U.S. v. Frazier

• Decision Date: 20 June 1991
• Docket Number: Nos. 90-5267,90-5268,s. 90-5267
• Citation: 936 F.2d 262
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Darrell FRAZIER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 262

936 F.2d 262

UNITED STATES of America, Plaintiff-Appellee, v. Darrell FRAZIER, Defendant-Appellant.

Nos. 90-5267, 90-5268.

United States Court of Appeals Sixth Circuit.

Argued May 6, 1991.

Decided June 20, 1991.

Rehearing Denied Oct, 11, 1991.

John W. Gill, Jr., U.S. Atty., Knoxville, Tenn., Steven H. Cook, Asst. U.S. Atty. (argued), Chattanooga, Tenn., for plaintiff-appellee.

Roger S. Hanson (argued), Hanson & Atzeff, Santa Ana, Cal., for defendant-appellant.

Before KENNEDY and MARTIN, Circuit Judges; and SPIEGEL, District Judge. ^*

KENNEDY, Circuit Judge.

The defendant, Darrell Frazier, appeals his conviction and sentence for conspiracy to distribute cocaine. On appeal the defendant claims that: (1) he was unlawfully seized when a law enforcement officer took his airline ticket; (2) the District Court erred in failing to give an accomplice instruction; and (3) the District Court erred in sentencing him under the Anti-Drug Abuse Act of 1988, which took effect during the conspiracy. Finding no merit to the defendant's arguments, we AFFIRM.

I

In September 1988, Detective Clayton Searle of the Los Angeles Police Department and Special Agent George Woessner of the Drug Enforcement Administration observed a woman purchase two airline tickets with cash at the Los Angeles International Airport. The woman, who was later identified as Tammy Thompson, acted nervously as she approached the ticket counter and purchased the tickets. After she departed the airport, they learned that she had purchased two tickets to Chattanooga, Tennessee, one for herself, and one for Ronald Wright, for $800 in cash. That evening, they set up surveillance at the gate from which the flight was to depart, and observed the defendant approaching the gate with four other individuals, including Thompson. The defendant was carrying a black nylon bag, which he handed to Thompson as they approached the gate. Detective Searle and Special Agent Woessner, who were dressed in plain clothes, approached the group, identified themselves as police officers, and asked the defendant and his companions if they could speak with them. The officers informed the defendant and the others that they were not under arrest and that they were free to go. The defendant and his companions agreed to talk with the officers.

When the officers approached, Thompson put the bag on the floor, and left it there when the group went with the officers to a seating area, fifteen feet away. Detective Searle asked Thompson and the defendant if they were flying. Thompson responded that she was flying alone, and the defendant stated that he was not flying. Detective Searle, however, observed a boarding pass in the defendant's pocket, and asked the defendant if he could see it. The defendant handed the boarding pass to Detective Searle, who noted that the ticket bore the name Ronald Wright and was for the same flight on which Thompson was to travel. When asked for identification, the defendant stated that he had none. Detective Searle then asked the defendant and the others about the black nylon bag. Each of them denied any knowledge or ownership of the bag.

Detective Searle then took the defendant and the others to an interrogation room, which was several hundred yards away. There, the defendant was advised of his rights. The defendant continued to maintain that the bag was not his and that he had no knowledge of it, and signed a form consenting to a search of the bag. Upon searching the bag, the officers found one kilogram of cocaine, and the defendant's identification. The defendant was arrested and charged in state court with possession with intent to distribute. Those state charges were later dismissed, in light of this federal charge.

In January 1989, Detective Searle and Special Agent Woessner again observed the defendant at the Los Angeles International Airport. This time he was disembarking from a flight from Chattanooga. The officers recognized the defendant, and observed him with two women as he exited the plane. The defendant then walked ahead of the women, and stood apart from them at the baggage carousel, where he picked up one piece of luggage, but the women did not pick up any. Special Agent Woessner approached the defendant, who told Woessner that he recognized him, but that he did not have any "dope." Woessner informed the defendant that he was not under arrest and was free to leave. He asked the defendant if he was travelling with the two women, and he replied that he was not. When the women were asked if they were travelling with the defendant, however, they replied that they were. The defendant then conceded that he was travelling with the two women.

When asked whether he was carrying a large amount of cash, the defendant replied that he was, and asked one of the women to open a carry-on bag which she had in her possession. The bag contained $32,000 in cash, and several pieces of jewelry worth several thousand dollars.

