*2 ticket issued was to Vincent Millan and Before MAGILL, and McMILLIAN cost pulled $179. Millan also from his back Judges, HANSON,* Circuit Senior pocket a Missouri driver’s license in the Judge. District same explained name.1 Millan he had been in San visiting Francisco his cousin and McMILLIAN, Judge. Circuit returning was home to City, Kansas but he Vincent D. pos- Millan was convicted of could not remember his cousin’s address or sessing cocaine with intent to distribute telephone number. As began Millan 841(a)(1), violation of 21 (b)(1)(B). U.S.C. searching § pockets address, for the reversal, argues For Millan that the district Hicks noticed bulges pock- the inner court erred in denying sup- his motion to ets of Millan’s leather which was press evidence óbtained from an unlawful unzippered and fastened at the waist. person seizure of his subsequent Suspecting bulges narcotics, search of garment bag. We Hicks displayed badge again and told agree and accordingly'reverse con- Millan he Drug was with the Enforcement viction. Agency. Hicks asked if he Millan transporting any drugs from San Francis-
I. co, which Millan denied. Hicks then asked Millan arrived City Kansas if Inter- Millan could garment he search his bag Airport national at 7:10 a.m. January and Millan consented. Hicks chose not to flight on a Braniff from San bag Francis- search the and instead Millan told he co. He one of the first passengers off suspected that Millan carrying drugs airplane, wore a brown leather pockets aviation- in the Millan denied style jacket and carried a dark gar- having blue anything gave * Hanson, The Honorable C. William Unit- Senior 1. When Hicks first observed Millan dis- Judge ed States District for the airplane, embarking Northern he not believe Mil- Iowa, sitting by designa- Southern Districts carrying any lan was identification because he tion. did not pocket. a wallet observe in Millan’s calculations, financial written jacket. which touch permission clothing. pock- in the substance powdery Hicks felt how much suppress ets and asked trial, moved Before replied, “none that carrying. including seized at *3 con- to Millan refused When bag the there.” and put garment his of contents the jacket, his a warrantless to The motion jacket. sent in his found cocaine jacket the take he would Millan who recom- magistrate Hicks told ato referred was apply and office sheriffs bag suppressed. and be the evidence mended filling out Hicks was While warrant. district court hearing, for a the novo a de After items, attempted Millan the receipt for Millan suppress. motion to Millan’s denied lawyer by tele- his unsuccessfully to reach sub- and jury trial to a right his waived with Millan’s stipulated left Hicks court on to phone. the case mitted ticket. bag pos- and airline guilty of garment him jacket, court found facts. The over distribute intent to with session office, County Sheriffs Platte At followed. appeal This of cocaine. grams warrant a search preparing began
Hicks
subjected
Carrill
Detective
while
affidavit
II.
dog
bag to a
garment
jacket and
Millan’s
is whether
our review
was
issue for
The sole
Gunner
Gunner.
dog
by police
sniff
denying
Millan’s
court erred
marijuana, cocaine
only to detect
trained
his
argues that
suppress.
meth-
or
amphetamines
motion
not
but
heroine
and
granted because
been
have
alert to
motion should
did not
Gunner
amphetamines.
and
reasonable
have a
Hicks did not
Agent
or
in Millan’s
narcotics
presence
question
stop and
suspicion
and
Hicks
articulable
informed
bag. Carrill
garment
Terry
airport.2 See
drugs at the
about
After
him
non-alert.
of Gunner’s
Burdiss
1868, 20
Ohio,
88 S.Ct.
U.S.
affidavit,
draft
completed a
Hicks
argues that all
(1968). He
L.Ed.2d
an-
subjected to
were'
possessions
Millan’s
displayed
Hicks
after
obtained
Pa-
Highway
by Missouri
sniff
other
by the
tainted
a second time
badge for
Gunner,
Oseo,
like
dog Oseo.
trol
sup-
been
should have
and
seizure
unlawful
cocaine,
and
marijuana
detect
trained
States,
Wong Sun United
pressed. did
Oseo
amphetamines.
but
heroine
407, L.Ed.2d
U.S.
of narcotics.
presence
alert
(1963).
agree.
We
apprised
also
were
Burdiss
and
Hicks
non-alert.
