United States v. Earnest Carter, Jr.

139 F.3d 424, 1998 U.S. App. LEXIS 5750, 1998 WL 128492

Opinions

Affirmed by published opinion. Judge WIDENER wrote the majority opinion, in which Chief Judge WILKINSON and Judges WILKINS, NIEMEYER, HAMILTON, LUTTIG, WILLIAMS, and DIANA GRIBBON MOTZ concurred. Judge ERVIN wrote a dissenting opinion, in which Judges MURNAGHAN and MICHAEL and Senior Judge K.K. HALL concurred.

Footnotes

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OPINION

WIDENER, Circuit Judge:

The defendant, Earnest Carter, Jr., appeals his conviction after a guilty plea. The only issue is the district court’s denial of his motion to suppress evidence of the cocaine found in his suitcase. We affirm.

Carter was arrested at Washington National Airport at approximately 10:30 p.m. on January 14,1987 by Federal Aviation Administration police for the theft of a gray-brown Hartman brand suitcase, the property of one Thompson. The stolen suitcase and two other bags, a black carry-on bag and a gray Skyway brand suitcase with tape around it, were in Carter’s possession and were taken from him at the time of his arrest. Carter had a roundtrip airline ticket showing his route from Miami to Washington on January 14 and returning to Miami on January 16. He told the police that he was in town to clarify a ease of mistaken identity with the Washington police. Carter claimed that he had picked up the gray-brown Hartman bag by mistake and refused to give consent to the ¡police to search the two other bags. The black carry-on bag was' opened and inventoried by the arresting officer at 12:40 a.m. on January 15, but the gray Skyway bag was not opened. Carter appeared before a magistrate in the afternoon of January 15 and was released on an unsecured bail bond with penalty of $2500. In the meantime, the officers obtained Carter’s criminal history which showed a prior charge of possession of a controlled substance with intent to distribute.

■Following his release on bail Carter returned to the airport at about 4:30 p.m. on January 15 and requested the return of the black bag and the gray Skyway bag. He again refused consent to search the gray Skyway bag. The black bag was returned to him but the gray Skyway bag was held by police. At approximately 12 noon on January 16, a sniff dog alerted to the gray Sky-way suitcase and the FAA police obtained a warrant to, search the bag which was found to contain, the 660 grams of cocaine, which form the basis of Carter’s conviction.

Carter was indicted in February 1987 for larceny in violation of 18 U.S.C. § 661; possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1); interstate travel to promote unlawful activity in violation-of 18 U.S.C. § 1952(a)(3); and failure to appear pursuant to conditions of release. He had obviously skipped bail, for he remained at large until arrested in the summer of 1994. The district court denied his motion to suppress the cocaine, finding that the property at issue was properly seized incident to a lawful arrest, that the government had a reasonable continuing investigatory interest in the property, and that the government did not hold the property for an unreasonably long time. Carter pleaded guilty to the failure to appear charge, and to the charge of possession of cocaine with intent to distribute on the condition that the suppression issue would be preserved for appeal. The government dismissed the remaining charges.

Carter appeals the denial of his motion to suppress, claiming that his property was held for an unreasonably long period of time without probable cause in violation of the Fourth Amendment. He asserts that although the property was lawfully seized at 10:30 p.m. on January 14, at the time he requested its return, 4:30 p.m. on January 15, there was no longer probable cause to believe that it was connected to the charge for which he was arrested or any other criminal activity.

We emphasize that there is no question concerning the validity of the search warrant, which was obtained when the sniff dog alerted. There is also no question concerning the officers having the sniff dog examine the gray Skyway suitcase.

At the suppression hearing in the district court, Carter’s attorney stated to the court:

It has to do with only the timeframe— when he sought the release of his suitcase that I’m concerned.

The warrant, I think, is appropriate. The dog sniff I don’t think is a search for constitutional purposes, and the rest falls in the place after that. It has to do only with their refusal to release it when there is no connection and no evidence that that bag, that suitcase, has anything to do with the criminal activity for which Mr. Carter was charged.

