U.S. v. Guzman, 95-5657

• Decision Date: 08 April 1996
• Docket Number: No. 95-5657,95-5657
• Citation: 75 F.3d 1090
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Antonio GUZMAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1090

75 F.3d 1090

UNITED STATES of America, Plaintiff-Appellee, v. Antonio GUZMAN, Defendant-Appellant.

No. 95-5657.

United States Court of Appeals Sixth Circuit.

Argued Feb. 5, 1996.

Decided Feb. 21, 1996.

Rehearing and Suggestion for Rehearing En Banc Denied April 8, 1996.

On Appeal from the United States District Court for the Western District of Tennessee.

Victor L. Ivy (argued and briefed), Memphis, TN, for plaintiff-appellee.

K. Jayaraman (argued and briefed), Memphis, TN, for defendant-appellant.

Before: ENGEL and MILBURN, Circuit Judges; WEBER, District Judge. ^*

MILBURN, Circuit Judge.

Defendant appeals the district court's denial of his motion to suppress evidence seized in connection with his conviction for possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1). On appeal, the issues are (1) whether the district court erred in finding that a police officer's initial touch of defendant's bag in the overhead luggage compartment of a bus was not a warrantless search, (2) whether the district court erred in finding that the totality of the circumstances established the probable cause necessary to remove defendant and his bag from the bus, and (3) whether the district court erred in holding that certain government witnesses were credible. For the reasons that follow, we affirm.

I.

A.

On March 24, 1994, defendant Antonio Guzman arrived at the Greyhound bus station in Memphis, Tennessee, at approximately 5:00 a.m. He was travelling on a bus from Dallas, Texas. Memphis Police Detectives Joe Hoing and Mary Johnson were at the bus station with their drug dogs at this time to check for drugs on the early arriving buses.

When defendant's bus arrived, Officers Hoing and Johnson worked their dogs on the side of the bus from which the passengers exited. Hoing checked the baggage compartments underneath the bus, while Johnson worked her drug dog on luggage that the passengers carried with them off the bus. Johnson was positioned about twenty feet from Hoing, and her procedure was to ask for the passenger's consent and then allow her dog to sniff the luggage.

When defendant Guzman exited the bus, he carried a blue cloth bag. Officer Johnson asked for his consent to have her dog sniff his luggage, and Guzman put his bag down for Johnson's dog to sniff. The drug dogs are trained to become excited and then to sit when they detect the presence of drugs. Johnson testified that her dog showed interest in Guzman's bag but that it did not sit down. She stated that the dog "was sniffing real hard trying to put her face down in the bag more." J.A. 292. Johnson further testified that she intended to detail the dog on the bottom of the bag, but Guzman picked up the bag and left before she could. Guzman contends that Johnson indicated he could leave by saying "thank you," and Johnson testified this could have been possible. J.A. 322-23. Subsequently, Johnson told Hoing that her dog Casey had shown an interest in defendant's bag.

After all the passengers exited the bus, Johnson and Hoing entered the empty bus. At that point, Guzman returned to the bus to get some weights he had left beneath his seat. Using a drug dog, the officers located a bag in the back of the bus that later proved to contain marijuana. This bag was unrelated to defendant Guzman. They left that bag on the bus, intending to reboard the bus later to determine its owner.

After all the passengers reboarded the bus, Hoing and Johnson boarded the bus, announcing that they wanted to determine the ownership of some of the bags. Hoing began at the front of the bus and inquired as to the ownership of several bags in the overhead rack of the bus. The overhead rack is an unenclosed shelf that runs the entire length of the bus. It is two feet deep with elastic ropes over the front of it. When Hoing came to Guzman's bag, he placed his hand on it and asked to whom it belonged. Hoing testified that, when he touched the bag, he felt several hard bricks inside and immediately thought the bricks were drugs.

Guzman said that the bag was his, and Hoing testified that he asked defendant Guzman if he could look inside. Hoing said that defendant consented and that he then took the bag down from the shelf. He placed it in the empty seat next to Guzman and loosened the drawstring on top. At this point, Guzman told Hoing that he needed a "piece of paper" to look inside the bag, and Hoing took that to mean that he needed a search warrant.

