United States v. Dale

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 96-20529
_____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v.

BERNARD ANTHONY DALE,

Defendant-Appellee.

_________________________________________________________________

Appeal from the United States District Court
for the Southern District of Texas
(95-CR-303)
_________________________________________________________________
July 21, 1997
Before KING, DAVIS, and DeMOSS, Circuit Judges.

PER CURIAM:*

The government appeals from the district court’s order

suppressing evidence seized from Bernard Anthony Dale at the

Dallas-Fort Worth airport and from Dale’s Jeep during a traffic

stop. We vacate the district court’s order insofar as it deals

with that evidence and remand the case to the district court.

I. BACKGROUND

*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

1
A. Procedural History

Bernard Anthony Dale was indicted for one count of

conspiracy and twenty-five counts of possession with intent to

distribute cocaine. Dale filed motions to suppress evidence

seized from his person at the Dallas-Fort Worth Airport (“DFW”),

evidence seized from his Jeep, and evidence seized from three

other locations. The district court held a suppression hearing

on May 23, 1996. On June 10, 1996, the district court made a

preliminary ruling on the motions to suppress from the bench.

Based on this preliminary information, the government informed

the district court that it would seek to appeal the suppression

order. The government moved to stay the trial pending the appeal

of the suppression order, but the district court denied the

motion. By the same order, the district court granted all of

Dale’s motions to suppress. On the same day, this court stayed

the trial schedule pending the outcome of the appeal.

On June 17, 1996, the district court entered a more detailed

order granting the motions to suppress. The district court

suppressed the evidence seized from Dale at DFW and the evidence

seized from Dale’s Jeep, as well as evidence seized at the three

other locations at issue. The government filed a notice of

appeal pursuant to 18 U.S.C. § 3731 and 28 U.S.C. § 1291.

Because the government only briefed issues relating to evidence

seized from Dale at DFW and evidence seized from Dale’s Jeep, we

2
do not address the suppression of evidence seized from the three

other locations in this appeal.

B. Statement of Facts

1. The Airport Stop at DFW

At the suppression hearing, Officer Gerald Beall testified

that he had received a telephone call from Special Agent Bryan

Chambers of the Drug Enforcement Administration (“DEA”) in

Memphis, Tennessee. According to Beall, Chambers informed him

that two black males who were acting extremely nervous had used

cash to purchase one-way tickets from Memphis to Houston, with a

change in Dallas. Accompanied by two fellow officers, Beall, a

task force officer assigned to DFW, met the arriving flight.

Beall testified that he saw two men who fit Special Agent

Chambers’ description among the passengers deplaning. They

appeared to be very nervous and scanned the crowd as they walked,

checking behind them as well, as if to make sure they were not

being followed. Beall approached the men, identified himself,

and asked if he could see their airplane tickets. Both men had

cash one-way tickets. Beall then asked for identification so he

could check it against the tickets. The names on both tickets

matched the driver’s licenses produced by Dale and his traveling

companion, Leon McGrew.

When Beall questioned Dale about the purpose of his trip,

Dale said that they had gone to Knoxville to look for a beauty

3
shop to purchase. Dale also told the officers that he had met a

friend named Vanessa who drove them back to Memphis. According

to Beall, Dale was unable to give him Vanessa’s last name,

telephone number, or address. Dale was also unable to provide

names, addresses, and phone numbers of other people to whom he

had talked. Beall concluded that Dale’s travel was not

legitimate because he was evasive in his answers and he shifted

his weight back and forth from one foot to the other.

Officer Beall then asked Dale if he was carrying anything

unusual, such as illegal narcotics, large sums of money, or any

type of contraband. After receiving a negative response, Beall

asked permission to search Dale’s carry-on bag, and Dale

consented. Beall discovered nothing incriminating. At that

time, Beall noticed a flat bulge in Dale’s left pocket and asked

what it was. Dale told Beall that he was carrying a little money

and produced it for Beall’s inspection. Beall noticed that the

money was folded and held together by a rubber band and concluded

that this manner of carrying money was suspicious because drug

dealers often carry their money in this way.

