United States v. Jackson

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
AUG 18 2004
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 03-2260

EVERETT GEROD JACKSON,

Defendant-Appellant.

Appeal from the United States District Court
for the District of New Mexico
(D.C. No. CR-03-771-JC)

Thomas B. Jameson, Assistant Federal Public Defender, Albuquerque, New
Mexico, for Defendant-Appellant.

Norman Cairns, Assistant United States Attorney (David C. Iglesias, United
States Attorney, with him on the briefs), for Plaintiff-Appellee.

Before TACHA, Chief Circuit Judge, LUCERO, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.
I. INTRODUCTION

Defendant-appellant Everett Gerod Jackson was indicted in the United

States District Court for the District of New Mexico for possession with intent to

distribute five-hundred or more grams of cocaine in violation of 21 U.S.C. §

841(a)(1), (b)(1)(B) and 18 U.S.C. § 2. Jackson filed a motion to suppress all the

evidence discovered during his March 24, 2003 encounter with a Drug

Enforcement Agency (“DEA”) agent. The district court denied the motion.

Jackson entered a conditional guilty plea to possession with intent to distribute

less than five-hundred grams of cocaine in violation of 21 U.S.C. § 841(a) and

(b)(1)(C). He was sentenced to fifty-seven months’ imprisonment.

Jackson appeals the denial of his motion to suppress. Exercising

jurisdiction pursuant to 28 U.S.C. § 1291, this court affirms Jackson’s

conviction.

II. BACKGROUND

On March 24, 2003, DEA agent Jarrell Perry obtained a Passenger Name

Record (“PNR”) from Amtrak which showed that Jackson had paid cash for a one-

way coach train ticket from Los Angeles, California to Akron, Ohio. Perry

testified that, based on his experience, he determined that Jackson’s travel

arrangements were consistent with those of drug couriers. As a consequence,

Perry approached Jackson on the Amtrak train when it stopped in Albuquerque,

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New Mexico. Perry identified himself as a DEA agent. Perry asked Jackson if he

would speak to him, and Jackson replied that he would. Perry asked Jackson if he

was carrying any contraband. Jackson replied that he was not. Perry asked

Jackson for consent to search his bag for contraband, including narcotics.

Jackson said “yes.”

Inside Jackson’s bag, Perry found a shaving kit. Within the kit was a

container of baby powder which bulged and appeared heavier and harder than

normal baby powder containers. Perry knew of other drug interdiction cases in

which baby powder containers were used to conceal powdered cocaine and

methamphetamine. Perry asked Jackson two or three times if he owned the baby

powder container, but Jackson did not respond. Perry could not look inside the

baby powder container without opening its top.

Perry had a Leatherman tool whose blade he kept clean, albeit not

surgically clean. Perry easily removed the lid with his Leatherman tool. The

container was filled with powder, some of which spilled onto the floor. 1 Perry

inserted the blade of his Leatherman tool into the baby powder container and felt

something hard. Perry moved some of the baby powder aside with the blade and

saw a clear plastic bag hidden inside the container. Perry testified that he saw a

1
Close to one tablespoon of baby powder was lost as a result of the initial
spillage and Perry’s subsequent insertion of his knife into the container. The
baby powder container had a twenty-two ounce capacity.

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white substance inside the submerged bag. The color and texture of the substance

was consistent with that of powdered cocaine. Perry testified that although he

“didn’t know for sure what was inside [the] baggy,” based on his training and

experience he believed that the plastic bag held narcotics. Perry testified that he

thought it was “very unlikely” that the inner bag contained something other than

narcotics. Throughout these events, Jackson stood a few feet from Perry, quietly

looking straight ahead.

Perry arrested Jackson and easily placed the lid back onto the container.

Jackson and the container were taken to the DEA’s office. At the office, Perry

cut off the top section of the baby powder container in order to remove the plastic

bag. The plastic bag was heat-sealed and contained another clear plastic bag.

The inner bag held the white powder. This method of packaging is consistent

with that used to smuggle narcotics. The plastic bag contained approximately

five-hundred grams of cocaine.

