U.S. v. Woods, s. 83-5006
|United States Courts of Appeals. United States Court of Appeals (9th Circuit)
|720 F.2d 1022
|83-5007,Nos. 83-5006,s. 83-5006
|UNITED STATES of America, Plaintiff-Appellee, v. Mildred Karen WOODS, Cathy Lynn Goldstein, Defendants-Appellants.
|15 November 1983
Bruce R. Castetter, Asst. U.S. Atty., San Diego, Cal., for plaintiff-appellee.
Barton Sheela, III, La Jolla, Cal., Michael J. McCabe, San Diego, Cal., for defendants-appellants.
Appeal from the United States District Court for the Southern District of California.
Before ALARCON and NORRIS, Circuit Judges, and PRICE *, District Judge.
Mildred Karen Woods and Cathy Lynn Goldstein appeal from the judgment of conviction of each for conspiracy to possess cocaine with intent to distribute. Goldstein also appeals from the judgment of conviction for possession of cocaine with intent to distribute.
We are asked to reverse the judgment on the ground that the district court erred in denying each appellant's motion to suppress evidence essential to prove their guilt of each crime. Our independent review of the record has persuaded us that the district court properly denied the motion to suppress.
We must look to the totality of the circumstances known to the officers prior to the challenged searches and seizures in order to decide if their conduct was consistent with the demands of the fourth amendment.
Woods and Goldstein were arrested on August 30, 1982 at the San Diego Airport by members of the Narcotics Task Force Unit of the San Diego Sheriff's Department. Four or five months earlier, Cory Lerner, the district manager of an air force cargo service, voluntarily contacted Larry Lundsford, a deputy sheriff assigned to the Narcotics Task Force. Lerner stated he wanted to give information concerning individuals who were selling cocaine. Deputy Lundsford went to Lerner's office. Lerner informed Lundsford that he had purchased cocaine from Woods, her husband, and Nancy Graves. Lerner also told Deputy Lundsford that he was involved in a drug rehabilitation program to control his use of cocaine. Lerner provided Deputy Lundsford with information concerning the telephone numbers and addresses of narcotics dealers which, upon investigation, proved to be accurate. Lerner also made controlled purchases of narcotics from persons not involved in this matter. These purchases resulted in the conviction of these individuals. It was deputy Lundsford's opinion that Lerner was truthful and reliable.
Lerner lived in the same apartment building as did Nancy Graves. Deputy Lundsford asked Lerner to assist in the investigation of Nancy Graves and Mildred Woods.
Lerner informed Deputy Lundsford that Mildred Woods was pregnant and was no longer involved in direct sales of cocaine. Instead, she supplied Nancy Graves with cocaine for resale.
Two to three weeks before August 30, 1982, Lerner informed Deputy Lundsford that Nancy Graves had told him that "good stuff would be coming in from back East within a week or two."
At approximately 11:45 a.m., on August 30, 1982, Lerner called Deputy Lundsford to inform him that while in Nancy Graves' apartment that morning he had overheard a telephone conversation during which Nancy Graves said she could not accompany Woods to the airport that day. Graves told Woods to take her son, Jan along and "to dress down to avoid being conspicuous." Lerner told Lundsford that Woods was approximately 32 to 33 years old with dark curly hair and was seven to eight months pregnant. Her son was four to five years old. Lerner also reported that Woods was going to meet a plane arriving between 12:00 and 12:30 p.m. The arriving passenger would be a woman in possession of a quantity of cocaine. Woods would be carrying approximately $7,000. The transaction would take place at the airport and the woman delivering the cocaine would take a return flight that same day.
Deputy Lundsford arrived at the San Diego Airport at 12:15 p.m. He was joined by three other officers.
At 12:25, Deputy Lundsford observed two women accompanied by a four or five year old boy. One of the women was 5'2" to 5'3" tall, with curly, black-brown hair who was "very pregnant." The woman entered the United Airlines ticket line. Both women continually looked around at the people in the line and appeared to be "apprehensive." According to Deputy Lundsford this behavior is typical of participants in narcotics sales. While they waited in line, Woods removed a red and white box from her purse. She removed the lid from the box and presented it to the other woman who "thumbed through the box looking at the contents." Based on his experience observing narcotics transactions, Deputy Lundsford concluded that this was a "money show." This term is used to describe the reassuring display of purchase money to a vendor by a customer. As the two women left the ticket line they looked over their shoulder "as if checking for surveillance."
