United States v. Robison

• Court: Court of Appeals for the Tenth Circuit
• Decided: November 9, 1999
• Docket: 98-1419
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS NOV 9 1999 TENTH CIRCUIT PATRICK FISHER Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 98-1419 (D.C. No. 96-CR-419-D) ERNEST L.C. ROBISON, (D. Colo.)

Defendant-Appellant.

ORDER AND JUDGMENT *

Before BALDOCK, BRISCOE, Circuit Judges, and CROW, District Judge. 1

Ernest L.C. Robison appeals his conviction of possession with the intent to

distribute a mixture or substance containing a detectable amount of cocaine base

(21 U.S.C. § 841(a)(1) and (b)(1)(A)(iii)). Robison contends the district court

erred in denying his motion to suppress evidence that was found after officers

seized his carry-on bag. Robison does not appeal his two convictions for

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 1 Honorable Sam A. Crow, Senior District Judge, of the United States District Court for the District of Kansas, sitting by designation. distribution and possession with the intent to distribute a mixture or substance

containing a detectable amount of cocaine base (21 U.S.C. § 841(a)(1),

(b)(1)(B)(iii), and (b)(1)(C)). We affirm.

In January 1996, officers set up surveillance at the Denver airport after

receiving information from reliable informants that Robison would be returning

from California carrying cocaine. Robison was carrying a shoulder bag when he

got off the airplane in Denver. Officers Clyde Langley and Robert Vescio

approached Robison, identified themselves, and told Robison that they had

information he was transporting drugs. Robison consented to a search of his

person, but refused to consent to a search of his bag. Langley found no drugs on

Robison’s person.

Langley took custody of Robison’s bag, told Robison to contact him in “a

day or so” to retrieve the bag, and allowed Robison to leave the airport. Less

than ten minutes later, Langley took the bag for a canine sniff and the dog alerted

to the bag. Langley obtained a search warrant for the bag. The search revealed

889.8 grams of cocaine base. The district court denied the motion to suppress the

evidence obtained from the search, finding the officers had a reasonable suspicion

to detain Robison.

When reviewing a district court’s denial of a motion to suppress, we accept

its factual findings unless they are clearly erroneous, viewing the evidence in the

-2- light most favorable to the government. United States v. Hargus , 128 F.3d 1358,

1361 (10th Cir. 1997), cert. denied , 118 S. Ct. 1526 (1998). We review de novo

the ultimate determination of reasonableness under the Fourth Amendment,

considering the totality of the circumstances. Id.

Robison does not challenge the legality of the initial investigatory stop in

the airport, but argues the detention of his carry-on bag after the initial

investigation was unreasonable. The officers could briefly detain the bag if their

observations led them to reasonably suspect Robison was carrying drugs in the

bag and the detention was properly limited in scope. See United States v. Place ,

462 U.S. 696, 708-09 (1983); United States v. Brown , 24 F.3d 1223, 1226 (10th

Cir. 1994).

We consider the totality of the circumstances to determine whether a

reasonable suspicion existed. See United States v. Houston , 21 F.3d 1035, 1038

(10th Cir. 1994). The officers had information from reliable sources that Robison

would arrive at the Denver airport carrying drugs. They stopped Robison in the

airport with a carry-on bag. After a search of Robison’s person revealed no

drugs, the officers’ reasonable suspicion that he had drugs in the bag would not

disappear but would likely increase. The officers had a reasonable suspicion that

Robison had drugs in his bag.

Even with a reasonable suspicion of criminal activity, the detention also

-3- must have been reasonable in scope and duration. United States v. Scales , 903

F.2d 765, 769 (10th Cir. 1990). Two factors are relevant to determining whether

the officers’ conduct exceeded the permissible duration of an investigative

detention: (1) the brevity of the invasion of Robison’s Fourth Amendment

interests, and (2) how diligently the officers pursued their investigation. See id.

(citing Place , 462 U.S. at 709). The invasion of Robison’s Fourth Amendment

interest was minimal. Although he was dispossessed of his bag, he had arrived at

his destination, he was not forced to alter his itinerary, and he was allowed to

leave the airport. See United States v. Bell , 892 F.2d 959, 968 (10th Cir. 1989)

(finding that although the suspect was at the airport, he was not traveling, so

seizure of the package did not intrude on his travel plans). The testimony showed

the officers diligently pursued their investigation. The actual detention of

Robison’s bag lasted only ten minutes, until the drug dog alerted to the bag and

probable cause attached. The detention of Robison’s bag was supported by

reasonable suspicion and was properly limited in duration. The district court did

not err in denying Robison’s motion to suppress.

AFFIRMED.

Entered for the Court

Mary Beck Briscoe Circuit Judge

-4-