U.S. v. Stewart

• Decision Date: 19 August 1996
• Docket Number: No. 95-10461,95-10461
• Citation: 93 F.3d 189
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kelly STEWART, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 189

93 F.3d 189

UNITED STATES of America, Plaintiff-Appellee, v. Kelly STEWART, Defendant-Appellant.

No. 95-10461.

United States Court of Appeals, Fifth Circuit.

Aug. 19, 1996.

Christopher Allen Curtis, Assistant U.S. Attorney, Renee E. Harris, Office of the United States Attorney, Fort Worth, TX, for Plaintiff-Appellee.

C. Rabon Martin, Guy W. "Todd" Tucker, Martin & Associates, Tulsa, OK, for Defendant-Appellant.

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

Before KING, JONES and DUHE, Circuit Judges.

DUHE, Circuit Judge.

Kelly Stewart entered a conditional guilty plea to possession with intent to distribute methamphetamine, reserving her right to

contest the district court's denial of her motion to suppress. Stewart was sentenced to serve 120 months in prison and five years supervised release. Stewart makes two complaints regarding her motion to suppress: (1) the police officer's warrantless search of a medicine bottle exceeded the scope of her consent and (2) the district court abused its discretion by denying defense counsel adequate opportunity to cross-examine the Government's only witness. Stewart also appeals her sentence because the district court did not sentence her to less than the statutory minimum sentence. We affirm.

BACKGROUND

DEA task force Officer Gerald Beall testified that an informant notified him that a one-way ticket from Los Angeles to Tulsa through the Dallas-Fort Worth Airport was purchased that morning with cash in the name of Mrs. L. Owens. This route was a known drug flight route for the area and the informant was reliable based on numerous other reliable tips.

Beall and Officer C.A. Martin, both dressed in plain clothes, stationed themselves near the arrival gate for the Los Angeles flight. While the passengers deplaned, Beall noticed that one of them, Kelly Stewart, appeared nervous and as though she was trying to detect whether people in the area were observing her. Beall stated that Stewart exhibited the characteristics of a drug courier because she paused and observed the people in the area after she deplaned. The officers did not approach Stewart at that time but waited until Stewart entered the boarding area for the connecting flight to Tulsa.

Beall and Martin approached Stewart, identified themselves as law enforcement officials and asked if they could speak with her. Stewart agreed and showed Beall her airline ticket. It was a one-way ticket from Los Angeles to Tulsa and had been purchased with cash that morning in the name of Mrs. L. Owens. Beall then asked Stewart if she was Mrs. Owens. Stewart replied that she was and Beall asked to see some identification. Stewart handed Beall her driver's license and stated that her name was Kelly. The license was an Oklahoma license, the picture on the license was Stewart's, and the name on the license was Kelly Stewart. Beall testified that during this conversation, Stewart appeared extremely nervous and was trying to push her jacket under her chair.

Beall then asked Stewart whether she was carrying any illegal drugs or a large amount of U.S. currency. Stewart replied that she was carrying prescription medication. Beall and Stewart dispute what happened next. Beall testified that Stewart produced a plastic, amber medicine bottle from her purse and held it up for Beall to see. Beall asked to look at the bottle, and Stewart handed it to him. Stewart testified that Beall asked to look at the bottle but that while she was looking for the bottle in her purse, Beall told her that he would get it. He then took the purse from Stewart and retrieved the bottle. In any event, both agree that Beall asked to look at the bottle and Stewart consented. Beall then opened the bottle, looked inside, and observed light blue pills and a ziplock bag containing "an off white, cornmealish type powdery substance" that Beall suspected was a controlled substance.

Beall placed Stewart under arrest. As the officers were escorting Stewart to the DEA task force office, Beall picked up Stewart's jacket and noticed that it was unusually heavy on one side. He felt two bundles from the outside of the jacket. Beall asked Stewart, "What's this?" Stewart replied, "more stuff." Beall gave Stewart her Miranda warnings after they reached the task force office. Beall retrieved the two bundles from the lining of Stewart's jacket. Each bundle contained a ziplock bag holding a substance similar to the substance in the original ziplock bag. The substance from all three bags tested positive for methamphetamine and weighed a total of 1,339.5 grams.

Stewart was indicted for and pled not guilty to possession with intent to distribute a controlled substance in violation of 21 U.S.C. § 841(a)(1). Stewart moved to suppress all statements, evidence and contraband obtained or confiscated because she was stopped without reasonable suspicion searched without probable cause or consent, and questioned without Miranda warnings. After a hearing the motion was denied. Stewart changed her plea to guilty, was sentenced and now appeals.

