*1 рrosecutor’s closing arguments A to tes own failure to defendant’s attention plain to level error (Citing States Passa must rise to tify.” Id. Cir.1980), (9th ro, cert. mandate reversal a new trial. United denied, 101 S.Ct. Falsia, (9th (1981)). this Viewed under Cir.1983). us, L.Ed.2d we On the record before find standard, prosecu do not believe we Both no such error. counsel were zealous all. amounted error tor’s comments respective As view their roles. we counsel, exchange between defense counsel closing de During argument, opened argument prose door counsel stated: fense properly entered. id. cutor prove, government What using the car person Bagley Affirmed. And don’t know day. you You don’t know car. happened with to use someone
if it was stolen you on TV. You robbery as see
bank You know if he sold it. don’t
don’t know You don’t know. he loaned it out. context, it is clear that viewed in
When a fair comments were
prosecutor’s rebuttal contention reply to defense’s America, UNITED STATES possi- out not ruled other Plaintiff-Appellee, prosecutor of the Buick. ble users refer the defendant’s clearly did not nor, circum- testify, under the failure FERNANDEZ, comment, can we find that stances of his Defendant-Appellant. naturally necessarily jury No. 83-1192. remark as a com- taken this isolated upon the defendant’s failure testi- ment Appeals, Court fy- Ninth Circuit. exception to com- Finally, Bagley takes Feb. Argued and Submitted referring to by prosecutor ments made Bagley “conspiracy get Bagley.” con- Sept. Decided implicate do that these comments cedes nonetheless, he rights, his fifth amendment so im- these comments were
contends that a rever- unduly prejudicial,
proper required. Again,
sal new must
prosecutor’s comments be viewed
context. closing
During argument, defense challenged the identifica- sharply
counsel by prosecution witnesses. his client
tion of that the identifica- repeatedly He asserted Duniway, Judge, filed dissent- Circuit merely an constructed and was tion was ing opinion. get Bagley. “game” to identification response, prosecutor addressed In his dispell any attempted argument and get” “to attempt that there an
notion to this referred
Bagley. alleged “conspiracy
“game” as an
Bagley.”
standing to raise a fourth amendment
We reverse
remand.
claim.
FACTUAL BACKGROUND
flight
Fernandez boarded a
from Miami
Vegas
February 9, 1982,
to Las
after
checking single, medium-sized,
soft-sided
black
airport,
suitcase. While at the Miami
Fernandez аttracted the attention of Dade
County Detective
Thompson,
Charles
who
telephoned Special Agent David Taketa of
Drug
Enforcement Administration
(DEA) in Las Vegas
a description
with
bag.
Fernandez and
By
his black
the time
flight
Fernandez’s
Vegas,
arrived
Las
arrangements
Taketa
made
to have a
specially-trained
dog,
narcotics detector
Narc,”
“Marc the
sniff the suitcase when it
baggage handling
reached the
area. The
dog “hit” on a
bag matching
black
Thomp-
description
son’s
of Fernandez’s suitcase.
placed
conveyor
belt
leading
baggage
carousel for Fer-
flight.
baggage
nandez's
Near the
carous-
el Taketa observed an individual matching
description talking
Fernandez’s
with anoth-
man,
er
who turned out to be William Cres-
po.
appeared,
When
black suitcase
pointed
it,
walked
Kane,
Atty.,
Edward R.J.
Asst. U.S.
Las
over
bag,
retrieved the
Nev.,
Vegas,
plaintiff-appellee.
for
walked back toward Fernandez. At that
Nev.,
Wright,
Vegas,
Richard A.
point, Taketa and
other
several
law en-
defendant-appellant.
agents, including
forcement
Nevada State
Agent
Narcotics
Tom
identified
Crespo.
themselves to
questioned Crespo
English,
Taketa
DUNIWAY, FLETCHER,
Before
questioned
while O’Brien
Fernandez in
FERGUSON,
Judges.
