U.S. v. Lovell

• Decision Date: 01 July 1988
• Docket Number: No. 87-1682,87-1682
• Citation: 849 F.2d 910
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Benny Carl LOVELL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 910

849 F.2d 910

UNITED STATES of America, Plaintiff-Appellee, v. Benny Carl LOVELL, Defendant-Appellant.

No. 87-1682.

United States Court of Appeals Fifth Circuit.

July 1, 1988.

Elizabeth Rogers, Fed. Public Defender, El Paso, Tex., for defendant-appellant.

LeRoy Morgan Jahn, Janet E. Bauerle, Asst. U.S. Attys., Helen M. Eversberg, U.S. Atty., San Antonio, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before BROWN, KING and HIGGINBOTHAM, Circuit Judges.

KING, Circuit Judge:

Benny Carl Lovell, having entered a conditional plea of guilty to a violation of federal narcotics law, appeals from the district court's denial of his motion to suppress evidence. Finding no merit in Lovell's contentions on appeal, we affirm.

I.

On May 28, 1987, United States Border Patrol agents Michael Jordan ("Jordan") and Bradley Williams ("Williams") were assigned to surveillance at the El Paso International Airport. ¹ At approximately 8:30 a.m., the agents observed Benny Carl Lovell ("Lovell") arrive at the Southwest Airlines terminal in a taxi cab. The agents watched Lovell remove one suitcase from the cab while the taxi driver removed another. Both pieces of luggage were large, brown, soft-sided nylon suitcases. Lovell appeared to be very nervous; he was visibly shaking and, after anxiously searching his pockets, Lovell fumbled with his money as he paid the taxi driver. Lovell proceeded to check his bags with a Southwest Airlines skycap. Williams, who was standing next to the skycap, watched as Lovell filled out the baggage claim checks. Williams noted that Lovell's writing was erratic and that Lovell kept glancing around nervously as he wrote. Jordan also observed that Lovell "had a toothpick in his mouth and it was going 90 miles an hour." Lovell then walked into the terminal, glancing frequently over his shoulder as he did so.

At that point, the agents proceeded to the Southwest Airlines baggage area and Williams removed Lovell's suitcases from the conveyor belt. The agents noted that both suitcases were quite heavy and, when they felt the sides of the cases, the agents felt what appeared to be a solid mass. Both agents then compressed the sides of the bags to force air out of them. They did this several times. Upon squeezing the bags, the agents "got a real faint smell of talcum powder and a real strong odor of marijuana." Neither agent could smell marijuana before compressing the bags. Jordan then attempted to apprehend Lovell, but Lovell's plane had already departed for Birmingham, Alabama. The agents contacted the canine unit of the El Paso Police Department and arranged to have a narcotics-sniffing dog brought to the airport. Lovell's suitcases were placed in a lineup and the narcotics dog alerted four times to Lovell's luggage.

The Drug Enforcement Administration ("DEA") was contacted and a search warrant was obtained. Pursuant to the warrant, the agents opened the baggage and found sixty-eight pounds of marijuana in tightly wrapped bundles. The agents called the DEA in Birmingham and gave them a description of Lovell and his flight number. The DEA in Birmingham apprehended Lovell and, after searching him, discovered baggage claim tickets matching those on the bags in El Paso.

On June 16, 1987, a federal grand jury returned a single count indictment charging that Lovell "unlawfully, knowingly, and intentionally did possess with intent to distribute a quantity of marijuana, a Schedule I Controlled Substance, in violation of Title 21, United States Code, Section 841(a)(1)." On July 16, Lovell moved to suppress all evidence discovered as a result of the investigation of his suitcases. On July 29, after hearing testimony and arguments of counsel, the district court denied Lovell's suppression motion. Lovell then entered a conditional plea of guilty, see Fed.R.Crim.P. 11(a)(2), and reserved the right to appeal the district court's denial of his suppression motion. The district court sentenced Lovell to a two year term of imprisonment, to be followed by a five year special parole term. Lovell filed timely notice of appeal from the judgment. On appeal, Lovell argues that the district court erred in denying his suppression motion because the agents' actions constituted an improper search under the fourth amendment.

II.