As stated, the only question before us is whether the holding of the gray Skyway bag from 4:30 p.m. on January 15 until noon on January 16 was unreasonable. Weaver v. Williams, 509 F.2d 884 (4th Cir.1975) (only unreasonable searches and seizures are prohibited by the Fourth Amendment). The facts as found by the district court are not challenged and are for the most part stipulated. The reasonableness of a search and seizure is a legal conclusion which we review de novo. United States v. Smith, 30 F.3d 568, 571 (4th Cir.), cert. denied, 513 U.S. 1028, 115 S.Ct. 604, 130 L.Ed.2d 514 (1994). Carter admits that the bags were seized incident to a lawful arrest. At the time of his arrest, he had in his possession the gray-brown Hartman bag, the gray Skyway bag with tape on it, and the black carry-on bag. He was charged with the theft of the gray-brown Hartman bag and claimed that he had picked up the Hartman suitcase by mistake. So Carter had in his possession the three suitcases and only claimed the ownership of two of them. It is difficult to imagine more probative evidence of Carter’s guilt than the three suitcases he had in his possession at the time of his arrest when he only claimed two of them. And the same would apply to evidence tending to show as false Carter’s claim that he possessed the Hartman suitcase by reason of mistake.

We find no authority, and Carter offers none, that would obligate the officers to return to a criminal defendant charged' with the theft, admissible evidence seized incident to a lawful arrest for the theft, prior to the disposition of the pending criminal charge for which the defendant was arrested. To repeat, the seizure of the bags was incident to a lawful arrest, not part of an investigatory stop.

Because the government had the right to retain Carter’s gray Skyway suitcase as evidence in connection with the charge of theft of the Hartman suitcase, we conclude that the detention of Carter’s gray Skyway suitcase was reasonable. It had been seized incident to Carter’s arrest, and the government was entitled to keep it to use as evidence at Carter’s trial.

The judgment of the district court is accordingly

AFFIRMED,¹,²

Judge Russell heard oral argument in this case but died prior to the time the decision was filed.

1

. The government argues that it was also entitled to retain possession of the suitcase for investigatory purposes and that the time the bag was so kept was reasonable; that there was sufficient reasonable suspicion to hold the bag until the sniff dog could examine it; and that in all events, the search was in good faith. Those are questions we need not decide.

2

. . The position of the dissent, that the government’s holding the bag in question was unnecessary, for a photograph could have been made of it, in our opinion, does not comport with either logic or practicality.

Coupled with the fact that Carter had both the gray and the Hartman suitcases in his possession when stopped is the fact that a simple comparison of them would have shown to a fact-finder, either court or jury, that Carter’s stated reason for having the Hartman bag in his possession was entirely false. Since the government had in its possession the tangible evidence of the inadequacy of Carter’s stated defense, no rule of law that we know of requires the government to depend on the less effective substituted evidence of a photograph. Anyone who has tried to defend a moonshiner in the face of the introduction into evidence of Mason jars of moonshine, rather than photographs, on a table in plain view of the jury will recognize the futility of such an undertaking.

Not only do reason and practicality compel- the conclusion that the government was quite within its rights in holding on to the gray suitcase until the theft by Carter had been disposed of, that very point was made to the district judge at the hearing on the motion to suppress. Although the dissent quotes, at some length, different reasons advanced by the government for obtaining and keeping the suitcase, it does not quote that part of the hearing in the district court in which the very point made in the majority opinion was put up to the district judge.

Mr. Martin: [an assistant U.S. attorney].... And I go through those ["other reasons”] at page eight of my brief when I talk about the fact that down the road for purposes of a theft case, it may very well have been that we would want to have the other bag because it would help us if the defendant were to say I took this bag by mistake. It might be helpful to us to be able to have a grey suitcase to show, wait a minute, ladies and gentlemen of the jury, he wouldn't take it by mistake by virtue of the fact that this other bag was there. (A.20-21)

This, in our opinion, is not "post hoc rationalization” as the dissent describes it at p. 431, n.4.

Finally, the district court admitted the drugs into evidence because it believed that the time the suitcase was held was not unreasonable under the circumstances of this case. The judge said that holding the suitcase as "a nexus to the crime” of theft was too narrow a restriction on the government. As we have demonstrated, despite such narrow restriction the government complied with the more stringent standard. So we do not have to consider whether or not the more lenient standard of reasonableness has been met as a separate matter. What we must consider is whether the drugs were properly admitted into evidence. And they were, because the suitcase all the while was in the legitimate possession of the government.

In the review of judicial proceedings the rule is settled that if the decision below is correct, it must be affirmed, although the lower court relied upon a wrong ground or gave a wrong reason.

Helvering v. Gowran, 302 U.S. 238, 245, 58 S.Ct. 154, 157-58, 82 L.Ed. 224 (1937).

It would be wasteful to send a case back to a lower court to reinstate a decision which it had already made but which the appellate court concluded should properly be based on another ground within the power of the appellate court to formulate.

SEC v. Chenery Corp., 318 U.S. 80, 88, 63 S.Ct. 454, 459, 87 L.Ed. 626 (1943).

Because the drugs were properly admitted into evidence, the decision of the district court must be affirmed even if it gave a wrong reason, a question we do not decide.