The defendant was indicted on a charge of conspiracy to distribute cocaine. The indictment charged that the conspiracy began in August of 1988, and continued until May 1989. One day prior to trial, the defendant appeared in court and pled guilty, pursuant to a plea agreement under which the court could impose any sentence up to the maximum allowed by the sentencing guidelines, but without a sentence enhancement under 21 U.S.C. Sec. 841(b). The defendant later informed the District Court, however, that he was dissatisfied with his representation, and wished to revoke his plea. The District Court accepted the revocation and set the case for trial.

Prior to trial, the United States filed a "Notice of Intent to Seek Enhanced Punishment" pursuant to 21 U.S.C. Sec. 841(b)(1)(A). Section 841(b)(1)(A) requires a mandatory life sentence where the defendant has two prior drug convictions and is convicted of a crime involving a minimum of five kilograms.

Following a suppression hearing, the District Court denied the defendant's motion to suppress the evidence obtained from the two airport incidences. Throughout the suppression hearing and the trial the defendant continued to maintain that the bag was not his. The District Court held that the defendant was not detained until he was transported to the interrogation room, and at that time there was reasonable suspicion to support a Terry stop. ¹ The jury found the defendant guilty. At the sentencing hearing the District Court adopted the calculations of the presentence report, and sentenced the defendant to life in prison, under 21 U.S.C. Sec. 841(b)(1)(A). The District Court also imposed an alternative life sentence that did not rely on the Anti-Drug Abuse Act of 1988, which requires a life sentence, but instead relied on the range within the United States Sentencing Guidelines and section 841 prior to the 1988 amendment.

The defendant appeals both his conviction and his sentence.

II

A

The defendant argues that he was unlawfully seized when Detective Searle took his plane ticket from him, and that therefore, under the fruit of the poisonous tree doctrine, the search of the black bag was inadmissible. The defendant also argues that he was arrested without probable cause when he was taken to the interrogation room.

In order to decide whether the officials violated a legitimate privacy interest in searching the black bag, this Court must determine whether the defendant exhibited a subjective expectation of privacy, and whether the expectation is one that society is prepared to protect. Smith v. Maryland, 442 U.S. 735, 741-42, 99 S.Ct. 2577, 2580-81, 61 L.Ed.2d 220 (1979). In United States v. Tolbert, 692 F.2d 1041 (6th Cir.1982), this Court addressed these issues in a situation similar to that before us. In Tolbert, the defendant was approached by law enforcement officers at an airport. The officers identified themselves and asked to examine the defendant's ticket and identification, which the defendant permitted. She later disclaimed ownership of luggage which the officers then searched and discovered to contain cocaine. This Court held that "because, by her actions and vigorous oral disclaimers, [the defendant] affirmatively indicated that she had no interest in preserving the secrecy of the contents of the suitcase, she had no legitimate expectation of privacy therein." Id. at 1045. The defendant's rights were therefore not violated by the search.

The factual pattern involved in Tolbert is very like that involved in this case. The defendant's companion placed the bag on the floor when they were approached by Detective Searle and Special Agent Woessner. They left the bag on the floor when they went to a seating area nearby to converse with the officers. When Detective Searle asked about the bag, the defendant stated that it was not his. That "disclaimer constituted an abandonment that resulted in [the defendant's] lack of standing to challenge the search." United States v. Knox, 839 F.2d 285, 294 (6th Cir.1988). See also United States v. Collis, 766 F.2d 219, 222 (6th Cir.1985) ("[T]he defendant abandoned the shoulder bag and failed to establish a legitimate subjective expectation of privacy which would confer standing to raise a fourth amendment challenge to the agents' search of the bag."). By abandoning the black bag, the defendant also abandoned any legitimate privacy expectation in it.

The defendant claims, however, that the abandonment resulted from an improper seizure, and the contents are therefore inadmissible fruit of the poisonous tree. See Tolbert, 692 F.2d at 1045 ("an unconstitutional seizure or arrest which prompts a disclaimer of property vitiates that act"). The defendant's abandonment of the bag, however, was not the result of a seizure. When Detective Searle and Special Agent Woessner approached the group, they asked the defendant and his companions if they could ask them some questions. After the defendant denied that he was travelling, yet was observed to have...