Lovell maintains that the agents' removal of his luggage from the conveyor belt and their manipulation and sniff of that luggage constituted a seizure and search within the meaning of the fourth amendment; consequently, as the agents did not secure a warrant, and possessed neither probable cause nor reasonable suspicion ² prior to removing, compressing and smelling the bags, Lovell argues that their actions were unlawful and that his motion to suppress should have been granted. The focal point of our review is the question of whether the agents' actions constituted either a search or a seizure, for the decision to characterize an action as either a search or a seizure is in essence a conclusion about whether the fourth amendment applies at all. See United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 1656, 80 L.Ed.2d 85 (1984); Horton v. Goose Creek Ind. School Dist., 690 F.2d 470, 476 (5th Cir.1982), cert denied, 463 U.S. 1207, 103 S.Ct. 3536, 77 L.Ed.2d 1387 (1983). Assuming that the government activity in question does not implicate some other constitutional or statutory provision, if the activity is neither a search nor a seizure, "then the government enjoys a virtual carte blanche to do as it pleases." See Horton, 690 F.2d at 476.

In the instant case, Lovell broaches three distinct issues which, in chronological order, are as follows: (1) did the agents' removal of Lovell's bags from the conveyor belt constitute a seizure; (2) did the agents' compression of Lovell's bags constitute either a search or a seizure; and (3) did the agents' sniff of Lovell's bags constitute a search? We will address the search issues first because they are controlled by well-settled precedent in this circuit. Next, we will determine whether recent Supreme Court precedent has, in any way, affected the continuing validity of our cases on the subject. Finally, we will turn to the question of whether the agents' actions constituted a seizure.

A. Was There a Search?

In analyzing whether the agents' sniff of Lovell's bags constituted a search, we must determine whether the agents' actions offended reasonable expectations of privacy. See California v. Greenwood, --- U.S. ----, 108 S.Ct. 1625, 1628, 100 L.Ed.2d 30 (1988); Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring); Horton, 690 F.2d at 476. In United States v. Goldstein, 635 F.2d 356 (5th Cir. Unit B Jan. 1981), cert. denied, 452 U.S. 962, 101 S.Ct. 3111, 69 L.Ed.2d 972 (1981), we were confronted by a situation similar to that presented here. In Goldstein, government agents removed the defendants' bags from an airline baggage cart and subjected them to a sniff by a narcotics detection dog. The defendants in Goldstein asked us to interpret the dog sniff jurisprudence of several other circuits as requiring at least a reasonable articulable suspicion before a suspected drug courier's luggage could be sniffed. We declined to apply such an interpretation and held that the dog's sniffing around the exterior of the defendants' bags was not an intrusion into an area protected by the fourth amendment. Goldstein, 635 F.2d at 360-61. We recognized that when airport security concerns are not implicated, "every passenger who has luggage checked with an airline enjoys a reasonable expectation of privacy that the contents of that luggage will not be exposed in the absence of consent or a legally obtained warrant." Id. at 361 (emphasis in original). That reasonable expectation of privacy, however, does not extend to the airspace surrounding the luggage. Id. Therefore, we held that the use of a trained canine to sniff the exterior of luggage did not constitute a search. Id. As a result, we concluded that "reasonable and articulable suspicion is not required before a DEA agent may use a canine trained in drug detection to sniff luggage in the custody of a common carrier." Id. at 361-62.

Goldstein's reasoning is equally appropriate in cases, like the one before us, where agents detect an odor of marijuana emanating from luggage by using their own sense of smell. As we noted in Goldstein, "[i]t is undisputed that, had one of the DEA agents through the use of his olfactory sense detected the odor of the controlled substances in the suitcases, a search would not have occurred." Id. at 361 (quoting United States v. Sullivan, 625 F.2d 9, 13 (4th Cir.1980), cert. denied, 450 U.S. 923, 101 S.Ct. 1374, 67 L.Ed.2d 352 (1981)); see also United States v. Burns, 624 F.2d 95, 101 (10th Cir.), cert. denied, 449 U.S. 954, 101 S.Ct. 361, 66 L.Ed.2d 219 (1980); United States v. Solis, 536 F.2d 880, 881 (9th Cir.1976) ("Generally evidence acquired by unaided human senses from without a protected area is not considered an illegal invasion of privacy...."); United States v. Bronstein, 521 F.2d 459, 461 (2d Cir.1975), cert. denied, 424 U.S. 918, 96 S.Ct. 1121, 47 L.Ed.2d 324 (1976) (if the police can detect the aroma of narcotics through their own olfactory sense, there can be no serious contention that their sniffing in the area of the bags is tantamount to an illegal search). The agents' sniff of Lovell's bags was not a search.

Lovell asserts that the agents' actions in the instant case were more intrusive than those in Goldstein because the agents squeezed his bags. That contention was squarely rejected in United States v. Viera, 644 F.2d 509 (5th Cir. Unit B May 1981), cert. denied, 454 U.S. 867, 102 S.Ct. 332, 70 L.Ed.2d 169 (1981). In that case, government agents, in order to procure a scent from luggage exposed to a narcotics-sniffing dog, "prepped" the bags...