Beall asked Dale if he was carrying any other money, and

Dale said that he was carrying approximately $35,000. Upon

request, Dale produced the money from his hip pocket. When Beall

inquired about the source of the money, Dale told him it was

proceeds from his beauty shop. When Beall attempted to ask about

the shop, however, Dale changed his answer and said he had won

4
the money gambling on a football game. Beall concluded that

these stories were inconsistent and decided to have the money

tested by a “drug dog.” At that point, Beall told Dale that he

was not under arrest and that he was free to leave but that Beall

wanted to take the money to the task force office to determine

its origin and its intended use. Beall gave Dale the option of

accompanying him to the task force office or proceeding to

Houston, where he would be notified of the results. Dale chose

to accompany Beall to the drug task force office. As they drove

to the office, Dale told Beall that he had borrowed the money

from NationsBank and from a federal credit union in Galveston.

After the money was placed in a locker, a “drug dog” was brought

in to sniff for the presence of drugs on the money. The dog

alerted on the locker that contained the money. At that point,

Beall gave Dale a receipt for the money and returned him to the

terminal.

2. The Search of Dale’s Jeep

Galveston county narcotics officer Hugh Hawkins testified

that he participated in the investigation of Dale by conducting

surveillance at Dale’s house in Texas City. On September 18,

1995, police officers at the house noticed that Dale was loading

boxes and trash bags into his Jeep. Hawkins was familiar with

Dale and the possibility that he was engaged in drug trafficking

and had been told by a confidential informant that Dale

5
transported drugs in U-Haul boxes after renting U-Haul vehicles.

The officers began pursuing Dale when he drove away from his

house, and Dale ran a red light, in an attempt either to elude

the officers or to ascertain if he was being followed. Dale was

then stopped for the traffic violation. When Hawkins asked Dale

where he was going, Dale said that his attorney had advised him

not to talk to or cooperate in any way with law enforcement.

Hawkins then asked Dale if the officers could search the vehicle

for narcotics, and Dale repeated the advice of his attorney.1

Hawkins arrested Dale for the traffic violation and called a

canine unit to have a dog sniff the Jeep for the presence of

narcotics. The dog allegedly alerted by “sitting down.” After

this “sitting” alert, the officers had the Jeep towed to the

police station to inventory the contents. At the station, the

officers brought in a second canine unit, and the dog allegedly

alerted to the tires and the back left corner panel of the

vehicle. The officers obtained a search warrant that authorized

them to search the Jeep for any violation of the Texas Health and

Safety Code Section 481, the Texas Controlled Substances Act.

The tires were then removed and deflated, but nothing was found

in them. The officers seized fabric softener sheets, sandwich-

size ziplock bags, personal papers, phone bills, and photographs

1
Dale later told the officers that he had been on his way to
the dump to discard the boxes and bags. Officer Hawkins conceded
at the hearing that Dale was heading in the direction of the dump
at the time he was stopped.

6
from the Jeep. Hawkins testified that a confidential informant

had informed him that Dale used fabric softener sheets to mask

the scent of drugs. Hawkins also testified that drug dealers

commonly use ziplock bags to package smaller quantities of drugs

and that the papers, phone bills, and photographs were relevant

evidence because they connected other members of the conspiracy.

II. DISCUSSION

In an appeal from the district court’s ruling on a motion to

suppress, we review factual findings in support of the ruling

under the clearly erroneous standard and legal conclusions de

novo. United States v. Seals, 987 F.2d 1102, 1106 (5th Cir.),

cert. denied, 510 U.S. 853 (1993). We view the evidence in the

light most favorable to the party who prevailed in the district

court. United States v. Cardenas, 9 F.3d 1139, 1147 (5th Cir.

1993), cert. denied, 511 U.S. 1134 (1994).