Circuit
Spanish.
speak
Spanish,
does not
allegedly
but O’Brien
him
told
some of the
PER CURIAM.
statements Fernandez made. After a short
appeals
period,
from his convic-
Fernandez and
were taken
tion
upstairs
Security Office,
to the DEA
distribute,
cocaine with intent to
in viola- Crespo was told that
be held
841(a)(1)(1982)
tion of 21 U.S.C.
and 18
a search
there until
warrant was obtained
§
(1982).
only question
thereafter,
U.S.C.
Shortly
for the suitcase.
Cres-
§
proper-
po provided
whether
district court
the suitcase’s combination to
ly
suppress
Taketa,
unlocked,
denied Fernandez’s motion
and when the
an
quantity of
orange
containing
kilogram
cocaine that was seized from a
sack
about
transported
suitcase he
to Las
Miami
cocaine was discovered.
and Fer-
Vegas,
lack
based
A
nandez
arrested.
claim
suppressed
Crespо’s
seized cocaine should be
as to
bag was found
check for the
Crespo.
adopted
The district court
in full
pocket.
and recommendations
hearing at which
After
magistrate,
suppressed
the cocaine as
govern-
for the
only Agent Taketa testified
ment,
court found
suitcase had
to search the black
*3
However,
“consent”
magistrate
and dis
magis-
voluntarily.
not been
trict court concluded that Fernandez
under
found that
the circumstances
trate
standing
not have
under the fourth amend
Crespo gave his consent were “virtu-
challenge
ment
the search of the suit
ally
in
identical” to those
case,
he had
because
failed to establish a
Ocheltree,
(9th Cir.1980),
F.2d 992
“legitimate
expectation
privacy
in the
found that consent was
where this court
light
suitcase.” The court found that
Ocheltree,
DEA
impermissibly coerced.
it,
evidence'
had
agents requested consent from an individu-
failed to
pos
establish
owned or
his
airport
suitcase,
at an
to search
briefcase
al
sessed
black
and that even
impli[ed]” a “threat
un-
“clear[ly]
possessed
time,
he had
the suitcase at one
[an]
arrest,
detention, amounting to
reasonable
“he had abandoned it and disavowed
denied”; at
result
if consent were
connection with it
the time he
en
time,
“agent[s]
proba-
by Agent
did not have
Taketa.”
countered
The court
allowed the cocaine from the suitcase to be
ble cause
believe
[the individual]
Id.
against
at 994.
introduced into evidence
Fernan
of narcotics.”
dez,
case,
magistrate
found
and it was based on this evidence that
present
In the
imply
simply
appeal,
he was convicted.1 In his
Fernan
that Taketa did not
Cres-
detained,
exclusively upon
dez focuses
po
Fernandez would be
Ocheltree;
instead,
court’s determination that he lacked stand
the case in
had been
“directly advised”
ing
challenge
the search of the
to that
black
result,
recom-
and that
is the sole issue we now
effect. As a
Ocheltree,
mended,
on
address.2
based
standing, upon
parties
Following
nandez’s
which the
the district court’s denial of
appeal.
suppress,
govern-
focussed this
motion to
Fernandez and the
agreed
However,
to submit one count of his indict-
support
ment
not
the record does
stipulated
court
evidence.
reading
findings.
ment to the district
on
of the district court’s
dissent's
First,
ambiguous,
indicated at the time that
are
and do not
those
nego-
parties’ agreement
was "in the nature of
indicate that the court intended to alter
designed specifically
plea,”
position
Crespo’s
"to
tiated
and was
consent. The district
its
right
appeal
simply
the ad-
allow
stated that
[Fernandez]
“[a]s
court
concerned,
far
with the con-
verse decision on the
motion."
was searched
admittedly
attempting
accomplish
Crespo”:
parties
what is
sent of
this statement could
it,
just
it can
possible
of Criminal
be read as the dissent reads
under Federal Rule
now
11(a)(2),
easily
simply
be read
to indicate that Fernandez
as amended in 1983.
Procedure
standing
challenge
lacked
the consent
that when the district
search.
