U.S. v. Ho

• Decision Date: 27 August 1996
• Docket Number: No. 95-30919,95-30919
• Citation: 94 F.3d 932
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Al Dac HO, also known as Ai Dac Ho, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 932

94 F.3d 932

UNITED STATES of America, Plaintiff-Appellee, v. Al Dac HO, also known as Ai Dac Ho, Defendant-Appellant.

No. 95-30919.

United States Court of Appeals, Fifth Circuit.

Aug. 27, 1996.

Michele Annette Horn, Stephen A. Higginson, Assistant U.S. Attorney, Office of the United States Attorney, New Orleans, LA, for U.S.

Claude John Kelly, III, Office of the Federal Public Defender, New Orleans, LA, for HO, defendant-appellant.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before POLITZ, Chief Judge, and JOLLY and BARKSDALE, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

The sole issue addressed in this Fourth Amendment warrantless search and seizure case is whether the police officer had probable cause to arrest Al Dac Ho before Ho revoked his voluntary consent to search his portfolio. Based on the explicit testimony from the suppression hearing, we conclude that, at the time Ho withdrew his consent, the officer did not have probable cause to arrest Ho, and thus lawfully could not continue the warrantless search of Ho's portfolio as a search incident to arrest. The evidence obtained after Ho revoked his consent was the fruit of an unconstitutional search, and we therefore reverse the district court's ruling on Ho's motion to suppress, vacate Ho's plea of guilty, and remand for further proceedings not inconsistent with this opinion.

I

On the morning of February 20, 1995, Lieutenant Gerard Simone and another officer, members of the New Orleans International Airport Narcotics Interdiction Unit of the Jefferson Parish Sheriff's Office, were conducting a surveillance of a flight from Los Angeles. ¹ The officers alerted to the defendant, Al Dac Ho, a passenger on the flight, because he walked briskly down the concourse, had no carry-on luggage, and made no attempt to claim any checked luggage. The officers approached Ho, identified themselves, and asked Ho to produce his ticket. Ho produced a one-way ticket purchased with cash. Ho consented to a search of his person, including a small leather portfolio he was carrying. Ho told the officers that he would be in New Orleans for approximately two weeks and that his sister was bringing his luggage on a later flight.

The next day, a concerned citizen advised Officer Simone that Ho had purchased a cash one-way airline ticket to Los Angeles departing that morning at 8:15 a.m. Officer Simone, accompanied by two other officers, approached Ho as the flight was boarding. Ho gave his consent to a search of his person and his portfolio. During the search of the portfolio, Officer Simone focused on a blank, white plastic card the size and shape of a credit card. Ho immediately struggled to retrieve the portfolio when the officer found the card. Officer Simone testified that it was obvious that Ho did not want him to look further at the portfolio when Ho attempted to retrieve the portfolio. The officer was able, however, to retain the portfolio. Upon further investigation of the white plastic card, Officer Simone discovered that the card had a magnetic strip on the back. The officers then arrested Ho for possession of a counterfeit credit card. After they arrested Ho, the officers searched the rest of the portfolio and found another similar blank credit card, along with seventeen counterfeit travelers checks and several pieces of paper with what appeared to be credit card account numbers on them.

II

Ho was charged with one count of transporting a fraudulent credit card in interstate commerce and one count of knowingly possessing counterfeit securities. He filed a motion to suppress the fruits of what he asserted was an illegal search conducted by Officer Simone. Ho argued that the search was illegal because Simone did not have a warrant and Ho did not initially consent to the search. The government filed an opposition to Ho's motion, and the district court conducted a suppression hearing at which both Officer Simone and Ho testified. At the conclusion of the hearing, counsel for Ho argued that even if Ho had consented to the search, he effectively withdrew that consent by attempting to retrieve the portfolio from Officer Simone before the officer had probable cause to continue the search without Ho's consent and without a warrant. ²

The district court denied Ho's motion to suppress, stating summarily that it was compelled to deny the motion after weighing the credibility of the two witnesses. Ho then entered a plea of guilty to the indictment, conditioned upon his ability to appeal the district court's denial of his motion to suppress. The court sentenced Ho to ten months' imprisonment to be followed by three years of supervised release. Ho timely filed his notice of appeal.

III

We begin our consideration of this appeal from the premise that "warrantless searches and seizures are per se unreasonable unless they fall within a few narrowly defined exceptions." United States v. Cardenas, 9 F.3d 1139, 1147 (5th Cir.1993), cert. denied, 511 U.S. 1134, 114 S.Ct. 2150, 128 L.Ed.2d 876 (1994). One such exception to the warrant requirement exists for searches incident to a lawful arrest. United States v. Barlow, 17 F.3d 85, 89 (5th Cir.), cert. denied, 513 U.S. 850, 115 S.Ct. 148, 130 L.Ed.2d 88 (1994). A warrantless arrest must be based on probable cause. United States v. Wadley, 59 F.3d 510, 512 (5th Cir.1995).

