United States v. Mendez

               IN THE UNITED STATES COURT OF APPEALS

                         FOR THE FIFTH CIRCUIT



                              No. 93-2528



UNITED STATES OF AMERICA,
                                                    Plaintiff-Appellant,

versus

JON MENDEZ,
                                                    Defendant-Appellee.



           Appeals from the United States District Court
                 for the Southern District of Texas


                            (July 12 1994)

Before REAVLEY, JONES and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:

     This is an appeal from an order granting a pretrial motion to

suppress   cocaine    discovered   during    a   post-arrest   search   of

appellee's suitcase at an airport.          A trained narcotics dog had

alerted to appellee's suitcase prior to his arrest and prior to the

search of his suitcase.       The district court found the arrest

illegal and the subsequent search tainted by the failure to give

Miranda warnings.      In addition, the district court granted the

appellee's motion to suppress all statements made by the appellee

subsequent to his arrest.     The government appeals these rulings.

We affirm in part and reverse in part.

                 I.    FACTS AND PROCEDURAL HISTORY

     On March 10, 1993, several Houston Narcotics Division police
officers positioned themselves in the lobby of the Hobby Airport to



observe persons leaving on TWA's 12:37 p.m. flight to New York.    At

the suppression hearing in the court below, Officer D. V. Luis, a

Houston police officer assigned to the Hobby Airport Interdiction

Squad, explained that Houston is a big "source" city and New York

is a "demand" city.   Luis testified that she noticed the appellee,

Jon Mendez, when he entered the terminal for the following reasons:

"he was carrying a fairly large suitcase that appeared to be

extremely heavy for him;" "[h]e was there approximately 20 minutes

prior to the departure time of the airplane;" and "[h]is bag looked

fairly new and it was locked."   Mendez checked the suitcase at the

TWA counter and proceeded to the departure gate.

     Luis then went to the TWA ticket agent and obtained the claim

number of the bag Mendez checked.      The ticket agent also informed

her that Mendez, through a travel agency, had purchased that day a

one-way ticket for departure the following day, March 11.     Mendez,

however, was not taking the flight he originally purchased -

instead, he was attempting to fly out the same day he purchased the

ticket.   Luis gave the information to Officer Hardy, the police

canine handler, who went downstairs to the baggage handling area to

await the bag and to have a trained dog sniff it for drugs.

     At that time, Officers Luis and Mosley proceeded to Mendez'

gate of departure.    When they arrived at the gate, Mendez had

already boarded the plane.   The officers waited there until Hardy




                                 -2-
advised them that the dog had given a positive alert on the bag.1

A positive alert on the bag means "[t]hat the dog has alerted on

the odor of narcotics."   The officers boarded the plane, and Luis

recognized Mendez as the man who had checked the bag.           She

approached him and identified herself as a Houston police officer.

Mendez indicated that he did not speak English and so she spoke to

him in Spanish.    She again informed him that she was a Houston

police officer and asked him if he was traveling to New York, and

he responded that he was.    She asked him if she could look at his

ticket, and Mendez "hesitantly produced his ticket, although it was

sitting there in front of him."    Luis saw that the destination on

the ticket was New York and the name on the ticket was "Jonathan

Murillo."   She also asked him if he had any identification, and he

answered that he had none.   Luis asked Mendez if he knew any reason

why a narcotics dog would alert on his suitcase, and he answered in

the negative.

     Luis then inquired whether Mendez would mind accompanying them

in order to identify the bag, and he complied.2   Officers Luis and

Mosley escorted Mendez to the location of the bag.      During this

walk, Officer Mosley had his finger in Mendez' belt loop.      Luis

inquired whether Mendez lived in New York or Houston, and Mendez

simply shrugged his shoulders.    She further asked him what kind of

    1
        Luis testified that if there had been no positive alert on
the bag they would not have boarded the plane.
        2
         Luis testified that Mendez would not have been free to
remain on the flight.    She further testified that she did not
believe that at that point there was probable cause "to make a
full-blown custodial arrest."

                                  -3-
suitcase he had checked, and he asserted that his bag was yellow.

The officers knew that was false because they had observed him

check his bag.

