United States v. Ricky Johnson A/K/A Richard Lamar Union and Durand M. Banner, Defendants , 862 F.2d 1135 ( 1989 )

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Once again, the “war on drugs” raises Fourth Amendment issues concerning the reasonableness of a search. Appellants conditionally pled guilty to possession of cocaine with intent to distribute, invoking Fed.R.Crim.P. 11(a)(2) to appeal only the district court’s denial of their motions to suppress evidence. Finding no error in the district court’s decision, we affirm.

On August 19, 1987, the Fort Worth police dispatcher received a call from an unidentified female informant. The caller claimed that she had driven two black males, “Darrell” Banner and Ricky Johnson, from California to Fort Worth. She informed the dispatcher that Banner and Johnson were en route to the Trailways bus station, where they intended to retrieve two suitcases containing a large quantity of “drugs” from lockers 17 and 20. The informant described the men, detailing their appearance and dress, as well as describing one of the suitcases. A few minutes later, the informant called back, stating that Banner and Johnson intended to take the drugs to Houston and that the two men could be armed.

The dispatcher relayed all of this information to Officer Goley, a plainclothes operative in the Vice and Narcotics Unit. Go-ley and his partner, Officer Marshal, arrived at the bus station at 12:45 a.m., where they observed two men matching the informant’s description standing in front of some lockers. Goley left his partner and went to the rear of the terminal, where he conveyed the informant’s tip to Officer Stout, an off-duty Fort Worth police officer providing uniformed security for the bus company.

Goley rejoined Marshal and all three officers surreptitiously watched Banner and Johnson. The suspects attempted to make several phone calls before departing in a cab. Goley and Marshal spoke briefly to Stout and then attempted to follow the suspects. By the time the officers reached their car, however, the taxi was gone. They tried to radio a supervisor to begin the process of obtaining a search warrant, but failed to make contact before the suspects returned to the bus terminal.

Soon after the suspects reentered the station, all three officers observed Banner and Johnson take one suitcase out of locker 17 and another out of locker 20. One of the suitcases had green checks, matching the informant’s description. The suspects each carried a suitcase to the Trailways counter where they purchased tickets on the next bus to Houston. Banner and Johnson cheeked their luggage with the clerk and a claim check was placed on each bag. A Trailways employee placed the bags on rollers, sending them to the rear of the terminal, out of public view. At that point, a porter intercepted the suitcases and, pursuant to Officer Stout’s instructions, opened each one.¹ The suitcases contained plastic bags filled with cocaine in base form, commonly known as “crack.”

By this time, Banner had stepped outside, preparing to get on the bus, while Johnson remained in the terminal. Officer Stout told Goley the results of the search. When Banner saw Goley and Stout conversing, he began running away from the terminal. Goley chased and arrested Banner, while Johnson was arrested separately inside the bus station.

The original two-count indictment charged Banner and Johnson with conspiracy to distribute and with possession with intent to distribute over 50 grams of cocaine base. Both defendants moved to suppress evidence obtained from the warrant-less search of their luggage. Upon denial of these motions, the defendants, pursuant to a plea bargain, pled guilty to a superseding information charging one count of possession with intent to distribute between 5 and 50 grams of cocaine base. Banner and Johnson preserved their right to appeal the district court’s decision on the motions to suppress under Fed.R.Crim.P. 11(a)(2). The district court sentenced each defendant to nine years of imprisonment followed by four years of supervised release.

It is undisputed that the officers had probable cause to seize the suitcases and probable cause to arrest the appellants.² Appellants argue only that once the police controlled the suitcases, no search could take place without a warrant. The distinction between search and seizure, of course, has ample support in Fourth Amendment jurisprudence:

Different interests are implicated by a seizure than by a search. A seizure affects only the person’s possessory interests; a search affects a person’s privacy interests. Recognizing the generally less intrusive nature of a seizure, the [Supreme] Court has frequently approved warrantless seizures of property, on the basis of probable cause, for the time necessary to secure a warrant, where a warrantless search was either held to be or likely would have been impermissible.³

Appellants argue that this case falls within that class of cases justifying a warrantless seizure, but not a search, of property.