I. Does At Mean In?

Stewart argues that she gave Officer Beall consent to look at the medicine bottle but not in the medicine bottle. Therefore, his look inside of the bottle was beyond the scope of her consent and constitutes an unlawful search. We disagree.

Stewart does not challenge the voluntariness of the consent. Therefore, we consider only whether Officer Beall's conduct in looking inside the medicine bottle exceeded the scope of the consent. United States v. Rich, 992 F.2d 502, 505 (5th Cir.), cert. denied, 510 U.S. 933, 114 S.Ct. 348, 126 L.Ed.2d 312 (1993).

The standard for measuring the scope of the suspect's consent is objective reasonableness. Id. at 505. Recitation of magic words is unnecessary; the key inquiry focuses on what the typical reasonable person would have understood by the exchange between the officer and the suspect. Id. at 505-06. The scope of a search is generally defined by its expressed object. Florida v. Jimeno, 500 U.S. 248, 251, 111 S.Ct. 1801, 1803-04, 114 L.Ed.2d 297 (1991); Rich, 992 F.2d at 506.

In Rich, a police officer asked the driver of a truck if he was carrying any narcotics or weapons in the truck. After the driver said no, the officer asked to "have a look in" the truck to which the driver consented. The officer unlocked the truck, looked inside and opened a suitcase that he found in the truck. The officer discovered marijuana in the suitcase and arrested the driver. The Court held that the suitcase search was not beyond the scope of the driver's consent and that "any words, when viewed in context, that objectively communicate to a reasonable individual that the officer is requesting permission to examine the vehicle and its contents constitute a valid search request for Fourth Amendment purposes." Rich, 992 F.2d at 506.

Objective reasonableness is a question of law reviewed de novo. Rich, 992 F.2d at 505; United States v. Ibarra, 965 F.2d 1354, 1357 (5th Cir.1992) (en banc) (7-7 decision). Factual circumstances surrounding the consent may be important in determining the nature of the consent and how a reasonable officer would have understood that consent. Rich, 992 F.2d at 505.

Beall was caught traveling under an assumed name and was nervous when speaking to the officers. Stewart knew Beall's purpose because he asked Stewart if she was carrying any illegal drugs or weapons before asking to look at the bottle. This question establishes the object of the search. See Rich at 507. Because Stewart knew her deception was uncovered and that Beall was looking for illegal drugs, it is objectively reasonable to expect Beall to look in the bottle after being granted permission to look at the bottle. The search was within the scope of Stewart's consent.

II. Limitation of Cross-Examination of Government Witness.

Stewart argues that the district court abused its discretion when it limited her examination of the Government's only witness, Officer Beall, at her suppression hearing. Defense counsel questioned Beall on cross-examination during the Government's case-in-chief and on direct examination during her own case-in-chief.

The Confrontation Clause of the Sixth Amendment protects a defendant's right to conduct cross-examination. Pennsylvania v. Ritchie, 480 U.S. 39, 51, 107 S.Ct. 989, 998, 94 L.Ed.2d 40 (1987). ¹ A trial court is given wide latitude in imposing reasonable restraints upon a defendant's right to cross-examination. United States v. Alexius, 76 F.3d 642 (5th Cir.1996). We review the trial court's restriction of the scope of cross-examination for abuse of discretion. Id. at 644.

At the suppression hearing, the Government called Officer Beall as its only witness. On cross-examination and on direct examination during Appellant's case-in-chief, the district court prevented defense counsel from asking any questions prefaced by a reference to earlier testimony, and mistakenly considered questions repetitious which were not.

(on cross-examination)

Q. ² If I understand your testimony correctly, you said--

C. Let's don't rehash his testimony. Just ask him questions about things he hasn't already told you about.

Q. Well, Judge I'm going to ask him about--

C. Don't ask him to repeat his testimony.

Q. Yes, sir. Did you ask my client to look in the bottle or look at the bottle?

A. I asked for permission to look at the bottle.

Q. So you looked at, not in.

C. And if you repeat the same question twice, I'm going to assume you've run out of good questions to ask and your questioning will be terminated. You may proceed.

Q. Officer, can you answer my question.

C. He's answered your question. You may proceed.

Q. Your honor, I didn't hear his answer.

C. You may proceed to a new question.

* * * * * *

(11 questions later)

Q. Exactly what information did they [informant] give you regarding Ms. Kelly Stewart?

A. The only information that was given to me was...