United States v. Michael D. Fletcher ( 1996 )

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No. 96-1363
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa
Michael Dale Fletcher, *
*
Appellant. *
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Submitted: June 10, 1996
Filed: July 24, 1996
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Before WOLLMAN, Circuit Judge, HENLEY, Senior Circuit Judge, and DOTY*,
District Judge.
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DOTY, District Judge.
Michael D. Fletcher (“Fletcher”) appeals his conviction on a charge
of conspiracy to distribute methamphetamine in violation of 21 U.S.C.
§ 846. The issue on appeal is whether the district
*
The HONORABLE DAVID S. DOTY, United States District
Judge for the District of Minnesota, sitting by
designation.
court1 erred in denying Fletcher’s motion to suppress evidence. We affirm.
I.
The material facts surrounding the detention of Fletcher’s bag are
not in dispute and are hereafter reported as found by the district court.
On July 4, 1995, Fletcher purchased a round-trip ticket on America West
Airlines (“AWA”) from Des Moines, Iowa to Phoenix, Arizona, for $561 cash.
He flew to Phoenix as scheduled on July 4. Although he was scheduled to
return on July 7, he changed his return flight to July 6. Despite the
scheduled change, Fletcher did not return to Des Moines on July 6, but
returned on July 7.
On July 7, Fletcher arrived at the Phoenix airport shortly before his
flight time and checked one bag. Due to his late arrival, he was informed
that his bag might not make his flight and might arrive in Des Moines on
a later flight. Fletcher left a telephone number where he could be reached
in Des Moines. Upon arrival at the Des Moines airport, he quickly exited
the plane and walked briskly ahead of his fellow passengers to the
restroom. Fletcher’s actions were noticed by Officer Lynn Aswegan, a plain
clothes police officer assigned to the Des Moines Metropolitan Task Force.
While Fletcher was in the restroom, a public address announcement was made
that a white pick-up truck with Arizona license plates was illegally parked
outside of the terminal. After
1
The Honorable Harold D. Vietor, United States District Judge
for the Southern District of Iowa.
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the announcement, Fletcher exited the restroom with what Officer Aswegan
described as a “worried look” and walked directly to the vehicle described.
Officer Aswegan and his partner, Officer Randy DePhillips, followed
Fletcher.
Fletcher tried to get into the pick-up truck, but the doors were
locked. Fletcher then went back into the terminal and had a brief
conversation with two women. The officers noted the Arizona license plates
and the supplemental gas tanks, at times used for concealing drugs, before
continuing their surveillance of Fletcher. Fletcher then proceeded to the
baggage claim area with one of the women and was informed that his bag had
not arrived but would most likely be on the next flight from Phoenix
arriving late that evening. Fletcher left the airport in the white pick-up
truck “extremely fast.”
Officers Aswegan and DePhillips approached an AWA ticket agent and
learned that the individual they had observed was Michael Dale Fletcher.
The agent told the officers that Fletcher had been scheduled to arrive in
Des Moines on July 6, but had not shown up for that flight and instead had
purchased a one way ticket on July 7 from Phoenix to Des Moines for $561
cash. The ticket agent also gave the officers the Des Moines telephone
number that Fletcher had left with the airline. The telephone number
belonged to Michelle Robertson at 1212 East 27th Court in Des Moines.
Officers Aswegan and DePhillips drove past this address and observed
the white pick-up truck with Arizona plates in the driveway. A police
records search of the address disclosed that a
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caller had previously reported heavy traffic at the residence and suspected
drug activity. The call was investigated but surveillance had not revealed
any narcotics related activity.
Officers Aswegan and DePhillips returned to the airport that evening
with Officer Ted Cobine to observe Fletcher pick up his bag. Officer Mike
Stueckrath and Officer DeJoode, along with Oby, a drug sniffing dog, were
also at the airport.
Fletcher returned to the airport and received his bag from an AWA
ticket agent. He set the bag down, opened it briefly, closed it and
started to leave the ticket area. At this point, Fletcher was approached
by Officers DePhillips and Cobine. The officers identified themselves and
asked if Fletcher would speak to them. He agreed and, upon request,
produced identification which matched the name on his luggage. During the
conversation, Fletcher told the officers that he had a round trip ticket,
information that conflicted with the officers’ information. The officers
asked Fletcher if they could search his bag. Fletcher agreed but then
asked if he had to consent to the search. Fletcher revoked his consent
when he was informed that he had a right to withhold consent. At that
point Fletcher was told that he was free to leave but his bag would be
detained for a dog sniff. Fletcher’s bag was placed with other baggage,
Oby was brought in and alerted on Fletcher’s bag. Fletcher was informed
of the positive alert, told again that he was free to go but that his bag
would be detained while a search warrant was secured. Fletcher left the
airport. The officers applied for and obtained a search warrant. A search
of the bag revealed methamphetamine inside a stereo speaker.
