U.S. v. Lewis

• Decision Date: 09 June 1983
• Docket Number: No. 82-1540,82-1540
• Citation: 708 F.2d 1078
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Daniel Thomas LEWIS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1078

708 F.2d 1078

UNITED STATES of America, Plaintiff-Appellee, v. Daniel Thomas LEWIS, Defendant-Appellant.

No. 82-1540.

United States Court of Appeals Sixth Circuit.

Argued March 10, 1983.

Decided June 9, 1983.

Frederick W. Lauck, Troy, Mich., for defendant-appellant.

Leonard R. Gilman, U.S. Atty., Susan M. Daltuva, Sheldon Light (argued), Asst. U.S. Attys., Detroit, Mich., for plaintiff-appellee.

Before LIVELY and KRUPANSKY, Circuit Judges, and CELEBREZZE, Senior Circuit Judge.

KRUPANSKY, Circuit Judge.

This is a direct appeal involving a drug smuggler apprehended at the Detroit airport after deplaning from a Miami, Florida flight. Appellant Daniel Lewis (Lewis) charges error resulting from an asserted search of his luggage by law enforcement officers using police dogs trained to detect concealed narcotics and the legal sufficiency of a grammatically incorrect search warrant.

The salient facts of this case are not disputed. Lewis was observed at the Miami, Florida airport purchasing a ticket to Detroit, Michigan under one of the two different names affixed to his suitcase. During an ensuing interview with a Miami police detective, which is not challenged on appeal, Lewis stated he resided in Detroit; however, he identified himself to the officer with a Florida driver's license issued in a third name.

As Lewis boarded his flight, his luggage, outside of his presence, was intermingled with numerous other items of luggage. A specially trained police dog was permitted to sniff the array of assembled luggage. The dog, in the words of his handler, displayed "not a strong positive reaction" to the appellant's suitcase. The suitcase, nevertheless, was immediately thereafter loaded aboard Lewis' plane for transportation to Detroit in the normal fashion.

Two DEA agents and a state police officer, alerted by the Miami police, observed Lewis deplane from his flight at the Detroit airport. The appellant bypassed the baggage claim area assigned to his flight and proceeded to the continuous baggage claim area assigned to another incoming flight. From this vantage point he kept a continuous vigil of his baggage claim area for a period of approximately 15 minutes. Lewis thereafter proceeded to his carrier's claims office, ignoring his luggage, remained for only thirty seconds, observed the surveilling agents and finally departed the area.

The DEA at that point enlisted the assistance of another dog trained in the detection of concealed narcotics. As in Miami, the appellant's bag was comingled with four other suitcases and the dog was permitted to examine the assembled luggage. The dog exhibited a "positive reaction for controlled substances" when sniffing appellant's suitcase similar to the manner in which he had reacted on approximately 100 previous occasions when he had detected concealed narcotics.

Three hours thereafter, a man telephoned the airline baggage claims office, identified himself by the name in which appellant's ticket had been issued and stated that he "had not had time" to claim his luggage and that a friend would collect the suitcase. One hour later, a man did claim the luggage and advised the DEA agent that he had been paid $20 by a "Tom" Lewis to recover the luggage here in issue and thereafter place it in a vehicle parked at a named bar. The DEA agent thereupon seized the suitcase, obtained a search warrant from a United States Magistrate, opened it and discovered 278.58 grams of cocaine.

A bench trial was conducted on these stipulated facts and Lewis was found guilty of possession with intent to distribute the cocaine. 21 U.S.C. Sec. 841(a)(1). He was sentenced to four months imprisonment and two years probation.

As previously noted, Lewis here contends that a warrant should have been required as a condition precedent to the canine sniffing. Appellant argues the existence of a privacy interest in the contents of locked luggage which may not be invaded by the use of trained dogs without a showing of probable cause. It must be emphasized that Lewis does not contest, and did not contest below, the removing of his luggage from its normal course of handling and co-mingling it with other baggage as an illegal seizure. Accordingly, this Court is confined to a review of Fourth Amendment infringements, if any, resulting from the use of trained canines in detecting concealed narcotics.

Five circuits of the six that have addressed the issue have concluded that the use of a trained dog within the facts disclosed in this action do not constitute a search within the mandate of the Fourth Amendment. United States v. Waltzer, 682 F.2d 370 (2d Cir.1982) (cocaine detected in suitcase at airport); United States v. Goldstein, 635 F.2d 356 (5th Cir.), cert. denied, 452 U.S. 962, 101 S.Ct. 3111, 69 L.Ed.2d 972 (1981) (cocaine detected in suitcase at airport); United States v. Klein, 626 F.2d 22 (7th Cir.1980) (cocaine detected in suitcases at airport); United States v. Sullivan, 625 F.2d 9 (4th Cir.1980) (liquid PCP detected in suitcases at airport); United States v. Burns, 624 F.2d 95 (10th Cir.), cert. denied, 449 U.S. 954, 101 S.Ct. 361, 66 L.Ed.2d 219 (1980) (cocaine detected in suitcase in motel room). ¹

The single contrary position has been enunciated by the Ninth Circuit in United States v. Beale, 674 F.2d 1327 (9th Cir.1982); pet. for cert. filed, 51 U.S.L.W. 3321 (Oct. 18, 1982) (No. 82-674), a case decided prior to the Second Circuit's decision in Waltzer, supra, and explicitly rejected therein. 682 F.2d at 373. The Ninth Circuit in Beale concluded that canine detection of odors is a "limited" intrusion into the privacy expectations covered by the Fourth Amendment that does not require a warrant supported by...