USA v. Worley

• Decision Date: 04 February 1999
• Docket Number: No. 97-6374,97-6374
• Citation: 193 F.3d 380
• Parties: (6th Cir. 1999) United States of America, Plaintiff-Appellant, v. Charles Scott Worley, Defendant-Appellee. Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 380

193 F.3d 380 (6th Cir. 1999)

United States of America, Plaintiff-Appellant, v. Charles Scott Worley, Defendant-Appellee.

No. 97-6374

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: February 4, 1999

Decided and Filed: September 29, 1999

Appeal from the United States District Court for the Western District of Tennessee at Memphis. No. 97-20027--Jon Phipps McCalla, District Judge.

Thomas A. Colthurst, OFFICE OF THE U.S. ATTORNEY, Memphis, Tennessee, for Appellant.

April R. Ferguson, OFFICE OF THE FEDERAL PUBLIC DEFENDER FOR THE WESTERN DISTRICT OF TENNESSEE, Memphis, Tennessee, for Appellee.

Before: JONES, NELSON, and BOGGS, Circuit Judges.

JONES, J., delivered the opinion of the court, in which BOGGS, J., joined. NELSON, J. (pp. 387-89), delivered a separate dissenting opinion.

OPINION

NATHANIEL R. JONES, Circuit Judge.

Defendant-appellee Charles Worley was indicted by a federal grand jury on February 12, 1997 for possession with intent to distribute approximately 770 grams of methamphetamine, in violation of 21 U.S.C. § 841(a)(1). Worley filed a motion to suppress, asserting that evidence was obtained as the result of an unlawful search and seizure. The district court granted Worley's motion, and pursuant to 18 U.S.C. § 3731,¹ the government appealed. The government now contends that the district court erred in granting Worley's motion because the evidence was obtained pursuant to Worley's valid and voluntary consent to the search. Conversely, Worley contends that his motion was properly granted because he did not voluntarily consent to the search of his personal effects. For the reasons stated herein, we find no error in the district court's decision. We therefore AFFIRM and REMAND for further proceedings.

I.

A.

On the evening of February 4, 1997, Paul Harvey, a Drug Enforcement Agency Task Force Officer, and Christina Clinton, an Airport Police Officer, were on patrol at the Memphis International Airport. Harvey had worked with the Shelby County, Tennessee Sheriff's Department for approximately ten years, served as a detective for five years and, at the time, was assigned to the Drug Interdiction Unit. Clinton had served as an airport patrol officer for two years, and as a patrol officer with another police force for two years prior to her service at the airport. That evening, both officers were armed with concealed pistols and dressed in plain clothes.

Harvey and Clinton first noticed Worley near the airport coffee and gift shops. Harvey was attracted by Worley's appearance: Worley was wearing blue jeans, a striped cotton shirt, a flannel jacket and a large cowboy hat, and had a distinctive mustache and a "weather beaten" face. J.A. at 159. In addition, Harvey believed that he had seen Worley in the airport on previous occasions. About an hour later, Harvey again spotted Worley. At that time, Worley was carrying a clear plastic bag containing personal items and a beige Marriott bag. Harvey also noticed that the Marriott bag appeared to contain something heavy, shifted to one corner of the bag. Harvey found Worley's use of these types of bags "out of the ordinary" because in Harvey's opinion, airport travelers usually carried their personal items in luggage, not plastic bags. ² Harvey then informed Clinton of his suspicions and told her to follow him.

Harvey and Clinton followed Worley to the airport lockers, and approached him as he was placing the bags in his locker. The officers identified themselves as police officers and asked if they could speak with him for a moment. ³ Worley agreed, and produced a valid California driver's license in response to Harvey's request for identification. Harvey returned the driver's license, and then asked for Worley's boarding pass. In response, Worley handed Harvey his ticket and boarding pass. Harvey looked at the ticket and the amount, and noticed that the ticket had been paid for in cash. Harvey also noticed that there were no baggage claim checks attached to the ticket. Harvey then asked Worley about the ticket, specifically whether he had purchased the ticket. Worley responded that a friend had purchased the ticket, that it was a round-trip ticket and that the date was stamped on the ticket. Despite Worley's assertion to the contrary, after reviewing the ticket, and based on the low fare ($310 with a destination of Columbus, Ohio), Harvey insisted that the ticket was a one-way ticket. Harvey then returned the ticket.