2. The dissent maintains
Second,
stipulated
the actions of the district court and
"tried” Fernandez based on the
record,
parties
support
the conclusion that
the seized cocaine
do
it concluded
against
changed
position
its
concern-
admitted into evidence
him
the district
could be
above,
ing Crespo’s
amend-
consent. As noted
the dis-
not оn Fernandez’s lack of fourth
based
previously suppressed the co-
standing,
that the seizure
trict court had
ment
but on the fact
resulting
Crespo,
caine as to
in the dismissal of
black suitcase did not violate
and search of the
indictment;
extremely unlikely
According
to the dis-
it
the fourth amendment.
sent,
simply change
position
changed
position
its
concern-
court would
ing
the district court
legality
airport
adopted concerning Crespo’s
search without
originally
had
doing
suppress,
clear statement
it was
so.
and concluded
some
Moreover,
Fernandez’s motions to
acknowledges, neither
as the dissent
that Taketa and the other law
for the first time
party
anything
district court
рrobable
at the time the
cause to de-
enforcement
party
allegedly changed
position,
Vegas airport.
its
and neither
and arrest
tain
possibility
argued
position
even mentioned this
change
in the district court’s
Such a
appeal.
meaningless
question
of Fer-
would render
Salvucci,
United States v.
(1980);
ANALYSIS
448 U.S.
83, 93,
2553,
100 S.Ct.
CONCLUSION arrived, dling plane area when the district court’s dog We therefore reverse “hit” on the suitcase. The suitcase that Fernandez lacked stand- baggage determination then sent on clаim agents, under the fourth amendment to chal- area. Taketa met two Nevada Wellington lenge search of the black suitcase. We They claim area. saw to the district court for further Fernandez and co- remand Crespo standing defendant a tele- proceedings consistent with this decision. near phone appeared booth. When suitcase and REMANDED. REVERSED pointed to it retrieved it. The two then DUNIWAY, Judge, dissenting: Circuit leave, Crespo carrying started to with respectfully I dissent. The case must stopped suitcase. O’Brien briefs, in their both describe them. majority opin- described they wished to ask ion, is not the case that is before the court. questions some and learned that Fernandеz dissent, I my To make clear the reasons for spoke only Spanish. speak Taketa did not detail actually must describe Spanish; O’Brien did. O’Brien asked Fer- happened in the court. Spanish if the nandez suitcase was his. I. The Facts. Spanish, replied and denied others, Crespo, Fernandez and one his, that was and said that it was Cres- charged in an su- indictment and *6 po’s. Crespo English Taketa in asked perseding indictment with various offenses Crespo Eng- his. in suitcase was said involving bringing quantity a of cocaine not, that lish it was that it Fernan- was Florida to The from Nevada. cocaine was Crespo Fernandez and each dez’s. re- brought in a found suitcase that Fernandez peatedly owning denied the suitcase. Fer- Vegas. from Miami to Las When officers objected nandez’s counsel to Taketa’s testi- stopped Vegas Fernandez in the Las air- mony about what Fernandez asked was port, Crespo carrying was the suitcase. replied hearsay. O’Brien conversations, one After some he told discussion, Magistrate After re- open the officers to understanding but “with the ceived was cocaine found. to testify.” O’Brien will have O’Brien defendants moved to suppress testimony Both never testified. The was admit- hearing magistrate, against only. cocaine. At a Crespo ted Vegas Drug Agent Las Enforcement Take- suspects The then went only testimony ta was witness. His airport Drug to the office Enfоrce- substantially was as follows: Crespo ment Administration. Taketa told telephone go apply Taketa received a call from a that he intended downtown Miami, at in airport detective who said After for warrant to search suitcase. Fernandez, travelling hallway, away had watched in he a brief conversation “Garcia,” Fernandez, Crespo for under name check in told to look Taketa flight Vegas, be- Crespo the suitcase. Taketa told he suspect havior made the detective could still demand time contraband, warrant, carrying Crespo repeated the detective a search but peared trial, judge look the suitcase. before the the prose- that Taketa should Crespo the combination of the told Taketa cutor stated: lock, opened the suitcase. It Honor, agreement Your there has been kilogram of cocaine. contained about reached between the Government and Crespo that he was under ar- Taketa told course, subject, the defense to the Crespo emptied pockets, he rest. When approval agreement The of the Court. produced the claim check the suitcase. as follows: As to Count VII of In- hearing, magistrate
