put his hand" and started searching him when he left the car and before any discussion concerning the backpack. There was no evidence to support the district court's finding as to when the pat down occurred, and therefore, the finding that the pat down occurred after Caicedo gave consent to the backpack search was clearly erroneous.

B.

The government had the burden of proving that Caicedo voluntarily gave his consent to be patted down. Schneckloth v. Bustamonte, 412 U.S. 218, 222, 248, 93 S.Ct. 2041, 2045, 2058, 36 L.Ed.2d 854 (1973); Bumper v. North Carolina, 391 U.S. 543, 548-49, 88 S.Ct. 1788, 1791, 20 L.Ed.2d 797 (1968). Here, the district court assumed that Caicedo voluntarily consented to a search of his backpack before the pat down took place. Inasmuch as the government's only witness to the encounter was unable even to state when the pat down took place, the court could find consent to that action by Officer Mercado only if other evidence supported a finding that Caicedo did so consent. There is no other evidence bearing on this question. Therefore, we find that the pat down was made without Caicedo's consent, and Caicedo was "seized" within the meaning of the Fourth Amendment.

III.

A.

Next, our inquiry turns to whether Caicedo's seizure was constitutionally permissible. It is well-established that "police can stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity 'may be afoot,' even if the officer...