In United States v. Berry, 670 F.2d 583 (5th Cir. 1982),

this court discussed the Fourth Amendment ramifications of three

levels of contact between police officers and citizens -- mere

communications, brief seizures, and full-scale arrests. Id. at

591. If the contact rises only to the level of “mere

communication” involving neither coercion nor detention, the

Fourth Amendment is not implicated. Id.; United States v.

Bradley, 923 F.2d 362, 364 (5th Cir. 1991). A brief seizure must

be supported by reasonable suspicion, and a full-scale arrest

7
must be supported by probable cause. Berry, 670 F.2d at 591.

The dividing line between a mere communication and a seizure is

whether “in view of all the circumstances surrounding the

incident, a reasonable person would have believed that he was not

free to leave.” Id. (citing United States v. Mendenhall, 446

U.S. 544, 554 (1980)).

A. The Airport Stop at DFW

In suppressing the evidence seized at DFW, the district

court stated that the interaction between Beall and Dale was more

than a “mere communication.” The court noted that the conduct

observed by Chambers and Beall is conduct that ordinary, law-

abiding persons engage in. The court also observed that “the

entire currency system is tainted with money that has been used

in the illegal drug business.”2 To invalidate the search, the

court focused on the fact that no contraband was discovered. The

court stated that “[a]t the time the currency was seized, there

were no articulable facts upon which officer Beall could rely

showing probable cause that the currency were the proceeds of

illegal activity.” Instead, the court found that Beall’s

2
At a later point, the district court stated: “The drug-
sniffing dog did not confirm the source of the currency, just the
route that it had taken to get into the hands of the defendant. If
this is the way of the law, drug-sniffing dogs should be taken to
the banks in the United States of America to determine if probable
cause exists to arrest the bank tellers.”

8
suspicions were based on “his personal biases and prejudices.”

The court concluded that Beall’s suspicions never rose to the

level of articulable facts, and thus “[t]he seizure of the

currency was unlawful when it occurred because there is no

evidence that its source was drug related and the testimony of

the drug dog is not admissible.”

On appeal, the government argues that Beall properly

obtained the evidence at DFW. The government contends that the

initial encounter was a mere communication, that Beall had a

reasonable suspicion that the money was the proceeds of illegal

drug activity, justifying taking the money to have it tested, and

that once the dog alerted on the cash in the locker, Beall had

probable cause to believe that the money was the proceeds of

illegal drug activity, and thus was justified in seizing the

money.

Dale argues that the officers detained him when they pulled

him aside to question him, and that the detention was not

supported by reasonable suspicion. Furthermore, the officers’

seizure of Dale’s money so they could test it constituted a

custodial arrest requiring probable cause, which the officers

lacked at that time.

Even when they have no basis for suspecting a particular

individual, law enforcement officers do not violate the Fourth

Amendment by stopping a person at an airport or bus station,

asking to see that person’s ticket and identification, and

9
requesting consent to search his luggage, as long as they do not

give the impression that compliance is required. United States

v. Cooper, 43 F.3d 140, 145 (5th Cir. 1995); United States v.

Galberth, 846 F.2d 983, 989-90 (5th Cir.), cert. denied, 488 U.S.

865 (1988). In Galberth, this court held that an encounter at an

airport between an officer and the defendant did not constitute a

seizure where the questions were asked in a public part of the

airport, the officer did not resort to trickery or coercion, the

defendant was not led to believe that she could not leave if she

wished, and the encounter was limited in scope. Galberth, 846

F.2d at 989-90. Likewise, in this case, Beall questioned Dale in

a public part of the airport and did not demonstrate any coercion

by his words or conduct. Dale voluntarily agreed to let Beall

search his carry-on bag and voluntarily agreed to show Beall the

money he was carrying. Up until the time that Beall told Dale he

wanted to take the money to the task force office, there was no

reason for Dale to feel that he was not free to leave if he

wished. The district court clearly erred in finding that the

initial contact between Dale and Beall was more than a “mere

communication.”

