IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 95-30919
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
AL DAC HO, also known as Ai Dac Ho,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court for the
Eastern District of Louisiana
_________________________________________________________________
August 27, 1996
Before POLITZ, Chief Judge, and JOLLY and BARKSDALE, Circuit
Judges.
E. GRADY JOLLY, Circuit Judge:
The sole issue addressed in this Fourth Amendment warrantless
search and seizure case is whether the police officer had probable
cause to arrest Al Dac Ho before Ho revoked his voluntary consent
to search his portfolio. Based on the explicit testimony from the
suppression hearing, we conclude that, at the time Ho withdrew his
consent, the officer did not have probable cause to arrest Ho, and
thus lawfully could not continue the warrantless search of Ho's
portfolio as a search incident to arrest. The evidence obtained
after Ho revoked his consent was the fruit of an unconstitutional
search, and we therefore reverse the district court's ruling on
Ho's motion to suppress, vacate Ho’s plea of guilty, and remand for
further proceedings not inconsistent with this opinion.
I
On the morning of February 20, 1995, Lieutenant Gerard Simone
and another officer, members of the New Orleans International
Airport Narcotics Interdiction Unit of the Jefferson Parish
Sheriff’s Office, were conducting a surveillance of a flight from
Los Angeles.1 The officers alerted to the defendant, Al Dac Ho, a
passenger on the flight, because he walked briskly down the
concourse, had no carry-on luggage, and made no attempt to claim
any checked luggage. The officers approached Ho, identified
themselves, and asked Ho to produce his ticket. Ho produced a one-
way ticket purchased with cash. Ho consented to a search of his
person, including a small leather portfolio he was carrying. Ho
told the officers that he would be in New Orleans for approximately
two weeks and that his sister was bringing his luggage on a later
flight.
The next day, a concerned citizen advised Officer Simone that
Ho had purchased a cash one-way airline ticket to Los Angeles
1
The officers of the Narcotics Interdiction Unit routinely
conduct surveillances of incoming flights from Los Angeles because
of Los Angeles’ status as a major distribution point for narcotics.
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departing that morning at 8:15 a.m. Officer Simone, accompanied by
two other officers, approached Ho as the flight was boarding. Ho
gave his consent to a search of his person and his portfolio.
During the search of the portfolio, Officer Simone focused on a
blank, white plastic card the size and shape of a credit card. Ho
immediately struggled to retrieve the portfolio when the officer
found the card. Officer Simone testified that it was obvious that
Ho did not want him to look further at the portfolio when Ho
attempted to retrieve the portfolio. The officer was able,
however, to retain the portfolio. Upon further investigation of
the white plastic card, Officer Simone discovered that the card had
a magnetic strip on the back. The officers then arrested Ho for
possession of a counterfeit credit card. After they arrested Ho,
the officers searched the rest of the portfolio and found another
similar blank credit card, along with seventeen counterfeit
travelers checks and several pieces of paper with what appeared to
be credit card account numbers on them.
II
Ho was charged with one count of transporting a fraudulent
credit card in interstate commerce and one count of knowingly
possessing counterfeit securities. He filed a motion to suppress
the fruits of what he asserted was an illegal search conducted by
Officer Simone. Ho argued that the search was illegal because
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Simone did not have a warrant and Ho did not initially consent to
the search. The government filed an opposition to Ho's motion, and
the district court conducted a suppression hearing at which both
Officer Simone and Ho testified. At the conclusion of the hearing,
counsel for Ho argued that even if Ho had consented to the search,
he effectively withdrew that consent by attempting to retrieve the
portfolio from Officer Simone before the officer had probable cause
to continue the search without Ho's consent and without a warrant.2
The district court denied Ho's motion to suppress, stating
summarily that it was compelled to deny the motion after weighing
the credibility of the two witnesses. Ho then entered a plea of
guilty to the indictment, conditioned upon his ability to appeal
2
The dissent argues that we should apply the plain error
standard to this claim because Ho presents it for the first time on
appeal. We are at a complete loss to understand how the dissent
can claim that the matter was not preserved in the district court.
First, unlike the defendant in United States v. Alvarado-Saldivar,
62 F.3d 697, 699, Ho argued this claim "in open court" and the
district court responded, "I understand that. I think it is in
order for to you [sic] point that out to me. I take it in to
consideration as well." Tr., at 47 (emphasis added). Second,
unlike the defendant in United States v. Maldanado, 42 F.3d 906,
910-11 (5th Cir. 1995), the record reveals that Ho established the
factual basis for the issue in his examination of Officer Simone.
See infra. Third, the state failed to raise the dissent's plain
error argument in its brief to this court; it addressed the claim
on the merits. Although the dissent is correct in pointing out
that "this does not preclude our exploring this issue sua sponte,"
we find the state's "failure" to raise it strongly suggests that
the state itself considered the claim properly to be preserved for
appeal and that the state felt neither "ambushed" nor "sandbagged"
on appeal. In our view, therefore, it is totally inapt to review
this claim for plain error.
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the district court's denial of his motion to suppress. The court
sentenced Ho to ten months' imprisonment to be followed by three
years of supervised release. Ho timely filed his notice of appeal.
III
We begin our consideration of this appeal from the premise
that "warrantless searches and seizures are per se unreasonable
unless they fall within a few narrowly defined exceptions." United
States v. Cardenas, 9 F.3d 1139, 1147 (5th Cir. 1993), cert.
denied, 114 S.Ct. 2150 (1994). One such exception to the warrant
requirement exists for searches incident to a lawful arrest.
United States v. Barlow, 17 F.3d 85, 89 (5th Cir.), cert. denied,
115 S.Ct. 148 (1994). A warrantless arrest must be based on
probable cause. United States v. Wadley, 59 F.3d 510, 512 (5th
Cir. 1995).
Although the challenged search in this case occurred
immediately prior to Ho's arrest, this does not prevent the search
from being considered incident to a lawful arrest, Rawlings v.
Kentucky, 100 S.Ct. 2556, 2564 (1980); United States v. Hernandez,
825 F.2d 846, 852 (5th Cir. 1987), cert. denied, 108 S.Ct. 1032
(1988), as long the fruits of the search incident to the arrest are
unnecessary to support probable cause for the arrest. 100 S.Ct. at
2564 & n.6. "If the arresting officers lacked probable cause and
the arrest is invalid, evidence discovered as a result of the
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arrest is subject to suppression under the Fourth Amendment as the
'fruit' of an illegal arrest." 59 F.3d at 512. Officer Simone's
continued search of Ho's portfolio after the revocation of consent
was therefore constitutional only if the officer had probable cause
to arrest Ho.3 The sole issue for us to address is thus whether
Officer Simone had probable cause to arrest Ho at the time that Ho
revoked his consent.4
A
3
The government relies on the Seventh Circuit's decision in
United States v. Jachimko, 19 F.3d 296, 299 (7th Cir. 1994), to
argue that because the officer had already "discovered" the card
before Ho revoked his consent, the subsequent warrantless seizure
of the card from the portfolio was valid. The court in Jachimko
stated, "Where a suspect does not withdraw his valid consent to a
search for illegal substances before they are discovered, the
consent remains valid and the substances are admissible as
evidence." Id. (citation omitted). We have yet to address the
Seventh Circuit's "discovery" rule, cf. Mason v. Pulliam, 557 F.2d
426, 429 (5th Cir. 1977) (holding that revocation of consent does
not require government to return copies of business records taken
before revocation), and we find it unnecessary to do so today.