Osco’s
en
the initial
concedes
consensual
Hicks was
had with
signed
counter
completed and
The affidavit
the fourth
implicate
did not
therefore
all of
and
It contained
Burdiss.
by Detective
argues, and
However, Millan
amendment.
airport but
at the
obtained
encounter
the consensual
agree,
A we
dog sniffs.
of the'
mention
no
made
seizure
amendment
fourth
into a
turned
bags
plastic
issued
warrant
badge for
showed
Hicks
were
powder
a white
substance
containing
Mil-
questioning
began
time
the second
con-
officers
in Millan’s
found
Nunley,
States
drugs. United
lan
on the substance
field test
ducted
Cir.1989) (consen
182, 184-85
yielded
amphetamines which
presence
a seizure when
into
turned
sual encounter
to a
sent
bags
were
result.
positive
there
he was
told the defendant
laboratory test
laboratory
crime
air
through the
flow
stop
grams
500.9
they contained
revealed
Sadosky,
port); bag
garment
pure cocaine.
of 97%
Cir.) (consensual encoun-
1388, 1392-93
paper
bags,
plastic
a box
contained
contained mate-
(3)
affidavit
warrant
the search
alternatively argues that his motion
2. Millan
the search
that rendered
(1)
omissions
rial
granted because
have been
should
alternative
address these
need not
We
invalid.
to seize
probable cause
not have
agree
Mil-
we
because
reversal
grounds for
possessions
(2)
bag,
seizure
garment
was unlawful.
time,
initial seizure
unreasonably long period of
lasted
ter
a seizure when the
re
became
reasonable
justify
a Terry-type
investigating
vealed he was
viola
helps
narcotics
seizure
parameters
establish the
question
tions and wanted to
the defendant
the reasonable
standard. The
cert. de most recent ease in which the Supreme
behavior),
because of
unusual
nied,
upheld
an airport
Court
stop, Sokolow,
type
For this
of sei
zure to be lawful under the fourth amend
(1989),
1. I necessary do find not to address the merits guilt evidence of Millan’s was overwhelm- of Millan’s claim Therefore, that the pursu ing. any seized error which resulted ant garment to a bag search of his should have the district court's refusal to exclude the evi- been excluded. bag Even if the detention of his pursuant dence seized bag to a search of his had period been for an unreasonable of time rights. not affect his substantial Millan was unconstitutional, subsequent and the possession found grams in of pure 500.9 of 97% suppress denial of his motion to the evidence shortly deplaning cocaine flight after from a bag seized from the originated harmless. which state, city in a source in another Civella, 1122, States v. Cir. suspiciously he acted in the and First, 1981). although the district men court lied to jacket officers about the of contents his tioned bag the items seized in the Therefore, in pockets. its state I would not reverse his facts, ment finding guilt of its of not de grounds conviction on the il- officers pendent upon any of items. legally these court bag. detained his United States v. Cf. stated, large Ehlebracht, "[biased amont [sic] Cir. Unit B possessed defendant, cocaine 1982) very (evidence it [sic] that defendant traveled from high purity Miami, and the transportation interstate city, City, city, source to Kansas a use the cocaine the Court pos that possessed finds cocaine, defendant pure ounces of 63% which sessed that cocaine with intent to distribute higher much than the pure 10% to 15% rather than use.” own normally be cocaine sold in streets in Kansas figures cause paper on it empty City, testimony overwhelmingly that odds zip-lock bags necessary were not support against ability City drug of Kansas user conclusion, the district court’s refusal to exclude contact cocaine wholesaler in Miami constituted them, error, Second, if in even was harmless. conviction). sufficient evidence to sustain to seize the cause probable had officers became encounter the consensual After war- for a search pending application ad- jacket Hicks uncovered agent stop, Terry-type agent seizing Millan’s information additional This before rant. ditional incriminating Mil- far more Hicks informed Agent disposal was bag. Hicks’
