U.S. v. Prim

• Decision Date: 07 February 1983
• Docket Number: No. 81-1149,81-1149
• Citation: 698 F.2d 972
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Randall G. PRIM, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 972

698 F.2d 972

UNITED STATES of America, Plaintiff-Appellee, v. Randall G. PRIM, Defendant-Appellant.

No. 81-1149.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Sept. 16, 1981.

Decided Feb. 7, 1983.

Brook Hart, Hart & Wolff, Honolulu, Hawaii, for defendant-appellant.

Emilia M. DeMeo, Asst. U.S. Atty., Honolulu, Hawaii, for plaintiff-appellee.

Appeal from the United States District Court for the District of Hawaii.

Before HUG and ALARCON, Circuit Judges, and TAKASUGI, ^* District Judge.

TAKASUGI, District Judge:

Defendant Randall G. Prim appeals his conviction for possession of cocaine in violation of 21 U.S.C. Sec. 844. He challenges the trial court's denial of his motion to suppress.

FACTS

On October 7, 1980, at approximately 9:00 a.m., defendant arrived at the Portland International Airport in Portland, Oregon and purchased, with cash, a one-way ticket to Hilo, Hawaii, via Honolulu, scheduled for departure at 9:30 a.m. that date. He checked in a blue suitcase and hand-carried a black briefcase. Upon defendant's arrival at the airport, he was observed by Patrolman Battaglia of the Port Authority of Portland Police Department and Sergeant Wells of the Multnomah County Sheriff's Department. Battaglia became suspicious of defendant because of the way he looked around. Drug Enforcement Administration ("DEA") Special Agent Gutensohn was contacted and he placed defendant under surveillance for approximately two hours until defendant's delayed flight finally boarded at approximately 11:00 a.m. During his surveillance, he noticed defendant's nervous movements, such as looking around every 15 yards and changing directions in walking. After defendant's departure, Gutensohn checked with NADDIS, a listing of narcotics investigations, which revealed that defendant was mentioned in a 1979 narcotics investigation.

Before 12:00 noon, Battaglia made a telephone call to DEA Special Agent Jerome Snyder of the Honolulu International Airport Task Force and provided him with defendant's name, flight number, physical At approximately 2:00 p.m. Hawaii Standard Time ("HST"), Snyder, together with Agents Kempshall and Tanaka and Honolulu Police Department Officer Abe, observed defendant deplane. Abe followed defendant into a bathroom, and thereafter toward the interisland terminal where he was to continue his flight from Honolulu to Hilo. Apparently there was nothing unusual or suspicious about defendant's actions during this period of observation.

description and description of defendant's suitcase and briefcase. He also mentioned the NADDIS report and defendant's nervous movements at the Portland International Airport. At 1:00 p.m., Battaglia telephoned Snyder again and informed him of an outstanding nonsupport warrant for defendant issued out of Lane County, Oregon. Both of these telephone calls were made before defendant's arrival in Honolulu.

Before reaching the interisland terminal, defendant was approached by Abe who placed his hand on defendant's shoulder, identified himself and displayed his badge. Abe asked defendant to produce his identification and his airline ticket. Either shortly before or after this request by Abe, the two were joined by Kempshall, who also showed his identification. Abe and Kempshall both examined defendant's identification and ticket and found them to be in order.

Abe then informed defendant of their suspicion that defendant might be trafficking in narcotics and asked, "Would you like to accompany me to the office?" Whereupon, Abe put his hand on defendant and pointed the way. Kempshall used a different route to the office. No mention was then made of the outstanding nonsupport warrant. Snyder met Abe and defendant just before they arrived at the office and accompanied them. The office was located approximately 100 yards from the point where defendant was initially stopped by Abe. In the meantime, Tanaka had obtained defendant's blue suitcase. Defendant was brought into an interrogation room adjoining the DEA office at approximately 2:30 p.m. HST.

At the suppression hearing, Snyder, Abe and Kempshall testified that, although they were all aware of the outstanding nonsupport warrant, the reason for the relocation and detention of defendant was that they suspected him of trafficking in narcotics, not because of the outstanding warrant. Abe further testified that the purpose for the relocation was to interrogate defendant and obtain his consent to a search.