First, Jachimko is distinguishable from the present case because
the illegal nature of the substance in that case, marijuana plants,
was readily apparent on first sight. The illegal nature of the
plastic card was not immediately obvious here. Second, the
government acknowledges that Officer Simone must have established
probable cause of criminal activity at the time of the revocation
of consent in order to have seized the card. Third, we conclude
that, on the facts of this case, probable cause to justify seizure
of the card mirrors probable cause to arrest Ho.
4
Based upon the facts adduced during the suppression hearing,
the district court's finding that Ho voluntarily consented to the
search is not clearly erroneous.
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"Probable cause is determined by an objective test: it cannot
be established simply by showing that the police subjectively
believed that probable cause existed . . . ." United States v.
Cooper, 949 F.2d 737, 744 (5th Cir. 1991), cert. denied, 112 S.Ct.
2945 (1992).
Probable cause for a warrantless arrest exists when the
totality of facts and circumstances within a police
officer's knowledge at the moment of the arrest are
sufficient for a reasonable person to conclude that the
suspect had committed or was committing an offense.
Although probable cause requires more than a bare
suspicion of wrongdoing, it requires `substantially less
evidence than that sufficient to support a conviction.'
Wadley, 59 F.3d at 512 (quoting United States v. Muniz-Melchor, 894
F.2d 1430, 1438 (5th Cir.)(internal citation omitted), cert.
denied, 110 S.Ct. 1957 (1990)). The facts and circumstances "must
be viewed in light of the observations, knowledge, and training of
the law enforcement officers involved in the warrantless search."
894 F.2d at 1438 (citation omitted). The existence of probable
cause is a mixed question of fact and law. 59 F.3d at 512. We
review the factual findings supporting the district court's
probable cause determination for clear error. Id. The ultimate
determination of probable cause, however, is a question of law
subject to de novo review. Id.
A defendant normally bears the burden of proving by a
preponderance of the evidence that the challenged search or seizure
was unconstitutional. United States v. Roch, 5 F.3d 894, 897 (5th
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Cir. 1993) (citing United States v. De La Fuente, 548 F.2d 528, 533
(5th Cir.), cert. denied sub nom., Stewart v. United States, 97
S.Ct. 2640 (1977)). In a case such as this one, however, in which
the officer acted without a warrant, the government bears the
ultimate burden of proving that the officer had probable cause.
Id.
B
The district court's order refers to credibility choices in
denying the motion to suppress. Although credibility choices were
crucial to the issue of initial consent, a review of the record
reveals no material dispute as to the facts necessary to resolve
the legal question of probable cause that is before us today.
Officer Simone testified that Ho had revoked his consent5 when the
officer first located the white plastic card in the portfolio.6 He
also testified that he did not find the magnetic strip on the back
5
A consent which waives Fourth Amendment rights may be
limited, qualified, or withdrawn. Mason, 557 F.2d at 428-29.
6
Officer Simone testified:
Q. Was it obvious to you at the point when you had
opened the portfolio and he attempted to grab it, that at
that point he did not want you to look at it any further?
A. Yes, it was. I had already discovered the card.
Q. He consented, it was clear to you he was not
consenting at that point to anything further?
A. That's correct.
Tr., at 20.
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of the card until after Ho had revoked his consent.7 As the facts
are undisputed, the only issue before us is the district court's
ultimate legal determination that Officer Simone had probable cause
to arrest Ho based on his discovery of a white piece of plastic the
size and shape of a credit card in Ho's portfolio.
In reviewing the record, the question, of course, is not
whether Officer Simone subjectively believed--as he stated on
redirect examination8--that he had probable cause before Ho revoked
consent. Cooper, 949 F.2d at 744. Instead, the question is
7
Officer Simone testified:
Q. Officer, isn't it true that you examined the card
and noticed the magnetic strip on the card after he
attempted to pull it away and after you regained control
of it?
A. When I first found the card is when he tried to pull
it away, after I regained control of the folder is when
I looked at it and found the magnetic strip on the rear
of it.
Q. So, before he tried to pull it away, all you saw,
the front of the card?
A. It was a totally blank white card.
* * *
Q. Before you tried to controlled [sic] it, all you saw
was a blank credit card?
A. That's correct.
Q. A blank piece of plastic?
A. Size and shape of a credit card; correct.
Tr., at 20-21.
8
Officer Simone testified:
Q. Whenever Mr. Ho pulled the portfolio back from the
position when you examined and you already discovered the
white piece of plastic, did you have probable cause in
your mind to seize the credit card?
A. Yes, I did.
Tr., at 23.
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whether "the totality of facts and circumstances within [his]
knowledge at the moment of [revocation we]re sufficient for a
reasonable person to conclude that [Ho] had committed or was
committing an offense." Wadley, 59 F.3d at 512. We can agree that
the record supports a legal conclusion that a reasonable person
with Officer Simone's knowledge and experience would have had some
suspicion--as distinguished from probable cause to believe--that
the white piece of plastic was fraudulent before Ho's revocation of
consent.
A review of Officer Simone's testimony as a whole reveals in
the clearest tones the importance of the magnetic strip to his
determination that the card was fraudulent. On direct examination
by the government, Officer Simone testified:
Q. When you noticed the small white plastic card you
found, did you know what that was, from your experience
as a police officer?
A. In the past I encountered those cards and cards like
that one, which were blank, had the magnetic strips on
the rear of them. And they were later determined to be
fraudulent credit cards.
Tr., at 11 (emphasis added). Crucially, this testimony reveals the
specific factors, based on Officer Simone's experience, which would
warrant a conclusion that the card was fraudulent. On cross-
examination, he testified:
Q. Isn't it true, an examination of the card, after the
brief struggle where you saw the magnetic strip,
indicated to you that this was contraband?
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A. That's correct.
Q. All that occurred after he made it clear he was not
consenting to this search?
A. When I first located the card, it was obvious it was
some type of contraband or something, that is when I
controlled the folder.
* * *
Q. It was the examination of the metal strip after that
was the indication that this was --
A. Well, in the past I had encountered cards the same
size and shape that were, in fact, fraudulent, saw the
card, I suspected it was a fraudulent credit card.
Tr., at 21-22 (emphasis added). Although Officer Simone made an
effort to backpedal after admitting that it was the discovery of
the magnetic strip that led him to believe that the plastic card
was fraudulent, he still could say nothing more specific than that
"it was obvious it was some type of contraband or something" and
that he "suspected" it was fraudulent. Furthermore, Officer
Simone testified that his arrest report indicated that he knew the
card was fraudulent only after discovering the magnetic strip:9
Q. In your report, isn't it true when you detailed the
events of the day, you say after gaining control of the
folder you examined the card, you noticed the magnetic
strip on the rear and this indicated to you this card was
of a fraudulent nature?
