U.S. v. Karas

• Decision Date: 29 July 1991
• Docket Number: No. 90-2103,90-2103
• Citation: 950 F.2d 31
• Parties: , 34 Fed. R. Evid. Serv. 670 UNITED STATES, Appellee, v. Mark KARAS, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 31

950 F.2d 31

60 USLW 2374, 34 Fed. R. Evid. Serv. 670

UNITED STATES, Appellee, v. Mark KARAS, Defendant, Appellant.

No. 90-2103.

United States Court of Appeals, First Circuit.

Heard July 29, 1991.

Decided Nov. 20, 1991.

Rehearing Denied Feb. 13, 1992.

Thomas E. Kanwit with whom Cathryn A. Neaves, Meirwyn I. Walters and Gaston & Snow, Boston, Mass., were on brief for defendant, appellant.

Michael Kendall, Asst. U.S. Atty., with whom Wayne A. Budd, U.S. Atty., Boston, Mass., was on brief for appellee.

Before TORRUELLA, Circuit Judge, HILL ^* and BOWNES, Senior Circuit Judges.

BOWNES, Senior Circuit Judge.

Defendant-appellant Mark Karas appeals his jury conviction of conspiracy to possess with intent to distribute 100 kilograms of marijuana in violation of 21 U.S.C. § 846. Defendant raises two issues: (1) that evidence was seized in violation of his rights under the Fourth Amendment; and (2) that testimony at trial was improperly admitted against him.

I. THE SEIZURE

The Facts

Defendant brought a pretrial motion to suppress evidence. The evidence introduced at the suppression hearing, held prior to trial, establishes the following facts. On January 27, 1990, defendant arrived at the Tucson, Arizona Airport from Boston, Massachusetts. He proceeded to the baggage claim area to pick up his baggage. Tucson Airport Authority Police Officer Keith Kramer was on duty at that time. Kramer testified that he was informed by an airline agent that, "there was an individual in the lower level near the baggage area that he was familiar with as being associated with some suspicious activity which had to do with some lost luggage containing some unusual items that ended up in St. Louis." The agent and Kramer went to the baggage claim area where the agent pointed out defendant as the man who had been acting suspiciously. As Kramer observed defendant at the baggage claim area, he paced back and forth and appeared to Kramer to be nervous.

Kramer had considerable experience in law enforcement work and drug investigations. He had served with the airport police for three years and the sheriff's department in Pima County, Arizona for eight years prior to that. He also had attended a police academy for four months. He testified that he had participated in hundreds of drug investigations.

Defendant was twenty-nine years old at the time. He had graduated from college with a B.S. in business management. He gave his occupation as bartender.

While Kramer was watching defendant, another Airport Authority Police Officer, Sergeant Frank Herrera, and a United States Border Patrolman, Chris Richards, were inspecting the baggage from defendant's flight. Herrera had seventeen years experience with the airport police. He had attended Drug Enforcement Agency training programs on surveillance and drug identification and had participated in over 300 drug investigations as an airport police officer.

Richards was in charge of a drug detection dog that was sniffing the baggage as it was unloaded. The dog indicated the presence of narcotics in a red suitcase before it was placed on the baggage carousel for delivery to the baggage claim area. Herrera radioed the dog's reaction to Kramer, but Kramer either did not hear or did not receive the transmission.

Another Airport Police Officer, Officer Price, joined Kramer in the baggage claim area. Both continued to observe the defendant, who was holding a black shoulder bag as he waited at the carousel. Defendant lifted from the carousel the same red suitcase that the drug detection dog had signalled. Because of the failed radio transmission Kramer did not know of the dog's reaction after sniffing the red suitcase.

As defendant started towards the exit, Kramer approached him, said he was interested in an incident that had taken place at another airport, and asked defendant if he could speak to him. Defendant agreed to do so whereupon Kramer asked him for identification. Defendant showed Kramer his Arizona driving license, which Kramer determined was valid. Kramer testified that, at that time, defendant would not have been stopped by either him or Officer Price if he had started to leave. Kramer did not testify, however, that he told defendant he was free to go.

