U.S. v. Gordon, 98-2100

• Decision Date: 12 April 1999
• Docket Number: No. 98-2100,98-2100
• Citation: 173 F.3d 761
• Parties: 1999 CJ C.A.R. 2300 UNITED STATES of America, Plaintiff-Appellee, v. Lewis Samuel GORDON, also known as Chris Jonston, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 761

173 F.3d 761

1999 CJ C.A.R. 2300

UNITED STATES of America, Plaintiff-Appellee, v. Lewis Samuel GORDON, also known as Chris Jonston, Defendant-Appellant.

No. 98-2100

United States Court of Appeals, Tenth Circuit.

April 12, 1999.

Peter Schoenburg, of Rothstein, Donatelli, Hughes, Dahlstrom, Cron & Schoenburg, LLP, Albuquerque, New Mexico, for the appellant.

J. Miles Hanisee, Assistant United States Attorney, (John J. Kelly, United States Attorney, with him on the brief), Albuquerque, New Mexico, for the appellee.

Before SEYMOUR, Chief Judge, BALDOCK, and BRISCOE, Circuit Judges.

BRISCOE, Circuit Judge.

Defendant Lewis Gordon was charged and convicted by jury of possession with intent to distribute more than five kilograms of cocaine, in violation of 21 U.S.C. § 841. He was sentenced to 151 months' imprisonment. On appeal, he contends the district court erroneously denied his motion to suppress statements and evidence, his motion to disclose the identity of a confidential informant, and his motion for new trial based on prosecutorial misconduct. We affirm.

I.

On June 27, 1997, Gordon purchased a one-way Amtrak ticket from Los Angeles to Chicago under the name of Chris Jonston. He purchased the ticket with cash, ten minutes before the train's departure.

An Amtrak employee (the informant/tipster) in Los Angeles contacted DEA Agent Kevin Small in Albuquerque and advised him of the circumstances surrounding the purchase of the ticket. ¹ Small relayed the name and physical description of the ticket holder to DEA Task Force Officer Jeanette Tate, who verified the ticket purchase with a passenger itinerary printout. Tate telephoned the call-back number listed on the itinerary for Chris Jonston and reached the answering machine of Robert Anderson.

Tate and DEA Task Force Officer Nina Bruce met the train in Albuquerque and located Gordon in car 413. With her tape recorder running, Tate showed Gordon her credentials and asked if he would talk to her. Gordon did not object. He identified himself as Lewis Gordon, but provided a ticket stub bearing the name of Chris Jonston, explaining he was "traveling" under that name. Tate asked if Gordon had any luggage and Gordon pointed to two bags. Tate asked if she could search the bags and, after mumbling inaudibly, Gordon replied, "Yeah." Aplt's App. at 48. Gordon and the agents went to the lower level of the train car to search the bags. Tate opened one of the bags and discovered a smaller padlocked duffle bag inside. Tate asked Gordon if he could open the bag. In response, Gordon took a key from his pocket and handed it to Tate. Gordon did not object to the opening of the padlocked bag. In her search of the bag, Tate found $28,000 in United States currency and two brick-shaped, cellophane-wrapped packages. Gordon, a former marine, explained he had been in Los Angeles for an informal reunion and "Rick" asked him to deliver a bag to Rick's girlfriend in Chicago. Gordon stated he was unaware of the contents of the locked bag, although Rick had given him the key to the bag. Gordon was arrested and was taken to the Albuquerque DEA Office. The contents of the cellophane-wrapped packages were tested and found to be 8.97 kilograms of cocaine.

II. Motion to Suppress

Gordon moved to suppress all physical evidence seized from a locked duffle bag and all statements he made to authorities during the encounter on the train. He argued the search of the locked duffle bag exceeded the scope of his consent, and that Tate lacked probable cause to arrest him based only on discovery of the cellophane-wrapped packages. The district court denied the motion, ruling (1) Gordon consented to the search of the locked bag based either on his initial consent to the search of his bags or his voluntary relinquishment of the padlock key to Tate, and (2) the combination of the money and the cellophane-wrapped packages found in the locked bag constituted probable cause to arrest.

In reviewing the district court's denial of a motion to suppress, we accept the court's factual findings unless they are clearly erroneous and consider the evidence in the light most favorable to the government. The ultimate question of whether a search and seizure were reasonable under the Fourth Amendment is a question of law we review de novo. United States v. Glover, 104 F.3d 1570, 1576 (10th Cir.1997).

Consent to search locked bag

We need not rely on Gordon's initial consent to search his bags in order to affirm the denial of Gordon's motion to suppress evidence seized from the locked duffle bag. We agree with the district court that Gordon's voluntary relinquishment of the key evidenced his consent to search the locked duffle bag.