A. That's correct.
9
The police report is not a part of the record.
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Tr., at 21-22. He did not deny, back away from or attempt to
explain this critical admission. Thus, taken as a whole, Officer
Simone's testimony dictates the legal conclusion that the discovery
of the magnetic strip after Ho revoked his consent was an essential
element of the probable cause determination for an officer with
Officer Simone's knowledge and experience.
Other factors also buttress the conclusion that a reasonable
person with Officer Simone's knowledge and experience would not
have had probable cause to believe that criminal activity was afoot
when Ho revoked his consent. First, the government, on whom the
burden was placed to justify this warrantless search, Roch, 5 F.3d
at 897, presented no explanation why a white plastic card the size
and shape of a credit card in a portfolio, standing alone, is
sufficient to give a reasonable person probable cause to believe
that it is a fraudulent credit card. The absence of evidence on
this point is especially striking in the light of the ubiquity of
plastic “swipe” cards in our modern society--for locks on hotel
room doors, office buildings, gates and garages, telephones and
check cashing--which often are plain on one side. Second, the
government elicited almost no testimony from which to gauge the
extent of Officer Simone's knowledge and experience in the area of
credit card fraud. In fact, the government presented no
information about his career other than his service in the
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Narcotics Interdiction Unit at the time of the arrest. Third, as a
member of the Narcotics Unit, Officer Simone was on the lookout for
drugs and not counterfeit credit cards.10 In the same vein, it is
also clear, based on Ho's encounter with Officer Simone the
previous day, that Officer Simone suspected Ho of drug trafficking,
not credit card fraud; in other words, there was no predicate
background in the investigation to support the criminal character
of the card. Fourth, Officer Simone did not arrest Ho until after
he regained control of the portfolio and actually discovered the
magnetic strip on the back of the card.
IV
We emphasize that probable cause is more than a "bare
suspicion" of wrongdoing. Viewing the record as a whole, we are
convinced that the government did not satisfy its burden of proving
that a reasonable person with Officer Simone's knowledge and
experience would have had probable cause to arrest Ho when Ho
revoked consent based on the totality of facts and circumstances
within Officer Simone's knowledge at that time. The arrest being
unlawful, it follows that all evidence obtained pursuant to the
search incident to that arrest, including the search immediately
10
We think this distinction is important because the piece of
plastic would have had much less immediate criminal significance to
a reasonable person with the knowledge and experience of an officer
whose day-to-day activities focused on investigating illegal drug
trafficking.
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prior to the arrest, is inadmissible as the fruit of an unlawful
search.11 Wadley, 59 F.3d at 512. We therefore REVERSE the
district court's ruling on the motion to suppress, VACATE Ho's plea
of guilty, and REMAND for further proceedings not inconsistent with
this opinion.
REVERSED, VACATED and REMANDED.
RHESA HAWKINS BARKSDALE, Circuit Judge, dissenting:
11
In the alternative, the government argues for the first time
on appeal that exigent circumstances justified the continued search
of Ho's portfolio after Ho revoked his consent because Ho was about
to leave on the flight to Los Angeles. The government relies
primarily on the Second Circuit's decision in United States v.
Smith, 643 F.2d 942 (2d Cir.), cert. denied, 102 S.Ct. 350 (1981).
The court in Smith held that exigent circumstances justified the
warrantless search of an airplane passenger's bag because "Smith
was about to leave with the evidence in hand on the flight." 643
F.2d at 945. Unlike this case, however, the search in Smith was
supported by probable cause. Id. Because the government did not
have probable cause before Ho revoked his consent, exigent
circumstances did not justify the subsequent warrantless search of
Ho.
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My dissent rests on three bases: the consent revocation pre-
probable cause issue the majority finds dispositive was not
preserved in district court; Officer Simone had probable cause to
arrest Ho before consent revocation; and, at the very least, the
white plastic card seen, and possibly seized, by the Officer
before revocation is admissible. At a minimum, this case should
be remanded for further fact finding on the suppression
questions.
I.
The majority starts in the right direction by agreeing with
the district court that Ho consented to the search of his
portfolio. And, it concludes that he did not revoke that consent
until after Officer Simone had seen, in its words, the front of
“a blank, white plastic card the size and shape of a credit
card.” These crucial rulings are determinative of the newly
raised issue embraced by the majority. Unfortunately, it takes a
wrong turn.
II.
This appeal presents yet another instance of a sizeable
expenditure of all too scarce judicial resources because a
suppression issue is being raised for the first time on appeal.
This new issue should have been resolved initially in district
court, where evidence is presented and tested, instead of here,
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where the majority has to base its holding, in part, on its own
experience with the use of plastic cards. As oft stated, this is
no way to run a railroad; nor is it any way to run our judicial
system. In short, the newly raised issue should be reviewed only
for plain error.
In the alternative, probable cause existed to arrest Ho at
the instant of consent revocation, thereby permitting the seizure
of the challenged evidence. In the further alternative, because
the blank plastic card had been seen, and possibly seized, before
revocation, it is admissible.
A.
The majority states that “[t]he sole issue addressed in this
Fourth Amendment warrantless search and seizure case is whether
the police officer had probable cause to arrest Al Dac Ho before
Ho revoked his voluntary consent to search his portfolio”
(revocation pre-probable cause). But, this is an alternative
claim, presented for the first time on appeal.
First, Ho asserts, as in district court, that he did not
consent at any point. The majority easily rejects this claim.
Ho’s alternative position -- revocation pre-probable cause -- was
not preserved in district court. Accordingly, we should review
only for plain error. There is none.
1.
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As detailed by the majority,
[a] defendant normally bears the burden of
proving by a preponderance of the evidence
that the challenged search or seizure was
unconstitutional. In a case such as this
one, however, in which the officer acted
without a warrant, the government bears the
ultimate burden of proving that the officer
had probable cause.
(Citations omitted.) But, obviously, the Government’s burden is
framed by the suppression issue(s) presented by the defendant to
the district court. See United States v. Alvarado-Saldivar, 62
F.3d 697, 699-700 (5th Cir. 1995) (reviewing for plain error
factual issue raised for first time on appeal from denial of
suppression motion, and noting that where defendant failed to
develop factual basis, make argument, or secure ruling by
district court on that issue, there is no basis for appellate
court to do so), cert. denied, ___ U.S. ___, 116 S. Ct. 742
(1996); United States v. Maldonado, 42 F.3d 906, 909-12 (5th Cir.
1995) (reviewing for plain error issue raised for first time on
appeal from denial of suppression motion and noting that district
court did not address issue because it was not presented); United
States v. Basey, 816 F.2d 980, 993 (5th Cir. 1987) (refusing to
consider merits of ground for suppression raised at trial but not
in pretrial motion to suppress).
