U.S. v. Hernandez

• Decision Date: 11 January 2002
• Docket Number: No. 00-20682.,00-20682.
• Citation: 279 F.3d 302
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Linda Suniga Yorle HERNANDEZ, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

279 F.3d 302

UNITED STATES of America, Plaintiff-Appellant, v. Linda Suniga Yorle HERNANDEZ, Defendant-Appellee.

No. 00-20682.

United States Court of Appeals, Fifth Circuit.

January 11, 2002.

COPYRIGHT MATERIAL OMITTED

James L. Powers, Asst. U.S. Atty. (argued), James Lee Turner, Asst. U.S. Atty., Houston, TX, for Plaintiff-Appellant.

Guy L. Womack (argued), Houston, TX, for Defendant-Appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before JONES, SMITH and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

Defendant-Appellee, Linda Suniga Yorle Hernandez, was indicted for possession with intent to distribute more than one kilogram of heroin in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(i). The district court granted Hernandez's motion to suppress the heroin seized during a search of her luggage at a bus station. The district court concluded that (1) the officer's manipulation of Hernandez's suitcase was an illegal search in violation of the Fourth Amendment under Bond v. United States, 529 U.S. 334, 120 S.Ct. 1462, 146 L.Ed.2d 365 (2000), and (2) Hernandez's subsequent consent to search her suitcase did not cure the earlier Fourth Amendment violation. We AFFIRM.

I. BACKGROUND

On September 7, 1999, members of the Houston Police Department were surveying passengers at the Greyhound bus station in Houston for possible drug traffickers. During this drug interdiction effort, Officer Armando Ordaz, who was not in uniform, observed Hernandez enter the station. He continued to observe her as a result of alleged suspicious activity.

Officer Ordaz testified that Hernandez entered the station with a new black suitcase, which did not have identification tags. In addition, Officer Ordaz noted that her suitcase appeared to be heavy by the way she had difficulty moving it when she was standing in the passenger line. According to Officer Ordaz, Hernandez appeared nervous and frequently looked around the station as if she were trying to determine whether she was being observed. Hernandez also was observed checking her ticket several times and "swaying back and forth," which Officer Ordaz considered evidence that she was anxious for the bus to depart. Officer Ordaz, furthermore, noted that Hernandez guarded her suitcase "in a possessive manner." Moreover, Officer Ordaz stood behind Hernandez in the passenger line and observed that she was traveling to Washington, D.C., which is, according to DEA investigation reports, a major "drug demand city."

Officer Ordaz lost visual contact with Hernandez when he was called away by another officer. Later, when Officer Ordaz's attention was returned to Hernandez, he observed that both she and her suitcase were aboard the Washington bound bus. Officer Ordaz approached the bus and entered the luggage compartment to search for Hernandez's suitcase. Although Hernandez's suitcase did not have any identification tags, Officer Ordaz was able to locate it because he recalled that the brand name was "Bagmax." Without taking the suitcase out of the luggage compartment, Officer Ordaz picked it up and turned it around. He further manipulated the suitcase by pressing on the outside of it with his hands. He observed that it had "something solid or heavy in the center of it." At Hernandez's detention hearing, Officer Ordaz testified that after handling the suitcase and feeling something solid or heavy in it, he became more suspicious. However, on redirect examination by the government, Officer Ordaz denied that he became more suspicious after handling the suitcase.

After manipulating Hernandez's suitcase in the luggage compartment, Officer Ordaz consulted with other police officers, and they decided to speak with her. Officer Ordaz then boarded the bus and approached Hernandez. He identified himself as a police officer and questioned Hernandez about her travel plans. Officer Ordaz then asked Hernandez to exit the bus with him. Officer Ordaz testified that Hernandez appeared nervous when she was leaving the bus and that she produced seven one-way bus tickets, all of which were from Houston to Washington, D.C., issued in Hernandez's name and paid for with cash.

Hernandez told Officer Ordaz that she had a tan backpack as well as a suitcase, which she described to him. Officer Ordaz then pulled Hernandez's suitcase from the luggage compartment and asked her to identify it. Hernandez told Officer Ordaz that she was transporting the suitcase for someone else who had given it to her in San Antonio and that she did not know its contents.

