                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                                    PUBLISH
                                                                         APR 12 1999
                   UNITED STATES COURT OF APPEALS
                                                                      PATRICK FISHER
                                                                             Clerk
                               TENTH CIRCUIT



 UNITED STATES OF AMERICA,

       Plaintiff-Appellee,

             v.                                         No. 98-2100

 LEWIS SAMUEL GORDON, also
 known as Chris Jonston,

       Defendant-Appellant.




             APPEAL FROM UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF NEW MEXICO
                        (D.C. No. CR-97-449-JP)


Peter Schoenburg, of Rothstein, Donatelli, Hughes, Dahlstrom, Cron &
Schoenburg, LLP, Albuquerque, New Mexico, for the appellant.

J. Miles Hanisee, Assistant United States Attorney, (John J. Kelly, United States
Attorney, with him on the brief), Albuquerque, New Mexico, for the appellee.


Before SEYMOUR, Chief Judge, BALDOCK, and BRISCOE, Circuit Judges.


BRISCOE, Circuit Judge.
       Defendant Lewis Gordon was charged and convicted by jury of possession

with intent to distribute more than five kilograms of cocaine, in violation of 21

U.S.C. § 841. He was sentenced to 151 months’ imprisonment. On appeal, he

contends the district court erroneously denied his motion to suppress statements

and evidence, his motion to disclose the identity of a confidential informant, and

his motion for new trial based on prosecutorial misconduct. We affirm.

                                              I.

       On June 27, 1997, Gordon purchased a one-way Amtrak ticket from Los

Angeles to Chicago under the name of Chris Jonston. He purchased the ticket

with cash, ten minutes before the train’s departure.

       An Amtrak employee (the informant/tipster) in Los Angeles contacted DEA

Agent Kevin Small in Albuquerque and advised him of the circumstances

surrounding the purchase of the ticket.   1
                                              Small relayed the name and physical

description of the ticket holder to DEA Task Force Officer Jeanette Tate, who

verified the ticket purchase with a passenger itinerary printout. Tate telephoned

the call-back number listed on the itinerary for Chris Jonston and reached the



       1
          DEA Agents are particularly suspicious of individuals who purchase one-
way tickets with cash shortly before a train’s departure. To facilitate DEA
interdictions, an Amtrak employee with access to the computer reservation system
is stationed at the Albuquerque DEA office. Amtrak employees frequently
provide tips to DEA agents and occasionally receive cash awards if the tips prove
fruitful. No cash award was given in this case.

                                              -2-
answering machine of Robert Anderson.

      Tate and DEA Task Force Officer Nina Bruce met the train in Albuquerque

and located Gordon in car 413. With her tape recorder running, Tate showed

Gordon her credentials and asked if he would talk to her. Gordon did not object.

He identified himself as Lewis Gordon, but provided a ticket stub bearing the

name of Chris Jonston, explaining he was “traveling” under that name. Tate

asked if Gordon had any luggage and Gordon pointed to two bags. Tate asked if

she could search the bags and, after mumbling inaudibly, Gordon replied, “Yeah.”

Aplt’s App. at 48. Gordon and the agents went to the lower level of the train car

to search the bags. Tate opened one of the bags and discovered a smaller

padlocked duffle bag inside. Tate asked Gordon if he could open the bag. In

response, Gordon took a key from his pocket and handed it to Tate. Gordon did

not object to the opening of the padlocked bag. In her search of the bag, Tate

found $28,000 in United States currency and two brick-shaped, cellophane-

wrapped packages. Gordon, a former marine, explained he had been in Los

Angeles for an informal reunion and “Rick” asked him to deliver a bag to Rick’s

girlfriend in Chicago. Gordon stated he was unaware of the contents of the

locked bag, although Rick had given him the key to the bag. Gordon was arrested

and was taken to the Albuquerque DEA Office. The contents of the cellophane-

wrapped packages were tested and found to be 8.97 kilograms of cocaine.


                                        -3-
                                         II.

                                Motion to Suppress

       Gordon moved to suppress all physical evidence seized from a locked

duffle bag and all statements he made to authorities during the encounter on the

train. He argued the search of the locked duffle bag exceeded the scope of his

consent, and that Tate lacked probable cause to arrest him based only on

discovery of the cellophane-wrapped packages. The district court denied the

motion, ruling (1) Gordon consented to the search of the locked bag based either

on his initial consent to the search of his bags or his voluntary relinquishment of

the padlock key to Tate, and (2) the combination of the money and the

cellophane-wrapped packages found in the locked bag constituted probable cause

to arrest.