Although the challenged search in this case occurred immediately prior to Ho's arrest, this does not prevent the search from being considered incident to a lawful arrest, Rawlings v. Kentucky, 448 U.S. 98, 109-11, 100 S.Ct. 2556, 2564, 65 L.Ed.2d 633 (1980); United States v. Hernandez, 825 F.2d 846, 852 (5th Cir.1987), cert. denied, 484 U.S. 1068, 108 S.Ct. 1032, 98 L.Ed.2d 996 (1988), as long the fruits of the search incident to the arrest are unnecessary to support probable cause for the arrest. 448 U.S. at 109-11 & n. 6, 100 S.Ct. at 2564 & n. 6. "If the arresting officers lacked probable cause and the arrest is invalid, evidence discovered as a result of the arrest is subject to suppression under the Fourth Amendment as the 'fruit' of an illegal arrest." 59 F.3d at 512. Officer Simone's continued search of Ho's portfolio after the revocation of consent was therefore constitutional only if the officer had probable cause to arrest Ho. ³ The sole issue for us to address is thus whether Officer Simone had probable cause to arrest Ho at the time that Ho revoked his consent. ⁴

A

"Probable cause is determined by an objective test: it cannot be established simply by showing that the police subjectively believed that probable cause existed...." United States v. Cooper, 949 F.2d 737, 744 (5th Cir.1991), cert. denied, 504 U.S. 975, 112 S.Ct. 2945, 119 L.Ed.2d 569 (1992).

Probable cause for a warrantless arrest exists when the totality of facts and circumstances within a police officer's knowledge at the moment of the arrest are sufficient for a reasonable person to conclude that the suspect had committed or was committing an offense. Although probable cause requires more than a bare suspicion of wrongdoing, it requires 'substantially less evidence than that sufficient to support a conviction.'

Wadley, 59 F.3d at 512 (quoting United States v. Muniz-Melchor, 894 F.2d 1430, 1438 (5th Cir.) (internal citation omitted), cert. denied, 495 U.S. 923, 110 S.Ct. 1957, 109 L.Ed.2d 319 (1990)). The facts and circumstances "must be viewed in light of the observations, knowledge, and training of the law enforcement officers involved in the warrantless search." 894 F.2d at 1438 (citation omitted). The existence of probable cause is a mixed question of fact and law. 59 F.3d at 512. We review the factual findings supporting the district court's probable cause determination for clear error. Id. The ultimate determination of probable cause, however, is a question of law subject to de novo review. Id.

A defendant normally bears the burden of proving by a preponderance of the evidence that the challenged search or seizure was unconstitutional. United States v. Roch, 5 F.3d 894, 897 (5th Cir.1993) (citing United States v. De La Fuente, 548 F.2d 528, 533 (5th Cir.), cert. denied sub nom., Stewart v. United States, 431 U.S. 932, 97 S.Ct. 2640, 53 L.Ed.2d 249 (1977)). In a case such as this one, however, in which the officer acted without a warrant, the government bears the ultimate burden of proving that the officer had probable cause. Id.

B

The district court's order refers to credibility choices in denying the motion to suppress. Although credibility choices were crucial to the issue of initial consent, a review of the record reveals no material dispute as to the facts necessary to resolve the legal question of probable cause that is before us today. Officer Simone testified that Ho had revoked his consent ⁵ when the officer first located the white plastic card in the portfolio. ⁶ He also testified that he did not find the magnetic strip on the back of the card until after Ho had revoked his consent. ⁷ As the facts are undisputed, the only issue before us is the district court's ultimate legal determination that Officer Simone had probable cause to arrest Ho based on his discovery of a white piece of plastic the size and shape of a credit card in Ho's portfolio.

In reviewing the record, the question, of course, is not whether Officer Simone subjectively believed--as he stated on redirect examination ⁸--that he had probable cause before Ho revoked consent. Cooper, 949 F.2d at 744. Instead, the question is whether "the totality of facts and circumstances within [his] knowledge at the moment of [revocation we]re sufficient for a reasonable person to conclude that [Ho] had committed or was committing an offense." Wadley, 59 F.3d at 512. We can agree that the record supports a legal conclusion that a reasonable person with Officer Simone's knowledge and experience would have had some suspicion--as distinguished from probable cause to...