At the end of the dictment on file herein which charges reserving ruling he Defendant Fernandez with the of- admissibility against Fernandez of Taketa’s fense of Possession of Cocaine In- with O’Brien him that testimony Distribute, about what told tent to have agreed counsel Spanish. magistrate Fernandez said to submit the matter to the Court based formally ruling, not make such a did following items— rely in recom- on some of that evidence mending denial of Fernandez’s motion to County ... A Safety Dade Public De- suppress, though O’Brien had not tes- even partment Organized Crime Re- Bureau tified. port pages, four which has been found that Fernandez magistrate marked as Plaintiff’s Exhibit a United standing the search Drug Enforcement Administration had transferred because he Report consisting pages, of seven which also, suitcase to has been as Plaintiff’s marked Exhibit оwnership, had it. abandoned disavowals dealing with the arrest of Mr. Fernandez Veatch, Cir., See United States v. reporter’s on February and a 1217, 1220-21; 674 F.2d transcript Suppress of the Motion 199, 201; Kendall, Cir., Evidence at the airport, that was seized Cir., Oberhauser, Lurie marked as Ex- been Plaintiff’s also 333. found hibit did have and recom- addition, the Government and [de- grant mended that the district Cres- agreed stipulate fense] po’s suppress motion to because his con- substance in the suitcase which was Later, voluntary. sent February seized on 1982 was in fact judge adopted magistrate’s findings. cocaine. controlled substance May Order of Ill, Rep. Tr. 3-4. June magis- On Fernandez attacks the prosecutor added that tratе’s that Fernandez lacked drop other counts if the the six suppress illegal the fruit standing to of an *7 guilty found Fernandez under Count VII. so, doing disregards Fernandez search. The concluded: going later. Instead of to happened Finally, will be stand- way, trial in Fernandez and the the usual imposition ing silent the time of the of prosecutor agreed upon what has some- So, in the nature sentence. it is of a plea guilty, a slow times been called negotiated submitting are plea, but we purpose being preserve to defendant’s record, obviously, the matter to attack, on right appeal and to to client, of his Wright, allow on behalf evidence, suppress vital in this failure to right the adverse dеcision to of the suitcase. case the contents agreed The that all of the counts Id. at dropped, would be and indictment one said: Counsel for Fernandez “That is a only VII would that Count The your correct Honor.” court, statement stipulated evidence. Because the replied: stipulated it is bargain important, quote “Very I well. And to are terms of well; parties ap- is Counsel agreed. that correct?” them verbatim. When hypothetical The court took matter under advise- conversation between the ment, right waived and Fernandez Crespo detective and he consented to the present when the decision was entered. Id. bag. search of the at 4-5. the сourt announced On June They baggage returned to the area and decision, stating its first: bag secured the from the office. The having jury The defendant waived a bag opened was and found to contain having and the Court drugs substances, narcotic or controlled consider documents introduced schedule II controlled substances under upon 1 and and doc- Exhibits those Act. uments make a determination as to the issues submitted those documents clearly case shows that pertain [T]his to the search seizure and bag, secured the suspect which was traveling bag brought by from
of one evidence, reliable from Fernandez on an aircraft from Miami he had Airport possession Inter- it in his International McCarran after he Nevada, Airport Vegas, national took from the surely carousel. He had right determination of that issue consent to search. There guilt innocence of question the defendant is no consent to the would be determined [sic]. search. IV, far
Rep. concerned, Tr. As June facts, stipu- then set out bag based on the was searched with the consent of evidence, especially report lated the DEA person was last 2). immediately Exhibit bag possession. [Plaintiffs in his It is pertinent part the findings is as follows: reasonable infer Now, brought drug when was received here for him. The the clerk picked up at the carousel it was shows that Fernandez by Crespo the carousel itsel only the narcot- [sic] began officers moved drug district, ic but he also trans- interrogate [Crespo and It ported the Fernandez]. same. quite an unusual situation in that Cres- So, upon analysis evidence, po knowing denied Fer- I find the search was reasonable and knowing nandez Crespo____ denied proper under the circumstances. The ev- placed in the legally properly idence was seized. I office of the airline airport, guilty the defendant find Count VII of go and Fernandez were