U.S. v. Sullivan

• Citation: 625 F.2d 9
• Decision Date: 08 July 1980
• Docket Number: No. 79-5309,79-5309
• Parties: UNITED STATES of America, Appellant, v. Diann Pansey SULLIVAN, a/k/a Brenda Rowe, Kathy Ruth Dendy, a/k/a K. Fletcher, Willie Lee Yelverton, Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 9

625 F.2d 9

UNITED STATES of America, Appellant, v. Diann Pansey SULLIVAN, a/k/a Brenda Rowe, Kathy Ruth Dendy, a/k/a K. Fletcher, Willie Lee Yelverton, Appellees.

No. 79-5309.

United States Court of Appeals, Fourth Circuit.

Argued March 5, 1980.

Decided July 8, 1980.

John F. Hyland, Jr., Asst. U. S. Atty., Baltimore, Md. (Russell T. Baker, Jr., U. S. Atty., Baltimore, Md., and Elizabeth M. Edson, Dept. of Justice, Washington, D. C., on brief), for appellant.

S. Ronald Ellison, Baltimore, Md., for appellee Willie Lee Yelverton.

Garry Bonnett, Silver Spring, Md. (Rueben Bonnett, Silver Spring, Md., on brief), for appellee Diann Pansey Sullivan.

Jack D. Leonard, II, Baltimore, Md., on brief, for appellee Kathy Ruth Dendy.

Before BRYAN, Senior Circuit Judge, WIDENER and HALL, Circuit Judges.

ALBERT V. BRYAN, Senior Circuit Judge:

This case is an outgrowth of the activity of the Drug Enforcement Administration (DEA) ¹ designed to develop a comprehensive airport enforcement program concentrated on passengers distrusted as domestic drug couriers.

In its oversight of the Baltimore, Maryland airport, the DEA uncovered in the search and seizure of the suitcases of appellees, Diann Pansey Sullivan, Kathy Ruth Dendy and Willie Lee Yelverton (defendants), evidence that led to their arrest on January 10, 1979, and their indictment on January 17, in the Federal District Court for Maryland. The accusations were illegal possession of a controlled substance, phencyclidine (PCP), with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) (1978), interstate travel in aid of racketeering, in disregard of 18 U.S.C. § 1952(a)(3) (1970), as well as aiding and abetting in both offenses, id. § 2 (1948).

Except for the preliminary question of the appeal's timeliness, the sole issue is the rightness of the District Court's granting, at a pretrial hearing on September 4, 1979, of the defendants' motion to suppress the evidence taken by the DEA Agents under search warrants procured by them. The ruling was grounded on the Judge's conclusion that the moving affidavits did not establish the "probable cause" demanded therefor by the Fourth Amendment. ² The infirmity decried by the District Judge as critical was the use of a dog to detect the presence of narcotics in the luggage of two suspected drug smugglers when, in his opinion, the circumstances were not objectively, sufficiently suspect. With the suppression order effective, the Government acknowledged its inability to go to trial. On October 3, 1979, the prosecution moved for reconsideration and vacation of the September 4 suppression order and the motion was denied October 3. The United States on October 29 filed a notice of appeal from this last order. Defendants now ask for dismissal of the appeal as untimely.

I.

Deferring momentarily a narration of the evidence anent the search and seizure, we count the appeal as punctually perfected. To begin with, 18 U.S.C. § 3731 (1971) declares:

(A)n appeal by the United States shall lie to a court of appeals from a decision or order of a district courts (sic ) suppressing or excluding evidence or requiring the return of seized property in a criminal proceeding, not made after the defendant has been put in jeopardy and before the verdict or finding on an indictment or information, if the United States attorney certifies to the district court that the appeal is not taken for purpose of delay and that the evidence is a substantial proof of a fact material in the proceeding.

The appeal in all such cases shall be taken within thirty days after the decision, judgment or order has been rendered and shall be diligently prosecuted.

The provisions of this section shall be liberally construed to effectuate its purposes.

Appellees argue that the 30-day period of limitations began to run September 4, 1979, the day the District Court allowed defendants' motion to suppress. As explained, the Government on October 3 unsuccessfully sought reconsideration and vacation of the suppression order. Upon that occasion the twenty-ninth day after denial of the motion the judge commented to counsel that the United States had but one more day in which to note an appeal from the suppression order. Twenty-six days later, October 29, the Government appealed from the "Suppression Order entered in this proceeding on October 3, 1979, (the date of the denial of the motion to reconsider and vacate the order of suppression)."

Despite the argument that the appeal period had expired 30 days from the entry of the September 4 suppression order, it must be recalled "that the consistent practice in civil and criminal cases alike has been to treat timely petitions for rehearing as rendering the original judgment nonfinal for purposes of appeal for as long as the petition is pending." United States v. Dieter, 429 U.S. 6, 8, 97 S.Ct. 18, 19, 50 L.Ed.2d 8 (1976), citing United States v. Healy, 376 U.S. 75, 78-79, 84 S.Ct. 553, 555-56, 11 L.Ed.2d 527 (1964) (footnote omitted). Hence, the September 4 order could not be treated as the final order until the Court had disposed of the motion for reconsideration on October 3. It is from this later date that the 30-day period began to run. Hence, there was no tardiness in taking an appeal 26 days later.

II.

The merit of this appeal hinges upon the answer to the inquiry as to whether the affidavits manifest a "probable cause" for the search and seizure of the defendants' traveling bags, as enjoined by the Fourth Amendment. The District Judge's ultimate answer was that the sworn statements of the DEA Agents did not meet this standard. He found the dog's olfaction was the primary instigation of the search and, as such, the basis of the Government's claim of probable cause. As his conclusion, the Judge reasoned there was no right demonstrated for setting the dog to nose out appellees' luggage, because there were not enough objectively suspicious facts to precipitate such action.

Disagreeing, we think the Agents' precedent information and observations justly accounted for calling on the dog. ³ The odor of a drug emanated from a source located in an area where privacy cannot be expected. Thus, his sniffing was in no fashion an intrusion upon the privacy of "persons, houses, papers and effects . . . ." For substantiation of this view we look to the recital of the events as detailed in the affidavits.

On January 9, 1979, at about 11:00 p. m., two women (defendants Sullivan and Dendy) stepped from a taxi in front of the American Airlines terminal at the Los Angeles International Airport while the driver took out their four new suitcases, all the same size. This occasion was witnessed by DEA Agent Kaiser, dressed in plain clothes but assigned to duty at the airport. The two then went into the main building, following the sky cap carrying the luggage. In a few minutes they checked their bags at the ticket counter. Sullivan paid cash for two, one-way tickets to Baltimore, in the names of Brenda Rowe and K. Fletcher. As the women stood in line for their tickets, the Agent found them to be very nervous and conscious of others around them. Trained in detecting drug couriers, the Agent found the combination of circumstances suspicious new luggage, one-way tickets, and payment in cash.

Thereupon, the Agent got in touch with the dog handler at the city police department, giving him a description of the women's luggage. After the four suitcases had been sent down to the airport baggage room, a handler arrived with a dog (Frog). Frog was proficient in the discovery of marijuana, heroin and cocaine and had training for PCP, but was not certified in its detection. He was taken to the baggage area...