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Simply put, in contesting a suppression motion, the
Government is not required to advance and disprove every possible
basis on which the defendant might demonstrate an unreasonable
search or seizure. See Maldonado, 62 F.3d at 912 (if defendant
had presented in district court issue raised for first time on
appeal, testimony could have been taken, argument could have been
received, and district court could have ruled on issue); see also
United States v. Neumann, 887 F.2d 880, 886 (8th Cir. 1989) (en
banc) (declining to review ground for suppression urged on appeal
that was neither presented to, nor ruled upon by, district court,
and stating that “[i]f [defendant] had raised this ground by way
of pretrial motion, the district court could have determined the
reasonableness of the search and seizure ... [and] the government
could have ... attempted to justify the seizure” under an
exception to the warrant requirement), cert. denied, 495 U.S. 949
(1990).
This is one of several obvious reasons why a motion to
suppress evidence “must be raised prior to trial”. FED. R. CRIM.
P. 12(b)(3). Failure to do so “constitute[s] waiver”. FED. R.
CRIM. P. 12(f). See United States v. Harrelson, 705 F.2d 733,
738 (5th Cir. 1983) (“[f]ailure to move pre-trial for
suppression, or to assert a particular ground in the suppression
motion, operates as a waiver unless the district court grants
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relief for good cause shown”); United States v. Knezek, 964 F.2d
394, 397 (5th Cir. 1992) (“[a] district court does not abuse its
discretion under Rule 12(f) in denying a suppression motion
solely on the ground that the defendant failed to comply with
pretrial procedures”); United States v. Schwartz, 535 F.2d 160,
163 (2d Cir. 1976) (“failure to assert a particular ground in a
pre-trial suppression motion operates as a waiver of the right to
challenge the subsequent admission of evidence on that ground”),
cert. denied, 430 U.S. 906 (1977).
Along this line, the district court’s local rules in effect
when the motion was filed required that “[a]ll motions except
those made during a hearing or trial which is being properly
recorded into the court record shall be made in writing.” UNIF.
LOCAL RULES OF THE UNITED STATES DISTRICT COURTS FOR THE EASTERN, MIDDLE, AND
WESTERN DISTRICTS OF LOUISIANA 2.04E (1995). Those rules required
further that motions be accompanied by a memorandum containing
“(1) a concise statement of reasons in support of the motion, and
(2) citations of the authorities on which [the movant] relies or
copies of these authorities.” UNIF. LOCAL RULES OF THE UNITED STATES
DISTRICT COURTS FOR THE EASTERN, MIDDLE, AND WESTERN DISTRICTS OF LOUISIANA
2.05 (1995).
Likewise, we do not require, nor can we expect, district
judges to be mindreaders, or to conjure issues that might, or
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should, have been raised. See United States v. Rodriguez, 15
F.3d 408, 417 (5th Cir. 1994) (internal quotation marks and
citation omitted) (“one of the obvious, and most salutary,
purposes of the plain error rule is to enforce the requirement
that parties object to errors at trial in a timely manner so as
to provide the trial judge an opportunity to avoid or correct any
error, and thus avoid the costs of reversal”); see also McCoy v.
Massachusetts Institute of Technology, 950 F.2d 13, 22 (1st Cir.
1991) (“Overburdened trial judges cannot be expected to be mind
readers. If claims are merely insinuated rather than actually
articulated in the trial court, we will ordinarily refuse to deem
them preserved for appellate review.”), cert. denied, 504 U.S.
910 (1992); Paterson-Leitch Co. v. Massachusetts Mun. Wholesale
Elec. Co., 840 F.2d 985, 990 (1st Cir. 1988) (party has duty “to
spell out its arguments squarely and distinctly ... [rather than
being] allowed to defeat the system by seeding the record with
mysterious references ... hoping to set the stage for an ambush
should the ensuing ruling fail to suit”); Beaudett v. City of
Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985) (appellate courts
should not permit “fleeting references to preserve questions on
appeal”), cert. denied, 475 U.S. 1088 (1986).
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It is against this backdrop that this record must be
reviewed carefully to determine whether the revocation pre-
probable cause issue was properly preserved in district court.
The majority obviously concludes that it was; it states that,
[a]t the conclusion of the [suppression]
hearing, counsel for Ho argued that even if
Ho had consented to the search, he
effectively withdrew that consent by
attempting to retrieve the portfolio from
Officer Simone before the officer had
probable cause to continue the search without
Ho’s consent and without a warrant.
While this may have been what Ho’s counsel was thinking, or
intended to say, or was moving toward saying, this is not what he
said, as hereinafter shown in numbing, but nonetheless necessary,
detail.
Ho’s motion and supporting memorandum never mention the
revocation pre-probable cause issue. Instead, those district
court papers assert that “one of the officers took the small
portfolio from Mr. Ho”, and that the Officer then
opened the portfolio without permission and
rifled through its contents. Once in the
office, the officer thoroughly searched
everything in the portfolio. Never was
permission to search asked for, nor given.
Those papers then stated: (1) that, “[w]ithout a warrant to
search Mr. Ho’s portfolio and in the absence of probable cause
and exigent circumstances, the validity of the search depends on
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Mr. Ho’s purported consent”; (2) that “[i]t is the government’s
burden to prove consent; numerous Supreme Court cases have held
that to show that consent was voluntary it is insufficient for
the prosecution to prove a mere submission to a claim of lawful
authority”; and (3) that, because he was detained by the officers
and not free to leave, Ho “could not and did not consent to a
search of his portfolio; at best he merely acquiesced in the face
of a show of authority. At worst, the portfolio was simply taken
from him.”
The Government’s response stated that, on the day of the
arrest, Ho was at the departure gate; and that,
[n]oting that the plane was due to leave at
any moment, Lt. Simone requested consent to
search HO once again. HO freely gave his
consent. As Officer Simone was searching the
small leather folder he had observed in HO’s
possession on the previous day, he found a
blank white plastic card with a magnetic
strip on one side. Immediately after Officer
Simone located the blank white plastic credit
card, HO grabbed the leather folder out of
Simone’s hands. From his experience, Simone
knew the white plastic card to be a
counterfeit credit card.
(Emphasis added.) In short, prior to the suppression hearing, it
was the Government that presented the subject of consent
revocation.
In its response, the Government addressed the factors for
determining whether the consent was given voluntarily, and urged
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that, “[o]nce contraband was found in Ho’s possession, the
officers had probable cause to arrest” Ho, and that the search
incident to the arrest, in which the additional contraband was
found, was proper.
Ho did not file a reply to the Government’s response.
Therefore, proceeding into the hearing, the only basis he had
raised for challenging the search and seizure was that he had not
consented at any point. As noted, the Government’s response
surfaced the fact that Ho revoked his consent during the search,
but the more narrow issue -- that of revocation pre-probable
cause -- was not before the district court at the start of the
hearing.
Prior to the start of testimony at the hearing, Ho did not
alert the district court to this issue, either in writing or
orally. Officer Simone, then Ho, testified. As developed by the
majority, the Officer stated on cross-examination that he found a
magnetic strip on the back of the card after Ho tried to regain
the portfolio. The Officer then testified that, “[w]hen [he]
first located the card, it was obvious it was some type of
contraband or something, that is when I controlled the folder”,
and admitted that, before then, “[all] he saw was a blank credit
card”. He denied that it was only upon seeing the magnetic strip
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that he thought the card was fraudulent. On redirect, the
following colloquy ensued:
Q [Ho’s counsel] asked you questions about
when Mr. Ho pulled his portfolio back
from you. When you were going through
the portfolio and discovered the white
piece of plastic, did you know at this
time before he pulled it back that that
was a fraudulent credit card?
