United States v. Robison ( 1999 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
NOV 9 1999
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-1419
(D.C. No. 96-CR-419-D)
ERNEST L.C. ROBISON, (D. Colo.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before BALDOCK, BRISCOE, Circuit Judges, and CROW, District Judge. 1
Ernest L.C. Robison appeals his conviction of possession with the intent to
distribute a mixture or substance containing a detectable amount of cocaine base
(21 U.S.C. § 841(a)(1) and (b)(1)(A)(iii)). Robison contends the district court
erred in denying his motion to suppress evidence that was found after officers
seized his carry-on bag. Robison does not appeal his two convictions for
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
1
Honorable Sam A. Crow, Senior District Judge, of the United States
District Court for the District of Kansas, sitting by designation.
distribution and possession with the intent to distribute a mixture or substance
containing a detectable amount of cocaine base (21 U.S.C. § 841(a)(1),
(b)(1)(B)(iii), and (b)(1)(C)). We affirm.
In January 1996, officers set up surveillance at the Denver airport after
receiving information from reliable informants that Robison would be returning
from California carrying cocaine. Robison was carrying a shoulder bag when he
got off the airplane in Denver. Officers Clyde Langley and Robert Vescio
approached Robison, identified themselves, and told Robison that they had
information he was transporting drugs. Robison consented to a search of his
person, but refused to consent to a search of his bag. Langley found no drugs on
Robison’s person.
Langley took custody of Robison’s bag, told Robison to contact him in “a
day or so” to retrieve the bag, and allowed Robison to leave the airport. Less
than ten minutes later, Langley took the bag for a canine sniff and the dog alerted
to the bag. Langley obtained a search warrant for the bag. The search revealed
889.8 grams of cocaine base. The district court denied the motion to suppress the
evidence obtained from the search, finding the officers had a reasonable suspicion
to detain Robison.
When reviewing a district court’s denial of a motion to suppress, we accept
its factual findings unless they are clearly erroneous, viewing the evidence in the
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light most favorable to the government. United States v. Hargus , 128 F.3d 1358,
1361 (10th Cir. 1997), cert. denied , 118 S. Ct. 1526 (1998). We review de novo
the ultimate determination of reasonableness under the Fourth Amendment,
considering the totality of the circumstances. Id.
Robison does not challenge the legality of the initial investigatory stop in
the airport, but argues the detention of his carry-on bag after the initial
investigation was unreasonable. The officers could briefly detain the bag if their
observations led them to reasonably suspect Robison was carrying drugs in the
bag and the detention was properly limited in scope. See United States v. Place ,
462 U.S. 696, 708-09 (1983); United States v. Brown , 24 F.3d 1223, 1226 (10th
Cir. 1994).
We consider the totality of the circumstances to determine whether a
reasonable suspicion existed. See United States v. Houston , 21 F.3d 1035, 1038
(10th Cir. 1994). The officers had information from reliable sources that Robison
would arrive at the Denver airport carrying drugs. They stopped Robison in the
airport with a carry-on bag. After a search of Robison’s person revealed no
drugs, the officers’ reasonable suspicion that he had drugs in the bag would not
disappear but would likely increase. The officers had a reasonable suspicion that
Robison had drugs in his bag.
Even with a reasonable suspicion of criminal activity, the detention also
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must have been reasonable in scope and duration. United States v. Scales , 903
F.2d 765, 769 (10th Cir. 1990). Two factors are relevant to determining whether
the officers’ conduct exceeded the permissible duration of an investigative
detention: (1) the brevity of the invasion of Robison’s Fourth Amendment
interests, and (2) how diligently the officers pursued their investigation. See id.
(citing Place , 462 U.S. at 709). The invasion of Robison’s Fourth Amendment
interest was minimal. Although he was dispossessed of his bag, he had arrived at
his destination, he was not forced to alter his itinerary, and he was allowed to
leave the airport. See United States v. Bell , 892 F.2d 959, 968 (10th Cir. 1989)
(finding that although the suspect was at the airport, he was not traveling, so
seizure of the package did not intrude on his travel plans). The testimony showed
the officers diligently pursued their investigation. The actual detention of
Robison’s bag lasted only ten minutes, until the drug dog alerted to the bag and
probable cause attached. The detention of Robison’s bag was supported by
reasonable suspicion and was properly limited in duration. The district court did
not err in denying Robison’s motion to suppress.
AFFIRMED.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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