jacket bulg- suspicious observation noticed mere he had officer’s that than denied Agu- pockets. jacket ankles suspect’s in his bulge es at a strange Agent pockets. in his having anything iar. permission received asked Hicks agent Hicks that My conclusion carefully After pockets. jacket touch the expert by his bolstered cause is probable in- both pockets, jacket feeling the examina stemming from of touch sense lining, outside side containers thousand over one tion lied about that Millan only discovered experienced Hicks is Agent narcotics. he felt but pockets nothing having packages narcotics in felt has who officer plastic ain narcotics to be he believed what hearing After times. thousand one over then asked Agent Hicks wrapper. bag or he examining the testimony and had in narcotics how much his “testi found searched, court the district having deny did not the con stated, his beliefs merely mony regarding He possession. in his credible.” hold pocket I would there.” put tents that “None Millan, were discoveries No. 89-00033-01-CR-W- additional these 1989). Apr. officer’s (W.D.Mo. enough 9-3, slip op. to convert at 9 crimi- ongoing to set reluctant particularly articulable is court This nar- probability findings a fair activity into nal court’s those district aside found. be witnesses. credibility cotics on the turn City, v. Bessemer Anderson be- while held that court Aguiar, drug number awith consistent havior found were characteristics profile courier in the located constitute believed sufficient alone powder observa- arrest, policeman’s form some cause ankle, transport nar suspect’s normally used bulge at aof tion container *7 characteristics, clearly errone profile finding with is not This combined cotics. cause. probable record. by constitute enough to well-supported ous, but existence The at 41. supports F.2d alone, strongly 825 Aguiar, standing Even pro- more case is in this Unit cause probable cause. probable existence Cf. only was Not Aguiar. in 1174, than Williams, nounced 822 ed States suspicious at the behavior Therefore, based (D.C.Cir.1987).3 1182-85 drug courier several consistent pos agent information all odd characteristics, he had two but profile probable he had sessed, hold that I jack- pockets in the front two bulges seize Millan’s cause sufficient was not if this behavior et. Even his convic- reverse attempt a final cause, combined when probable to establish warrant search tion, argues lied that Millan fact with the upon an based it was because invalid is bulges in suspicious of the existence intention- the officers from which affidavit nar- to contain appeared jacket, negative of two existence out the ally left deny explicitly cotics, matter, I note preliminary As a dog sniffs. possession, that See 2. through touch- a lawful 1326, known become Mancini, contents 802 United States I Because at 1184. Id. ing outside." Cir.1986) established cause (11th (probable 1329 probable cause agent search Hicks had police request that believe suspect answered drugs?"). obtain he did happens I do have because if bags with seize his "[w]hat proprie- warrant, examine need not In Williams, Circuit established D.C. exception warrant to the plain touch ty of this require- exception the warrant plain touch requirement. is warrant exception, "no this Under ment. container whose opening of a for an needed
1021
give
must
considerable def ker,
1080,
836 F.2d
(8th
Cir.1987),
to magistrate’s
erence
initial determina
denied,
cert.
1025,
486 U.S.
2002,
S.Ct.
tion
probable
cause exists.
Illinois v. 100 L.Ed.2d
Gates,
213,
230, 236,
U.S.
238-39, 103
The district court found as a matter of
2317, 2328, 2331,
2332-33, 76 L.Ed.2d fact that the failure
(1983);
Search
Flyler Avenue
to mention
negative
canine searches
Householder,
Cir.
an
[was
intentional or
not]
reckless ef-
cert,
1989),
denied
Co.,
sub nom. Kiesel
fort to mislead the issuing magistrate.
—
Inc.
Householder,
-,
Agent Hicks testified that
drugs,
several
(1990);
L.Ed.2d
including cocaine, heroine [sic], PCP, am-
Robinson,
phetamine and methamphetamine are
Cir.1985).
case,
In this
the issuing judge
packaged and transported in a manner
did make an initial finding
probable
consistent with his
observations
cause based upon the affidavits submitted
defendant. The dogs who examined [Mil-
by the
However,
officers.
after discover
only
are
lan’s]
trained to detect
ing that he had not been informed about
marijuana, cocaine, or heroine
[sic].
results of the two negative dog searches,
Court finds that
and the detec-
the issuing judge
swore
an affidavit that
tives
entirely reasonable belief
had he known about the negative results,
negative
results of the canine
he would not have issued the warrant.4
searches were not clearly critical
[sic]
Where,
here,
as
a defendant challenges the
their application for a search warrant in
validity of a warrant on the basis that the
they believed, as a result of the
officers included false
canine searches, that the substance in
affidavit which
established
cause
the coat was a form
amphetamine.