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Fletcher moved to suppress the methamphetamine found in his bag.
Following an evidentiary hearing, the district court denied the motion to
suppress. The district court held that the detention of Fletcher’s bag was
not supported by a reasonable articulable suspicion of criminal activity,
thus, the detention violated the Fourth Amendment. Because the search that
Fletcher challenged was authorized by a warrant, however, the district
court analyzed the suppression motion under the standards set forth in
United States v. Leon, 468 U.S. 897 (1984), and concluded that suppression
was not warranted because the facts of the case were “close enough to the
line of validity to make the officers’ belief in the validity of the
detention and the validity of the search warrant objectively reasonable.”
We review the district court’s conclusion regarding the objective
reasonableness of the officers’ reliance on the validity of the detention
and the validity of the warrant de novo. United States v. Green, 52 F.3d
194, 197 (8th Cir. 1995) (standard of review for reasonable suspicion
determination); United States v. Jackson, 67 F.3d 1359, 1366 (8th Cir.
1995) (standard of review regarding application of the good faith exception
under Leon), cert. denied,116 S. Ct. 1684 (1996). The district court’s
finding of good faith will not be set aside unless clearly erroneous.
Jackson, 67 F.3d at 1366.
II.
The Fourth Amendment guarantees “[t]he right of the people to be
secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures.” Police detention of an individual or their luggage
without a warrant conforms to the Fourth Amendment only where there exists
reasonable suspicion,
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supported by articulable facts, that criminal activity is afoot. Terry v.
Ohio, 392 U.S. 1, 20-23 (1968); United States v. Place, 462 U.S. 696, 708
(1983). As has so often been stated, reasonable suspicion is more than an
officer’s inchoate or unparticularized hunch. Terry, 392 U.S. at 27.
Rather, the police officer must point to particularized facts, and the
rational inferences that may be drawn, which, viewed together and in light
of the officer’s experience, suggest illegal conduct. United States v.
Sokolow, 490 U.S. 1, 7-8 (1989); United States v. Weaver, 966 F.2d 391, 394
(8th Cir.), cert. denied, 506 U.S. 1040 (1992).
The officers who detained Fletcher’s bag relied on the following
circumstances: (1) Fletcher arrived from Phoenix, a drug source city; (2)
he was first off the plane (3) and proceeded directly to the restroom; (4)
he was connected to a white pick-up truck with supplemental gas tanks and
Arizona license plates; (5) he told the police he had a round trip ticket
when the officers believed he had a one way ticket purchased with cash; (6)
Fletcher withdrew his consent after initially agreeing to a search; and
(7) he was associated with a woman at a local address where a narcotics
complaint had been made. The district court held these facts were
insufficient to support a reasonable suspicion that Fletcher was engaged
in illegal activity. We agree. Each factor, save the perception of lying
and the association with someone who had a previous, though ultimately
unsubstantiated narcotics complaint lodged against her, is as consistent
with innocent activity as with criminal conduct. Moreover, under these
facts, no adverse inference can be drawn from Fletcher’s revocation of his
consent to search his bag. When Fletcher consented, he did not
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understand that he had the right to withhold consent. But cf. United
States v. Weaver, 966 F.2d 391, 393 (8th Cir. 1992) (noting the defendant
initially consented and then changed his mind); United States v. Green, 52
F.3d 194, 200 (8th Cir. 1992) (relying on Weaver: “Weaver’s initial consent
and the manner in which he withdrew his consent contributed to the
officer’s reasonable articulable suspicion.”). Here, there was nothing
suspicious in the manner in which Fletcher revoked his consent.
Considering all circumstances, the officers’ information fell short of
establishing reasonable suspicion. The detention of Fletcher’s bag for
a dog sniff thus violated Fletcher’s Fourth Amendment rights.
