United States v. Juan Fernandez , 772 F.2d 495 ( 1985 )

PER CURIAM.

Juan Fernandez appeals from his conviction by the district court for possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) (1982) and 18 U.S.C. § 2 (1982). The only question on appeal is whether the district court properly denied Fernandez’s motion to suppress a quantity of cocaine that was seized from a suitcase he transported from Miami to Las Vegas, based upon Fernandez’s lack of standing to raise a fourth amendment claim. We reverse and remand.

FACTUAL BACKGROUND

Fernandez boarded a flight from Miami to Las Vegas on February 9, 1982, after checking a single, medium-sized, soft-sided black suitcase. While at the Miami airport, Fernandez attracted the attention of Dade County Detective Charles Thompson, who telephoned Special Agent David Taketa of the Drug Enforcement Administration (DEA) in Las Vegas with a description of Fernandez and his black bag. By the time Fernandez’s flight arrived in Las Vegas, Taketa had made arrangements to have a specially-trained narcotics detector dog, “Marc the Narc,” sniff the suitcase when it reached the baggage handling area. The dog “hit” on a black bag matching Thompson’s description of Fernandez’s suitcase.

The bag was placed on the conveyor belt leading to the baggage carousel for Fernandez's flight. Near the baggage carousel Taketa observed an individual matching Fernandez’s description talking with another man, who turned out to be William Cres-po. When the black suitcase appeared, Fernandez pointed to it, and Crespo walked over to the carousel, retrieved the bag, and walked back toward Fernandez. At that point, Taketa and several other law enforcement agents, including Nevada State Narcotics Agent Tom O’Brien, identified themselves to Fernandez and Crespo.

Taketa questioned Crespo in English, while O’Brien questioned Fernandez in Spanish. Taketa does not speak Spanish, but O’Brien allegedly told him some of the statements Fernandez made. After a short period, Fernandez and Crespo were taken upstairs to the DEA Security Office, and Crespo was told that he would be held there until a search warrant was obtained for the suitcase. Shortly thereafter, Cres-po provided the suitcase’s combination to Taketa, and when the bag was unlocked, an orange sack containing about a kilogram of cocaine was discovered. Crespo and Fernandez were arrested. A baggage claim check for the bag was found in Crespo’s pocket.

After a suppression hearing at which only Agent Taketa testified for the government, the district court found that Crespo’s “consent” to search the black suitcase had not been given voluntarily. The magistrate found that the circumstances under which Crespo gave his consent were “virtually identical” to those in United States v. Ocheltree, 622 F.2d 992 (9th Cir.1980), where this court found that consent was impermissibly coerced. In Ocheltree, DEA agents requested consent from an individual at an airport to search his briefcase and “clear[ly] impli[ed]” a “threat that [an] unreasonable detention, amounting to arrest, would result if consent were denied”; at the time, the “agent[s] did not have probable cause to believe that [the individual] was in possession of narcotics.” Id. at 994. In the present case, the magistrate found that Taketa did not simply imply that Cres-po and Fernandez would be detained, as had been the case in Ocheltree; instead, Taketa “directly advised” Crespo to that effect. As a result, the magistrate recommended, based on Ocheltree, that the seized cocaine should be suppressed as to Crespo. The district court adopted in full the findings and recommendations of the magistrate, and suppressed the cocaine as to Crespo.

