U.S. v. Tolbert

• Decision Date: 11 November 1982
• Docket Number: No. 81-1485,81-1485
• Citation: 692 F.2d 1041
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Delphine O. TOLBERT, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1041

692 F.2d 1041

UNITED STATES of America, Plaintiff-Appellant, v. Delphine O. TOLBERT, Defendant-Appellee.

No. 81-1485.

United States Court of Appeals, Sixth Circuit.

Argued Aug. 31, 1982.

Decided Nov. 11, 1982.

Leonard R. Gilman, U.S. Atty., Gary M. Felder, Asst. U.S. Atty., James McCarthy, Detroit, Mich., for plaintiff-appellant.

Isaiah B. King, Houston, Tex., for defendant-appellee.

Before KENNEDY and KRUPANSKY, Circuit Judges, and RUBIN, District Judge. ^*

KRUPANSKY, Circuit Judge.

This is an appeal from an Order of the District Court for the Eastern District of Michigan suppressing certain evidence relating to the criminal prosecution of Delphine O. Tolbert (Tolbert) for possession with intent to distribute cocaine. 21 U.S.C. Sec. 841(a)(1). The matter is properly before this Court pursuant to 18 U.S.C. Sec. 3731. ¹

The circumstances of this case once again require this Court to assess the constitutionality of the conduct of law enforcement agents preceding an arrest at an airport. ² Because "[e]ach case raising a Fourth Amendment issue must be judged on its own facts," United States v. Mendenhall, 446 U.S. 544, 554 n. 6, 100 S.Ct. 1870, 1883 n. 6, 64 L.Ed.2d 497 (1980) (Powell, J. concurring), a somewhat lengthy recitation of the facts is necessary.

The lower court's factual findings, reflecting in large measure the stipulations of the parties, reveal the following chronology. On March 28, 1980, Tolbert arrived at the Atlanta, Georgia airport via a commercial airline flight originating in Miami, Florida. As she deplaned, she was observed by Special Agent Gerald Chapman (Chapman) of the Drug Enforcement Agency (DEA) and Officer James Burkhalter (Burkhalter) of the Atlanta Police Department. Chapman noted that Tolbert viewed him with concern as she left the plane.

Chapman and Burkhalter followed the defendant from the arrival area to the boarding station for a connecting flight to Detroit, Michigan. Agent Chapman noted that Tolbert turned and looked at him on "one or two occasions" as she proceeded through the airport. Agent Chapman positioned himself next to the ticket agent for the Detroit flight and observed Tolbert check in. Through this observation, Chapman ascertained that the defendant had one piece of checked luggage, had purchased her ticket in cash and that her airline ticket was handwritten. He also learned that the defendant was traveling under the name L. Jones. The airline computer disclosed that Tolbert had purchased her ticket approximately 20 minutes prior to departure from Miami.

At this point, Chapman and Burkhalter approached Tolbert, Chapman presented his credentials and requested to see Tolbert's airline ticket and identification. Tolbert complied, handing Chapman a ticket folio containing a round-trip ticket from Miami to Detroit and one baggage claim check to Detroit numbered 387-945. She stated, however, that her identification was in her checked luggage.

Tolbert told Chapman that she had purchased her ticket several days prior when, in fact, Chapman was aware that she had purchased the ticket only 20 minutes before flight departure. Chapman again identified himself as a narcotics agent, stated that he was attempting to determine if she was transporting drugs, and requested her consent to search her purse and luggage.

Tolbert became increasingly nervous but refused Chapman's request to search her pocketbook and suitcase. The conversation terminated and Tolbert boarded her flight to Detroit.

In Detroit, DEA Special Agent Bruce Bryda (Bryda) and other agents, alerted by Agent Chapman, awaited Tolbert's arrival and placed her under surveillance as she proceeded through the Detroit airport. The agents noted that Tolbert continuously scanned the airport in an apprehensive manner as if to determine if she was being monitored.

Tolbert passed through the baggage claim area without claiming her luggage and proceeded outside. She rapidly approached a taxicab.

Agents Bryda and Anderson approached Tolbert as she was entering the taxi, identified themselves and requested to examine her ticket and her identification. She presented her ticket folio to the agents and advised them that she had no identification on her person.

Agent Bryda noted that the baggage claim check number 387-945, previously observed by Agent Chapman in Atlanta, was no longer attached to the ticket folio. Agent Bryda advised Tolbert that they believed she was transporting narcotics and requested her to return to the terminal for further interrogation. Tolbert consented.

In response to Agent Bryda's inquiry, defendant denied having any luggage. The agents however determined that one piece of luggage from the Atlanta flight bearing claim number 387-945 remained unclaimed. The agents conveyed the bag to the airport DEA office.

