U.S. v. Rem
| Decision Date | 26 January 1993 |
| Docket Number | No. 92-1672,92-1672 |
| Citation | 984 F.2d 806 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. David REM, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Bradley W. Murphy, Asst. U.S. Atty., John H. Campbell (argued), Office of the U.S. Atty., Peoria, IL, for plaintiff-appellee.
Kevin E. Milner, Allan A. Ackerman (argued), Chicago, IL, Richard H. Parsons, Peoria, IL, for defendant-appellant.
Before POSNER, COFFEY and MANION, Circuit Judges.
David Rem boarded a train in Los Angeles destined for Chicago. He departed the train during a stop outside Chicago, but left his suitcase containing 18 kilograms of cocaine on the train. After all passengers deboarded in Chicago, the police obtained the suitcase and opened it without a search warrant. Rem pleaded guilty to possession of a controlled substance with intent to distribute but reserved the right to appeal the district court's denial of Rem's motion to suppress. The district court found that the suitcase was abandoned, leaving Rem with no expectation of privacy. We affirm the district court.
At the hearing before the district court on David Rem's motion to suppress, Thomas P. Kinsella, a Chicago police officer assigned to the Drug Enforcement Administration (DEA) Task Force, testified that on May 28, 1991, at approximately noon, he received a telephone call from the police in Kansas City, Missouri, regarding a suspicious person on the Amtrak train which runs from Los Angeles to Chicago. The Kansas City police told Kinsella that they had arrested two people on the train's sleeper car 0430 in an unrelated drug investigation. They had learned from train employees that another passenger on sleeper car 0430, traveling under the name of David Reilly, bought his ticket in Los Angeles with a large amount of cash; kept his suitcase with him in his compartment; stayed in the sleeper car, having meals brought to him; and would not allow the car attendant to come in and make his bed.
Kinsella spoke with Amtrak personnel and discovered that "Reilly" had boarded the train in Los Angeles, a source city for narcotics, and was ticketed through to Chicago. He paid over $700 in cash for the ticket; purchased the ticket on the day the train was to leave Los Angeles; and left a call-back telephone number which was actually a disconnected number. The information suggested to Kinsella that Reilly might be a narcotics courier.
At about 4:00 that afternoon Kinsella and Agent Michael Bobko and an Amtrak police officer, Dennis Kroll, met the train when it arrived. They spoke with several cars attendants, who reported that Reilly had "jumped off the train" in Chillicothe, Illinois, carrying only a backpack. Kinsella testified on cross-examination:
The train had stopped. The car attendant--one of the car attendants was assisting an elderly woman, who was the only passenger who was scheduled to get off in Chillicothe, was assisting her off the train and Mr. Rem pushed by her and pushed by the elderly woman and jumped off the train.... She described it as almost running away from the train.
Kinsella also testified, in answer to the court's questions, that one car attendant expressly stated that defendant "jumped." He explained further:
[S]he said that he ... jumped over the stairs and began running in the direction away from the train. She said that she started to say something to him. She said 'sir' in a loud voice, and he just continued running and she didn't say anything after that.
One of the train's car attendants at Union Station then told Kinsella that "Reilly" had "left his suitcase on the luggage rack right inside of the train." All of the sleeper car attendants stated that they had not moved the suitcase. After all passengers deboarded the train, Kinsella was given the suitcase:
Shirlene Mitchell, the crew chief for sleeper car attendants, stepped inside of the train and I followed her in and she pointed to a gray Samsonite oyster suitcase on the luggage rack and stated that was the passenger David Reilly's suitcase. It was the only piece of luggage left on the sleeper car.
The suitcase had no identification or tags on it. Kinsella testified that the Samsonite suitcase was often used for carrying drugs because of its hard sides and rubber gasket seal. The crew chief asked Kinsella to lift the suitcase from the luggage rack because she could not reach it. Kinsella then "removed the bag from the top shelf of the luggage rack."