Gordon correctly points out Tate did not advise Gordon he did not have to answer her questions and that he was free to leave, did not state with precision the object for which she was searching, and did not explicitly identify herself as a police officer. A search, however, does not become non-consensual merely because an officer fails to do any or all of these things. See United States v. Little, 18 F.3d 1499, 1505 (10th Cir.1994). Rather, Tate's failure to more clearly express the objects of her requested search and her failure to plainly identify herself are mere factors to be considered in determining whether, under the totality of the circumstances, the search was consensual. See id.

When all of the circumstances are considered, Gordon's consent is apparent. Tate asked to see Gordon's ticket and identification, inquired as to his travel plans, and asked if he had any luggage. A written transcript of the conversation, while not entirely complete because of the poor quality of the recording, reveals Tate asked questions and did not fire orders at Gordon or otherwise attempt to intimidate Gordon. This is consistent with Tate's testimony. Tate and Gordon both testified that, at a minimum, Tate showed her badge to Gordon when she approached him. Tate also advised Gordon she was "working interdiction" and "check[ing] for passengers who are traveling back east from the west coast." Aplt's App. at 85. In addition, after obtaining consent to search Gordon's luggage but before obtaining consent to search the locked bag, Tate asked Gordon, "Do you have any contraband in here, Lewis?" Id. at 86. Although Gordon might not have known exactly the object of Tate's search, at that point he knew Tate was searching for contraband.

When Tate encountered the locked bag, she asked Gordon, "Can you open that?" Aplt's App. at 86. Gordon apparently did not respond verbally but removed the key from his pocket and handed it to Tate. Non-verbal conduct, considered with other factors, can constitute voluntary consent to search. See United States v. Flores, 48 F.3d 467, 469 (10th Cir.1995); United States v. Benitez, 899 F.2d 995, 998 (10th Cir.1990). Gordon contends Tate ordered him to unlock the bag and complains he felt obligated to comply with the order. Based on Tate's testimony and a review of the recording transcript, the district court found otherwise, noting Gordon "reached in his pocket voluntarily to give her the key." Record II at 185. As this factual finding is not clearly erroneous, we have no basis for rejecting it.

Moreover, and perhaps most significantly, Gordon did not object to a search of the locked bag when Tate asked Gordon, "Can you open that?" or when Tate actually searched the bag. See Florida v. Jimeno, 500 U.S. 248, 252, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991) ("A suspect may of course delimit as he chooses the scope of the search to which he consents."). We consistently and repeatedly have held a defendant's failure to limit the scope of a general authorization to search, and failure to object when the search exceeds what he later claims was a more limited consent, is an indication the search was within the scope of consent. See United States v. Pena, 143 F.3d 1363, 1368 (10th Cir.1998); United States v. Sanchez, 89 F.3d 715, 719 (10th Cir.1996); United States v. McRae, 81 F.3d 1528, 1538 (10th Cir.1996); U.S. v. Wacker, 72 F.3d 1453, 1470 (10th Cir.1995); United States v. Santurio, 29 F.3d 550, 553 (10th Cir.1994).

In sum, Gordon gave a broad and unlimited consent to search his bags. When Tate came across a smaller padlocked bag inside the larger bag, Gordon voluntarily and without objection handed her the key in response to her asking him, "Can you open that?" Tate reasonably construed Gordon's response as consent to search the locked bag.

Probable cause to arrest

"Law enforcement personnel may arrest a person without a warrant if there is probable cause to believe that person committed a crime." United States v. Wright, 932 F.2d 868, 877 (10th Cir.1991). To determine if probable cause existed for a warrantless arrest, we examine if, at the time of arrest, the facts and circumstances within the officer's knowledge and of which the officer had reasonably trustworthy information were sufficient to warrant a prudent officer in believing the defendant had committed or was committing a crime. United States v. Snow, 82 F.3d 935, 942 (10th Cir.1996). "Probable cause must be evaluated in light of circumstances as they would have appeared to a prudent, cautious, trained police officer." Id. (quoting United States v. Morgan, 936 F.2d 1561, 1568 (10th Cir.1991)). We review de novo the district court's determination of probable cause, while we review its findings of historical fact for clear error, United States v. Barron-Cabrera, 119 F.3d 1454, 1457 (10th Cir.1997).

Gordon argues Tate's viewing of the cellophane-wrapped packages alone was insufficient to create probable cause. Our view of the evidence is not that limited. We determine the existence of probable cause to arrest based on the totality of the circumstances. See United States v. Vazquez-Pulido, 155 F.3d 1213, 1216 (10th Cir.1998). By focusing narrowly on Tate's failure to establish before the arrest that the...