Officer Hoing stopped the search and asked defendant Guzman to step off the bus. Hoing took Guzman's bag off the bus, and Guzman consented to having the drug dogs sniff his bag. Both dogs independently gave a positive alert for the presence of drugs. At some point, Hoing and Johnson had called Officer Walford Covington, a uniformed member of the Memphis Police, to the scene. Covington advised Guzman of his constitutional rights, handcuffed him, and placed him in a squad car. He was transferred to the Organized Crime Unit Office and detained while the officers obtained a search warrant. The execution of the search warrant was videotaped and more than six thousand grams of cocaine, wrapped in six bundles, were found in the bag. The bag in which the drugs were found was cylindrical in shape and measured eleven inches in width. The bundles of drugs were stacked on top of each other on the bottom of the bag with food, cassette tapes, a magazine and "religious figurines" on top of and around the bundles. Each bundle of cocaine was surrounded by axle grease and wrapped tightly with duct tape in the form of a "brick."

B.

On April 18, 1994, defendant Guzman was indicted by the grand jury for the Western District of Tennessee. He was charged with one count of possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1). On May 25, 1994, defendant filed a motion to suppress the evidence seized in the case, and the motion was referred to a magistrate judge. On June 14 and 15, 1994, the magistrate judge conducted an evidentiary hearing on the motion, and on August 26, 1994, he filed a report recommending that the motion be granted. He found that Officer Hoing's touch of defendant's bag was a search of the bag that would require probable cause. He concluded that Hoing did not have probable cause to touch defendant Guzman's bag, and, therefore, the touch of the bag was an unlawful search. He further held that defendant's subsequent detention was an unlawful arrest and that the evidence should be suppressed under the doctrine of Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

On September 9, 1994, the government filed objections to the magistrate's report, and on September 28 and 29, 1994, the district court conducted a hearing on the matter. Subsequently, it denied the motion to suppress on February 2, 1995. It concluded:

(1) that Officer Hoing's initial touch of defendant's bag was not a warrantless search in violation of the Fourth Amendment because defendant had no reasonable expectation of privacy in the bag placed in the overhead luggage rack; and (2) that under the totality of the circumstances presented on May 24, 1994, the officers had probable cause at the time they removed defendant and his luggage from the Greyhound bus.

J.A. 167.

On the same day, defendant entered a guilty plea, reserving his right to appeal the denial of his motion to suppress pursuant to Federal Rule of Criminal Procedure ("Fed.R.Crim.P.") 11(a)(2). On April 27, 1995, defendant was sentenced to 108 months of imprisonment followed by five years of supervised release. This timely appeal followed.

II.

Defendant appeals the district court's denial of his motion to suppress the evidence seized in connection with his conviction for possession with intent to distribute cocaine. He alleges three grounds on which the district court erred. First, defendant argues that the district court erred in holding that he had no legitimate expectation of privacy in his bag on the luggage rack. Second, defendant argues that the district court erred in holding that the totality of the circumstances established probable cause to arrest defendant at the time Officer Hoing escorted him from the bus. Third, defendant argues that the district court erred in finding that the testimony of certain government witnesses was credible.

When reviewing the ruling of a district court on a motion to suppress evidence, we apply a clearly erroneous standard to its findings of fact and conduct a de novo review of its legal conclusions. United States v. Roberts, 986 F.2d 1026, 1029 (6th Cir.) (citing United States v. Hughes, 898 F.2d 63, 64 (6th Cir.1990); United States v. Sangineto-Miranda, 859 F.2d 1501, 1512 (6th Cir.1988)), cert. denied, --- U.S. ----, 114 S.Ct. 271, 126 L.Ed.2d 222 (1993). A decision is clearly erroneous when the reviewing court is left with a definite and firm conviction that a mistake has been made. United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 541-42, 92 L.Ed. 746 (1948).

A.

First, we address defendant's argument that the district court erred in finding that Officer Hoing's touch of the bag in the luggage rack did not constitute a search of the bag for purposes of the Fourth Amendment. The Fourth Amendment to the Constitution of the United States provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause...." U.S. Const. amend. IV. The Fourth Amendment protects against warrantless intrusions where an individual has a "legitimate expectation of privacy." Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 430, 58 L.Ed.2d 387 (1978) (citing Katz v. United States, 389 U.S. 347, 353, 88 S.Ct. 507, 512, 19 L.Ed.2d 576 (1967)). Therefore, our first consideration is whether defendant had a legitimate and...