U.S. v. Nicholson, 97-6114

• Decision Date: 05 May 1998
• Docket Number: No. 97-6114,97-6114
• Citation: 144 F.3d 632
• Parties: 98 CJ C.A.R. 2187 UNITED STATES of America, Plaintiff-Appellee, v. Eugene NICHOLSON, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 632

144 F.3d 632

98 CJ C.A.R. 2187

UNITED STATES of America, Plaintiff-Appellee, v. Eugene NICHOLSON, Jr., Defendant-Appellant.

No. 97-6114.

United States Court of Appeals, Tenth Circuit.

May 5, 1998.

Submitted on the Briefs: ^* Patrick M. Ryan, United States Attorney, and Timothy W. Ogilvie, Assistant United States Attorney, Oklahoma City, OK, for Plaintiff-Appellee.

Irven R. Box, Box & Box, Oklahoma City, OK, for Defendant-Appellant.

Before BALDOCK, McKAY, and KELLY, Circuit Judges.

BALDOCK, Circuit Judge.

Defendant Eugene Nicholson, Jr., was indicted on one count of possession with intent to distribute approximately five kilograms of cocaine, and one count of possession with intent to distribute approximately ten kilograms of marijuana, both in violation of 21 U.S.C. § 841(a)(1). Defendant filed a motion to suppress evidence of the drugs, which narcotics officers located in his baggage during a drug interdiction at the Oklahoma City Union Bus Terminal. According to Defendant, the evidence which the officers uncovered arose from a warrantless search of his baggage in violation of the Fourth Amendment's proscription against unreasonable searches. Following an evidentiary hearing, the district court denied Defendant's motion. Defendant subsequently entered a conditional plea of guilty pursuant to Fed.R.Crim.P. 11(a)(2), and the district court sentenced him to 115 months imprisonment. Defendant appeals the district court's denial of his motion to suppress. We exercise jurisdiction under 28 U.S.C. § 1291, and reverse.

I.

The facts are undisputed. During the mid-morning of September 26, 1996, Detectives Mark Wenthold, Tina Arragon, Bo Leach, and Miguel Ramos, all of the Oklahoma City Police Department's Drug Interdiction Unit, and all in street clothing, awaited the regularly-scheduled stop of a Greyhound bus en route from San Diego to New York City. The bus arrived at the Oklahoma City terminal around 9:30 a.m. After the passengers disembarked, Detectives Wenthold and Ramos, with the permission of Greyhound officials, began to inspect the luggage contained in the bus' cargo hold. Meanwhile, Detectives Leach and Arragon began to inspect the bags in the overhead racks of the passenger compartment.

"[L]ooking over the luggage," Detective Wenthold spotted a black, padlocked suitcase, which he described as a fabric-sided bag able to stand on its own. Detective Wenthold testified that he "initially" felt the sides of the bag with his palms perpendicular to the ground and flat, and detected "several large bundles" inside it. He then smelled the bag and sensed a strong odor of marijuana coming from its interior. When asked whether the black suitcase was the only bag he handled in this manner, Detective Wenthold responded, "probably not." Detective Wenthold removed the bag from the cargo hold. The claim tag on the bag listed its destination as Toledo, Ohio. Detective Wenthold asked the bus driver to produce the passengers' tickets. A check of those tickets indicated that Defendant was the only passenger on the bus traveling to Toledo.

While Detective Wenthold and Ramos checked the bus' cargo hold, Detectives Leach and Arragon entered the passenger area of the bus and began removing bags from the overhead racks. Detective Leach testified that "[d]uring the course of removing the bags from the overhead racks, ... they are manipulated and smelled...." Detective Leach further testified that he felt hard, "tightly-wrapped bundles" inside an unidentified black carry-on bag, which led him to believe the bag might contain illegal drugs. Although Detective Leach testified that he generally smelled carry-on bags after removing them from the overhead rack, he did not testify that he actually smelled Defendant's carry-on bag, or that his suspicions were aroused by the bag's scent. After manipulating the carry-on bag, Detective Leach placed it back in the overhead rack.

Shortly thereafter, the detectives allowed the passengers to reboard the bus. Once the passengers were seated, Detectives Wenthold and Leach checked each of their tickets, and asked them to claim any carry-on baggage. Defendant sat directly beneath the black carry-on bag. Detective Leach identified Defendant, and specifically asked him if he had any carry-on bags in the overhead rack or luggage in the cargo hold. Defendant responded that he did not.