asked the Indictment. security to the airport office in the Id. at 5-7. building where further conversation oc- present, Fernandez’s counsel was made curred. One detective dispаtched objection, conflict, and noted a schedule go city to the secure a war- search sentencing and the time for was reset. Id. rant. shortly Some time after officer at 7. Neither at 10 hearing the June or at dispatched a search warrant time later did counsel to the to search the suitcase the conversation judge’s findings conclusion, or his contrary Crespo and between one detective took magistrate’s recommendation, to the place. the search and seizure cocaine in the *8 hypothetical questions After legal suitcase was of Crespo’s because con- the detectives to what as Counsel suggested sent. never that what might nothing occur if was in the judge the did was inconsistent with the being money and after told that if only stipulation made at June 7 hearing. the they brought money was in the gambling, appellant’s here for brief purpose any the of Nowhere is there matter, course, the of would of these promptly findings mention the district dropped forgotten. judge. After further appellant’s Nowhere in brief is
503 dez, I stipu- acquit. he would have had to doubt unqualified of any mention the there objected. County that his counsel Crime under which the Dade lation along with reports, the DEA Bureau and the case had been If submitted hearing transcript suppression of the the 13, magistrate’s July decisions of 1982 and magistrate, were submitted the before 3, 1983, February recommending denial of this was men- judge. None of motion to suppress, Fernandez’s argu- any time in oral at counsel’s tioned 7,May 1984, adopting order of on us Fernandez’s behalf. ment before decision, might we have a different case. say Nor did counsel the United not. But it was evi- stipulation, the the anything about II. The Law. judge under that that was before the dence were, course, reports of hear- two judge the or the stipulation, say. hearsay But received with- stipulation, either in brief under that made evi- objection out or limitation is as much I find counsels’ behav- argument. both or any other. NLRB Int. dence v. Union majority’s I the mystery. find also ior Cir., 1969, Engineers, 413 Operating 9 of opinion incredible. 705, 707; Dennison, F.2d Pеarson v. 9 reports, claimed the two may It 24, Cir., 1965, 10; Hayden 29 n. v. 2, intended for consid- 1 and were exhibits Press, Inc., Cir., 1960, 9 F.2d 281 Chalfant upon what is judge only eration 543, objection, 548. Here there was no a case as the referred to in such sometimes receipt stipulated, of the evidence was of rather “guilt phase” proceeding, limitation. the rule Furthermore without Per- the search. upon validity of than excluding hearsay apply does not to deter- intent, parties’ if that haps. But preliminary questions regard- minations of so. The exhibits they never told evidence, admissibility of such qualification, and any offered without were in this case. Fed.R.Evid. the cocaine decision, it judge when the announced 104(a), 1101(d)(1); v. Halde- them, clear that had considered became 1976, 31, D.C.Cir., man, F.2d 2, “suppres- especially exhibit Thus, improper about nothing there was key That was the phase of case. sion” that the court relied the evidence district was, substance, guilt admit- question; reject suppression upon to objected. Yet defense counsel never ted. claim. circumstances, re- these the two Under adopting the earlier judge’s order transcript mag- ports, as well deny Fer- magistrate’s recommendation to hearing, for all were in the record istrate’s suppress, pretrial motion to nandez’s received with- When evidence is purposes. motion, interlocu- grant limitation, it is objection out States, 1962, tory. DiBella United purposes. proposition This for all record S.Ct. require as not citation obvious so Territory People L.Ed.2d Moreover, there was more. authority. here Cir., Mafnas, 9 Guam to. The evidence interlocutory an order 685. Such any judg- time final The fact be revised Perkins, day, “it in the nature of Fourniquet 7 trial June ment. submitting 82, 85, 854: plea, How. 14 L.Ed. negotiated but we are U.S. argu- record, obviously, hearing allow at final “The case was matter on exceptions; Fernandez], and all Wright ment [counsel client, interlocutory in relation to previous orders right of his behalf revision, merits, open for suppression mo- decision of the adverse of the court.” School improper for the the control not make it under tion” does Cir., 1958, 259 Lundgren, 5 v. the decision Disk No. judge reconsider “As in the case of 105: order, pronouncement or other opinion, of Fernan- judge done so in favor Had *9 504 1980, 544, 548, judgment, 1870, final amount to a 446 100 S.Ct.
