United States v. Michael Moore , 22 F.3d 241 ( 1994 )

STEPHEN H. ANDERSON, Circuit Judge.

Defendant Michael Moore entered a conditional guilty plea to charges of possession with intent to distribute cocaine and aiding and abetting such possession, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B) and 18 U.S.C. § 2. He now appeals the district court’s denial of his motion to suppress evidence seized from his luggage following an encounter with Drug Enforcement Agency (DEA) officers aboard a train stopped in Albuquerque, New Mexico. We affirm.

BACKGROUND

Moore was aboard the Amtrak train which stopped in Albuquerque, New Mexico, where DEA officers regularly conduct surveillance of train passengers. Detective Samuel M. Candelaria was told by a train attendant that three people had boarded the train in San Bernardino, California, and had purchased their tickets with cash from the conductor, thereby presumably paying a penalty for buying tickets on board rather than at the station. The attendant also told Candelaria that two of the individuals carried a tan duffle bag with them at all times. DEA Agent Kevin Small met .with Candelaria, and told Candelaria that another train attendant had told Small about the two men with the tan duffle bag.

Candelaria and Small watched as two of the individuals, later identified as Jerry Wilson and defendant Moore, got off the train, reboarded the train and entered the dining car, exited the train again, and finally re-boarded the train and sat down in the coach car. Candelaria approached their seats, identified himself as a police officer and asked permission to speak to them. Cande-laria noticed the tan duffle bag at Moore’s feet. Both Wilson and Moore immediately stood up, and Moore announced he was going to the rest room.

In Moore’s absence Candelaria talked with Wilson, who told him that he (Wilson) and Moore were going to Chicago, that they had boarded the train in Los Angeles along with a third person, and that they had been in Los Angeles on vacation.¹ On request, Wilson showed Candelaria his ticket, which showed that three people were travelling on the ticket and that they had boarded the train in San Bernardino. The back of the ticket contained a statement that the fare is higher when paid on the train if the ticket office was open at the time the purchaser boarded the train.

Candelaria asked and received permission to search a suit bag Wilson said was his, and which contained no contraband. When asked about the tan duffle bag, Wilson responded that it belonged to Moore. Candelaria then went to look for Moore, whom he encountered coming out of a rest room. Moore consented to talk with Candelaria, and told the detective that he was traveling from Los Angeles to Chicago. When they returned to Moore’s seat, Moore gave permission for Candelaria to search his brown suit bag, but specifically refused consent to search the tan duffle bag.

At that point, Candelaria told Moore he would seize the bag, that Moore was not under arrest, and that the bag would be sent by Federal Express to Chicago, where it would arrive before the train did, if it contained nothing incriminating. Candelaria and Small took the bag off the train in order to subject it to a dog sniff. Because there was no trained narcotics dog at the train station, the agents drove approximately five minutes to a security location where a dog was present.² When the dog alerted to the bag, the officers obtained a search warrant from a magistrate judge and searched the bag, where they found two kilograms of cocaine.

After his indictment, Moore filed a motion to suppress the cocaine found in his bag. The district court denied the motion, holding that there were articulable facts giving rise to a reasonable suspicion that the bag was implicated in criminal activity. Moore appeals the denial, arguing that the facts do not give rise to the reasonable suspicion necessary to justify a seizure of the duffle bag.

DISCUSSION

We review under the clearly erroneous standard the district court’s factual findings supporting its denial of the motion to suppress on the ground that reasonable suspicion existed to seize the bag. United States v. Little, 18 F.3d 1499, 1502-03 (10th Cir.1994) (en banc); United States v. Hall, 978 F.2d 616, 619 (10th Cir.1992). We review de novo the ultimate determination of reasonableness under the Fourth Amendment. Little, 18 F.3d at 1502-03; United States v. Allen, 986 F.2d 1354, 1356 (10th Cir.1993). The proponent of a motion to suppress bears the burden of proof. Rakas v. Illinois, 439 U.S. 128, 130-31 n. 1, 99 S.Ct. 421, 423-24, 58 L.Ed.2d 387 (1978); United States v. Carr, 939 F.2d 1442, 1446 (10th Cir.1991).

