U.S. v. Lara
| Decision Date | 05 March 1981 |
| Docket Number | No. 80-5355,80-5355 |
| Citation | 638 F.2d 892 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Rogelio LARA, Defendant-Appellant. Summary Calendar. . Unit B |
| Court | U.S. Court of Appeals — Fifth Circuit |
Miguel Del Aguila, Lawrence Besser, Miami, Fla., for defendant-appellant.
Atlee W. Wampler, III, U. S. Atty., Sonia Escobio O'Donnell, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of Florida.
Before HILL, FAY and ANDERSON, Circuit Judges.
Appellant Rogelio Lara appeals his conviction after a nonjury trial of possession of cocaine with intent to distribute. 21 U.S.C.A. § 841(a)(1). Lara moved to suppress the introduction at trial of cocaine seized from a vinyl tote bag he was carrying when he arrived at Miami International Airport. After a hearing, the magistrate recommended that the motion to suppress be denied because Lara had abandoned the vinyl tote bag. After a hearing, the district court adopted the magistrate's findings and recommendation and made an additional finding. Lara waived jury trial and was tried on stipulated facts. The question we must decide is whether and when a seizure took place, as this will determine whether the abandonment was the result of illegal police activity. Finding the record to be inadequately developed, we remand for further findings.
The hearing before the magistrate focused on the initial encounter between police officers and Lara and whether Lara's actions and statements were voluntary. The magistrate made the following findings of fact:
1. On October 15, 1979, William Johnson, a police officer with the Dade County Public Safety Department assigned to the Airport Narcotics Unit at the Miami International airport since November 1977, observed the defendant, Rogelio Lara, purchase an airline ticket for cash at a National Airlines ticket counter at about 3:15 p. m.
2. At such time, Mr. Lara was carrying a leisure jacket over his arm, a fold-up suit bag and a brown colored small vinyl leather tote bag.
3. Mr. Lara was first in line no one else was in the line.
4. Mr. Lara checked his fold-up suit bag with the ticket agent and thereupon proceeded towards Concourse F, a departure concourse for National Airlines.
5. Before getting to the Concourse, Rogelio Lara, walked over to his left and took a seat in the public seating area up against the rear of an elevator shaft in the center of the airport. 1
6. Mr. Lara is 38 years of age. From his appearance in Court, there is nothing sinister-looking about him.
7. Officer Johnson and his partner, Detective Everett Titus, followed Lara to where he was sitting. Johnson identified himself as a police officer, asked if he minded talking to the officer, and was thereupon asked to see his airline ticket.
8. The ticket was a one-way ticket to Washington, D.C., in the name of B. Garcia.
9. Officer Johnson then asked Lara for identification and as Lara was patting himself as if to look for his wallet, he was asked, "What's your real name?", to which he responded, "Rogelio Lara".
10. Lara was again asked if he minded talking to the police officer and when asked where his identification was, said that, "it must be in the car ... she brought me in the Mercedes".
11. Another police officer, Detective Milan Pilat, walked up at that point and said that he had seen Lara exit from a station wagon occupied by a man, a woman and two children. 2
12. Lara was then asked if he would give permission to search his tote bag, which was sitting next to his feet at the chair he was then standing in front of.
13. Lara stated: "I don't have a bag, that's not my bag".
14. Officer Johnson then told Lara that he "would like Mr. Lara to come downstairs with my partner and myself."
15. Officer Johnson testified prior to that time Lara was free to leave.
Report and Recommendations, pp. 1-2 (transcript references omitted).
Downstairs, in a baggage handling room, a search of Lara produced a quantity of marijuana, which the district court suppressed as the result of an illegal arrest, a ruling the government does not appeal. The vinyl tote bag was placed among other bags, and a dog, trained as a narcotics sniffer, indicated that the bag contained a narcotic. A search warrant for the tote bag was then obtained. The search of the tote bag produced the cocaine in question and a wallet containing Lara's identification.