In particular, appellants suggest that our decision is controlled by two Supreme Court opinions, United States v. Chadwick ⁴ and Arkansas v. Sanders.⁵ In Chadwick, federal narcotics agents had probable cause to believe that a footlocker possessed by suspected drug traffickers contained a controlled substance. The agents arrested the suspects and seized the footlocker, which had been placed in the trunk of a waiting car. An hour and a half after the arrests, agents performed a war-rantless search of the footlocker at the federal building. Inside, they found a large quantity of marihuana. On appeal, the government did not allege that any exigency justified the warrantless search. It also did not argue for application of the automobile exception to the warrant requirement. Rather, it argued that the rationale of the automobile exception justified a new luggage exception, since luggage, like automobiles, can be highly mobile. It also contended that the search could be justified as incident to a lawful arrest. The Court rejected both arguments, holding that “when no exigency is shown to support the need for an immediate search, the Warrant Clause places the line at the point where the property to be searched comes under the exclusive dominion of police authority.”⁶ Thus, the Court found the warrantless search violated the Fourth Amendment since it took place after the government had exclusive control of the footlocker.

In Sanders, Arkansas police officers faced a situation similar to the narcotics agents in Chadwick. Suspected drug traffickers placed a suitcase, believed to contain a controlled substance, in the trunk of a taxi. The suspects entered the vehicle, which began driving away. The officers stopped the taxi and, without permission, searched the suitcase on the spot, finding marihuana inside. Once again, the government alleged no exigent circumstance justifying failure to seek a warrant.⁷ Instead, the government asserted that the search fell within the automobile exception to the warrant requirement since the suitcase came from a vehicle stopped by the police. The Court rejected this argument, relying on Chadwick to hold that where the police “lawfully have detained one suspected of criminal activity and secured his suitcase, they should delay the search thereof until after judicial approval has been obtained.”⁸

Appellants assert that, as in Chadwick and Sanders, the Fort Worth police had exclusive control of the suitcases checked with the cooperative bus company. Thus, the decision to search the suitcases at the station without first obtaining a warrant violated the defendants’ Fourth Amendment rights. Therefore, appellants argue, the district court should have suppressed the evidence obtained from the search, in this case the only evidence sustaining defendants’ convictions.

The answer to appellants’ contention lies in the factual distinctions between this case and the Chadwick and Sanders decisions, resulting in a different balancing of interests under the Fourth Amendment. In Chadwick and Sanders, the suspects had already been detained by police at the time the searches were performed. Here, on the other hand, the government had seized defendants’ suitcases, but had made no contact with the defendants. Further, these suspects were preparing to leave within minutes on a bus for Houston. As the government correctly contends, we have previously recognized that the risk of losing criminal suspects can create exigent circumstances justifying a search of luggage. United States v. Kreimes, 649 F.2d 1185, 1192-93 (5th Cir. Unit B July 1981). Kreimes is indeed similar to this case, and provides support for the officers’ course of action here. The impending departure of Johnson and Banner created an exigency. Nonetheless, the government may not rest on Kreimes alone. In that case, the search of the suitcase might have been necessary to determine the identity of the suspects. Were the police in Kreimes not to have opened the suitcase, they might not have known whom to arrest. Of course, the suitcases of Banner and Johnson might have contained information that would have facilitated arrest, and reduced the danger to bystanders at the bus station. Yet in Kreimes the police did not know where the suspects were. The officers did not have the option of immediately arresting the suspects rather than searching the containers. The officers might not have been able to make the arrest but for the search. The search thus might have been the only way to resolve the Kreimes exigency. In the instant case, although the exigency was similar, the police had alternative means to resolve it: they could seize the suspects, or they could search the suitcases. Kreimes may thus be distinguishable from this case.

At the time the officers needed to act, they faced only two realistic choices. They could either open the suitcases, confirming or dispelling their suspicions, or they could seize Banner and Johnson pending application for a search warrant.⁹ Given the circumstances presented, and in particular the reasonable concerns for safety presented by this arrest, we believe the officers made a reasonable decision in line with the policies underlying the Fourth Amendment.