       Officer    Maxwell   brought   out   the    bag   that   the   officers

previously observed Mendez check.           The claim check for the bag

matched the claim number on the ticket held by Mendez.                   Upon

showing the bag to Mendez, he "stated that it was not his bag."               He

again claimed that his suitcase was yellow.            Luis asked him if that

was his bag, which he again denied.         She also asked permission to

search the bag, and he stated "that [she] could look in his bag,

but that was not his bag."          She testified that "at that point,

feeling that the bag was abandoned, we went on ahead and opened

it."       The bag contained 14 bundles wrapped in white plastic.             A

field test was performed, and it tested positive for cocaine.

Mendez then was placed under formal arrest, and Luis read Mendez

his Miranda3 warnings.         Luis was the only person who testified at

the suppression hearing.

       After hearing the evidence, the district court found that

Mendez had been placed under arrest when he left the plane with the

officers. The district court further found that (1) the arrest was

illegal because probable cause to arrest did not exist at that

time, (2) even if the arrest were legal, the officers' failure to

advise Mendez of his Miranda rights tainted the search and seizure,

and    that    (3)   Mendez'    "abandonment"     of   his   suitcase   was   a

consequence of the officers' failure to warn him of his rights.

       3
            Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966).

                                      -4-
The district court granted Mendez' motion to suppress the contents

of his suitcase and the statements he made after he was taken off

the plane.

                         II.    STANDARD OF REVIEW

       When reviewing a district court's ruling on a motion to

suppress based on live testimony at a suppression hearing, this

Court accepts the trial court's factual findings unless they are

clearly erroneous or are influenced by an incorrect view of the

law.    United States v. Alvarez, 6 F.3d 287, 289 (5th Cir. 1993).

The district court's conclusions of law on a motion to suppress are

reviewed de novo.       Id.     Further, the evidence is viewed in the

light most favorable to the prevailing party.            Id.

                    III.      THE PROBABLE CAUSE ISSUE

       The   district   court    found   that   Mendez   was   placed   under

custodial arrest at the time he was escorted from the aircraft.

The government does not contest that finding for purposes of this

appeal, and thus, we will assume that conclusion is correct.              The

government does argue, however, that the district court erred in

finding that probable cause to arrest Mendez did not exist at the

time he exited the plane.

       Probable cause exists where the facts and circumstances within

the arresting officers' knowledge are sufficient in themselves to

warrant a man of reasonable caution in the belief that the person

to be arrested has committed or is committing an offense.               United

States v. Orozco, 982 F.2d 152, 154 (5th Cir.), cert. denied, __

U.S. __, 113 S.Ct. 2430 (1993).


                                     -5-
      The district court found that there was no probable cause

because "[a]t the time of the arrest, the only evidence the

officers had was the alert of the dog to the suitcase and the drug

courier characteristics of Mendez."          The district court discounted

the characteristics noted by Luis on the basis that innocent

travelers could display any of the characteristics.             The district

court opined that "[w]ithout proof of contraband, the officers had

no   probable   cause   to   support    an   arrest   of   Mendez   without   a

warrant." The court further states that "[t]his case has virtually

no trait evinced by Mendez to reinforce the dog's alert.                  The

things about him that the police say attracted their attention are

not suspicious individually or aggregately."4

      Contrary to the district court's analysis, "probable cause

requires only a probability or substantial chance of criminal

activity, not an actual showing of such activity.             By hypothesis,

therefore, innocent behavior frequently will provide the basis for

a showing of probable cause . . . ."          Illinois v. Gates, 462 U.S.

213, 243 n.13, 103 S.Ct. 2317, 2335 n.13 (1983).               In concluding

that there was no probable cause to arrest Mendez, the district

court erred by failing to realize that the factors the court

considered innocent or marginal had a greater significance after

the dog alerted on Mendez' suitcase.

      Further, the district court failed to consider the following


      4
        Of course, the circumstances that attracted the attention
of the police to Mendez simply resulted in the dog sniffing the
suitcase. A dog sniff does not implicate the Fourth Amendment.
United States v. Lovell, 849 F.2d 910, 913 (5th Cir. 1988).

                                       -6-
circumstances adduced at the hearing that added to the probable

cause calculus:    that on the day he was arrested, Mendez purchased

a one-way ticket to depart the next day, but changed his plans and

attempted to fly that same day; that Mendez was hesitant to hand

his ticket to Luis when she requested it (even though "it was

sitting there in front of him"); and that Mendez was making a long

trip without any personal identification.5                Significantly, the

district   court   did   not   find    that    any   of   the    circumstances

articulated by Luis did not exist.            Rather, the court apparently

did not find them suspicious.

