United States of America v. Paul Ray Jones

MAGILL, Circuit Judge,

dissenting.

I concur in the Court’s holding that Jones voluntarily consented to be searched by Investigator Lutter. However, because I conclude that Investigator Lutter had probable cause to arrest the defendant, I respectfully dissent from the majority’s reversal of the defendant’s conviction.1

“Probable cause to conduct a warrant-less arrest exists when at the moment of arrest police have knowledge of facts and circumstances grounded in reasonably trustworthy information sufficient to warrant a belief by a prudent person that an offense has been or is being committed by the person to be arrested.” United States v. Hartje, 251 F.3d 771, 775 (8th Cir.2001). In determining whether probable cause exists, we consider the “law enforcement officer’s experience and familiarity with the practices of narcotics couriers.” Cf. United States v. Condelee, 915 F.2d 1206, 1209 (8th Cir.1990). The probable cause inquiry does not require us to “evaluate each piece of information independently; rather, we consider all of the facts for their cumulative meaning.” United States v. Nation, 243 F.3d 467, 470 (8th Cir.2001).

At the time of the defendant’s arrest, Investigator Lutter had been a narcotics investigator for four years, having received special training in that field. Investigator Lutter had worked for two and a half years in commercial interdiction, which is the observation and interception of drug couriers traveling through bus stations, train stations, and airports. At Eppley Airfield alone, Investigator Lutter had made at least forty drug-related arrests, *699twenty of which involved narcotics strapped to individuals’ bodies. Thus, Investigator Lutter was an experienced narcotics investigator, and his observations are due considerable deference.

In this case, Investigator Lutter noticed Jones: (1) embark a flight from Los Ange-les via Phoenix, both drug source cities; (2) walk quickly in an abnormal pattern through part of the airport that most passengers do not walk when exiting an airplane; (3) turn his head and shoulders to look behind him at least three separate times; and (4) proceed directly to a taxi stand without picking up any luggage. Upon talking with Jones, Investigator Lut-ter further observed that: (5) Jones’s ticket had been issued on the day of travel; (6) Jones stated that he came to Omaha to visit a cousin named Anthony, but when asked where Anthony lived, Jones did not respond; and (7) Jones became very nervous and agitated when Investigator Lut-ter asked to search his person.2

Most important was Investigator Lut-ter’s observation and subsequent touching of the bulge in Jones’s mid-section. Investigator Lutter testified that when he was talking with Jones, he noticed “a bulge that was not consistent with the natural contour of Mr. Jones’s body.” Jones subsequently provided consent for Investigator Lutter to touch the bulge. Investigator Lutter testified: “At the point that I felt the package and its consistency and the manner it was secured, I believed it to be controlled substance.” Investigator Lutter then agreed with Jones’s counsel’s question: “And you squeezed your fingers together [around the bulge] because you want[ed] to get a feel for what’s under there, right?” Given Investigator Lutter’s training and experience in narcotics investigation and commercial interdiction, Lut-ter’s belief that the bulge he felt in Jones’s mid-section contained illegal drugs provided him with probable cause to make the warrantless arrest, irrespective of the factors that created his initial suspicion. Together with those initial reasons for suspicion, I have little trouble concluding that Investigator Lutter had probable cause to arrest Jones.

Indeed, in United States v. Favela, 247 F.3d 838 (8th Cir.2001), this Court recently found probable cause to arrest under remarkably similar facts. In Favela, a police officer stopped the defendant at the Kansas City International Airport. Id. at 839. The officer asked the defendant to pull her shirt tight against her stomach. Id. When the defendant complied, the officer noticed a bulge around her stomach, and asked the defendant whether he could touch the bulge. Id. After gaining the defendant’s consent, the officer felt two hard bulges that he believed to be narcotics. Id. The officer then placed the defendant under arrest and discovered drugs taped to the defendant’s body in a search incident to the arrest. Id. This Court held that probable cause existed to effect the arrest. Id. at 840.

The factual scenario presented in Favela is, in all relevant respects, identical to the scenario presented here. Both defendants consented to searches of their persons, the police officers felt bulges they believed to be narcotics, and the officers then arrested the defendants. In Favela, this Court held that these facts provided the officer with probable cause to arrest. Id. at 840. In this case, however, the majority holds that these facts do not constitute probable cause, and suppresses the drugs discover*700ed on Jones’s body. In fact, given the existence here of several suspicious factors not present in Favela, such as Jones’s repeated backward glances and agitated state, I believe this to be the “easier” case.

The majority, however, argues that Favela is distinguishable from this case because Jones told Investigator Lutter that the bulge in his mid-section resulted from a recent surgery, while the Favela defendant did not explain the source of the bulge in his stomach. But what the officers in Favela and in this case felt when touching the defendants’ mid-sections is vastly more important than how the defendants explained the bulges. And Investigator Lutter testified that when he felt the bulge in Jones’s mid-section, given “the package and its consistency and the manner it was secured, I believed it to be controlled substance.” In any event, surely the existence of probable cause does not depend on a defendant’s ability to deceive the police.