A When I removed it from the folder, I
suspected that it was.
Q Whenever Mr. Ho pulled the portfolio
back from the position when you examined
and you already discovered the white
piece of plastic, did you have probable
cause in your mind to seize the credit
card?
A Yes, I did.
Ho testified on direct examination that, when he was about
to board his return flight to Los Angeles,
Officer Simone came up to me[,] grabbed me
from behind and just grabbed my folder. I
said, give that back to me. He said come
with me and I said, my flight is leaving
right now. He said, Come with me or -- this
is exactly -- or I’ll fuck you up right here.
Ho denied that he gave consent in any shape, form or fashion.
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Following Ho’s testimony, the court questioned Officer
Simone:
Q ... Describe to me the paraphernalia
that you identified as being stuff that
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would be used for fixing up a credit
card?
A The best way I can describe it, show you
a credit card and the piece of plastic
is the same exact size and shape as a
credit card and with no writing or
nothing of that nature on it. On the
rear of it it has a magnetic strip, just
like a credit card would.
Q How many of those did you see in his
portfolio?
A He had just one card, just one blank
one, totally blank. In other words, if
I recall correctly, it was all filled
out like a regular card with no
indication it was fraudulent until the
second officer identified it as a
fraudulent card.
Q Now, without going into any other detail
because I don’t guess it really is
pertinent, was there anything else in
that portfolio as you described it, that
caused your curiosity to arise or signal
to you in some way this was something
that could be perceived to be an
impropriety of some kind?
A Not immediately. It was just the one
blank card.
Among other things, the court questioned the Officer about
other officers (two) assisting him that day, including their
participation and proximity to Ho. The Officer testified that
the two officers would have heard his conversation with Ho.
Argument was then presented. The Government stated that a
credibility call was at hand -- it advanced consent and search
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26
incident to arrest, Ho advanced “abusive police officers beating
up on an innocent man.” The Government noted also that, when the
Officer searched the portfolio, he “look[ed] at the white credit
card, only [saw] the front. He recognizes it as a counterfeit
credit card. Ho knows he has been had, tries to pull it back.”
It reminded the court that “[t]he officer did testify at the
point he saw just the plain white credit card, from his
experience, he knew it was a counterfeit credit card and had
probable cause to arrest [Ho] at that time.” It did not mention
the interplay of the later observed magnetic strip.
Ho’s counsel argued that, even accepting the Officer’s
version as true, the Government lost, because the Officer did not
have probable cause to arrest. As Ho’s lawyer was apparently
beginning to address the issue of consent, the court interjected
that this was why he had questioned Officer Simone, and that he
was “interested in events of the second day [day of arrest] as
they have to do with either a verbal confrontation or physical
confrontation. And that is what is sort of on my mind here.
That and only that.”
Ho’s attorney responded that he did not concede consent, but
the court interjected that it found Ho’s version “implausible”.
It stated that it was “concerned about the actual event of the
taking over of the portfolio”, and that it was concerned that the
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other two officers at the scene had not testified in support of
Officer Simone’s version.
As the hearing was ending, the following key colloquy
ensued:
THE COURT: I find [Officer Simone’s version]
to be quite credible. The only problem I
have with it is the actual momentary hopping
of what took place the second day. Putting
into my own consideration of it, what
obviously was pretty exceptional procedure of
the officer not to be at least somewhat
concerned about the fact that here is this
guy again. I can see how he may have been a
little fire in his eye as far as what is
going on the second day now. And the thing
that is concerning me is, I don’t find Mr.
Ho’s story plausible. I also am concerned
about the actual event of the taking over of
the portfolio. It’s just something I have
got to think about. And I will. It’s sort
of after the fact, but if -- and certainly is
clear to both counsel on both sides -- that I
guess if not concerned, at least giving some
thought to the fact that the other two
officers who could have supported the events
of the second day as they had to do with the
turning over or not of the portfolio on the
voluntary basis are not here. But I’m going
to take that as I find it. I’ve got to say
that is going to play some part in my
deliberations about the matter.
[Ho’s counsel]: I understand your concern.
If I may, one final point. While we
absolutely don’t concede the initial consent,
giving the portfolio, according to Officer
Simone, once he opened the portfolio, at this
point he saw a plain piece of plastic. It
was at that point when Mr. Ho tried to grab
the portfolio back. It is accepted doctrine
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of withdrawal of consent. That was an
unequivocal act.
THE COURT: I understand that. I think it is
in order for to you [to] point that out to
me. I take it in to consideration as well.
(Emphasis added.)
Of critical importance to whether the revocation pre-
probable cause issue was preserved is the fact that, although at
the end of the hearing, Ho’s counsel mentioned “withdrawal of
consent”, which the district court noted was “point[ed] ... out”,
Ho’s counsel did not identify, much less discuss, the point found
dispositive by the majority -- that when consent was withdrawn,
the Officer did not have probable cause to arrest, much less that
probable cause was lacking because the Officer had not then seen
the magnetic strip. True, as noted supra, the Government in its
argument had urged probable cause at the time of revocation; but,
again, the magnetic strip factor had not been mentioned.
Contrary to the majority’s view, presented in its note 2, the
emphasized portions of the above quotation do not reflect that
the narrow issue found dispositive by the majority was either
presented to, or acknowledged by, the district court.
Surely, it was not incumbent upon the Government to present
that newly surfaced point, a point so lost among the competing
and shifting versions about consent that Ho’s counsel didn’t
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29
mention it. Nor does the record contain any post-hearing follow-
up by Ho’s counsel, such as a supplement to the motion, advancing
the issue he presses here for the first time -- revocation pre-
probable cause because the magnetic strip had not been seen.
That the issue at hand was not presented adequately to the
district court is amply demonstrated by its one-paragraph order
denying the suppression motion. It stated in pertinent part:
The government presented the testimony of one
of three officers present at the time of the
alleged illegal search. This officer
testified that the defendant consented to the
search of the portfolio where the contraband
was found. [Ho] testified that the officer
grabbed the portfolio from him and rifled
through it without his consent. No other
witnesses testified. Neither of the other
officers present at the search was called to
testify as to the circumstances of the
search, which perhaps calls into question the
management of this case by the government.
Nevertheless, considering the substance of
the testimony offered and the credibility of
the witnesses, this court is compelled to
deny the motion.
In sum, the order addresses only Ho’s contention that he
never consented to a search. The court did not address the far
more narrow revocation pre-probable cause issue. And, subsequent
to the order, Ho’s counsel did not move the court to reconsider
on the basis of this more narrow issue. He did not raise this
issue until it was presented for the first time on appeal as an
alternative position.