or omitted material information that would
agent’s
testimony in this regard is
refute the existence of probable cause,
corroborated
their initial testing of
great deference is not appropriate. See
the substance
amphetamine
as
rather
United States v. Leon,
914-
than cocaine and the statement
to the
3405, 3416-17,
Anderson The Terry .... by required activity nal can (reviewing court however, challenges, White that search find factual court’s district not reverse (obtained by a warrant authorized that isit convinced merely because ings informa- basis on the the officers differently”). by the case have decided “would de- warrantless during their gained tion in the evidence is substantial there Because rea- objectively White). It was tention factu court’s the support record incorrect) though legally (even sonable they can be not believe do findings, I al infor- the to believe the officers I for clearly erroneous. as characterized for in affidavit contained mation negative two that the hold therefore would White lawfully obtained. warrant from the omitted not were dog searches have entitled not therefore make, inor intent with affidavit excluded, States United made, evidence they of whether disregard reckless conviction. Leon, affirm we misleading. the affidavit omitted). (citations search warrant. White, invalidate F.2d at not (omission of after at 1083 it reverses Parker, when majority errs not history not deliberate the detention holding criminal merely informant’s search and articulable when recklessly false by a reasonable ly supported or activity. from criminal ongoing based application end corrobo partially inquiry at least instructs informants White investigation); open police independent Agent by there. rated “prudently (affiant’s statement until he luggage at 726 Lueth, As reliability” 1419. Id. at “proven warrant[].” informant’s obtained [a] regarding the law disregard White, “step, which reckless said made we or not false rule play FBI into brings aware encourages, he was testified affiant assum- Id. Even termi agencies’ v. Leon.” enforcement law local was violated confi amendment but his ing services the fourth of informant’s nation are case of this stop, the facts reliability illegal remained in informant’s dence reason- objectively it was enough close high).5 incorrect) the offi- legally (even if able II. con- the information to believe cers good whether the the warrant determine failing to affidavit tained pur- cure in this case operates Id. at exception lawfully obtained. faith from for cash majority one-way held ticket of what chase the taint lack city, to an pursuant city obtained to a use illegally source ter- set- ignores quick exit detention, majority baggage, checked invalid remem- stand, inability In taxi in this circuit. minal precedent tled number telephone or held White, address this court either ber visited to have claimed cousin who in Lambert detained [White] who officers evenly appearance California, adequate Airport lacked an International in di- inches four bulges shaped reasonable, articulable to form basis They drugs. no three presence those findings clear- were court’s *9 the district if 5. Even cause that probable existence effect on be erroneous, still would warrant the search ly drug as am- such another jacket contained probable had explained, IAs valid. Therefore, the affidavit phetamine. I believe he Millan’s to seize cause to issue probable cause provided to obtain still have sufficient probable cause also negative results dog if the even negative sniffs warrant search unless warrant search Parker, Schmid Accord affidavit. in the probable cause. included been the existence refuted (Alaska Alaska, ("omissions are not 615 P.2d of facts State F.2d at issuing to inform they 1980) (although failed cast doubt officer misrepresentations unless sniff, probable cause”). dog negative magistrate the existence warrant). search issue the existed still cause presence only dogs detect could jacket, Therefore, seized the evidence heroin. marijuana, cocaine and drugs: of three against properly admitted my opinion, was only most, negative sniffs Millan. probable cause the existence refuted inside in the think one inch ameter “pushes his leather by Leon.” area created gray into the case other information, combined This Id. “il- pursuant obtained information 1015-1017, was detention,” supra at legal Be- affidavit. in the placed objectively it was cause he to believe illegal detention pursuant gathered lawfully affidavit in the placed in the faith belief obtained, good had a affirm I would the warrant.6 validity of id. conviction.
III. reasons, I believe foregoing
For the holding that errs
majority grant improperly refused suppress.
motion America, STATES
UNITED
Appellant, A. Steven K. VANORNUM
Verne Herman, Appellee.
No. 89-5418. Appeals, Court of
Eighth Circuit. 12, 1990. June
Submitted 4, 1990. Sept.
Decided searches, coat in the substance canine Furthermore, supra at explained, as I *10 clearly erro- amphetamine” find- was a form factual district court's not find in- failure "had officers’ detectives and the neous. ing that negative does the warrant entirely belief sniff on clude clearly excep- good were not faith searches canine from under bring out results us application for a to their [sic] criticial tion. believe, they as a result