At the suppression hearing, the district court examined the baby powder

container. It found that despite Perry’s search, the lid could be placed back onto

the container and the container then worked as before. The court also found that

the loss of some of the baby powder from spillage was de minimis. It found that

Perry’s search of the baby powder container was within the boundaries of

Jackson’s consent.

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III. DISCUSSION

In reviewing the denial of a motion to suppress, this court views the

evidence in light most favorable to the government and accepts the district court’s

findings of fact unless clearly erroneous. United States v. Marquez, 337 F.3d

1203, 1207 (10th Cir. 2003). The district court’s conclusion that a search is

within the boundaries of a defendant’s consent is a factual finding that this court

reviews for clear error. United States v. Pena, 143 F.3d 1363, 1368 (10th Cir.

1998). The ultimate determination of reasonableness under the Fourth

Amendment, however, is reviewed de novo. Marquez, 337 F.3d at 1207.

A. Scope of Consent

The events which took place in the train did not violate Jackson’s Fourth

Amendment rights. The Fourth Amendment typically requires that law

enforcement agents obtain a warrant before conducting a search. Pena, 143 F.3d

at 1365-66. A warrant is not required, however, when the defendant consents to

the search. Id. “When law enforcement officers rely upon consent to justify a

warrantless search, the scope of the consent determines the permissible scope of

the search.” Marquez, 337 F.3d at 1207. Jackson consented to the search of his

carry-on bag. He argues, however, that the search of the baby powder container

in the train violated his Fourth Amendment rights because it exceeded the scope

of his consent.

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 The search of the baby powder container was within the scope of Jackson’s

consent to the search of his bag. The search of a container does not exceed the

scope of consent when, under the circumstances of the particular case, it was

objectively reasonable for the officer to believe that the scope of the suspect’s

consent permitted him to open the container. Marquez, 337 F.3d at 1207; see also

Pena, 143 F.3d at 1367-68. A defendant's failure to limit the scope of a general

authorization to search, and failure to object when the search exceeds what he

later claims was a more limited consent, is an indication that the search was

within the scope of consent. Marquez, 337 F.3d at 1208-09. The district court

found that the search of the baby powder container was within the boundaries of

Jackson’s consent. This finding is supported by the record. Agent Perry told

Jackson that he wanted to search the bag for narcotics. Jackson’s consent to the

search of his bag for narcotics could be reasonably construed as consent to search

any containers within the bag which could have held narcotics, such as the baby

powder container. See id. at 1208; United States v. Ramstad, 308 F.3d 1139,

1146-47 (10th Cir. 2002) (noting that where officer has indicated his intent to

search for drugs or contraband, a suspect's consent “certainly implies that the

officer could look wherever drugs might be hidden”). Furthermore, Jackson was

standing near Perry throughout the search but yet remained silent and did not

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object to the search of the baby powder container. Under such circumstances, the

search of the baby powder container was within the scope of Jackson’s consent.

Moreover, removing the lid of the baby powder container did not exceed

the scope of Jackson’s consent because it did not destroy or render the container

useless. “[B]efore an officer may actually destroy or render completely useless a

container which would otherwise be within the scope of a permissive search, the

officer must obtain explicit authorization, or have some other, lawful, basis upon

which to proceed.” United States v. Osage, 235 F.3d 518, 522 (10th Cir. 2000).

The district court examined the baby powder container. It found that the lid could

be placed back onto the container and that the container worked properly. The

container was neither destroyed nor rendered useless by Perry’s search, as it

remained capable of “performing its designated function.” Id. at 521. Likewise,

any loss or contamination of the baby powder by Perry’s search with his blade

was de minimis and well short of the type of “complete and utter destruction or

incapacitation” that was the focus of our concern in Osage. Id. at 522 n.2. Thus,

Perry’s opening of the baby powder container and manipulation of its contents

with his Leatherman blade while on the train did not exceed the scope of

Jackson’s consent.