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30
On appeal, the Government acknowledges that it had the
burden to prove voluntary consent and urges that Ho so consented
to the portfolio search. It agrees that, upon giving consent, Ho
was free to withdraw it, but maintains that Ho could not
retroactively do so once the contraband was found. It then urges
that, when Ho did attempt to regain the portfolio, the Officer
had seen the card and probable cause to arrest Ho existed.
The Government does not contend, however, that the
revocation pre-probable cause issue was not raised in district
court. But, this does not preclude our exploring this sua
sponte. See Maldonado, 42 F.3d at 912 & n.9 (reviewing issue
raised for first time on appeal from denial of motion to suppress
for plain error even though Government did not contend that issue
was not raised in district court); United States v. Pierre, 958
F.2d 1304, 1311 n.1 (5th Cir.) (en banc) (“The government’s
failure to argue the correct standard of review on appeal does
not ... prevent us from measuring the argument against the
appropriate standard of review”), cert. denied, 506 U.S. 898
(1992); United States v. Vontsteen, 950 F.2d 1086, 1091 (5th
Cir.) (en banc) (“no party has the power to control our standard
of review”; if neither party suggests the appropriate standard,
the reviewing court must determine the proper standard on its
own), cert. denied, 505 U.S. 1223 (1992).
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31
As has been stated repeatedly, we require issues to be
developed in district court and not be presented for the first
time on appeal. Issues must be framed adequately and developed
factually, with supporting analysis of the concomitant points of
law, for the trier of fact, the entity making the all-important
credibility choices, which choices invariably arise on motions to
suppress, so that the legal precedent can be presented and
supplemented if necessary; so that, for reasons of fundamental
fairness, one side is not ambushed or sandbagged; and so that
judicial efficiency and economy are not sacrificed by requiring
issues to be sent back to district court to be developed more
fully. See, e.g., United States v. Calverley, 37 F.3d 160, 162
(5th Cir. 1994) (en banc) (internal quotation marks and footnote
omitted) (the rule that failure to assert a right in the trial
court likely will result in its forfeiture “is founded upon
considerations of fairness to the court and to the parties and of
the public interest in bringing litigation to an end after fair
opportunity has been afforded to present all issues of law and
fact”), cert. denied, ___ U.S. ___, 115 S. Ct. 1266 (1995);
United States v. Rodriguez, 15 F.3d at 417 (internal quotation
marks and citation omitted) (“one of the obvious, and most
salutary, purposes of the plain error rule is to enforce the
requirement that parties object to errors at trial in a timely
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32
manner so as to provide the trial judge an opportunity to avoid
or correct any error, and thus avoid the costs of reversal”).
2.
The district court’s finding that the Government met its
burden of proving voluntary consent is reviewed only for clear
error. E.g., United States v. Gonzales, 79 F.3d 413, 419 (5th
Cir. 1996). And, had the probable cause issue been properly
preserved in district court, that issue would be reviewed de
novo. Ornelas v. United States, ___ U.S. ___, 116 S. Ct. 1657,
1659 (1996).
But, when, as here, an issue is raised for the first time on
appeal, we review only for plain error. FED. R. CRIM. P. 52(b);
United States v. Calverley, 37 F.3d at 162-64. In doing so, we
analyze four increasingly familiar factors. United States v.
Olano, 507 U.S. 725, 732 (1993); Calverley.
First, there must be an “error”; “[d]eviation from a legal
rule is ‘error’ unless the rule has been waived.” Olano, 507
U.S. at 732-33. Second, the error must be “plain”; “‘[p]lain’
[is] synonymous with ‘clear’ or, equivalently, ‘obvious.’” Id.
at 734. Third, the error must “affec[t] substantial rights”, id.
(internal quotation marks omitted); “[n]ormally, although perhaps
not in every case, the defendant must make a specific showing of
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33
prejudice to satisfy the ‘affecting substantial rights’ prong of
Rule 52(b)”, id. at 735. The fourth, and final, factor concerns
an appellate court’s discretion; “[i]f the forfeited error is
‘plain’ and ‘affect[s] substantial rights,’ the Court of Appeals
has authority to order correction, but is not required to do so.”
Id. A plain forfeited error affecting substantial rights should
be corrected if the error “seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings.’” Id. at
736 (quoting United States v. Atkinson, 297 U.S. 157, 160
(1936)).
As concerns Ho, even assuming “error” that “affected
substantial rights”, the error was certainly not “plain” -- it
was not “clear” or “obvious”. The issue turns on very detailed,
quickly developed, temporal facts, and as our court has stated in
the past, “[f]or a fact issue to be properly asserted as plain
error on appeal, it must be one arising outside of the district
court’s power to resolve.” United States v. Alvarado-Saldivar,
62 F.3d at 700; see also Robertson v. Plano City of Texas, 70
F.3d 21, 23 (5th Cir. 1995) (“because the nature of the claimed
error is a question of fact, the possibility that such a finding
could rise to the level of obvious error required to meet part of
the standard for plain error is remote”).
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As noted, even if these first three factors are satisfied,
we still have discretion not to reverse. The district court’s
ruling certainly does not rise to the level of those that should
be corrected, those that go to the heart of what judicial
proceedings seek to ensure, accomplish, preserve and protect --
substantial and fundamental fairness.
To the contrary, in this instance, it is our judicial system
that has been abused. This narrow question of fact, which really
should not change the result reached by the district court,
should not be permitted to undo all that has been done in the
proceedings to date. Accordingly, because there is no plain
error, the suppression ruling should be affirmed.
B.
Even assuming the revocation pre-probable cause issue is not
being raised for the first time on appeal, there was probable
cause for Ho’s arrest at the time of revocation.
Faced with two conflicting versions of the incident, the
district court made its mandated credibility choice and accepted
Officer Simone’s version that Ho “consented to the search of the
portfolio where the contraband was found”, rather than Ho’s that
“the officer grabbed the portfolio from him and rifled through it
without his consent.” The majority concludes that this consent
finding was not clearly erroneous.
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After the Officer discovered the blank white credit card-
shaped plastic card, Ho revoked consent by trying to regain his
portfolio. The Officer retained control, looked at the back of
the card, saw the magnetic strip, and arrested Ho.
The majority holds that the Officer lacked probable cause to
arrest Ho when the Officer saw the card and Ho revoked consent.
It holds also that Officer Simone’s looking at the back of the
card after Ho tried to regain the portfolio was an unlawful
search because consent had been revoked and that, therefore, the
evidence found during the subsequent search should have been
suppressed.
The majority furnishes the standard for probable cause:
whether “the totality of facts and circumstances within [Officer
Simone’s] knowledge at the moment of [revocation we]re sufficient
for a reasonable person to conclude that [Ho] had committed or
was committing an offense.” United States v. Wadley, 59 F.3d 510,
512 (5th Cir. 1995). But, it misapplies this standard, which
involves subjective and objective components. Before reaching
the objective “reasonable person” component, the subjective
component must be considered -- “the totality of facts and
circumstances within Officer Simone’s knowledge”. Restated,
whether the Officer had probable cause to arrest Ho upon seeing
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36
the card and consent being revoked cannot be answered in
isolation from the surrounding circumstances.