Officer Ordaz asked Hernandez for permission to open her suitcase, and she consented. However, Hernandez did not know the combination to the lock on the suitcase. As a result, Officer Ordaz testified that he pried open the zipper of the suitcase using either a pen or knife. While inspecting the contents of the suitcase, Officer Ordaz discovered more than four kilograms of heroin hidden within socks.

Hernandez initially pled guilty to possessing, with the intent to distribute, more than one kilogram of heroin. However, prior to her sentencing, the United States Supreme Court decided Bond v. United States, 529 U.S. 334, 335, 120 S.Ct. 1462, 146 L.Ed.2d 365 (2000), holding that a "law enforcement officer's physical manipulation of a bus passenger's carry-on luggage violated the Fourth Amendment's proscription against unreasonable searches." As a result, the district court allowed Hernandez to withdraw her guilty plea.

Hernandez then moved to suppress the heroin. Rather than holding an evidentiary hearing on the suppression motion, the parties agreed to let the district court decide on the basis of the transcript of Hernandez's detention hearing and the DEA's report of the investigation. Hernandez argued that under Bond, the manipulation of her suitcase was an illegal search violating the Fourth Amendment and that the resulting contraband was "fruit of the poisonous tree" that must be suppressed. See United States v. Rivas, 157 F.3d 364, 368 (5th Cir.1998). The government argued that the contraband should not be suppressed because Officer Ordaz had consent to search the suitcase, and because of the inevitable discovery/independent source doctrine.

The district court granted the motion to suppress. The court concluded that Bond was directly on point and found that Hernandez's Fourth Amendment rights were violated because Officer Ordaz searched her suitcase without probable cause and prior to obtaining consent. The court determined that the inevitable discovery/independent source doctrine did not apply because it was clear that the officers were not pursuing a substantial alternative line of investigation when the suitcase was being search. The court noted that no one had reported that drug trafficking was occurring at the bus station, much less that Hernandez might be involved. Also, there were no drug-sniffing dogs present to alert the officers to Hernandez's suitcase. Notably, the court characterized Officer Ordaz's testimony that his suspicion concerning Hernandez did not increase after he had manipulated her suitcase as "untruthful." The reasons the district court concluded Ordaz was lying were that (a) it is "incredible" that feeling something suspicious in the bag did not increase Ordaz's suspicions; and (b) Ordaz gave inconsistent testimony on this point.

Furthermore, the court found that Officer Ordaz "was suspicious of Hernandez only because she looked nervous, she was anxious, her suitcase appeared heavy, the suitcase did not have an identification tag and the suitcase appeared new." However, the court noted that "none of these observations alone, or together, rose beyond suspicion." Rather, according to the court, those characteristics could have been observed from watching "an innocent person who is not engaged in drug trafficking." As a result, the court found "incredible officer Ordaz's testimony that his suspicions were unaffected by his `touching and feeling' of the `Bagmax' suitcase."

The court also concluded that Hernandez's subsequent consent did not cure the earlier violation. However, the court made no findings regarding the voluntariness of Hernandez's consent. The government appeals the district court's ruling.

II. STANDARD OF REVIEW

The district court's determination of fact in ruling on a motion to suppress are accepted unless the court's findings are clearly erroneous. United States v. Jones, 234 F.3d 234, 239 (5th Cir.2000). A finding is clearly erroneous if the court is left with the "definite and firm conviction that a mistake has been committed." Anderson v. City of Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948)). Questions of law are reviewed de novo. Jones, 234 F.3d at 239. The court views the evidence in the light most favorable to the prevailing party, which in this case is the defendant. Id.

III. DISCUSSION

The government appeals the district court's grant of Hernandez's motion to suppress the heroin seized after searching her suitcase. We note that the government does not argue on appeal that the district court erred in concluding that the physical manipulation of Hernandez's suitcase was an illegal search under the Supreme Court's decision in Bond. It is well established that issues raised before the district court but not presented on appeal are waived. HC Gun & Knife Shows, Inc. v. City of Houston, 201 F.3d 544, 548 (5th Cir.2000). Therefore, we need not consider that issue in detail because the government has effectively conceded that Officer Ordaz's manipulation of the suitcase was an illegal search.

The threshold question for this court is whether Hernandez's subsequent consent to search her luggage cured any possible Fourth Amendment violation. When a person gives consent to search, that consent "may, but does not necessarily, dissipate...