Appellants also analogize this case to our decision in United States v. Lonabaugh,¹⁰ which involved one suspect not yet in police custody. In Lonabaugh, Customs agents went to the Brownsville airport after receiving a tip that Lonabaugh would be sending two suitcases full of marihuana with a female accomplice on a flight to Houston. Lonabaugh and his accomplice arrived at the airport, purchased one ticket to Houston and checked two suitcases with the airline. The woman kept the ticket and the baggage claim checks. Eventually, the couple separated at the departure gate, with the woman boarding the aircraft and Lonabaugh heading for the exit. Agents stopped Lonabaugh in the airport lobby. When Lonabaugh identified the suitcases as his, the agents searched them on the spot though they had neither a warrant nor the suspect’s consent. This court reversed the district court’s refusal to suppress the marihuana obtained in the search.

Lonabaugh does not control here because in that case there were no exigent circumstances justifying the police in taking immediate action. Lonabaugh and the suitcases were in police control. The female accomplice was on a plane preparing to depart, and could have easily been arrested when the plane arrived in Houston. In the meantime, the agents could have obtained a warrant and performed a proper search of the luggage. There was little risk that the woman would exit the airplane during the flight. The case for exigent circumstances in Lonabaugh was apparently so slim that the government did not even include the theory in its appellate brief. In this case, by contrast, Banner and Johnson were travelling to Houston by bus, creating a much higher risk that police would lose the suspects prior to arrest. Thus, exigent circumstances — the potential loss of two suspected drug traffickers — did exist in this case, justifying the police in taking immediate action.

Our approval of the warrantless search performed here rests on the fact that either course open to the officers, arresting Banner and Johnson or searching their suitcases, would invade some Fourth Amendment interest of the appellants. The Chadwick line of cases clearly establishes that searching the suitcases intruded on the suspects’ interest in the privacy of their luggage. On the other hand, seizing appellants and holding them until a warrant could be obtained would invade their Fourth Amendment interest in personal privacy and security.¹¹

We do not undertake the metaphysical task of determining the relative intrusiveness of the two alternatives.¹² Nevertheless, we find it impossible to say that searching these suitcases was clearly more intrusive than arresting Banner and Johnson, especially when viewed at the time the officers acted. By opening the suitcases, the officers could quickly determine the accuracy of the informant’s tip. If the report proved ill-founded, the suitcases could be just as quickly closed and loaded on the bus. The entire search would take only seconds. Further, the search would be performed in the back of the bus terminal, with only Officer Stout and the Trailways employee present, away from the inquiring eyes of the fifty to sixty-five people in the station.

By contrast, detaining the suspects until a search warrant could be obtained might have been highly intrusive. The informant indicated that Banner and Johnson could be armed. Further, many innocent citizens were waiting in the bus station. Thus, the officers probably would have needed to use both surprise and superior force in effecting the arrest. Given the circumstances, any perceived resistance on the part of the suspects might have required less-than-gentle treatment by the officers. Banner and Johnson might well have been physically restrained, and certainly would have been subjected to a highly intrusive pat down search for weapons. All of this activity would have taken place in front of the curious and excited bus station crowd. Beyond this initial humiliation, the detention might have lasted for hours before a search warrant issued. Undoubtedly, the suspects would have missed their bus, requiring them to wait in the Fort Worth terminal for the next bus to Houston.

Given that the defendants’ imminent departure justified the police in taking action, the officers had no choice but to invade some protected Fourth Amendment interest of the defendants. Faced with only two realistic alternatives, the officers chose one which could arguably, if the appellants proved to be innocent, have the least intrusive impact. We are unable to say the police violated appellants’ Fourth Amendment rights in so choosing.

