U.S. v. Lee

• Decision Date: 17 October 1990
• Docket Number: D,No. 1500,1500
• Citation: 916 F.2d 814
• Parties: UNITED STATES of America, Appellee, v. Michael LEE, Defendant-Appellant. ocket 89-1608.
• Court: U.S. Court of Appeals — Second Circuit

Page 814

916 F.2d 814

UNITED STATES of America, Appellee, v. Michael LEE, Defendant-Appellant.

No. 1500, Docket 89-1608.

United States Court of Appeals Second Circuit.

Argued Aug. 15, 1990.

Decided Oct. 17, 1990.

Herbert L. Greenman (Lipsitz, Green, Fahringer, Roll, Schuller & James, Buffalo, N.Y., of counsel), for defendant-appellant.

Thomas S. Duszkiewicz, Asst. U.S. Atty., Buffalo, N.Y. (Dennis C. Vacco, U.S. Atty., W.D.N.Y., of counsel), for appellee.

Before MINER and ALTIMARI, Circuit Judges, and KELLEHER, District Judge. ^*

ALTIMARI, Circuit Judge:

Defendant-appellant Michael Lee appeals from a judgment of conviction, entered in the United States District Court for the Western District of New York, finding him guilty of possession with intent to distribute cocaine in violation of 21 U.S.C. Sec. 841(a)(1) (1988).

On this appeal, Lee argues that his conviction should be reversed because the district court improperly denied his motion to suppress cocaine recovered from his suitcase. Specifically, Lee complains that the district court erred in finding that he abandoned his suitcase and therefore was without For the reasons set forth below, we affirm the judgment of the district court.

basis under the fourth amendment to challenge its opening. In the alternative, Lee contends that his abandonment of the suitcase was tainted by police conduct which ran afoul of the fourth amendment. Thus, the central issues presented are whether the district court properly found that Lee voluntarily abandoned his suitcase, thereby forfeiting any reasonable expectation of privacy in it, and whether the abandonment was a consequence of police conduct which violated Lee's fourth amendment rights.

BACKGROUND

On January 9, 1988, Niagara Frontier Transit Authority Police Officer Thomas Gerace was on patrol at Buffalo International Airport. While discussing an unrelated investigation with USAir Shift Supervisor Leo Amigone, Officer Gerace observed a man, dressed in a black sweater, black woolen pants and a three-quarter length black leather coat, purchasing a ticket at the USAir ticket counter. The man, who was subsequently identified as defendant-appellant Michael Lee, appeared nervous and continually stared at the uniformed Gerace; whenever Gerace looked directly at Lee, Lee averted his eyes.

Gerace left the USAir terminal for approximately five minutes. Upon his return, he again noticed Lee, who was now carrying a maroon suitcase with a large scripted "L" monogram. As Lee proceeded up an escalator to the flight departure area, he continued to stare at Gerace, at times looking over his shoulder to do so. On the way to the departure area, Lee passed through a security check point, which required that he place his suitcase through an x-ray machine. Officer Gerace, who was now following Lee, observed that the image produced by the x-ray machine seemed to show that the maroon suitcase was empty, except for a "walkman" type radio and toiletry articles. Once in the departure lounge, Gerace watched as Lee removed his black leather jacket and easily placed it into his suitcase.

After Lee's departure, Officer Gerace learned from USAir Supervisor Amigone that Lee was flying to Tampa, Florida and was scheduled to return on January 11 (one and one-half days after his departure). Further, Lee was traveling under the name B. Jackson and had paid for his $410 round-trip fare all in $10 bills. Based on this information, as well as his observations, Officer Gerace contacted Buffalo Police Officer Philip Torre, who was assigned to the Drug Enforcement Administration ("DEA") Task Force. Upon Officer Gerace's recitation of the facts, Officer Torre decided that further investigation was warranted and that it would be worthwhile to observe Lee as he arrived from Tampa. Accordingly, on January 11, 1988, Officer Torre, accompanied by DEA Special Agent Robert Niczyporowicz and Erie County Deputy Sheriff Paul Terranova, met Officer Gerace at the USAir terminal. All four officers were dressed in plain clothes. The officers watched as passengers deplaned Lee's scheduled flight. When Lee emerged from the plane, Gerace pointed him out to the other officers and also informed them that Lee was wearing the same clothing he had worn when he departed. Lee, however, was no longer carrying the maroon suitcase; the only baggage he now carried was a brown paper shopping bag.

