U.S. v. Mendez

• Decision Date: 12 July 1994
• Docket Number: No. 93-2528,93-2528
• Citation: 27 F.3d 126
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Jon MENDEZ, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 126

27 F.3d 126

UNITED STATES of America, Plaintiff-Appellant, v. Jon MENDEZ, Defendant-Appellee.

No. 93-2528.

United States Court of Appeals, Fifth Circuit.

July 12, 1994.

Paula C. Offenhauser, Asst. U.S. Atty., Gaynell G. Jones, U.S. Atty., Houston, TX, Richard A. Friedman, Appellate Sec., Crim.Div., Dept. of Justice, Washington, DC, for appellant.

Peter G. Heckler, Houston, TX, for appellee.

Appeals from the United States District Court for the Southern District of Texas.

Before REAVLEY, JONES and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:

This is an appeal from an order granting a pretrial motion to suppress cocaine discovered during a post-arrest search of appellee's suitcase at an airport. A trained narcotics dog had alerted to appellee's suitcase prior to his arrest and prior to the search of his suitcase. The district court found the arrest illegal and the subsequent search tainted by the failure to give Miranda warnings. In addition, the district court granted the appellee's motion to suppress all statements made by the appellee subsequent to his arrest. The government appeals these rulings. We affirm in part and reverse in part.

I. FACTS AND PROCEDURAL HISTORY

On March 10, 1993, several Houston Narcotics Division police officers positioned themselves in the lobby of the Hobby Airport to observe persons leaving on TWA's 12:37 p.m. flight to New York. At the suppression hearing in the court below, Officer D.V. Luis, a Houston police officer assigned to the Hobby Airport Interdiction Squad, explained that Houston is a big "source" city and New York is a "demand" city. Luis testified that she noticed the appellee, Jon Mendez, when he entered the terminal for the following reasons "he was carrying a fairly large suitcase that appeared to be extremely heavy for him;" "[h]e was there approximately 20 minutes prior to the departure time of the airplane;" and "[h]is bag looked fairly new and it was locked." Mendez checked the suitcase at the TWA counter and proceeded to the departure gate.

Luis then went to the TWA ticket agent and obtained the claim number of the bag Mendez checked. The ticket agent also informed her that Mendez, through a travel agency, had purchased that day a one-way ticket for departure the following day, March 11. Mendez, however, was not taking the flight he originally purchased--instead, he was attempting to fly out the same day he purchased the ticket. Luis gave the information to Officer Hardy, the police canine handler, who went downstairs to the baggage handling area to await the bag and to have a trained dog sniff it for drugs.

At that time, Officers Luis and Mosley proceeded to Mendez' gate of departure. When they arrived at the gate, Mendez had already boarded the plane. The officers waited there until Hardy advised them that the dog had given a positive alert on the bag. ¹ A positive alert on the bag means "[t]hat the dog has alerted on the odor of narcotics." The officers boarded the plane, and Luis recognized Mendez as the man who had checked the bag. She approached him and identified herself as a Houston police officer. Mendez indicated that he did not speak English and so she spoke to him in Spanish. She again informed him that she was a Houston police officer and asked him if he was traveling to New York, and he responded that he was. She asked him if she could look at his ticket, and Mendez "hesitantly produced his ticket, although it was sitting there in front of him." Luis saw that the destination on the ticket was New York and the name on the ticket was "Jonathan Murillo." She also asked him if he had any identification, and he answered that he had none. Luis asked Mendez if he knew any reason why a narcotics dog would alert on his suitcase, and he answered in the negative.

Luis then inquired whether Mendez would mind accompanying them in order to identify the bag, and he complied. ² Officers Luis and Mosley escorted Mendez to the location of the bag. During this walk, Officer Mosley had his finger in Mendez' belt loop. Luis inquired whether Mendez lived in New York or Houston, and Mendez simply shrugged his shoulders. She further asked him what kind of suitcase he had checked, and he asserted that his bag was yellow. The officers knew that was false because they had observed him check his bag.