The district court correctly noted, however, that its inquiry did not
end with that determination. In United States v. Leon, 468 U.S. 897
(1984), the Supreme Court held that evidence seized pursuant to a warrant,
even if obtained in violation of the Fourth Amendment, should not be
excluded if an objectively reasonable officer could have believed the
search was valid. Id. at 918 (“[S]uppression of evidence obtained pursuant
to a warrant should be ordered on a case-by-case basis and only in those
unusual cases in which exclusion will further the purposes of the
exclusionary rule.”). This circuit has held Leon applicable to the
subsequent warrant-authorized search of a bag where the original detention
violated the Fourth Amendment. United States v. White, 890 F.2d 1413, 1419
(8th Cir. 1989), cert. denied, 498 U.S. 825 (1990); United States v. Kiser,
948 F.2d 418 (8th Cir. 1991), cert. denied, 503 U.S. 983 (1992); see also
United States v. O’Neal, 17 F.3d 239, 243 n.6 (8th Cir. 1994) (discussing
White). The relevant inquiry is whether the facts surrounding reasonable
suspicion are “close
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enough to the line of validity” that the police officers were entitled to
a belief in the validity of the warrant and the existence of reasonable
suspicion. White, 890 F.2d at 1419. If the case presents such a “close”
question, the Leon good faith exception to the exclusionary rule should be
considered. O’Neal, 17 F.3d at 243 n.6 (noting that this consideration is
not automatic, rather “[i]t is the closeness of the particular facts that
push[ed] this case into the gray area created by Leon.”)(citation omitted).
This case is indeed within the gray area of Leon. Reasonable
suspicion is a fact-based determination where “similar fact patterns [can]
led to different results.” O’Neal, 17 F.3d at 241 (citing United States
v. Weaver, 966 F.2d 391 (8th Cir. 1992) and United States v. Millan, 912
F.2d 1014 (8th Cir. 1990)); see also United States v. Sokolow, 490 U.S. 1,
13 (1989) (Marshall, J. dissenting). Here, many facts identified were
consistent with innocent behavior, but some weight should be accorded the
inferences drawn from Fletcher’s travel origins, the supplemental tanks on
the out-of-state vehicle and the same day cash ticket purchase. Moreover,
two very probative facts supported the officers’ suspicion: the perception
that the officers held that Fletcher lied to them about his travel
itinerary2 and that he was associated with an individual and an address
where once a narcotics complaint had been filed. Considered together,
while falling short of Fourth Amendment requirements, we conclude that the
officers had
2
Though the officers’ information regarding the one way
ticket was wrong, we must evaluate the circumstances as known to
the officers at the time of the decision to detain the bag.
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more reason to suspect that Fletcher’s bag contained narcotics than the
officers in either United States v. White, 890 F.2d 1413 (8th Cir. 1989),
or United States v. Kiser, 948 F.2d 418 (8th Cir. 1991). Both cases were
so close to the line of validity as to warrant application of Leon.
In White, drug agents relied upon the following: White traveled from
a source city, Los Angeles, arriving early in the morning on a flight that
had previously yielded narcotics arrests by way of a ticket purchased with
cash. White also appeared nervous when questioned by the police and
clutched his carry-on bag in a nervous or unusual manner. White, 890 F.2d
at 1414-1415. In Kiser, officers relied on the fact that Kiser traveled
from Miami, another source city, and looked around while stopping at a
drinking fountain but failed to take a drink. On a similar trip a week
earlier, Kiser had rented a car and had been “evasive” about his plans and
address. Kiser also provided inconsistent information to rental agents
about the name on his credit card, could not produce an airplane ticket,
became nervous when questioned and refused to give his consent to search
his bag. Kiser, 948 F.2d at 422. While neither case supported a finding
of reasonable suspicion, both were “close to the line of validity.”
Similarly, we conclude that the facts presented here are sufficiently close
to the line of validity. Considering all circumstances, we agree with the
district court that the officers had an objectively reasonable belief that
they possessed a reasonable suspicion such as would support the valid
detention of Fletcher’s bag as well as an objectively reasonable belief
that the warrant issued was valid.
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Notwithstanding this conclusion, Fletcher argues that the evidence
seized should be suppressed because its exclusion will further the
deterrent purposes of the exclusionary rule. We disagree. None of the
factors which bar application of the Leon good faith exception exist in
this case. See Leon, 468 U.S. at 923. Here, the officers collected
information to corroborate their suspicions before approaching Fletcher by
conducting additional surveillance and checking police records. The
district court held that the officers’ belief in the validity of the
detention and warrant was not only objectively reasonable, but also in good
faith. Based on a review of the record, no facts suggest that this finding
is clearly erroneous. The purpose of the exclusionary rule, deterrence of
police misconduct, will not be served by its application to this case.
III.
For the foregoing reasons, we conclude the district court did not err
in denying Fletcher’s motion to suppress the methamphetamine seized from
his bag. The decision of the district court is upheld. Fletcher’s
conviction is affirmed.
A true copy.
Attest:
Clerk, U.S. Court of Appeals, Eighth Circuit.
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