After Detectives Wenthold and Leach had checked the identity of each passenger, the black carry-on bag remained unclaimed. Detective Leach retrieved the bag from the overhead rack, held it above his head, and asked if anyone on the bus owned the bag. No one responded. Detective Wenthold next brought the black suitcase from the cargo hold onto the bus and made the same inquiry. Again, no one responded. The detectives then removed both bags from the bus to inspect their contents. Outside the bus, the detectives opened both bags. Inside the black carry-on bag, the detectives found five gray duct-taped bundles each containing approximately one kilogram of cocaine. The bag also contained items of extra-large clothing which appeared to fit Defendant. Inside the black suitcase, the detectives found approximately ten kilograms of marijuana consisting of seven bricks, each tightly wrapped in cellophane.

Detective Wenthold asked Defendant to step off the bus. Upon questioning, Defendant repeatedly placed his hands in his coat pockets. When Detective Leach asked if he was carrying any weapons, Defendant responded no, and consented to a pat down search of his person. In Defendant's coat pocket, Detective Leach located several toiletry items and a torn claim check with a number that matched the number on the black suitcase's claim tag. Detective Leach placed Defendant under arrest.

At the suppression hearing, Defendant stipulated to his ownership of the bags to establish his standing to contest the detectives' actions. See Simmons v. United States, 390 U.S. 377, 389-94, 88 S.Ct. 967, 973-77, 19 L.Ed.2d 1247 (1968). Detectives Wenthold and Leach were the only witnesses to testify at the evidentiary hearing. Based upon the detectives' undisputed testimony, the district court found that Defendant "did not have a legitimate expectation of privacy in the carry-on bag." The court also found that Defendant "had no reasonable expectation of privacy in the air surrounding the suitcase contained in the cargo compartment." The court did not address the specific manner in which the detectives handled Defendant's bags, or the fact that Detective Wenthold felt the bundles in the suitcase before he sniffed it. Although its order does not expressly say so, the court apparently reasoned that because Defendant lacked any reasonable expectation of privacy in the exterior of his bags, the detectives' initial actions in handling them did not constitute a search within the meaning of the Fourth Amendment. Thus, the district court first concluded that the detectives lawfully seized both bags, which they suspected contained illegal drugs. The court next concluded that because Defendant abandoned his bags by denying ownership of them, the subsequent search of the bags without a warrant did not violate the Fourth Amendment. Finally, the court concluded that Defendant voluntarily consented to the search of his person, which revealed the claim check.

II.

The Fourth Amendment protects the "right of the people to be secure in their ... effects, against unreasonable searches." U.S. Const. amend. IV (emphasis added). See United States v. Jacobsen, 466 U.S. 109, 114, 104 S.Ct. 1652, 1656-57, 80 L.Ed.2d 85 (1984) (warrantless searches of sealed packages are presumptively unreasonable). Where the facts are undisputed, we review de novo the question of whether a search has occurred within the meaning of the Fourth Amendment. See United States v. Gault, 92 F.3d 990, 991 (10th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 321, 136 L.Ed.2d 236 (1996). A search for purposes of the Fourth Amendment occurs when government officials violate an individual's legitimate expectation of privacy. In Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220 (1979), the Supreme Court explained:

[T]his Court uniformly has held that the application of the Fourth Amendment depends on whether the person invoking its protection can claim a "justifiable," a "reasonable," or a "legitimate expectation of privacy" that has been invaded by government action. This inquiry ... normally embraces two discrete questions. The first is whether the individual, by his conduct, has exhibited an actual (subjective) expectation of privacy,--whether ... the individual has shown that he seeks to preserve something as private. The second question is whether the individual's subjective expectation of privacy is one that society is prepared to recognize as reasonable,--whether ... the individual's expectation, viewed objectively, is justifiable under the circumstances.

(internal quotations, citations, and brackets omitted). When a defendant moves to suppress evidence obtained as a result of an allegedly unconstitutional search, he has the burden of demonstrating a subjective expectation of privacy that society is prepared to recognize as reasonable. United States v. Conway, 73 F.3d 975, 979 (10th Cir.1995).

Travelers have a legitimate expectation of privacy in their personal luggage, which the Fourth Amendment protects. See United States v. Chadwick, 433 U.S. 1, 13, 97 S.Ct. 2476, 2484-85, 53 L.Ed.2d 538 (1977) (individual has expectation of privacy in luggage as repository of "personal effects"), overruled in part on other grounds, California v. Acevedo, 500 U.S. 565, 111 S.Ct. 1982, 114 L.Ed.2d 619 (1991). That expectation of privacy, however, is not unlimited. See United States v. Ross, 456 U.S. 798, 822-23, 102 S.Ct. 2157, 2171-72, 72 L.Ed.2d 572 (1982) (protection which Fourth Amendment affords luggage varies in different settings). Not every investigative...