     As previously stated, although the district court's factual

conclusions must be accepted unless clearly erroneous or influenced

by an incorrect view of the law, the probable cause determination

is a matter of law and thus, reviewed de novo.                  In view of the

undisputed facts adduced at the suppression hearing, we find the

district court's conclusion that probable cause to arrest had not

arisen at the time the officers escorted Mendez from the plane

incorrect as a matter of law.           At the time he was taken into

custody the arresting officer knew that:          Mendez, on the day he was

arrested, had purchased a one-way ticket to depart the next day,

    5
       The government argues that the dog alert on the suitcase is
sufficient in itself to constitute probable cause to arrest the
person associated with the baggage.      Because there are other
factors to support a determination of probable cause to arrest,
there is no need to decide if a dog alert alone is sufficient.
Other circuits, however, have held that a dog alert provides
probable cause to arrest. See United States v. Williams, 726 F.2d
661 (10th Cir.), cert. denied, 467 U.S. 1245, 104 S.Ct. 3523
(1984); United States v. Waltzer, 682 F.2d 370 (2d Cir. 1982),
cert. denied, 463 U.S. 1210, 103 S.Ct. 3543 (1983); United States
v. Race, 529 F.2d 12 (1st Cir. 1976).

                                      -7-
but changed his plans and attempted to fly that same day; when the

officer requested to see his plane ticket, Mendez hesitated to hand

it over even though the officer could see it; a narcotics dog gave

a positive alert for drugs in the suitcase that Mendez had checked;

Mendez was making a long trip without any personal identification;

and that he was flying from a "source" city to a out-of-state

"demand" city.    These circumstances taken together were sufficient

in themselves to warrant a person of reasonable caution in the

belief that Mendez had committed and was committing a narcotics

offense.    Accordingly, the arrest was lawful.

                     IV.    THE MIRANDA VIOLATION

     It is undisputed that the officers did not give Mendez his

Miranda warnings at the time he was escorted from the plane.           He

was not so advised until after the officers opened the suitcase and

discovered the cocaine.     The district court held that even if the

arrest were legal, the "seizure" was tainted by the failure to

inform Mendez of his Miranda rights.         The government argues that

although the prophylactic rule of Miranda was violated, there was

no constitutional violation and thus, the district court erred in

suppressing the nontestimonial evidence, i.e., the cocaine in the

suitcase.     Mendez counters that the government's analysis fails

because "[t]here is nothing in the record to suggest that Mendez

experienced    anything    less   than   a   substantive   violation   of

constitutionally protected Fourth and Fifth Amendment interests.

The trial court's findings were that the police misconduct, knowing

and persistent, was constitutionally impermissible."         The premise


                                   -8-
of Mendez' argument is faulty because it is based on the district

court's erroneous conclusion that Mendez' arrest was in violation

of the Fourth Amendment.

       "A mere violation of Miranda's `prophylactic' procedures does

not   trigger   the   fruit    of    the   poisonous   tree   doctrine.      The

derivative      evidence      rule    operates     only   when    an      actual

constitutional violation occurs, as where a suspect confesses in

response to coercion."        United States v. Barte, 868 F.2d 773, 774

(5th Cir.), cert. denied, 493 U.S. 995, 110 S.Ct. 547 (1989)

(citing United States v. Bengivenga, 845 F.2d 593, 601 (5th Cir.),

cert. denied, 488 U.S. 924, 109 S.Ct. 306 (1988)).            To suppress the

derivative evidence, the tactics employed by the officers must be

"`so offensive to a civilized system of justice that they must be

condemned.'" Barte, 868 F.2d at 774 (quoting Miller v. Fenton, 474

U.S. 104, 109, 106 S.Ct. 445, 449 (1985)).

      Barte sheds some light on the level of coercion needed to rise

to the level of a due process violation.           There, postal inspectors

mailed an envelope, which contained $20 and a transmitter, to a

fictitious address on Barte's mail route.              868 F.2d at 773.     The

inspectors were trailing Barte when the transmitter signalled that

the envelope had been opened.              Two inspectors approached Barte,

identified themselves as postal inspectors, asked Barte to step out

of the vehicle, and told him they were looking for a particular

letter.   One inspector described the envelope and address on it,

and Barte denied any knowledge of it.            The inspectors told him "We

know you have the letter . . . We know you've just opened it.