However, the magistrate and district court concluded that Fernandez did not have standing under the fourth amendment to challenge the search of the suitcase, because he had failed to establish a “legitimate expectation of privacy in the suitcase.” The court found that in light of the evidence' before it, Fernandez had failed to establish that he owned or possessed the black suitcase, and that even if he had possessed the suitcase at one time, “he had abandoned it and disavowed any connection with it by the time he was encountered by Agent Taketa.” The court allowed the cocaine from the suitcase to be introduced into evidence against Fernandez, and it was based on this evidence that he was convicted.¹ In his appeal, Fernandez focuses exclusively upon the district court’s determination that he lacked standing to challenge the search of the black suitcase, and that is the sole issue we now address.²

ANALYSIS

The parties are in essential agreement concerning the legal standards to be applied in resolving the questions of fourth amendment standing and abandonment. See, e.g., Rakas v. Illinois, 439 U.S. 128, 140, 99 S.Ct. 421, 428, 58 L.Ed.2d 387 (1978); Rawlings v. Kentucky, 448 U.S. 98, 104, 100 S.Ct. 2556, 2561, 65 L.Ed.2d 633 (1980); United States v. Salvucci, 448 U.S. 83, 93, 100 S.Ct. 2547, 2553, 65 L.Ed.2d 619 (1980); United States v. Mendia, 731 F.2d 1412, 1414 (9th Cir.1984); United States v. Pollock, 726 F.2d 1456, 1465 (9th Cir.1984). Therefore, the resolution of this case turns on what the testimony relating to Fernandez was and what portions of it should have been considered by the district court.

From our review of the record, we conclude that all the testimony admissible as to Fernandez tended to support his claim that he had a reasonable expectation of privacy in the suitcase and its contents. Mendia, 731 F.2d at 1414; Pollock, 726 F.2d at 1465. Although this testimony was based on hearsay, it was introduced by the government, and since Fernandez’s counsel did not raise a hearsay objection on behalf of his client, it could have been considered by the district court for its probative value. Professional Seminar Consultants, Inc. v. Sino American Technology Exchange Council, Inc., 727 F.2d 1470, 1472 (9th Cir.1984); United States v. Jamerson, 549 F.2d 1263, 1266-67 (9th Cir.1977); Castillo-Garda v. United States, 424 F.2d 482, 485 (9th Cir.1970).

Agent Taketa testified that according to Detective Thompson, Fernandez checked the black suitcase at the airline ticket counter in Miami.³ Taketa further testified that when he initially asked Crespo if the suitcase was his, Crespo “said no, it was Mr. Fernandez’s.”⁴ Finally, Taketa testified that when the black bag appeared on the baggage carousel, Fernandez pointed it out to Crespo. Although this testimony is not conclusive standing alone, it also tends to support Fernandez’s claims that he had a reasonable expectation of privacy in the suitcase.⁵ Since there is no evidence in the record indicating that Fernandez lacked an expectation of privacy in the suitcase prior to his contact with Taketa and O’Brien, we cannot accept the district court’s conclusion that Fernandez failed to demonstrate a fourth amendment interest. Pollock, 726 F.2d at 1465.

The government argues that even if Fernandez had initially been in possession of the suitcase, the evidence indicates that he subsequently abandoned the bag by the time he was questioned by O’Brien. Take-ta testified that according to O’Brien, Fernandez denied ownership of the bag several times during their conversation in Spanish. However, Fernandez's counsel objected to this testimony on hearsay grounds at the suppression hearing, and it was admitted only on the condition that O’Brien himself would testify at a later time and be subject to cross-examination by Fernandez’s counsel. O’Brien never testified, and therefore this evidence was never admitted as to Fernandez. It was the government’s obligation to produce O’Brien, since the admission of the government’s own evidence was conditioned upon O’Brien’s testifying, and since the government had the burden of establishing abandonment. See Mendia, 731 F.2d at 1414; United States v. Freire, 710 F.2d 1515, 1519 (11th Cir.1983); United States v. Alden, 576 F.2d 772, 776 (8th Cir.1978); United States v. Colbert, 474 F.2d 174, 177 (5th Cir.1973); United States v. Robinson, 430 F.2d 1141, 1143 (6th Cir. 1970). The government cannot now blame Fernandez for O’Brien’s failure to testify. As a result, there is no evidence in the record that Fernandez abandoned the black suitcase, and the district court’s conclusion regarding abandonment is clearly erroneous. Id.