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 B. Warrantless Search of the Container at the DEA’s Office

Jackson argues that the warrantless search of the container and its contents

at the DEA’s office violated his Fourth Amendment rights. He claims that the

plain view exception to the warrant requirement does not apply because Perry was

not certain that there was contraband inside the container. This argument is

unavailing.

The warrantless search of the baby powder container at the DEA’s office

was valid. A warrantless search of a legally seized container is invalid unless it

falls within one of the narrow and well-delineated exceptions to the warrant

requirement. Flippo v. West Virginia, 528 U.S. 11, 13 (1999); United States v.

Corral, 970 F.2d 719, 725 (10th Cir. 1992). A warrantless search can be

conducted if law enforcement agents see, within plain view, the contents of a

container and it is apparent or a “foregone conclusion” that such contents are

contraband. Corral, 970 F.2d at 725. “[W]here the police already possess

knowledge approaching certainty as to the contents of the container, the search of

the container does not unreasonably infringe upon the individual interest in

preserving the privacy of those contents.” Id. at 725-26.

The plain view exception to the warrant requirement applies to the search

which took place at the DEA’s office. When Perry first searched the container

pursuant to Jackson’s consent, he saw a white powdery substance inside a baggy

hidden within the baby powder container. Perry testified that, based on his
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training and experience, he thought it was very unlikely that the baggy contained

something other than narcotics. 2 Moreover, Perry knew that Jackson had paid for

his coach ticket in cash and was traveling from California to Ohio. Perry knew

that such travel arrangements were consistent with those of drug smugglers.

Perry knew that drugs are sometimes smuggled inside baby powder containers.

Under such circumstances, it was a foregone conclusion that the baby powder

container held drugs. As a consequence, the plain view exception applies to the

search of the baby powder container which took place in the DEA’s office.

C. Privacy of Information Disclosed by Amtrak

Jackson argues that Amtrak is a government agency whose disclosure to

Perry of the information surrounding his travel plans violated his rights under the

Privacy Act, 5 U.S.C. § 552a, and the Fourth Amendment. As a result, Jackson

argues, he is entitled to suppression of all the evidence seized during his

encounter with Perry.

Assuming, without deciding, that the Privacy Act can create a reasonable

expectation of privacy that could support suppression of evidence, Jackson’s

2
Jackson argues that this testimony demonstrates that Perry was not
absolutely certain that the container held narcotics. Therefore, Jackson argues, it
was not a foregone conclusion that the contents were contraband. Jackson
misreads the “foregone conclusion” standard. A “foregone conclusion” is
supported by the police’s “knowledge approaching certainty” that the contents of
the container are contraband. United States v. Corral, 970 F.2d 719, 725-26 (10th
Cir. 1992) (emphasis added). It is clear from our precedent that absolute certainty
is not required. Id. Jackson’s argument is therefore unavailing.
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argument fails because Amtrak is not an agency within the meaning of the Privacy

Act. The Fifth Circuit has held that Amtrak is not subject to the Privacy Act. See

Ehm v. Nat’l R.R. Passenger Corp., 732 F.2d 1250, 1251-53 (5th Cir. 1984).

Noting that Amtrak’s charter, 45 U.S.C. § 541, specifically provides that Amtrak

“will not be an agency or establishment of the United States Government,” the

Ehm Court held that Amtrak was not an “agency” within the meaning of the

Privacy Act. Ehm, 732 F.2d at 1252-53. In Lebron v. Nat’l R.R. Passenger

Corp., 513 U.S. 374, 392 (1995), the Supreme Court specifically noted that

Amtrak’s charter is dispositive of Amtrak’s status as a government entity for the

purposes of the Administrative Procedure Act because Congress controls whether

Amtrak is subject to the provisions of the statutes which it enacts. The Privacy

Act is part of the Administrative Procedure Act. 5 U.S.C. § 552a. As a

consequence, we find the Ehm Court’s reasoning persuasive and hold that Amtrak

is not a governmental agency within the meaning of the Privacy Act. Because the

Privacy Act does not apply to Amtrak, Jackson’s argument necessarily fails.

IV. CONCLUSION

For the foregoing reasons, this court AFFIRMS the district court’s

judgment.

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