The majority finds support for its holding that Investigator Lutter did not have probable cause to arrest Jones in this Court’s opinions in United States v. Tovar-Valdivia, 193 F.3d 1025 (8th Cir.1999) (per curiam), and United States v. Eustaquio, 198 F.3d 1068 (8th Cir.1999). I believe that both Tovar-Valdivia and Eusta-quio are distinguishable from this case. In Tovar-Valdivia, a police officer stopped the defendant at a bus terminal. 193 F.3d at 1026-27. While talking to the defendant, the officer noticed bulges under the defendant’s shirt. Id. at 1027. The officer felt the bulges and determined only that they were not part of the defendant’s body. Id. At this point, the officer handcuffed the defendant, which this Court held to be an arrest, thereby requiring probable cause. Id. The officer then unbuttoned the defendant’s shirt and found drugs strapped to his body. Id.

In analyzing whether the police officer had probable cause to arrest the defendant after feeling the bulges around the defendant’s mid-section, the Tovar-Valdivia court noted: “The officer testified that after touching the bulges, he still did not know what the bulges were; all he knew was that they were not part of the defendant’s anatomy.” Id. at 1028. The court further noted that the bulges under the defendant’s shirt “could have been bandages about his body, a money belt worn about his ribs, or any number of non-contraband items.” Id.

Here, by contrast, Investigator Lutter testified that the bulge in Jones’s midsection felt like “packaging that is consistent with the packaging of illegal narcotics.” This testimony distinguishes this case from Tovar-Valdivia, where the officer admitted that after touching the bulges “he still did not know what the bulges were; all he knew was that they were not part of [the defendant’s] anatomy.” 193 F.3d at 1028. Investigator Lutter had more information than merely knowing that the bulges were not part of Jones’s body. In other words, unlike the officer in Tovar-Valdivia, Investigator Lutter’s touching of Jones’s mid-section informed him that the bulges were not “bandages about his body, a money belt worn about his ribs, or any number of non-contraband items.” Id.3

*701This Court’s decision in Eustaquio also is distinguishable. In Eustaquio, Investigator Lutter stopped the defendant at an Omaha airport. 198 F.3d at 1069. Investigator Lutter asked the defendant to pull her shirt tight against her body, but the defendant instead pulled her shirt away from her body. Id. Nevertheless, Investigator Lutter saw a bulge in the defendant’s mid-section and, without the defendant’s consent, poked the bulge. Id. The defendant jumped back and told Investigator Lutter that he could not touch her. Id. This Court, assuming that Investigator Lutter did not detain the defendant until he touched her, held that Investigator Lut-ter did not have reasonable suspicion to detain the defendant before he touched the bulge protruding from the defendant’s mid-section. Id. at 1071.

The difference between this case and Eustaquio is that Jones consented to be searched by Investigator Lutter. By contrast, the defendant in Eustaquio never consented to a search of her person. Id. at 10.70; see also Favela, 247 F.3d 838, 839 (distinguishing Eustaquio by noting that the defendant in Favela consented to a search of her person); United States v. Mendoza-Cepeda, 250 F.3d 626, 628-29 (8th Cir.2001) (distinguishing Eustaquio by noting that the defendant in Mendoza-Cepeda consented to a search of his person). Thus, the Eustaquio court refused to consider what Investigator Lutter felt when he touched the bulge in analyzing whether Lutter had reasonable suspicion to touch the defendant’s mid-section. 198 F.3d at 1071. In this case, however, Jones gave Investigator Lutter consent to search his person; therefore, we must examine Investigator Lutter’s belief that the object he felt through Jones’s clothing was drugs in evaluating whether Investigator Lutter had probable cause to arrest the defendant after touching the bulge.

Finally, even if I were to conclude that Investigator Lutter did not have probable cause to arrest the defendant, I would not exclude the drugs discovered on the defendant’s body. The defendant consented to a search of his person, providing Investigator Lutter with the consent needed to pull up the defendant’s shirt and see the drugs taped to his body without resorting to a purportedly illegal arrest. . I concede that this case does not fit neatly within any of the currently recognized exceptions to the exclusionary rule. However, I see no purpose in excluding the fruit of an invalid arrest where, as here, the officer has the consent necessary to discover the evidence before effecting the arrest but mistakenly arrests the defendant in the good faith belief that he has probable cause to do so. Accordingly, I respectfully dissent from the reversal of the defendant’s conviction.

. Jones's appellate briefs focus on whether he voluntarily consented to the search, and fail to address whether Investigator Lutter had probable cause to perform the search after touching the bulge in Jones’s mid-section. A party’s failure to raise an issue in his opening appellate brief constitutes a waiver of that issue. United States v. Hook, 195 F.3d 299, 310 (7th Cir.1999); United States v. Cammisano, 917 F.2d 1057, 1061 n. 1 (8th Cir.1990). I thus have some doubt whether Jones even properly raised the argument that Investigator Lutter lacked probable cause to arrest.

. Although none of these individual factors amount to probable cause or even reasonable suspicion, I doubt the majority’s assertion that the combined factors do not amount to reasonable suspicion.

. The majority finds relevant Investigator Lut-ter’s statement that "when he saw the bulge, it could have been a bandage.” But Investigator Lutter's concession that, . before he touched the bulge, the possibility existed that the bulge might not contain illegal drugs is largely irrelevant. What is relevant is Investigator Lutter’s belief after touching the bulge that Jones was carrying illegal narcotics. Regardless, the police are not required to possess metaphysical certainty that the suspect at issue is carrying illegal contraband. We *701merely require police officers to have "reasonably trustworthy information sufficient to warrant a belief by a prudent person that an offense has been or is being committed by the person to be arrested.” Hartje, at 775.