Defendant, according to Kramer, voluntarily said that funny things happen to him at airports and described losing baggage at the airport in St. Louis. This corroborated the information Kramer had received earlier from the airline agent. Kramer then told defendant "the incident I was looking at did involve some unusual circumstances with luggage, and I asked if he could open his suitcase for me." Kramer testified that he told defendant that he had the right to refuse to open his suitcase.

Defendant testified that when Kramer asked him to open his suitcase he did not know that there was marijuana debris in it, and he had no fears or worries that he would get in trouble if he opened it. He, therefore, opened the suitcase at the side of the concourse so that Kramer could see into it. Defendant told Kramer that there was nothing in the suitcase of interest to Kramer. Defendant then fanned through the clothing and blankets inside the suitcase. As he did so, Kramer noticed a small amount of marijuana debris in the suitcase. He asked defendant to leave the suitcase open, which he did.

At this juncture, Sergeant Herrera, Richards and the dog arrived at the baggage claim area. Herrera told Kramer, out of defendant's hearing, that the dog had signalled that the red suitcase contained narcotics. Kramer then asked defendant if the dog could "view" his luggage. Defendant agreed. The dog again signalled that there was narcotics in the red suitcase, and also signalled the presence of narcotics in the black shoulder bag.

Kramer then read defendant the Miranda warnings and told him that if he started to talk he could stop at any time. According to Kramer, defendant agreed to continue talking, stating that he had nothing to hide. Kramer told defendant that he was going to be detained for investigation of possession of narcotics. Defendant was then brought to the airport police office where he read and then signed a "Consent to Search" form.

Kramer then searched and photographed defendant's two pieces of luggage. The red suitcase contained marijuana debris. In the black shoulder bag there were three rubberbanded stacks of United States currency in various denominations totalling about $28,000.

Defendant claimed that he was carrying the money for Andy Chason, a friend in the rock-and-roll recording business who was also in the used car business. Defendant signed an affidavit disclaiming ownership of the money.

The police officers who were involved in the seizure had weapons that were plainly visible. There is no evidence that the police employed force or aggressive tactics.

Defendant's testimony differed from that of the police in several respects. He said that he never felt free to leave after Kramer started questioning him because he was backed against the escalator and could not get out. Defendant testified that after being asked to open his suitcase he inquired, "What if I say no?" and was told that he would be detained until the police got a warrant. Defendant further testified that under the circumstances he felt it would have been fruitless for him to refuse to consent to the search of his luggage.

After hearing the evidence, the district court made the following rulings and findings:

THE COURT: I conclude that I must deny the motion to suppress. In addition to what I have said in the course of our colloquy, giving some indications of my views about the issues, I will make the following additional statements and explanation and findings and conclusions and explanation of my ruling.

First, I find that Officer Kramer had information that had been communicated to him about an unusual occurrence with respect to baggage in the St. Louis airport, that that together with his observations of the defendant Karas in the area of the baggage carousel while awaiting the baggage and while retrieving it from the carousel tended to relate that earlier information to the defendant and at least to his baggage, if not specifically to the red bag, and I think perhaps even specifically to the red bag, and the totality of the circumstances at that point was sufficient to justify what we commonly refer to as a Terry stop, an investigative stop for the purpose of simply asking questions and making further inquiry before making any additional decision about what should be done. The form of that stop in this instance was not significantly coercive. It was a request appropriately communicated to which--a request to answer questions appropriately communicated which the defendant consented to, and I find that that was a voluntary consent.

I find also that the request to open the bag was voluntarily agreed to and that the additional information that was observed at that point with respect to what appeared to be marijuana residue gave reason at least for further questioning and then additional information came to Officer Kramer as the other officers approached, still additional information when the dog alerted to the bags.

Now, the one critical question that I haven't addressed in these remarks is the conflict in the testimony with respect to exactly what was said between Kramer and the defendant when Kramer first asked if the defendant would consent to the opening the bag. And the defendant testifies, as I understand his testimony, that at that point the conversation occurred in which he claims that he was told that if he refused consent, he would be detained longer and the baggage search would occur with the benefit of a warrant, because the officer would get the warrant before allowing him to leave with the bag.

Now, even the conversation as related by the defendant is not that specific about both detaining him and detaining the bag, but also bearing in mind...