CONCLUSION

We therefore reverse the district court’s determination that Fernandez lacked standing under the fourth amendment to challenge the search of the black suitcase. We remand to the district court for further proceedings consistent with this decision.

REVERSED and REMANDED.

1 . Following the district court’s denial of his motion to suppress, Fernandez and the government agreed to submit one count of his indictment to the district court on stipulated evidence. The prosecutor indicated at the time that the parties’ agreement was "in the nature of a negotiated plea,” and was designed specifically "to allow [Fernandez] the right to appeal the adverse decision on the suppression motion." The parties were attempting to accomplish what is now possible under Federal Rule of Criminal Procedure 11(a)(2), as amended in 1983.

2 . The dissent maintains that when the district court "tried” Fernandez based on the stipulated record, it concluded that the seized cocaine could be admitted into evidence against him based not on Fernandez’s lack of fourth amendment standing, but on the fact that the seizure and search of the black suitcase did not violate the fourth amendment. According to the dissent, the district court changed the position it had originally adopted concerning Crespo’s and Fernandez’s motions to suppress, and concluded for the first time that Taketa and the other law enforcement agents had probable cause to detain and arrest Crespo at the Las Vegas airport. Such a change in the district court’s position would render meaningless the question of Fernandez’s standing, upon which the parties have focussed this appeal.

However, the record does not support the dissent's reading of the district court’s findings. First, those findings are ambiguous, and do not clearly indicate that the court intended to alter its position on Crespo’s consent. The district court simply stated that “[a]s far as Fernandez is concerned, the bag was searched with the consent of Crespo”: admittedly this statement could be read as the dissent reads it, but it can just as easily be read simply to indicate that Fernandez lacked standing to challenge the consent to search.

Second, the actions of the district court and the parties do not support the conclusion that the district court changed its position concerning Crespo’s consent. As noted above, the district court had previously suppressed the cocaine as to Crespo, resulting in the dismissal of his indictment; it is extremely unlikely that the court would simply change its position concerning the legality of the airport search without some clear statement that it was doing so. Moreover, as the dissent acknowledges, neither party said anything at the time the district court allegedly changed its position, and neither party has argued or even mentioned this possibility on appeal.

Third, Fernandez agreed to submit his case on stipulated evidence specifically so that he could appeal the district court’s ruling on his suppression motion. Any subsequent change in the district court’s position on or basis for denying that motion would potentially affect Fernandez's appeal, and would have required the district court to vacate the conditional plea agreement and provide Fernandez an opportunity to reconsider his position. Otherwise, the district court could trap Fernandez into agreeing to a stipulated record and forgoing trial, and then effectively eliminate his ground for appeal. See generally Fed.R.Crim.P. 11(a)(2) and Advisory Committee Note. The district court’s failure to vacate the conditional plea agreement suggests that it did not intend to alter the basis for its ruling on Fernandez’s suppression motion.

Fourth, the magistrate explicitly stated that the circumstances in this case were "virtually identical” to those in Ocheltree, where there was no probable cause to detain or arrest the subject, and the district court adopted that finding. The dissent completely ignores this portion of the district court record, and simply suggests that the magistrate’s reference to Ocheltree was an inadvertent mistake, since Ocheltree involved a situation where probable cause was lacking, and since, according to the dissent, probable cause existed in the present case. Yet it is unreasonable to assume that the magistrate and district court simply misread and incorrectly cited Ocheltree. This court explicitly stated in Ocheltree that consent had been impermissibly coerced because an "unreasonable detention" was involved; we expressly distinguished the situation in United States v. Agosto, 502 F.2d 612, 614 (9th Cir.1974), where we had previously held that a defendant can, under certain circumstances, voluntarily consent to a search of his premises or property even after law enforcement officials have secured those premises or that property so they can seek a search warrant. See Ocheltree, 622 F.2d at 994; see also United States v. Salvador, 740 F.2d 752, 757 (9th Cir.1984). Given that the magistrate and district court were aware of both Ocheltree and Agosto, the fact that they compared the circumstances surrounding Crespo's consent to those in Ocheltree rather than Agosto is significant; moreover, given the absence of more explicit statements concerning Crespo’s detention and seizure in the district court record as it currently stands, for purposes of this appeal, we must interpret the statements in the record comparing Crespo’s situation to that in Ocheltree as a finding that Crespo was threatened with an "unreasonable detention," Ocheltree, 622 F.2d at 994, or some other "oppressive conditions” prior to giving his consent. Salvador, 740 F.2d at 757. We cannot overturn such a finding unless it is "clearly erroneous.” United States v. Lica-ta, 761 F.2d 537, 544 (9th Cir.1985); Salvador, 740 F.2d at 757 n. 3. If we are reading too much into the district court’s references to Ocheltree, the district court can clarify its findings on remand.

