United States v. Calvin Porter

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No. 96-3358
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United States of America, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Calvin Porter, *
*
Appellee. *
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Submitted: January 15, 1997
Filed: February 21, 1997
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Before BOWMAN and MURPHY, Circuit Judges, and JONES,1 District Judge.
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MURPHY, Circuit Judge.
Calvin Porter was indicted on charges of conspiracy to distribute
cocaine and possession with the intent to distribute cocaine. The district
court suppressed evidence of cocaine found in a bag with his name on it,
and the United States appeals. We reverse.
Porter had been travelling by bus from San Bernadino, California to
St. Louis, Missouri. When the bus stopped at the station in Springfield,
Missouri, Carl Hicks boarded the bus, identified himself as a drug
enforcement agent, and questioned passengers about their destinations and
tickets. During this questioning, Hicks learned that the first name on
Porter's one-way
The Honorable John B. Jones, United States District Judge for
the District of South Dakota, sitting by designation.
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ticket to St. Louis was misspelled as "Kelvin" and that Porter did not know
the address or phone number of the person he was visiting. Hicks asked
Porter whether he had checked any bags. Porter told him that he had
checked one bag, and he agreed to get off the bus and identify it in the
luggage compartment. Hicks testified that he noticed that Porter appeared
nervous when questioned about his luggage. After identifying the bag,
Porter gave Hicks permission to search it. Hicks then noticed that there
was a ticket on the bag that said "Kelvin Porter" and "1 of 2." Hicks
asked Porter if he had checked any other bags, and Porter said he had not
and got back on the bus.
After Hicks found a second bag in the luggage compartment with a
ticket that said "Kelvin Porter" and "2 of 2," he asked Porter to get off
the bus again. Hicks then asked Porter if the second bag belonged to him.
Porter replied that "it did not" and that "he had never seen it before."
Hicks asked Porter for permission to search the bag, and Porter told him
he "could go ahead and search the bag, it was not his and he had never seen
it before." Inside the bag, Hicks found a box containing two kilograms of
cocaine.
After Porter was indicted, he moved to suppress evidence of the
cocaine seized from the second bag and of post-arrest statements he claims
were made before he was read his Miranda rights. At the close of the
government's evidence at the suppression hearing, Porter asked the court
to rule on his motion to suppress the cocaine. The district court ruled
from the bench, excluding the drug evidence and Porter's statements and
actions after the search. The court reasoned it was unreasonable to search
the second bag without a warrant after Porter denied it belonged to him
because it could have been owned by someone else and that Porter's
statements after the search should be excluded as "results
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of a poisonous tree."2
The government argues on appeal that because Porter had abandoned the
second bag, the district court erred in granting the motion to suppress.
Porter responds that the evidence was properly suppressed because his
disclaimer of ownership of the bag did not constitute abandonment and
because he was illegally seized when Hicks asked him to get off the bus.
The district court's decision to grant the motion to suppress is reviewed
for clear error. United States v. Meirovitz, 918 F.2d 1376, 1379 (8th Cir.
1990), cert. denied, 502 U.S. 829 (1991).
The warrantless search of abandoned property does not violate the
fourth amendment. Abel v. United States, 362 U.S. 217, 241 (1960). Here,
Porter told Hicks that the second bag did not belong to him and that Hicks
could go ahead and search the bag because it was not his. By denying
ownership of the bag and telling Hicks to search the bag, Porter abandoned
it. See United States v. Thompkins, 998 F.2d 629, 632-33 (8th Cir. 1993)
(denying ownership of bag and telling officers to go ahead and search it
constitutes abandonment). Furthermore, Porter's contention that the bag
could have belonged to a third party and that the cocaine evidence should
therefore be suppressed is without merit because fourth amendment rights
are personal and cannot be enforced vicariously. United States v. Kiser,
948 F.2d 418, 424 (8th Cir. 1991), cert. denied, 503 U.S. 983 (1992)
(citations omitted). The district court thus erred in concluding that the
cocaine should be suppressed.
Porter also argues that any error on the abandonment issue was
harmless because he had been illegally seized when Hicks asked him to step
off the bus. Porter argues that the district court erred
No arguments have been presented in this appeal on the merits
of Porter's motion to suppress statements, and the district court
did not reach any issue unrelated to the search.
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in finding that his nervousness and the misspelled ticket were sufficient
for Hicks to form reasonable suspicion. Determinations of reasonable
suspicion are reviewed de novo while findings of fact are reviewed for
clear error. Ornelas v. United States, 116 S. Ct. 1657, 1663 (1996).
The totality of the circumstances are to be considered when
determining whether reasonable suspicion existed. United States v.
Sokolow, 490 U.S. 1, 8-9 (1989). During the suppression hearing, Hicks
testified that Porter appeared nervous in his speech when asked about his
luggage, had a one-way ticket to St. Louis, did not know the address or
telephone number of the person he was visiting in St. Louis, had a ticket
with his first name misspelled which matched the misspelling of his name
on the two bags, and denied having any luggage other than the first bag he
identified. Based on this evidence, the district court's conclusion that
Hicks had reasonable suspicion when asking Porter to step off the bus to
identify his luggage was not erroneous, and the search of the second bag
did not result from an unlawful seizure.
The order suppressing the cocaine evidence is therefore reversed, and
the case is remanded for further proceedings.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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