On the basis of these findings of fact, the magistrate made numerous conclusions of law. The magistrate concluded that because of a lack of reasonable suspicion, Officer Johnson had no right to interrogate Lara initially. The magistrate did not expressly find that a seizure had occurred, but simply assumed the interrogation was an investigatory stop within Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) and applied the reasonable suspicion standard of that case. Despite the fact that at the time of the hearing this court had decided United States v. Elmore, 595 F.2d 1036 (5th Cir. 1979), cert. denied 447 U.S. 910, 100 S.Ct. 2998, 64 L.Ed.2d 861 (1980), the magistrate failed to apply the test announced there concerning investigatory stops. The magistrate held that when Lara was taken to the baggage room, the arrest was complete, and was illegal. The magistrate further held that any statement made by Lara was not voluntarily given, but was the result of a show of authority and intimidation. Factors the magistrate considered in making this holding were that two, and at times three, officers were standing in front of Lara, they flashed their badge at him, no Miranda 3 warnings were given and the officers never told Lara he did not have to answer their questions. Despite finding that all statements by Lara were involuntary, the magistrate concluded that the seizure and search of the tote bag was legal because it was abandoned by Lara. The magistrate held that while Lara's statement abandoning the tote bag could arguably be suppressed as an admission, it could not be suppressed as a disclaimer of ownership, citing United States v. Colbert, 474 F.2d 174 (5th Cir. 1973) (en banc).
After a hearing on the magistrate's Report and Recommendation, the district court adopted the report in its entirety and approved the recommendations. 4 The district court made an additional finding that there was no nexus between the illegal arrest of Lara and the subsequent search of his person or of the tote bag.
Before reaching the significant issue in this case whether and when a seizure of Lara occurred we must dispose of one theory relied upon by the district court. In discussing this theory, we assume arguendo as the district court implicitly found that the initial encounter with Lara was an illegal seizure. The district court found that there was no nexus between the illegal initial encounter of Lara and the subsequent search of his person and of his tote bag. We think this finding is clearly erroneous. If the police acted illegally in their initial encounter with Lara, then it is clear that the subsequent searches of his person and of his tote bag were all prompted by information gathered during such illegal activity. The link between any illegal activity and the discovery of the cocaine is too direct and proximate to permit a finding of attenuation from such illegality to allow admission of the discovered cocaine. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). We note that the government on this appeal does not attempt to justify admission of the cocaine on the theory that there was no nexus between any illegal activity and the search, nor does the government argue that any taint was purged or dissipated at the time of the search of the tote bag. 5
The government argues only that there had been no seizure of Lara at the time he abandoned the tote bag, and thus there had been no illegal police activity at that time. 6 Both parties focus on this issue as the only issue on appeal. Accordingly, we focus only on whether there was a seizure at the time Lara stated the tote bag was not his.
The recent decision by the Supreme Court in United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980), has facts similar to those in the instant case. There Justice Stewart, joined by Justice Rehnquist, voiced his belief that there was no seizure when two nonuniformed DEA agents approached the defendant in the concourse of an airport, identified themselves as federal agents, and asked to see her identification and airline ticket. The defendant gave the agents her driver's license which had a name different from that on the ticket. The agents then asked the defendant why she was traveling with a different name and how long she had been in California, the origin of her flight. After the defendant answered these questions, the agents asked her to accompany them to their DEA office. Justices Stewart and Rehnquist believed the proper test for determining whether a seizure had occurred was whether in view of all the circumstances surrounding the incident, a reasonable person would believe he was not free to leave. 446 U.S. at 554, 100 S.Ct. at 1877, 64 L.Ed.2d at 509. Applying this test, they found no seizure since the encounter was in a public concourse, the agents wore no uniforms, displayed no weapons, and did not summon the defendant to their presence, but instead approached the defendant and requested, but did not demand, to see the defendant's identification. Since only Justices Stewart and Rehnquist addressed the seizure issue, Mendenhall provides no binding precedent on the issue. 7
Although Mendenhall gave no binding test for what constitutes a seizure, this court in United States v. Robinson, 625 F.2d 1211 (5th Cir. 1979) recognized that this circuit, in United States v. Elmore, supra, had already enunciated the same test adopted by Justices Stewart and Rehnquist i....
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