Finally, the dissent maintains that the district court could have found that probable cause existed to arrest Crespo and Fernandez as soon as the black suitcase was retrieved, based on Marc the Narc’s "hit” on the suitcase. However, for this court to reach such a conclusion based on the current record would be to usurp the functions of the district court. The magistrate and district court made no such finding concerning probable cause to arrest Crespo and Fernandez at the baggage carousel, nor has the government argued that such a finding should have been made. We cannot simply infer the existence of probable cause from the facts before us: as we stated in United States v. Spetz, 721 F.2d 1457 (9th Cir.1983), upon which the dissent relies, the mere fact that a dog has “hit” on a piece of baggage or cargo does not, in the absence of any factors supporting its reliability, establish probable cause. See id. at 1464. The dissent quotes a statement by the district court that the dog’s "hit” on the black suitcase was "strong evidence” that the bag contained narcotics. However, without evidence supporting Marc the Narc’s reliability, the district court’s statement cannot be deemed to be a finding of probable cause; if it were intended to be such a finding, it would be clearly erroneous. See id. Moreover, although the district court found that the initial detention of Crespo, Fernandez, and the suitcase was justified, it never made findings that probable cause and exigent circumstances existed to justify a full-scale warrantless seizure of the two men and the suitcase. See United States v. Lica-ta, 761 F.2d at 540-44. These are all issues which the district court can consider on remand, but which are improper for this court to attempt to resolve based on the current state of the record.

3 . This testimony was admissible as to Fernandez, because his counsel did not object to Take-ta’s testimony concerning Thompson's version of what Fernandez did at the Miami airport, but only objected to that portion of Taketa’s testimony involving "conclusions" about Fernandez’s behavior drawn by Thompson. Fernandez’s attorney specifically stated that: "I don’t have any objection to him [Taketa] testifying as to what [Fernandez] did, but when we get into conclusions [by Thompson] as to what is characteristically and what is uncharacteristically [Fernandez’s behavior], that’s improper." Fernandez’s counsel also stated that "I think he [Taketa] can testify as to what [Thompson] told him,” but that "I do, however, object ... to the conclusions that may have been made of the gentleman in Miami.” The record is not clear as to what the district court's precise ruling was on this objection, but it is clear that Fernandez's counsel did not object to Thompson’s testimony that Fernandez checked the black suitcase in Miami. Therefore, this testimony was in evidence as to Fernandez. See Professional Seminar Consultants, 721 F.2d at 1472.

4 . Since Fernandez's counsel did not object to this testimony by Taketa, it is also admissible in his client's behalf. See Professional Seminar Consultants, 727 F.2d at 1472.

5 . The fact that Crespo knew the combination to the suitcase and was able to open it for the government agents does not indicate that Fernandez did not own the bag, nor does it refute Fernandez’s claim that he had a reasonable expectation of privacy in the bag. In addition, the fact that Crespo had the baggage claim check in his pocket does not indicate that the bag was his and not Fernandez’s, since Fernandez had checked the bag in Miami and had presumably been given the claim check at that time.