which does U.S. 1874, (consent and decretal of the provisions the recitals 64 497 L.Ed.2d search revision;” subject detention). 7 order where Compare ... no threat (1983 ed.). Ocheltree, Cir., Federal Practice 1980, Moore’s 1160.20 9 imposed 993, Neither nor the law 992, (consent 622 F.2d 994 to search any duty judge to adhere to the luggage under threat of detention without ruling, he had magistrate’s ap- once probable cause believe that the defend- proved, sup- the evidence should be possessed ant voluntary). contraband is not pressed toas magistrate’s conclusion that Taketa’s statement, agents detain Supreme Court has twice told us they warrant, until obtained a un- drug-sniffing dog of a that the use de lawfully Crespo’s induced consent was here, in a tect contraband clearly wrong because it relied on Ochel- meaning within not a search tree, probable was no where there cause. United Fourth Amendment to the Magistrate’s Findings & Recommenda- Constitution, and need not be based on 14; Ocheltree, tion at F.2d at see 622 probable Place, cause. United Here, cause, probable there was 1983, 696, 707, 2637, U.S. 103 S.Ct. 462 judge properly corrected his error in own 110; L.Ed.2d 77 United States v. initially adopting magistrate’s recom- Jacobsen, -, 104 U.S. mendation. 1652, 1662, S.Ct. 80 L.Ed.2d challenge dog sniff. does not valid, Because consent was along with Taken the other information fruit of against the search was admissible time, dog’s had at the Fernandez. The evidence sustains probable “hit” cause to established believe give conclusion could suitcase contained contraband. valid It makes consent. no difference that Cir., 1983, Spetz, See States v. may possessory still have had a 1457, 1464; 721 F.2d United States v. Sol- “privacy” or interest in the suitcase. At is, Cir., 1976, 881. As the least, Crespo the very joint had a interest judge dogs concluded: “The reac- joint possessor give with him. A sniffing tion to his indicated that valid consent. See United States Mat strong there believe that lock, 1974, 164, 171, U.S. 94 S.Ct. bag.” Therefore, drugs were inside the 242; see, e.g., 39 L.Ed.2d agents could have obtained a Rubio, Cir., warrant States v. and, to search the suitcase because the Cir., Berry, Jones v. gave
dog’s probable “hit” them cause to only 448-49. Fernandez’s claim is that carrying believe contra- the search was unlawful. It was not. band, probable they had cause to arrest judge rely Because the did not they got him while the search warrant. the magistrate’s finding that Fernandez Crespo thus had the choice between con search, lacked senting search being to a of the suitcase not be need considered. How- lawfully detained search pending ever was correct. pursuant suitcase to a warrant. As the judgment should affirmed. found, Crespo could and voluntar ily choose consent. Florida v. Roy
er, 1983, 491, 505-06, 103 S.Ct.
1319, 1328-29,
(consent
search of de illegality,
tention tainted but if probable
there were cause to arrest at the consent,
time of would not consent
tainted); Mendenhall, United States v.