Where officers face no clear answer regarding which of two courses of conduct represents a greater intrusion on citizens’ privacy, the Fourth Amendment generally leaves the choice between those alternatives to the discretion of law enforcement officials. For instance, the Supreme Court has refused to distinguish between search and seizure of a vehicle under the automobile exception to the warrant requirement:

Arguably, because of the preference for a magistrate’s judgment, only the immobilization of the car should be permitted until a search warrant is obtained; arguably, only the “lesser” intrusion is permissible until the magistrate authorizes the “greater.” But which is the “greater” and which the “lesser” is itself a debatable question and the answer may depend on a variety of circumstances. For constitutional purposes, we see no difference between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment.¹³

Thus, where two possible courses lay before law enforcement officers, and neither obviously presents a greater intrusion on Fourth Amendment interests, the Constitution allows officers to choose between them, even to the point of conducting a warrantless search of an automobile. We apply the same principle to these officers’ choice between competing law enforcement alternatives.

Appellants, however, argue that the government in this case had a third alternative, less intrusive than the two already discussed. They contend that the officers should have approached them and requested permission to search their suitcases. In particular, they rely on the following portion of a footnote from the Sanders opinion:

The State argues that under the circumstances of this case inconvenience to all concerned would have been the only result of deferring search of the suitcase until a warrant was obtained. Those in respondent’s position who find such inconvenience unacceptable may avoid it simply by consenting to the search.¹⁴

Appellants essentially assert that the Fourth Amendment obligated these officers to ask their consent before searching the suitcases. Whatever its merit otherwise, we reject the contention under the circumstances presented here.

Initially, we note that the action appellants advocate might still have intruded on their Fourth Amendment interests. A “seizure” under the Fourth Amendment occurs when a reasonable person, given all the circumstances, would conclude he is not free to leave.¹⁵ Assuming three police officers had approached Banner and Johnson, asking to search their suitcases for drugs, reasonable persons in their position might conclude they were not free to depart. Indeed, if the officers had made such a request and Banner and Johnson had refused, the Fort Worth police doubtless would have taken the suspects into custody-

However, even assuming such a course would not intrude upon appellants’ Fourth Amendment interests in the slightest degree, we still do not believe the officers were bound to follow it. Immediately before the decision to search the suitcases, these officers possessed only limited information about Banner and Johnson. They had a report that the suspects were carrying a large amount of a controlled substance, apparently enough to require more than one suitcase. Such a large supply could reasonably lead the officers to infer that these were professional drug traffickers tied into an organized drug smuggling chain. Further, the officers had received information from a highly accurate informant that these men could both be armed. Finally, these events took place in a crowded bus station, requiring the officers to consider not only their own safety, but also that of the fifty to sixty-five people in the terminal. Under these circumstances, we do not believe the Fourth Amendment required the officers to approach the suspects until they were prepared to make an arrest.

Whatever the footnote from the Sanders opinion means, it certainly cannot be read as requiring officers to always ask for consent before performing a warrantless search.¹⁶ It should be remembered that in Sanders, the Arkansas police already had the suspected drug traffickers in custody before searching the suitcase. Thus, asking for consent to the search did not present nearly the potential for danger that it might have in this case. We find it instructive to call to mind retired Chief Justice Burger’s admonition regarding judicial reassessments of police conduct under the Fourth Amendment:

A court making this assessment [whether a detention was too long for an investigative Terry stop] should take care to consider whether the police are acting in a swiftly developing situation, and in such cases the court should not indulge in unrealistic second-guessing. A creative judge engaged in post hoc evaluation of police conduct can almost always imagine some alternative means by which the objectives of the police might have been accomplished. But “[t]he fact that the protection of the public might, in the abstract, have been accomplished by ‘less intrusive’ means does not, by itself, render the search unreasonable.”¹⁷

Though asking consent to search appellants’ suitcases might, in the abstract, be less intrusive than the course chosen here, we do not believe that fact requires reversal of the district court. Given the rapidly developing events, and the information known to the officers at the time they had to act, we believe they conducted themselves reasonably in balancing law enforcement needs and safety concerns against the intrusiveness of their actions. We do not speak to cases that lack such safety concerns.

AFFIRMED.

1 . The government has not contended that this search, conducted by a private citizen at the direction of an off-duty police officer, falls outside the scope of the Fourth Amendment. See United States v. Clegg, 509 F.2d 605, 609 (5th Cir.1975) ("Preknowledge and acquiescence make a search by a private party a search by the government.”).