Moore raises a single issue in this appeal — whether the district court erred in holding that reasonable suspicion justified the seizure of Moore’s tan duffle bag.³ “Law enforcement officers may seize and briefly detain a traveler’s luggage provided that the officers have reasonable articulable suspicion that the luggage contains narcotics.” Hall, 978 F.2d at 620 (citing United States v. Place, 462 U.S. 696, 706, 103 S.Ct. 2637, 2644, 77 L.Ed.2d 110 (1983)). In determining whether reasonable suspicion exists, we consider the totality of the circumstances to see if the officers have a “minimal level of objective justification,” something more than an “inchoate and unparticularized suspicion or hunch.” Id.; see also United States v. Bloom, 975 F.2d 1447, 1456 (10th Cir.1992) (quoting United States v. Sokolow, 490 U.S. 1, 8, 109 S.Ct. 1581, 1585-86, 104 L.Ed.2d 1 (1989)), explained, Little, 18 F.3d 1499. The officers are permitted, however, to “draw[] inferences and make[ ] deductions ... that might well elude an untrained person.” United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981).

The district court made the following findings in support of its conclusion that reasonable suspicion existed: the tickets were paid for in cash and aboard the train “where a penalty factor was involved in the purchase price” and Moore had lied about where he had boarded the train and the officers knew that he had lied. R. Vol. Ill, Tr. of Mo. Hr’g at 66.⁴ Moore has not convinced us that those findings are clearly erroneous. They adequately support the district court’s conclusion that the officers had reasonable suspicion to briefly detain Moore’s luggage and subject it to a dog sniff. See United States v. Ward, 961 F.2d 1526, 1530 (10th Cir.1992) (reasonable suspicion arose once officers learned defendant was traveling under an alias and had lied about the amount of luggage he was carrying), explained, Little, 18 F.3d 1499.

For the foregoing reasons, the judgment of the district court is AFFIRMED.

1 . Candelaria testified in the hearing on Moore’s motion to suppress that both Moore and Wilson "hesitated” when Candelaria asked them where they had boarded the train. They then responded that they had boarded in Los Angeles. R. Vol. Ill, Tr. of Mo. Hr'g at 23, 31.

2 . Vice President Dan Quayle was visiting Albuquerque at the time, and the dog was assigned to a security detail at the University of New Mexico.

3 . Indeed, at oral argument, which was recorded, in response to direct questions, Moore’s counsel stated that the only issue in the case was whether reasonable suspicion supported seizure of the bag. He affirmatively stated that the propriety of the length of the detention of Moore’s bag was "not the issue in this case ... [which is] limited to whether the seizure was based on reasonable suspicion." He further conceded, in response to a direct question, that he had "not clearly raised the issue below." We will not address issues raised for the first time on appeal, on which no adequate record was created below. See In re Lynde, 922 F.2d 1448, 1455 (10th Cir.1991). There is even less justification for addressing an issue which is not raised at all on appeal, and is in fact affirmatively disclaimed as being an issue on appeal.

The dissent strains to reach this issue which was neither argued nor briefed below, and on which the district court made no findings. Despite the dissent's assertion that it is "irrefutable” that the officers lacked probable cause before the train left the station, there is in fact no finding on that point, or on precisely when probable cause was established, or when the train left the station, or whether Moore was inconvenienced by not having access to his bag on the ride to Chicago, or on the myriad other facts relevant to this issue. There will certainly be a case in which this issue will be squarely presented, with findings and an adequate record below and fully briefed arguments both at the district court level and on appeal. This is no such case. We therefore expressly disavow the dissent’s discussion of this issue, based as it is on “findings" — more accurately, inferences and assumptions — made on appeal by the dissent itself, and on a legal analysis with which we do not agree.

4 . Moore attempts to argue on appeal that he did not really lie about his embarkation point, because San Bernardino is "practically a suburb of Los Angeles, lying only sixty-five miles east of the city." Appellant’s Br. at 10. The district court concluded that Moore lied, and we find no clear error in that conclusion.

The dissent persistently ignores the fact that the district court specifically found that Moore lied, and the dissent makes no attempt to explain why that finding is clearly erroneous. No matter how the dissent attempts to characterize it, lying to an officer is not consistent with innocent travel.