Beall’s decision to take the money to be tested constituted

a brief detention requiring reasonable suspicion. That suspicion

must be based on “specific and articulable facts which, taken

together with rational inferences from those facts, would warrant

a person of reasonable caution in the belief that the intrusion

10
was appropriate.” United States v. Butler, 988 F.2d 537, 541

(5th Cir.), cert. denied, 510 U.S. 956 (1993). The district

court’s determination as to whether the officer had sufficient

facts to satisfy the reasonable suspicion requirement is reviewed

de novo. Ornelas v. United States, 116 S. Ct. 1657, 1663 (1996).

Although reasonable suspicion must be based on the “specific

and articulable facts” of the individual situation with which the

officers are confronted, Fifth Circuit precedent illustrates some

of the factors this court has taken into consideration to find

that officers had reasonable suspicion to detain someone. In

Berry, this court held that there was reasonable suspicion when

(1) the defendant arrived from a drug source city, (2) the

defendant seemed to be nervous, (3) he traveled under an alias,

(4) he tried to leave the airport by means of public

transportation, and (5) he attempted to hide the fact that he was

traveling with another person. Id. at 603. In United States v.

Gonzales, 842 F.2d 748 (5th Cir. 1988), reasonable suspicion was

found where (1) the defendant arrived from a source city, (2) the

defendant appeared to be nervous and watchful, (3) the defendant

carried only a small carry-on bag, (4) the defendant dressed

“loudly”, (5) the defendant lacked identification, and (6) the

defendant tried to deceive the officers as to the length of her

stay in Dallas. Id. at 753.

The facts available to Beall when he decided to detain the

money are as follows: (1) Dale and McGrew had purchased one-way

11
tickets from Memphis to Houston with cash, (2) Houston is a

source city for drugs, (3) the men appeared extremely nervous,

(4) Dale was unable to tell Beall the names, addresses, or phone

numbers of people he had met with in Knoxville, (4) Dale was

unable to tell Beall the last name, address, or phone number of

his friend Vanessa in Memphis, (5) Dale was carrying $35,000 in

cash secured by rubber bands, (6) Dale lied to Beall when asked

if he was carrying large amounts of money, and (7) Dale gave

conflicting explanations for the source of the money.

In this case, Beall possessed sufficient articulable facts

to constitute reasonable suspicion. While it may be that any one

of the facts was not by itself proof of illegal conduct, taken

together they amount to reasonable suspicion. See United States

v. Sokolow, 490 U.S. 1, 9 (1989).

Once the dog alerted on the locker that contained the money,

Dale was given a receipt for the money and returned to the

terminal. Beall needed probable cause to believe that the money

was the proceeds of illegal drug activity to seize Dale’s money.

United States v. Place, 462 U.S. 696, 708-09 (1983). “[P]robable

cause requires only a probability or substantial chance of

criminal activity, not an actual showing of such activity.”

United States v. Mendez, 27 F.3d 126, 129 (5th Cir. 1994). A

probable cause determination is reviewed de novo. Id. at 130.

In Mendez, the defendant was observed in the airport in

Houston, a drug source city, preparing to fly to New York, a drug

12
demand city. Id at 127. He checked a large locked suitcase and

proceeded to the gate. Id. at 128. Police officers learned from

the ticket agent that Mendez had purchased a one-way ticket that

day to fly the following day but was attempting to fly out a day

early. A canine unit went to the baggage handling area, where

the dog alerted on Mendez’s bag. Officers then boarded the plane

to talk to Mendez. He showed them his ticket but claimed he did

not have any identification. Mendez denied knowledge of any

reason why a narcotics dog would alert on his suitcase. At that

point, the officers escorted Mendez off the airplane to identify

his suitcase. Mendez was placed under arrest after fourteen

bundles of cocaine were discovered in the suitcase. Id.

At trial, the district court found that Mendez was placed

under custodial arrest without probable cause when he was

escorted from the plane. Id. at 129. The district court noted

that, with the exception of the dog alert, the factors considered

by the officers were as consistent with innocent activity as

illegal activity. Id.