The officers, including Simone, had conducted surveillance
the day before and had been alerted to Ho because he was walking
at an unusually fast pace when he deboarded his flight from Los
Angeles, even though it had arrived on schedule in New Orleans.
As Officer Simone testified, Ho was walking “very, very, fast,
extremely fast .... he looked like he was walking so fast he
almost start[ed] to jog”. More important, Ho carried only a
small portfolio and had not checked any luggage; he had bought a
one-way cash ticket; he claimed to be visiting friends for two
weeks, but could or would not name them; and he claimed that his
sister would be bringing his luggage on a later flight.
Officer Simone testified that, in response to Ho inquiring
why the officers were questioning him, they stated that they were
narcotics detectives and had noticed that he had arrived on a
flight from Los Angeles and was preparing to depart the airport
without any luggage. Ho granted their request to search his
portfolio; they found nothing of note.
The next morning (day of arrest), Officer Simone was
informed that Ho had purchased a one-way cash return ticket to
Los Angeles. Ho was at the airport that morning, although he had
said he would be in New Orleans for two weeks, and Officer Simone
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37
stopped him outside the gate area as the flight was starting to
board. Upon the Officer asking Ho why he was returning to Los
Angeles so soon, Ho explained that he had had a fight with his
sister and had decided to cut his trip short. Officer Simone
testified that Ho’s explanation “didn’t seem reasonable to me
that if he was visiting friends, why an argument with the sister
would cancel his entire plans.”
The district court found Ho’s story leading up to the search
to be implausible, and so, obviously, did Officer Simone.
Surely, this implausibility must be considered in assessing
probable cause. But, in evaluating the Officer’s subjective
knowledge, the majority fails to give adequate weight to these
critical surrounding circumstances, instead focusing narrowly on
the moment when he saw the card.
Even focusing on that moment, the majority underestimates
the probable cause for arrest at that point. It holds that
seeing the blank white front of the plastic card would not alone
establish probable cause; that it was established only after the
Officer saw the magnetic strip on the back, post-revocation.
But, as the Officer testified, when he “first located the
card, it was obvious that it was some type of contraband”; at
that point, all he saw was a blank piece of plastic the size and
shape of a credit card. The Officer testified that, when he
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noticed the card, he knew what it was from his experience as a
police officer because, “[i]n the past [he had] encountered those
cards and cards like that one, which were blank, had the magnetic
strips on the rear of them. And they were later determined to be
fraudulent credit cards.”
The fact that the card was blank indicated to the Officer
that it was contraband; and, even though the magnetic strip
supported his opinion, this does not diminish the existence of
probable cause upon the Officer’s seeing the card’s blank front
in those circumstances. At that moment, he thought he had
probable cause; and, the totality of the facts and circumstances
in light of his subjective knowledge were more than sufficient
for a reasonable person to reach the same conclusion.
The majority takes judicial notice of the ubiquity of
plastic “swipe” cards in modern society; but, contrary to its
concerns, I likewise take judicial notice that these cards are
very, very seldom, if ever, blank on one side; they typically
bear some type of marking. (This intra-panel judicial
notice/fact dispute is yet another splendid example of why issues
must be timely presented to the fact finder, so that they can be
hashed out and resolved after both sides have an opportunity to
put on evidence, and so that appellate courts don’t have to grasp
at judicial notice straws, or in this instance, plastic cards.)
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Whereas it would be most unusual for such a card to be
completely blank, the fact that all the “swipe” cards mentioned
by the majority would have a magnetic strip indicates that the
“total blankness” of one side of a card of this type and shape
arouses more suspicion than a magnetic strip on the other.
Moreover, in light of the Officer’s testimony that he found
nothing of note in the portfolio when he searched it the previous
day, it is obvious that the card was not then in the portfolio.
This fact, when considered with the other circumstances,
including the Officer’s past encounters with fraudulent credit
cards, and Ho’s implausible explanation of why he was leaving
after only one day, after an almost 2,000-mile flight, when he
initially told officers that he planned a two-week visit,
supports a conclusion that the Officer had probable cause before
seeing the magnetic strip. Accordingly, I must disagree with the
majority that Officer Simone had probable cause only upon later
seeing the strip.
The majority unfairly criticizes the Government for failing
to elicit testimony from which to gauge the extent of Officer
Simone’s knowledge and experience in the area of credit card
fraud. We have come full circle; we are back to why Ho was
required to present the revocation pre-probable cause issue.
Because Ho did not raise that issue in district court, the
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Government had no reason to anticipate that such testimony would
become critical when the issue was later raised for the first
time on appeal. See Maldonado, 42 F.3d at 912 (“[T]he district
court ruled on the issues presented it. Had the [revocation pre-
probable cause] issue been presented, testimony could have been
taken, and argument received, on that issue; and the district
court would have dealt with it.”)
Along that same line, the majority posits that, because
Officer Simone was a member of the narcotics unit, whose day-to-
day activities focused on investigating illegal drug trafficking,
the plastic card would have had much less immediate criminal
significance to him. Again, because Ho did not raise the issue
in district court, the Government was not on notice that
testimony about the Officer’s experience with credit card fraud
was necessary. Nevertheless, he testified on direct examination
that, “[i]n the past I encountered those cards and cards like
that one, which were blank, had the magnetic strips on the rear
of them. And they were later determined to be fraudulent credit
cards.” And, on cross-examination, he testified that, “in the
past I had encountered cards the same size and shape that were,
in fact, fraudulent, saw the card, I suspected it was a
fraudulent credit card.” The majority states, again most
unfairly, that the Officer was “mak[ing] an effort to backpedal”
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in his testimony; but, the absence of further development of this
subject is explained by Ho’s failure to raise the issue. The
majority demands an impossible burden of proof from the
Government by requiring it to anticipate and present evidence on
an issue that was not raised in district court.
The circumstances of the encounter, in conjunction with
Officer Simone’s subjective knowledge of such blank cards being
counterfeit credit cards, meet the objective test for a
reasonable person to find probable cause for Ho’s arrest. See
Wadley, 59 F.3d at 512.
C.
It is well to remember that the Fourth Amendment protects
only against “unreasonable” search and seizure; obviously, Ho’s
consent lowered the protections offered by that Amendment. See,
e.g., Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973)
(consent is “one of the specifically established exceptions to
the requirements of both a warrant and probable cause”). Toward
that end, even assuming arguendo both that the revocation pre-
probable cause issue was raised in district court, and that
Officer Simone did not have probable cause to arrest Ho as of
consent revocation, the white blank card seen by that time by the
Officer is admissible in evidence nevertheless, even if the other
items in the portfolio are not. (Surely, even if the card is not
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42
admissible, Officer Simone will at least be able to testify at
trial about the front of the card he observed before consent
revocation.) The majority in its note 3 sidesteps whether at
least the card is admissible, stating that it is unnecessary to
reach this issue, even though it cites Mason v. Pulliam, 557 F.2d
426 (5th Cir. 1977), in discussing the case primarily relied upon
for this point by the Government, United States v. Jachimko, 19
F.3d 296 (7th Cir. 1994).