                                       -9-
We're not leaving here until we have our letter."     Id.   Barte then

admitted opening the envelope and taking the $20 and gave them the

money and the envelope.      After the inspectors recovered that

evidence, Barte was given his Miranda warnings.      This Court found

that although the money and the envelope were a product of a

Miranda violation, the district court erred in suppressing the

nontestimonial evidence because the officers' tactics did not rise

to the level of coercion.   Id. at 774.

     In the instant case, after hearing the evidence, the court

below found that this was not a technical Miranda violation, rather

"it was a persistent, moderately lengthy interrogation.           The

questions were clearly designed to elicit information."      The court

further opined that "[t]he circumstances of Mendez' involuntary

custody compel the conclusion that he was purposely not alerted to

his rights to get an incriminating statement, whether an admission

or denial."   It is unclear whether the district court was applying

the correct standard, i.e., were the tactics employed by the

officers so offensive to a civilized system of justice that they

must be condemned?6   In any event, the officers' conduct in the

instant case certainly is no more coercive than that of the

inspectors in Barte. The only testimony adduced at the suppression

hearing was that of Officer Luis.      After reviewing the record, we


    6
       Such a conclusion by the district court would not appear to
comport with its observations at the suppression hearing.
Specifically, after hearing the evidence, the court stated it did
not "doubt that Officer Luis made a good-faith evaluation of the
circumstances."   At an earlier point in the hearing, the court
stated that it believed Officer Luis had told the truth.

                                -10-
find that it does not support the conclusion that the officers'

tactics were so offensive as to rise to the level of a due process

violation.

      Finally, to support the conclusion that Mendez' abandonment of

his suitcase was not voluntary,7 the court below and Mendez have

relied heavily on the case of United States v. Morin, 665 F.2d 765

(5th Cir. 1982).      In Morin, this Court found the defendant's

abandonment of his luggage tainted when a police officer arresting

the   defendant   failed   to   provide   Miranda   warnings,   and   then

deliberately sought an admission from the defendant regarding the

ownership of the luggage to search it for drugs.       Specifically, we

held that there was a clear nexus between the illegal arrest of

Morin and the subsequent disclaimer of his luggage.        That case is

inapposite.   Unlike the instant case, Morin's arrest was illegal.

Moreover, Morin was decided prior to the Supreme Court's decision

in Oregon v. Elstad, 470 U.S. 298, 304-09, 105 S.Ct. 1285, 1290-93

(1985). After Elstad, this Court has recognized that "Elstad makes

clear that failure to give or carry out the obligation of Miranda

warnings in and of itself is not a constitutional infringement, the

test by which to evaluate whether a defendant's underlying Fifth

Amendment right against compelled testimony has been violated is

still the due process voluntariness test."            United States v.

Cherry, 794 F.2d 201, 207 (5th Cir. 1986), cert. denied, 479 U.S.


      7
       As we indicated, Luis was the only person to testify at the
pretrial suppression hearing, thus, there was no evidence from
appellee to show that his abandonment was coerced, uninformed, or
involuntary.

                                   -11-
1056, 107 S.Ct. 932 (1987) (internal quotation marks and citation

omitted).

     Here, there was probable cause to arrest Mendez, and thus, the

police officers' lawful arrest could not have tainted Mendez'

abandonment of the suitcase.           Cf. Alvarez, 6 F.3d at 290 (we

explained that because the defendant's arrest was lawful, the

voluntariness of the defendant's abandonment of the suitcase "was

not tainted by any illegal or improper act by the police in

executing the arrest warrant.").       Further, as discussed above, the

officers' conduct did not rise to the level of coercion.

     The district court erred in finding that the cocaine should be

suppressed.   However, as the government concedes, the district

court properly suppressed the statements made by Mendez after he

was taken off the plane but before he was informed of his Miranda

rights.

                              V.   CONCLUSION

     For the reasons set forth above, the district court's order of

suppression   is   REVERSED   except    insofar   as   it   suppressed   the

statements made by Mendez after he was taken off the plane but

before he was informed of his Miranda rights, and the case is

REMANDED for further proceedings.




                                    -12-