Reversing the suppression order, this court stated that

“innocent behavior frequently will provide the basis for a

showing of probable cause.” Id. at 129 (internal citation

omitted). The court concluded that “the district court erred by

failing to realize that the factors the court considered innocent

or marginal had a greater significance after the dog alerted on

Mendez’ suitcase.” Id.

13
 Likewise, the combination of the dog alert and the factors

previously noted in the analysis of the reasonable suspicion

requirement gave Beall probable cause to seize Dale’s money. The

district court erred by failing to realize that the factors it

viewed as indicative of law-abiding activity took on a greater

significance after the dog alerted on the locker. See id. The

district court incorrectly suppressed the evidence from the DFW

airport stop.

B. The Search of Dale’s Jeep

The district court held that the search warrant obtained

when the Jeep was impounded was fatally defective because it was

too broad, thus permitting “the wholesale seizure of items that

generally are not evidence of criminal activity.”3 The search

warrant authorized a search for “property described in said

affidavit, to wit: any violation of the Texas Health and Safety

Code Section 481.” The supporting affidavit stated that the Jeep

was suspected of containing “a controlled substance in violation

of the Texas Health and Safety Code, Chapter 481.” The affidavit

detailed Dale’s involvement in drug activity and the fact that

two drug dogs had alerted to various parts of the vehicle.

3
In an unusual analysis, the district court also found that
the officers could not have had probable cause to search for drugs
because no drugs were ultimately found in the Jeep. On the
contrary, the officers had probable cause to believe that a
controlled substance was in the Jeep as soon as the first dog
alerted to the Jeep. United States v. Dovali-Avila, 895 F.2d 206,
207 (5th Cir. 1990).

14
Finally, the affidavit stated that the officer believed that

“said 1992 Jeep illegally contains a controlled substance.”

The test for determining whether a search warrant is

overbroad is whether the language will permit the executing

officer to reasonably know what items to seize. United States v.

Layne, 43 F.3d 127, 132 (5th Cir. 1994). The language of the

affidavit can be considered along with the warrant in determining

whether the warrant is too broad, if the warrant expressly refers

to the affidavit. Layne, 43 F.3d at 132. In this case, the

warrant referred to the affidavit and incorporated it by

reference. Thus, the search warrant was sufficiently particular

to permit the officers to search for and seize a controlled

substance in the vehicle. The district court erred when it

determined that the warrant was too broad.

As it turns out, the officers did not find a controlled

substance when they searched the Jeep. Instead, the officers

found and seized as evidence fabric softener sheets, small

plastic bags, letters, phone bills, and photographs.

The plain view doctrine allows the use of evidence “when an

officer lawfully in location by virtue of a warrant or some

exception to the warrant requirement seizes an item having an

incriminating character that is ‘immediately apparent.’” United

States v. Hill, 19 F.3d 984, 989 (5th Cir. 1994)(internal

citation omitted). The officer need not know that the item

discovered is evidence of a crime as long as there is “a

15
practical, nontechnical probability that incriminating evidence

is involved.” Id. The determination that the evidence will

assist in proving that a crime has been committed “must be viewed

in the light of the observations, knowledge, and training of the

law enforcement officers.” United States v. Buchner, 7 F.3d

1149, 1154 (5th Cir. 1993).

A confidential informant had told Hawkins that Dale used

fabric softener sheets to mask the scent of drugs. Hawkins also

knew that drug dealers commonly use ziplock bags to package

smaller quantities of drugs. The other evidence seized was

relevant because it connected other members of the conspiracy.

All of the evidence seized was properly seized under the plain

view doctrine as evidence helpful in establishing Dale’s

involvement in illicit drug activity. Thus, the district court

erred in suppressing the evidence from the search of the Jeep.

III. CONCLUSION

For the foregoing reasons, we VACATE the district court’s

order insofar as it suppressed the evidence seized from Dale at

DFW and seized from Dale’s Jeep and REMAND the case to the

district court.

16
17