We need not look beyond Mason to know that, because the
Officer saw the card prior to consent revocation, the card is
admissible. Mason granted an IRS agent’s request to remove and
examine Mason’s business records. Several days after the agent
obtained the records, he refused Mason’s demand for their return.
Our court affirmed returning Mason’s records and all copies
made after the demand for return. Noting that consent can be
limited, qualified, or withdrawn, it rejected the agent’s
contention that, when Mason permitted him to take the papers for
examining and copying, Mason waived forever his Fourth Amendment
rights and any underlying reasonable expectations of privacy.
Id. at 428. Our court held, however, that Mason’s withdrawal of
consent and reinvocation of his Fourth Amendment rights did “not
affect the validity of [the agent’s] actions prior to the time he
received notice that his right to retain Mason’s papers was
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43
gone.” Id. at 429. Accordingly, it held that “[t]he district
court correctly refused to require the return of copies made
prior to the demand by Mason’s attorney.” Id. This holding
applies to the card the Officer saw (and possibly seized, as
discussed infra) prior to Ho’s consent revocation. No more need
be said.
Even if we need to look beyond our circuit law to that of
others, Jachimko and the case upon which it relies provide a
sound basis for at least permitting the admission of the card.
The majority erroneously distinguishes Jachimko on three bases:
that there the illegal nature of the substance (marijuana plants)
was readily apparent, unlike that of the card; that “the
government acknowledges that Officer Simone must have established
probable cause of criminal activity at the time of the revocation
of consent in order to have seized the card”; and “that, on the
facts of this case, probable cause to justify seizure of the card
mirrors probable cause to arrest Ho.”
First, Jachimko and the case upon which it relies do not
turn expressly on obvious illegality of the item. In Jachimko,
an informant provided information to the DEA about persons
engaged in indoor marijuana cultivation, but did not know of
Jachimko’s involvement. The DEA supplied the informant with a
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44
recording device and an alert button after he arranged to
purchase marijuana plants from a suspect. The informant and the
suspect entered Jachimko’s house; upon the alert being activated,
the agents knocked on Jachimko’s door. He opened it, but tried
to close it when the agents identified themselves. After
arresting Jachimko and the suspect, the agents searched the house
and seized marijuana plants.
The district court granted Jachimko’s motion to suppress the
plants. The Seventh Circuit vacated and remanded for analysis
under the “consent once removed” doctrine, applicable when “the
agent (or informant) entered at the express invitation of someone
with authority to consent, at that point established the
existence of probable cause to effectuate an arrest or search,
and immediately summoned help from other officers.” Id. at 299
(internal quotation marks and citation omitted).
Because the case was remanded, the court commented also on
Jachimko’s consent revocation contention, noting that, “if
Jachimko attempted to withdraw his consent after [the informant]
saw the marijuana plants, he could not withdraw his consent.”
Id. (emphasis added). In support, it relied on its decision in
United States v. Dyer, 784 F.2d 812 (7th Cir. 1986).
After Dyer consented to his luggage being searched, agents
discovered a box. When asked what was in it, Dyer responded that
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it was an automobile part, and gave permission to open the box.
Inside, an agent found another box. Without asking for further
consent, the agent opened the second box; inside was a can in
which the agent found a clear plastic bag containing cocaine.
On appeal, Dyer asserted that his consent extended only to
his luggage and the first box, and not to the second box
containing the cocaine. The Seventh Circuit held that, “where a
suspect does not withdraw his valid consent to a search for
illegal substances before they are discovered, the consent
remains valid and the substances are admissible as evidence.”
Id. at 816. The admissibility of Ho’s plastic card is confirmed
by the Seventh Circuit cases.
In the alternative, even if Jachimko and Dyer turn on the
obvious illegality of the item, that does not make them
distinguishable. Officer Simone testified that, “[w]hen [he]
first located the card, it was obvious it was some type of
contraband or something”, and denied that it was only upon
finding the magnetic strip that he thought the card was
fraudulent.
As for the second area of disagreement on this seen before
revocation subissue, unlike the majority, I do not read the
Government’s brief as “acknowledg[ing] that Officer Simone must
have established probable cause of criminal activity at the time
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of the revocation of consent in order to have seized the card.”
The Government asserts that, “once the contraband was found, Ho
could not then retroactively withdraw or limit the scope of the
search.” It then cites Jachimko, for its holding that, “where a
suspect does not withdraw his valid consent to a search for
illegal substances before they are discovered, the consent
remains valid and the substances are admissible as evidence.”
Jachimko, 19 F.3d at 299 (emphasis in original) (citing United
States v. Dyer, 784 F.2d at 816). Restated, Jachimko looks to
pre-consent revocation “discovery”, not pre-consent revocation
“seizure”. Following these statements, the Government does state
that, “at the time Ho attempted to grab the portfolio from
Officer Simone’s hands, Officer Simone already had probable cause
to suspect the card was fraudulent and to seize the card from
Ho’s possession.” I read this as an alternative basis for the
seizure, not as a further explanation of Jachimko.
Finally, the majority’s conclusion that, “on the facts of
this case, probable cause to justify seizure of the card mirrors
probable cause to arrest Ho” is erroneous for two reasons.
First, the evidence indicates that, before Ho revoked consent,
the Officer had already seized the card, by removing it from the
portfolio. The Officer testified on cross-examination that,
“[w]hen [he] first located the card, it was obvious it was some
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type of contraband or something, that is when I controlled the
folder.” (Emphasis added.) He was asked on redirect: “When you
were going through the portfolio and discovered the white piece
of plastic, did you know at this time before he pulled it back
that that was a fraudulent credit card?” The Officer responded,
“When I removed it from the folder, I suspected that it was.”
(Emphasis added.)
If, as this testimony indicates, the card was seized before
Ho revoked consent, the Officer did not need probable cause to
again seize it post-arrest. (Once again, it would have been
best, to say the least, for this fact issue to have been
clarified in district court. Doubtless, it would have been, had
the revocation pre-probable cause issue been properly raised.)
Accordingly, if Ho did not revoke his consent before the card was
seized by the Officer, his consent remains valid and the seized
card is admissible.
The second basis for my not agreeing that “probable cause to
justify seizure of the card mirrors probable cause to arrest Ho”
is because Ho’s consent dramatically alters the landscape. I am
not willing to concede that, when an item suspected to be illegal
is seen during a consent search, it is subject to post-consent
revocation seizure only if probable cause, as that term is
defined supra, existed to seize it when first seen. My research
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reveals no case on point. To the contrary, see, e.g., United
States v. Guzman, 852 F.2d 1117, 1122 (9th Cir. 1988) (“evidence
found before [consent] revocation will not be suppressed”). In
short, probable cause is not the gateway for the admission of
evidence found during a consent search. To so hold runs contrary
to applying the Fourth Amendment within its defining
“unreasonableness” standard.
III.
I would uphold the seizure, or at least the admissibility of
the white card seen (and possibly seized) before revocation of
consent. If nothing else, I would remand to reopen the
suppression hearing, so that evidence can be received on the
uncertain or missing facts, such as whether Officer Simone seized
the card before consent was revoked. Therefore, I respectfully
dissent.
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