Deputy Lundsford was told by the United Airlines ticket agent that the taller woman [Goldstein] wanted to buy a ticket to New York for that afternoon. The ticket agent referred her to another airline in the west terminal.
Goldstein was next observed purchasing a ticket from an American Airlines ticket agent. After Goldstein left the area one of the officers was told that she had arrived at 12:18 p.m. on a round trip flight from New York with a return flight scheduled two days later.
She purchased a ticket to New York on a flight leaving at 2:00 p.m. that day. She told the agent she had to return that day because of an illness or injury to a member of her family.
The women were followed to a cocktail lounge in the west terminal.
Deputy Lundsford decided to "contact the ladies" because he believed that all the information given to him by Lerner had been corroborated.
Deputy Lundsford, accompanied by two officers, walked up to Woods and Goldstein who were seated in the cocktail lounge, and identified themselves as police officers. Each of the officers was in plain clothes. At this time it was Deputy Lundsford's intention to "detain them for identification purposes." It was his undisclosed state of mind that they were not free to leave, had they attempted to do so, until the completion of the investigation. Woods and Goldstein were told that they were narcotics officers who were investigating a possible narcotics transaction. Goldstein became "visibly shaken and upset." Woods appeared "somewhat nervous."
The women were asked for identification. Woods produced a California driver's license bearing the name Mildred Woods. Goldstein had a Colorado driver's license with the name Cathy Goldstein.
Goldstein was asked for her airline ticket. The airline ticket was made out to Mrs. James Winston. The ticket was not returned to Goldstein.
Goldstein was asked when she had arrived in San Diego and how long she intended to stay. She told the officers that she had arrived at 12:15 and was going to stay with Woods for a few days. Woods and Goldstein were not admonished as to the requirements of the fifth and sixth amendments while in the cocktail lounge.
Deputy Lundsford testified that after observing the driver's license and Goldstein's airline ticket and receiving the false answer from Goldstein as to her travel plans, the women were taken to the Harbor Police office to "continue the investigation."
In the Harbor Police station the women were separated. Woods was asked what was in the red and white box which was sticking out of her purse. She replied, "about $6,000."
Goldstein was asked "about her staying a few days with Mrs. Woods." Goldstein replied that she had not made up her mind and might be going home that afternoon. Deputy Lundsford asked her if she had any luggage. She stated she had already placed it in Mrs. Woods car.
After making these statements in response to the officer's questions, both women were formally arrested. No Miranda warnings were given prior to the arrest.
A search was conducted of the red and white box and $6,143.00 was seized.
Goldstein was also searched. Two plastic baggies containing cocaine were located tied around each ankle.
The trial judge, after reciting the facts which influenced his decision, concluded that (1) Lerner was a reliable informant; (2) the information Lerner related to Deputy Lundsford concerning the narcotics transaction discussed over the telephone was corroborated by Deputy Lundsford's observations and the investigation he conducted at the airport prior to speaking to Woods and Goldstein in the cocktail lounge, the information gathered in the cocktail lounge, and the statement made by Woods in the Harbor Police station constituted "founded suspicion which ripened into probable cause." The district court also declared that "the agent's conduct was reasonable and the arrest lawful."
After the denial of the motion to suppress in this matter the Supreme Court decided Florida v. Royer, --- U.S. ----, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983). The government has forthrightly conceded in its brief before this court that under Royer these appellants were "effectively under arrest" when they were taken from the cocktail lounge to the Harbor Police station. Accordingly, the government suggests that this court must restrict its determination of the existence of probable cause to those facts known to the arresting officers prior to the removal of the appellants from the cocktail lounge. We accept the government's concession and limit our review of the legality of the arrests and seizures, and the fruits thereof, to those facts known to the officers prior to the time appellants were taken from the cocktail lounge to the Harbor Police station.
Woods seeks a ruling from this court suppressing her statements in the cocktail lounge and in the police station, and the box and its contents under the exclusionary rules emanating from the fourth, fifth, and sixth amendment.
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