In the interrogation room, defendant was twice asked by Snyder for his consent to a search of his person and his bags. Defendant refused on both occasions. Defendant and Abe testified that defendant thereafter requested a lawyer. Following defendant's refusal to a consensual search, Snyder told defendant to empty his pockets in preparation for a pat-down for weapons. Whereupon, defendant removed his keys and other personal items from his pockets and placed them on a table before him. He did not remove an opaque envelope which made a bulge in his left front pocket. The envelope was later found to contain cocaine. Snyder performed the pat-down search, felt the envelope and directed defendant to remove it. Defendant thereupon removed the envelope and placed it on the table with his personal items. Snyder then advised defendant of his Miranda rights. (According to Snyder's testimony, defendant requested a lawyer only after Snyder had advised him of his Miranda rights.) Abe then entered with a consent to search form, which defendant declined to sign.

Snyder testified that defendant thereafter requested a cigarette from his briefcase. Responding to the request, Snyder opened the briefcase, removed a cigarette, placed all of the items from defendant's pockets, including the envelope of cocaine, into the briefcase, and closed the briefcase. Defendant testified that he does not smoke and never requested a cigarette.

After placing all of the items into the briefcase, Snyder took the briefcase out of the interrogation room. Snyder then locked or shut the door, leaving defendant alone in the interrogation room.

Snyder talked with Kempshall about securing a narcotics detector dog and about the Oregon nonsupport warrant. Snyder testified that he knew there was an outstanding warrant but that it had not yet been verified.

At approximately 3:20 p.m. HST, a narcotics detector dog was directed to defendant's suitcase and briefcase and the dog alerted in a positive manner. An hour later a second dog was summoned and that dog reacted in like fashion. The parties stipulated to the extremely high degree of reliability of the two dogs in responding to narcotics.

After the first dog alerted, Kempshall returned to the interrogation room and formally arrested defendant.

On October 8, 1980, a search warrant was issued upon the affidavit of Kempshall. Upon opening defendant's suitcase and briefcase, the envelope containing the cocaine, originally in defendant's pocket, was seized from defendant's briefcase.

Snyder, upon cross-examination, testified that there was a point in time, prior to the formal arrest, when defendant was no longer free to leave, the time being when he first made contact with defendant in the interview room following defendant's first refusal to a consensual search.

The lower court denied defendant's motion to suppress and defendant was convicted for possession of cocaine in violation of 21 U.S.C. Sec. 844.

DISCUSSION

Defendant does not contest on appeal the validity of the initial stop. Instead, defendant contends that his removal to the DEA interrogation room was an arrest without probable cause and further claims that defendant was detained for no other purpose than to conduct a custodial interrogation and to obtain consent to search his person and property.

Although the existence of reasonable suspicion or probable cause is judicially viewed under an objective standard, it is a standard applied to the actual and/or perceived belief of the law enforcement officer as he either stops and detains or engages in search and seizure. It is this conceptual application that the dissent fails to consider. Further, contrary to what the dissent suggests, no effort is advanced to base probable cause for arrest on the subjective state of mind of the arresting officer.

An examination of the transcript of the suppression hearing clearly establishes that all of the officers involved in the stop, detention, interrogation and search request did so only upon their suspicion that defendant was a drug trafficker. It was not because of the outstanding nonsupport warrant.

Accordingly, the nonsupport warrant was not the cause of the officers' action and thus not the cause to which the objective standard should be applied. For this reason, the trial court's reliance upon the nonsupport warrant to justify probable cause is clearly erroneous. If anything, it provides a pretext after the fact to justify the officers' actions. Such pretextual use to justify an arrest or search has been clearly recognized as violative of the fourth amendment. Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960); South Dakota v. Opperman, 428 U.S. 364, 376, 96 S.Ct. 3092, 3100, 49 L.Ed.2d 1000 (1976); Brown v. Illinois, 422 U.S. 590, 611, 95 S.Ct. 2254, 2265, 45 L.Ed.2d 416 (1975) (Powell, J., concurring); Wainwright v. City of New Orleans, 392 U.S. 598, 606-607, 88 S.Ct. 2243, 2249-50, 20 L.Ed.2d 1322 (1968) (Warren, C.J. dissenting).

Finally, the dissent seems to suggest that this court view the actions of the law enforcement officers under the standard of good faith as an exception to the exclusionary rule. If this is a prognostication, it is still not the law. See Taylor v. Alabama, --- U.S. ----, 102 S.Ct. 2664, 73 L.Ed.2d 314 (1982).

The Government contends that defendant voluntarily consented to accompany the officers to the DEA office and therefore his relocation did not constitute an arrest, citing United...