In the DEA office, Tolbert consented to a search of her purse but again denied ownership of the luggage. The subsequent search of defendant's purse disclosed a number of keys, one of which Bryda used to open the suitcase wherein approximately 280 grams of cocaine was discovered. Tolbert was then placed under arrest and advised of her rights.

On defendant's motion, the district court suppressed the evidence discovered in the suitcase. The lower court concluded that the search of the luggage without a warrant and in the absence of exigent circumstances violated the defendant's Fourth Amendment rights. The lower court rejected the government's contention that Tolbert had abandoned the luggage at the time of the search. The government instituted this appeal. ³

It should be emphasized that the term "abandonment," as employed herein, does not refer to traditional concepts of property law. The concept of abandonment considered in the present context is a Fourth Amendment issue and the "capacity to claim the protection of the Fourth Amendment depends not upon a property right in the invaded place but upon whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place." Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 430, 58 L.Ed.2d 387 (1978). Thus, the crucial inquiry is "whether governmental officials violated any legitimate expectation of privacy held by the [defendant]" Rawlings v. Kentucky, 448 U.S. 98, 106, 100 S.Ct. 2556, 2562, 65 L.Ed.2d 633 (1980).

The Supreme Court has noted that the concept of a "legitimate expectation of privacy" incorporates two elements:

The first is whether the individual, by his conduct, has "exhibited an actual (subjective) expectation of privacy," [Katz v. United States ] 389 U.S. at 361, [88 S.Ct. 507 at 516, 19 L.Ed.2d 576 (1967) ] whether, in the words of the Katz majority, the individual has shown that "he seeks to preserve [something] as private." Id., at 351 . The second question is whether the individual's subjective expectation of privacy is "one that society is prepared to recognize as 'reasonable,' " id. at 361 [88 S.Ct., at 516]--whether, in the words of the Katz majority, the individual's expectation, viewed objectively, is "justifiable" under the circumstances. Id., at 353 , See Rakas v. Illinois, 439 U.S., at 143-144 n. 12 , id., at 151 , (concurring opinion); United States v. White, 401 U.S. at 752 [91 S.Ct. 1122 at 1126, 28 L.Ed.2d 453 (1971) ] (plurality opinion).

Smith v. Maryland, 442 U.S. 735, 741-42, 99 S.Ct. 2577, 2580-2581, 61 L.Ed.2d 220 (1978). See United States v. Bailey, 628 F.2d 938, 941 (6th Cir.1980).

Applying these principles to the facts of the case at bar, the Court is constrained to conclude that Tolbert possessed no reasonable expectation of privacy in the suitcase at the time of the search. When Tolbert was approached by the agents, she was entering a taxicab apparently intent on departing the airport without her luggage. This fact alone would not support a finding that she maintained no subjective belief that her bag was secure from government intrusion. An individual may depart from an airport without claiming her luggage for a variety of reasons, with full and legitimate intent to return and claim the baggage.

In the instant case however, Tolbert insisted that she was traveling without luggage and specifically disclaimed ownership of the bag in issue. ⁴ Tolbert can hardly assert that she "exhibited an actual (subjective) expectation of privacy" respecting the luggage when she specifically disclaimed ownership thereof. As the First Circuit Court of Appeals stated: "One who disclaims any interest in luggage thereby disclaims any concern about whether or not the contents of the luggage remain private." United States v. Miller, 589 F.2d 1117, 1131 (1st Cir.1978). This conclusion is consistent with decisions by other Circuits addressing the issue. See, e.g., United States v. Kendall, 655 F.2d 199 (9th Cir.1981), cert. denied, --- U.S. ----, 102 S.Ct. 1434, 71 L.Ed.2d 652 (1982); United States v. Berd, 634 F.2d 979 (5th Cir.1981); United States v. Canady, 615 F.2d 694 (5th Cir.1980), cert. denied, 449 U.S. 862, 101 S.Ct. 165, 66 L.Ed.2d 78 (1980); United States v. Colbert, 474 F.2d 174 (5th Cir.1973) (en banc); cf. United States v. Washington, 677 F.2d 394, 396 (4th Cir.1982) (although stating that it was not an abandonment case, the court concluded that where a defendant specifically denied ownership of a suitcase, agents "could justifiably rely on her statements to think they would not violate her rights by opening the bag.")

In sum, because, by her actions and vigorous oral disclaimers, Tolbert affirmatively indicated that she had no interest in preserving the secrecy of the contents of the suitcase, she had no legitimate expectation of privacy therein. Accordingly, Tolbert's Fourth Amendment rights were not violated by the search of the suitcase.

The trial court, by rejecting the government's abandonment theory, foreclosed consideration of the conduct of the law enforcement agents prior to the defendant's disclaimer of the luggage. This...