United States v. Michael Jeffrey Low

887 F.2d 232, 1989 U.S. App. LEXIS 15054, 1989 WL 115399
CourtCourt of Appeals for the Ninth Circuit
DecidedOctober 5, 1989
Docket88-1355
StatusPublished
Cited by18 cases

This text of 887 F.2d 232 (United States v. Michael Jeffrey Low) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Michael Jeffrey Low, 887 F.2d 232, 1989 U.S. App. LEXIS 15054, 1989 WL 115399 (9th Cir. 1989).

Opinions

CHAMBERS, Circuit Judge:

Defendant-Appellant Michael Low pleaded guilty to possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1), and to possession of cocaine in violation of 21 U.S.C. § 844(a), reserving the right to appeal the district court’s denial of his motion to suppress evidence pursuant to Fed.R.Crim.P. 11(a)(2). We affirm the district court’s decision.

The following facts are based on the affidavit of Agent Hartman of the Drug Enforcement Administration (DEA) submitted in support of the warrant to search Low’s bags and the testimony of DEA Agent Johnson at Low’s preliminary/bail hearing (ER 5, 60).1 On April 20,1988, Los Angeles Police Department Officer Leham noticed a man later identified as Low departing the Pan Am ticket counter at the Los Angeles International Airport (ER 65). Low appeared to be very nervous (“looking all around at other persons”) and when Low noticed Officer Leham looking at him, he immediately avoided eye contact by looking the other way (ER 65).

Officer Leham learned from the Pan Am ticket agent the following information: Low was flying under the name of Mark Lund; he had a reservation to fly to Honolulu that day on Pan Am flight 81 scheduled to depart Los Angeles at 1:00 p.m. with a return reservation on the same day on flight 82 scheduled to depart Honolulu at 10:00 p.m.; he purchased his airplane ticket with cash (ER 65-66).

Officer Leham saw Low seated in the terminal departure area with a carry-on bag wearing a red plaid shirt and displaying the same nervous behavior described above (ER 66). Officer Leham later boarded flight 81 and saw Low seated, no longer wearing the red plaid shirt, but instead attired in a black-jogging type outfit, talking to another Hawaiian-looking man later identified as Mr. Akana who was showing Low articles from his pockets (ER 66). Officer Leham communicated his observations of Low to the DEA in Honolulu (ER 60, 65).

Upon flight 81’s arrival in Honolulu, Agent Hartman observed Akana and Low exit the plane. Low was carrying a briefcase and a blue nylon bag. Both men made telephone calls (ER 68). While Low was on the telephone, Agent Hartman overheard him say, “This is Michelob;” “I’ll call you at number one;” “Oh, I don’t like hearing that” (ER 68).

After completing their telephone calls, Low and Akana walked toward the main terminal and while doing so, “stopped and rotated their heads, looking around, as if checking ... for surveillance” (ER 68). While Low walked through the main terminal and baggage claim areas to the curb outside, he looked over his shoulder 2-3 times (ER 68).

At curbside, Low and Akana appeared to be about to part company when Agents Hartman and Johnson approached Low, identified themselves as DEA agents, and asked Low if he would speak with them (ER 14-17). Low said yes (ER 17). Agent Johnson then asked him for his airplane ticket which Low presented (ER 17). The ticket was not returned to Low (ER 18). After Johnson looked at the ticket, he asked Low the length and nature of his visit and where he would stay that night (ER 18).2 While Agent Johnson questioned [234]*234Low, he held Low’s ticket in his hand (ER 18). Low stated he was in Hawaii to attend his ex-partner’s aunt’s funeral and that he would be staying overnight at his ex-partner’s house (ER 18). He also stated that he might return to Los Angeles later that night, that he was unable to tell Johnson his ex-partner’s name other than Sam and that he did not know the name of the aunt who died (ER 18-19).

Agent Johnson then asked Low for identification and Low produced a California driver’s license in the name of Michael Low (ER 17, 69). Low explained the discrepancy between the name on his ticket and the name on his license by stating that someone else had bought the airplane ticket for him (ER 69). During the course of the interview, Low was very nervous (ER 69). His hands shook, one of his legs shook and he was sweating (ER 69).

Agent Hartman then asked Low if he was carrying narcotics, which Low denied (ER 69). Hartman requested and was denied permission to search Low’s two pieces of carry-on baggage (ER 69). Low was then advised that his briefcase and nylon bag were being detained for a canine sniff and that he could wait but that he was free to go (ER 69).

Low accompanied the agents to a DEA office where a dog “alerted” to both the nylon bag and briefcase (ER 70). Pursuant to a search warrant, (ER 53), a search of the nylon bag yielded two kilograms of cocaine (ER 24). Low subsequently signed a statement in which he admitted carrying the kilograms of cocaine in his bag and one-half gram of cocaine on his person (ER 25, 143A).

Low’s motion to suppress was submitted on the transcript of the preliminary/bail hearing and the affidavit in support of the search warrant (Govt’s ER 1-2). Although no evidentiary hearing was held, the parties presented oral argument (Govt’s ER 4-21). The district court concluded the curbside interview was consensual but that a temporary detention based on articulable, reasonable suspicion occurred just prior to the canine sniff (ER 162).

We review motions to suppress evidence de novo. United States v. Andrade, 784 F.2d 1431, 1433 (9th Cir.1986). The district court’s findings of fact are upheld unless they are clearly erroneous. United States v. Feldman, 788 F.2d 544, 550 (9th Cir.1986), cert. denied, 479 U.S. 1067, 107 S.Ct. 955, 93 L.Ed.2d 1003 (1987).

Low contends that he was unlawfully detained in violation of the fourth amendment from the time Agent Johnson “retained” his airplane ticket, but he does not say precisely when this occurred. The government argues that all of the curbside encounter was consensual.

A person is “seized within the meaning of the fourth amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980). “Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a ‘seizure’ has occurred.” Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 1879 n. 16, 20 L.Ed.2d 889 (1968). Law enforcement officers do not violate the fourth amendment by approaching an individual in a public place, “by asking him if he is willing to answer some questions, [and] by putting questions to him if the person is willing to listen.” Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229 (1983) (Royer).

There was no seizure when Low gave the agent his airplane ticket.

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Cite This Page — Counsel Stack

Bluebook (online)
887 F.2d 232, 1989 U.S. App. LEXIS 15054, 1989 WL 115399, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-michael-jeffrey-low-ca9-1989.