Kinsella explained that a sleeper car contains a number of small compartments and several deluxe bedroom compartments. Defendant was in deluxe bedroom "B" from Los Angeles to Albuquerque; he then transferred to a smaller sleeper compartment number 9. The smaller compartment is located along the hallway of the second floor. The luggage rack where Kinsella found defendant's suitcase is located on the lower level adjacent to the exit door of the sleeper car, directly next to the exit door of the sleeper car. It is an open rack. It is available for use by the whole train car. (Officer Bobko described the train car similarly). Kinsella took the suitcase outside onto the platform. The crew chief said she would turn the bag over to Kroll [the Amtrak officer] "because of the circumstances that had previously occurred." As Kroll watched, Kinsella used a pocket knife to pop open the suitcase. (There were two locks on the side of the suitcase which were not locked, and a plastic combination lock over the center of the suitcase which was locked.) The suitcase contained 18 brickshaped packages of cocaine. They carried the suitcase to Kinsella's office in the train station.
Ten minutes after Kinsella brought the suitcase to his office, several Amtrak employees came in to report that they had just seen "Reilly," although his clothing was different. Kinsella and Bobko left the office and entered the station's lobby area, where they saw Rem talking on a pay telephone; he "appeared very excited," waving his hand in the air. Kinsella and Bobko approached Rem and asked if they could speak with him. Rem nervously attempted to hang up the telephone. When asked, Rem, his hands shaking, produced a New York driver's license in the name of David Rem.
Kinsella testified further that Rem denied being aboard the train from Los Angeles at any time; in fact, he denied being aboard any train at all. He stated that he was "just looking around" the train station. He had been in Chicago for two weeks and was staying at a motel, although he could not remember the name or location of the motel. Several car attendants and crew chief identified Rem as the individual traveling under the name of David Reilly. Rem was then placed under arrest.
On cross-examination, Kinsella stated that one Chicago police department summary report stated the luggage was found in the "sleeper car"; another summary report stated it was found in the "train compartment"; and the criminal complaint referred to locating the suitcase in the "sleeping car." Kinsella testified further that he kept a trained dog accessible, but he did not believe it was necessary to use the dog once it was determined that the luggage had been abandoned. 1
Kinsella's subsequent interviews of witnesses in Chillicothe revealed that Rem exited the train, entered the train station, and asked the ticket agent about transportation to Chicago, possibly "at the time the train was in the station." Rem said nothing to the ticket agent about missing the train, and nothing about his suitcase. He then went to a local restaurant and asked about transportation to Chicago, explaining only that he had to "meet someone." He did not mention the suitcase. Rem telephoned a local taxi dispatcher, who asked him whether he had missed his train, and he replied, "Yes." He then took a cab to the Peoria airport, and bought a plane ticket at 2:40 p.m. to Chicago. In Chicago, Rem checked into a motel at 4:05 p.m.
Officer Michael Bobko testified similarly, adding that when he and Kinsella met the train at 4:00 p.m., he watched as Kinsella stepped out of his view for only "a few seconds, long enough to go up the stairs, go out of my sight and come right back into my view with the suitcase."
Bobko later interviewed Jack Broyles, an attendant on car 0430. Broyles spoke with Rem several times after the Kansas City stop and before the Chillicothe stop.
Broyles stated that Rem has asked him about the incident in Kansas City where two men had been arrested by Kansas City police officers and Broyles related to me that he informed Rem that there had been an arrest for narcotics involving the Kansas City police and Broyles stated that he told Rem he didn't know too much more about it.
The district court denied Rem's motion to suppress. Subsequently, in response to Rem's motion for reconsideration, the district court permitted him to appear on November 15, 1991 and testify regarding the motion to suppress.
Rem testified that on May 26, 1991 he traveled to Los Angeles for the purpose of acting as a drug courier. On that day, he was given the drugs and cash by his "contact," Hector. Rem testified that he was in car number 0431, not 0430; that he did not remain in his private compartment or ask the staff to bring him meals; that he knew nothing about the arrests in Kansas City because he slept late that morning; and that he never put his suitcase in the public luggage rack.
Rem testified further that in Chillicothe, he deboarded without hurrying and without seeing any other passengers deboard. Within three minutes, he realized that the train had left, although he stood at the telephone which was 40 feet from the tracks, with an unobstructed view. After flying in to Chicago, Rem took a taxi to a motel in order to change his clothes, to telephone a friend in New York whose mother was going to be having surgery, and to provide himself with a safe place to return with the suitcase.
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