Officer Maxwell brought out the bag that the officers previously observed Mendez check. The claim check for the bag matched the claim number on the ticket held by Mendez. Upon showing the bag to Mendez, he "stated that it was not his bag." He again claimed that his suitcase was yellow. Luis asked him if that was his bag, which he again denied. She also asked permission to search the bag, and he stated "that [she] could look in his bag, but that was not his bag." She testified that "at that point, feeling that the bag was abandoned, we went on ahead and opened it." The bag contained 14 bundles wrapped in white plastic. A field test was performed, and it tested positive for cocaine. Mendez then was placed under formal arrest, and Luis read Mendez his Miranda ³ warnings. Luis was the only person who testified at the suppression hearing.

After hearing the evidence, the district court found that Mendez had been placed under arrest when he left the plane with the officers. The district court further found that (1) the arrest was illegal because probable cause to arrest did not exist at that time, (2) even if the arrest were legal, the officers' failure to advise Mendez of his Miranda rights tainted the search and seizure, and that (3) Mendez' "abandonment" of his suitcase was a consequence of the officers' failure to warn him of his rights. The district court granted Mendez' motion to suppress the contents of his suitcase and the statements he made after he was taken off the plane. 827 F.Supp. 1280.

II. STANDARD OF REVIEW

When reviewing a district court's ruling on a motion to suppress based on live testimony at a suppression hearing, this Court accepts the trial court's factual findings unless they are clearly erroneous or are influenced by an incorrect view of the law. United States v. Alvarez, 6 F.3d 287, 289 (5th Cir.1993). The district court's conclusions of law on a motion to suppress are reviewed de novo. Id. Further, the evidence is viewed in the light most favorable to the prevailing party. Id.

III. THE PROBABLE CAUSE ISSUE

The district court found that Mendez was placed under custodial arrest at the time he was escorted from the aircraft. The government does not contest that finding for purposes of this appeal, and thus, we will assume that conclusion is correct. The government does argue, however, that the district court erred in finding that probable cause to arrest Mendez did not exist at the time he exited the plane.

Probable cause exists where the facts and circumstances within the arresting officers' knowledge are sufficient in themselves to warrant a man of reasonable caution in the belief that the person to be arrested has committed or is committing an offense. United States v. Orozco, 982 F.2d 152, 154 (5th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 2430, 124 L.Ed.2d 650 (1993).

The district court found that there was no probable cause because "[a]t the time of the arrest, the only evidence the officers had was the alert of the dog to the suitcase and the drug courier characteristics of Mendez." The district court discounted the characteristics noted by Luis on the basis that innocent travelers could display any of the characteristics. The district court opined that "[w]ithout proof of contraband, the officers had no probable cause to support an arrest of Mendez without a warrant." The court further states that "[t]his case has virtually no trait evinced by Mendez to reinforce the dog's alert. The things about him that the police say attracted their attention are not suspicious individually or aggregately." ⁴

Contrary to the district court's analysis, "probable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity. By hypothesis, therefore, innocent behavior frequently will provide the basis for a showing of probable cause...." Illinois v. Gates, 462 U.S. 213, 243 n. 13, 103 S.Ct. 2317, 2335 n. 13, 76 L.Ed.2d 527 (1983). In concluding that there was no probable cause to arrest Mendez, the district court erred by failing to realize that the factors the court considered innocent or marginal had a greater significance after the dog alerted on Mendez' suitcase.

Further, the district court failed to consider the following circumstances adduced at the hearing that added to the probable cause calculus: that on the day he was arrested, Mendez purchased a one-way ticket to depart the next day, but changed his plans and attempted to fly that same day; that Mendez was hesitant to hand his ticket to Luis when she requested it (even though "it was sitting there in front of him"); and that Mendez was making a long trip without any personal identification. ⁵ Significantly, the district court did not find that any of the circumstances articulated by Luis did not exist. Rather, the court apparently did not find them suspicious.

As previously stated, although the district court's factual conclusions must be accepted unless clearly erroneous or influenced by an incorrect view of the law, the probable cause determination is a matter of law and thus, reviewed de novo. In view of the undisputed facts adduced at the suppression hearing, we find the district court's conclusion that probable cause to arrest had not arisen at the time the officers escorted Mendez from the plane incorrect as a matter of law. At the time he was taken into custody the arresting officer knew that: Mendez, on the day he was arrested, had purchased a one-way ticket to depart the next day, but changed his plans and attempted to fly that same day; when the officer requested to see his plane ticket, Mendez...