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United States v. Massac

filed: February 9, 1989.

UNITED STATES OF AMERICA
v.
MASSAC, JOSSETTE, A/K/A GUIRAND, JOSETTE; JOSETTE GUIRAND, APPELLANT



Appeal from the United States District Court for the District of Delaware, D.C. Crim. No. 87-00057-1.

Gibbons, Chief Judge, Seitz, and Greenberg, Circuit Judges.

Author: Seitz

Opinion OF THE COURT

SEITZ, Circuit Judge.

Defendant, Josette Guirand, appeals her sentence after conviction by a jury on several counts arising out of her illegal involvement with drugs and related money laundering.

Defendant attacks her conviction on four grounds. She first asserts that the district court erred in denying her motion to suppress evidence of her arrest and the narcotics evidence obtained by the subsequent search of her baggage.

We first consider the correctness of the district court's determination that defendant was validly arrested at the Wilmington railroad station. It is indisputably established that an arrest must be based on probable cause. There is probable cause if the facts and circumstances known to the officer warrant a prudent man in the officer's shoes in believing that an offense has been committed. Henry v. United States, 361 U.S. 98, 4 L. Ed. 2d 134, 80 S. Ct. 168 (1959).

We turn then to the facts and circumstances known to the arresting officer, either prior to or at the time of the arrest in the train station. Most are fairly stated in the Memorandum Opinion of the district court which we quote:

Although the lead was considered a long shot by at least one officer, the Wilmington Police dispatched several detectives to cover the train station. In addition, Detective James Nolan was sent to the station with "K-9 Thor," a specially trained drug-sniffing dog.

When the train from Florida arrived, all the checked luggage, including the blue suitcase belonging to one of the defendants, was subjected to a canine sniff while in the baggage area out of public view. To conduct the canine sniff, each piece of luggage was placed at three-foot intervals. Thor was commanded to "seek" and after smelling the displayed luggage, he alerted on the large blue suitcase; that is he sat down next to it, indicating that he detected drugs inside. The blue suitcase had "Osin Eliasseint" written in large letters on the side. After the canine sniff, all the luggage was brought to the lobby, and the police waited to see who would pick up the blue suitcase. The entire canine sniff delayed the delivery of the luggage by approximately one minute.

Guirand's companion, [much later identified as Eliassaint], came up to the baggage check window and claimed the suitcase, at which point he and Guirand were detained on the basis of the positive alert by Thor on the blue suitcase. Although the blue suitcase had Eliassaint's name on it, he gave the police the alias of Andre LeBlanc so that the police did not know whether he or Guirand was the owner of the suitcase. Eliassaint did not appear to speak any English, but Guirand was able to and did converse with the police. She was read her Miranda rights and indicated that she understood them.

We think it is clear, as the police recognized, that probable cause to arrest did not exist until the trained dog reacted affirmatively to the blue luggage*fn1 that had been checked through to Wilmington. When the alert was given by the dog, we are satisfied that, at least when combined with the other known circumstances, probable cause existed to arrest. See United States v. Robinson, 707 F.2d 811, 815 (4th Cir. 1983). Our conclusion is based on the demonstrated fact that trained dogs can detect the presence of concealed narcotics with almost unerring accuracy and the finding of the district court that this particular dog*fn2 met the training and reliability requirements.

Indeed, the Court of Appeals for the Second Circuit in United States v. Waltzer, 682 F.2d 370, 372-3 (1982), cert. denied, 463 U.S. 1210, 77 L. Ed. 2d 1392, 103 S. Ct. 3543 (1983), concluded that a positive sniff alone constitutes probable cause to arrest the individual connected with the luggage. Furthermore, numerous authorities in other circuits, deciding such issue in the context of probable cause to search containers or luggage, reach the same result, e.g., United States v. Klein, 626 F.2d 22, 27 (7th Cir. 1980).

Having determined that the police officer possessed probable cause to make an arrest at the railroad station based on a reasonable belief as to contemporaneous illegal narcotics activity, we must next determine ...


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