2 . We recognize that the existence of probable cause in this case was a close question, as the police relied on information provided by an unknown informant. However, since appellants do not raise the issue here, we take probable cause to seize the suitcases as a given. The district court found probable cause based on the detailed information provided by the informant and the fact that the officers had independently verified most details of her call.

3 . Segura v. United States, 468 U.S. 796, 806, 104 S.Ct. 3380, 3386, 82 L.Ed.2d 599 (1984) (citations omitted).

4 . 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977).

5 . 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979).

6 . Chadwick, 433 U.S. at 15, 97 S.Ct. at 2486.

7 . Sanders, 442 U.S. at 763-64 n. 11, 99 S.Ct. at 2593 n. 11.

8 . Id. 442 U.S. at 766, 99 S.Ct. at 2594.

9 . The officers’ other options included 1) put the suitcases on the bus and notify the Houston police, 2) hold the suitcases and notify the Houston police, 3) follow the bus until a search warrant could be obtained, or 4) detain the whole bus until a search warrant could be obtained. The first two options created a high risk of losing track of the defendants should they leave the bus before arriving in Houston. The third possibility would probably take the officers beyond their jurisdiction, might alert the suspects (who reportedly could be armed), and seems an excessive burden to place on a municipal police department. The fourth option would obviously be much more intrusive than detaining the defendants. A fifth possibility, approaching Banner and Johnson and asking their consent to the search, will be discussed infra.

10 . 494 F.2d 1257 (5th Cir.1973). Appellants in addition point our attention to two other Fifth Circuit cases. See United States v. Johnson, 588 F.2d 147 (5th Cir.1979); United States v. Garay, 477 F.2d 1306 (5th Cir.1973). However, in these cases, as in Chadwick and Sanders, the suspects were already in police custody when the searches were performed.

11 . See Winston v. Lee, 470 U.S. 753, 762, 105 S.Ct. 1611, 1617, 84 L.Ed.2d 662 (1985) (citing Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979) for the proposition that forcing an individual to accompany police officers to the police station damages the individual’s sense of personal privacy and security).

12 . One determines the reasonableness of a search under the Fourth Amendment by balancing the importance of the government’s interest against the degree of intrusion. New York v. Class, 475 U.S. 106, 106 S.Ct. 960, 967-68, 89 L.Ed.2d 81 (1986). Therefore, the less intrusive a search or seizure, the more likely it is to meet Fourth Amendment standards.

13 . Chambers v. Maroney, 399 U.S. 42, 51-52, 90 S.Ct. 1975, 1981, 26 L.Ed.2d 419 (1970); see also United States v. Ross, 456 U.S. 798, 807 n. 9, 102 S.Ct. 2157, 2163 n. 9, 72 L.Ed.2d 572 (1982).

14 . Sanders, 442 U.S. at 764 n. 12, 99 S.Ct. at 2593 n. 12.

15 . Michigan v. Chesternut, — U.S. -, 108 S.Ct. 1975, 1979-80, 100 L.Ed.2d 565 (1988).

16 . That no such absolute requirement exists can be seen from the Supreme Court’s decision in New York v. Class, 475 U.S. 106, 106 S.Ct. 960, 89 L.Ed.2d 81 (1986). In that case, police officers stopped a car for traffic violations and the driver voluntarily exited the vehicle. While the driver informed one of the officers that he had no driver’s license, the other officer approached the automobile to determine its vehicle identification number, mounted on the dashboard. The number was obscured by some papers. The officer reached into the interior of the car to move the papers and in the process discovered a gun underneath the driver’s seat. The New York Court of Appeals ruled that the gun should be excluded from evidence because, under state law, the officer could have asked to see the vehicle identification number and the driver would have had to move the papers himself, thus eliminating any intrusion by the officer. The Supreme Court reversed, finding the officer’s conduct reasonable under the circumstances.

17 . United States v. Sharpe, 470 U.S. 675, 686-87, 105 S.Ct. 1568, 1575-76, 84 L.Ed.2d 605 (1985) (citations omitted; quoting Cady v. Dombrowski, 413 U.S. 433, 447, 93 S.Ct. 2523, 2531, 37 L.Ed.2d 706 (1973)).