The officers followed as Lee walked through the terminal and then down an escalator leading to both the baggage claim area and the terminal's exit. As Lee turned toward the exit, Officers Niczyporowicz and Torre approached him and, with credentials displayed, asked if they could speak with him. Lee consented. Officer Niczyporowicz then suggested that they move out of the flow of traffic to a more private area. Lee agreed, and the three men walked a distance of approximately twenty-five feet to a corner of the main terminal.

Officer Niczyporowicz began the interview by asking Lee what his name was; Lee responded that it was Michael Lee. The officer, believing that Lee was traveling under the name B. Jackson, requested to see some identification. Lee produced a Eventually, Lee asked why he was being questioned and was informed by Officer Niczyporowicz that he was suspected of carrying contraband. Lee immediately offered to permit the officers to search him and his paper bag. The resulting search failed to uncover any contraband.

Florida driver's license in the name of Michael Lee; the license also showed a Florida address. In response to further questions, Lee informed the officers that he had flown to Tampa to visit a sick sister. Lee was next asked to produce his plane ticket; the ticket bore the name B. Jackson. When Officer Niczyporowicz requested an explanation, Lee maintained that B. Jackson was a cousin whom he had traveled with on January 9. Niczyporowicz then asked if Lee had taken any luggage on his trip to Tampa. Lee indicated that he only brought a brown paper bag which he had carried on the plane. Officer Torre inquired if Lee had returned from Tampa with any luggage other than the brown paper bag he was carrying. Lee said he had no other luggage. Niczyporowicz then asked Lee whether he had any luggage that he had not yet claimed. Again, Lee responded negatively.

Meanwhile, Officer Gerace and Deputy Sheriff Terranova were waiting just outside the baggage claim area, approximately twenty-five feet from where the interview was being conducted. From this vantage point, Officer Gerace noticed a maroon suitcase with a large scripted "L" monogram on the USAir baggage carousel. Officer Gerace informed Officers Torre and Niczyporowicz that he believed he had located the suitcase Lee had carried when he departed Buffalo. A short while later, a USAir employee removed the maroon suitcase from the carousel, along with three other unclaimed bags, and placed them on a baggage rack. Gerace also reported this to Torre and Niczyporowicz. Hearing this information, Officer Niczyporowicz told Lee that a maroon suitcase, believed to be his, was sitting in the baggage claim area. Lee denied knowing anything about the suitcase.

After informing Niczyporowicz and Torre about the maroon suitcase, Officer Gerace sought out a USAir employee who could explain the airline's policy regarding unclaimed baggage. Gerace located USAir Shift Supervisor Amigone and asked if he would accompany him to the baggage claim area to speak with the officers about USAir's baggage claim policies. While Officer Torre waited with Lee, Amigone told the other officers that USAir's policy was to open unclaimed baggage that contain no visible identification, in an attempt to ascertain the owner. Officer Niczyporowicz then told Amigone that the officers did not want USAir's employees to do anything other than what they would ordinarily do. At this point, Amigone picked-up the maroon suitcase and, accompanied by Officers Niczyporowicz, Gerace and Terranova, carried it into the nearby baggage service office. After examining its exterior and finding no identification, Amigone opened the suitcase and saw a large brown paper bag which was folded closed. Further inspection revealed that within the paper bag was a plastic bag containing white powder. Amigone then looked in a side pocket of the suitcase and found two letters addressed to Michael Lee. Officer Niczyporowicz, after informing Amigone that he believed the white powder was cocaine, took possession of the suitcase and placed Lee under arrest. Subsequently, the white powder was determined to be cocaine.

In district court, Lee moved to suppress the cocaine, arguing that the search of his maroon suitcase violated his fourth amendment rights. After a suppression hearing, District Judge Elfvin found that Lee had abandoned his suitcase and therefore had no basis to assert a fourth amendment violation. See United States v. Lee, CR-88-5E at 7, 1988 WL 118480 (W.D.N.Y. Nov. 3, 1988). Further, the court determined that the events leading to Lee's abandonment of the suitcase did not themselves constitute an infringement on his constitutional rights. See id. Thus, the district court denied the motion. Lee subsequently entered a conditional plea of guilty, reserving his right to appeal the denial of his suppression motion.

DISCUSSION

1. Abandonment of the Suitcase

The fourth amendment guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." When a person voluntarily abandons property, however, he forfeits any reasonable expectation of privacy that he might have had in the property. See United States v. Levasseur, 816 F.2d 37, 44 (2d Cir.1987); see also United States v. Thomas, 864 F.2d 843, 845 (D.C.Cir.1989). The fourth amendment's protections, therefore, do not extend to abandoned property. See United States v. Moskowitz, 883 F.2d 1142, 1147 (2d Cir.1989); see also Abel v. United States, ...