Harvey next asked Worley about the Marriott bag, which Worley had already placed in the locker. Specifically, Harvey asked Worley whether the bag belonged to him and inquired as to the contents of the bag. Worley responded that the bag contained a pair of drumsticks and a T-shirt that he had just purchased from the gift shop. Harvey then asked whether he could look in the bag. At that time, Worley paused and then stated: "[Y]ou've got the badge, I guess you can." J.A. at 272, 293. Harvey opened the locker and retrieved the bag. Upon searching the bag, Harvey found five "baggies" containing an off-white chunky substance emitting a sour odor. Based on his experience, Harvey concluded that the appearance and smell of the substance were consistent with methamphetamine. Harvey then arrested Worley, read him his Miranda rights, and took him to the DEA office. On the way to the office, Worley stated that he was transporting the drugs because his girlfriend in California was pregnant and he needed the money. A later field test indicated that the substance was, in fact, methamphetamine, approximately 734 grams worth. ⁴

B.

On February 12, 1997, Worley was indicted by a federal grand jury and charged with possession with the intent to distribute 770 grams of methamphetamine in violation of 21 U.S.C. § 841(a)(1). Worley thereafter filed a motion to suppress the evidence, which was referred to a magistrate judge for a report and recommendation. The magistrate judge held an evidentiary hearing on April 11, 1997, at which Harvey, Clinton and Worley testified. Worley testified that when Harvey requested to search the bag, "[he] didn't feel like [he] could do much of anything" and "[he] couldn't just walk away." J.A. at 229. Worley also stated at the hearing that he believed that he could not just "blow a police officer off" and that he could not say "no" to a police officer when that officer wanted something from him. J.A. at 229-30.

The magistrate judge thereafter issued her report and recommendation, which was filed on June 9, 1997. She concluded, among other things, that Worley voluntarily consented to the search of the Marriott bag. Accordingly, she recommended that Worley's motion to suppress be denied. On June 24, 1997, the district court issued an order adopting the magistrate's report and recommendation, and on that same date, Worley filed objections to the magistrate judge's report and recommendation. The district court thereafter scheduled a status conference, held an evidentiary hearing and requested additional briefs. Although both Harvey and Clinton testified at this hearing, Worley did not⁵. On August 29, 1997, after a de novo review of the magistrate judge's report and recommendation, the district court granted Worley's motion to suppress⁶. Although the district court judge did not prepare a written order, he issued his ruling from the bench and offered to provide the decision in writing if the parties requested. On the record, the district court judge explained at length his reasons for granting Worley's motion to suppress:

In this case, the defendant has argued that in permitting the search, he merely acquiesced to the officer's authority rather than giving his unequivocal voluntary consent to search. It's the determination of the Court after a very, very careful review of the entire record and much submittal by all of you . . . that the position of the defendant is supported by the record. In this case the statement that was given by the defendant ["You've got the badge, I guess you can"], which is agreed upon by really everyone . . . does not show by a preponderance of the evidence through clear and convincing testimony that valid consent was obtained. . . . This was a circumstance where when you look at the burden, and I kept coming back to that, when you look at the burden in the case and the fact that it is the government's burden to show by a preponderance of the evidence that . . . valid consent was obtained, that that is just not satisfied here. . . . In this case, you really didn't have much conduct to look at for context, and the conduct that you did have to look at for context put us in sort of an odd situation with the review of the ticket . . . Mr. Worley's response in this case, which is not really debated, was not an unequivocal expression of free and voluntary consent. In fact, it was . . . somewhat of the opposite, it was an expression of futility in resistance to authority. . . .

J.A. at 332-34. The government thereafter filed this timely appeal.

II.

On appeal, we are faced with an issue which we have considered on numerous occasions-whether the district court's determination as to whether a defendant validly and voluntarily consented to a search is clearly erroneous. We note at the outset that the determination of "whether a consent to a search was in fact 'voluntary' or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances." Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973). Accordingly, "the district court's decision regarding consent will not be overturned unless it is clearly erroneous." United States v. Bueno, 21 F.3d 120, 126 (6th Cir. 1994); see also United States v. Ivy, 165 F.3d 397, 401 (6th Cir. 1998)("whether consent to a search was in fact voluntary-[is an] issu[e] of fact, which will be overruled only if the district court's findings were clearly erroneous")(citing United States v....