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

the court’s factual findings unless they are clearly erroneous and consider the

evidence in the light most favorable to the government. The ultimate question of

whether a search and seizure were reasonable under the Fourth Amendment is a

question of law we review de novo.    United States v. Glover , 104 F.3d 1570, 1576

(10th Cir. 1997).




                                         -4-
Consent to search locked bag

       We need not rely on Gordon’s initial consent to search his bags in order to

affirm the denial of Gordon’s motion to suppress evidence seized from the locked

duffle bag. We agree with the district court that Gordon’s voluntary

relinquishment of the key evidenced his consent to search the locked duffle bag.

       Gordon correctly points out Tate did not advise Gordon he did not have to

answer her questions and that he was free to leave, did not state with precision the

object for which she was searching, and did not explicitly identify herself as a

police officer. A search, however, does not become non-consensual merely

because an officer fails to do any or all of these things.   See United States v.

Little , 18 F.3d 1499, 1505 (10th Cir. 1994). Rather, Tate’s failure to more clearly

express the objects of her requested search and her failure to plainly identify

herself are mere factors to be considered in determining whether, under the

totality of the circumstances, the search was consensual.     See id.

       When all of the circumstances are considered, Gordon’s consent is

apparent. Tate asked to see Gordon’s ticket and identification, inquired as to his

travel plans, and asked if he had any luggage. A written transcript of the

conversation, while not entirely complete because of the poor quality of the

recording, reveals Tate asked questions and did not fire orders at Gordon or

otherwise attempt to intimidate Gordon. This is consistent with Tate’s testimony.


                                              -5-
Tate and Gordon both testified that, at a minimum, Tate showed her badge to

Gordon when she approached him. Tate also advised Gordon she was “working

interdiction” and “check[ing] for passengers who are traveling back east from the

west coast.” Aplt’s App. at 85. In addition, after obtaining consent to search

Gordon’s luggage but before obtaining consent to search        the locked bag, Tate

asked Gordon, “Do you have any contraband in here, Lewis?”           Id. at 86.

Although Gordon might not have known exactly the object of Tate’s search, at

that point he knew Tate was searching for contraband.

       When Tate encountered the locked bag, she asked Gordon, “Can you open

that?” Aplt’s App. at 86. Gordon apparently did not respond verbally but

removed the key from his pocket and handed it to Tate. Non-verbal conduct,

considered with other factors, can constitute voluntary consent to search.        See

United States v. Flores , 48 F.3d 467, 469 (10th Cir. 1995);     United States v.

Benitez , 899 F.2d 995, 998 (10th Cir. 1990). Gordon contends Tate ordered him

to unlock the bag and complains he felt obligated to comply with the order.

Based on Tate’s testimony and a review of the recording transcript, the district

court found otherwise, noting Gordon “reached in his pocket voluntarily to give

her the key.” Record II at 185. As this factual finding is not clearly erroneous,

we have no basis for rejecting it.

       Moreover, and perhaps most significantly, Gordon did not object to a


                                            -6-
search of the locked bag when Tate asked Gordon, “Can you open that?” or when

Tate actually searched the bag.     See Jimeno , 500 U.S. at 252 (“A suspect may of

course delimit as he chooses the scope of the search to which he consents.”). We

consistently and repeatedly have held a defendant’s failure to limit the scope of a

general authorization to search, and failure to object when the search exceeds

what he later claims was a more limited consent, is an indication the search was

within the scope of consent.      See United States v. Pena , 143 F.3d 1363, 1368

(10th Cir. 1998); United States v. Sanchez , 89 F.3d 715, 719 (10th Cir. 1996);

United States v. McRae , 81 F.3d 1528, 1538 (10th Cir. 1996);     Wacker , 72 F.3d at

1470; United States v. Santurio , 29 F.3d 550, 553 (10th Cir. 1994).

      In sum, Gordon gave a broad and unlimited consent to search his bags.

When Tate came across a smaller padlocked bag inside the larger bag, Gordon

voluntarily and without objection handed her the key in response to her asking

him, “Can you open that?” Tate reasonably construed Gordon’s response as

consent to search the locked bag.



Probable cause to arrest

      “Law enforcement personnel may arrest a person without a warrant if there

is probable cause to believe that person committed a crime.”      United States v.

Wright , 932 F.2d 868, 877 (10th Cir. 1991). To determine if probable cause


                                             -7-
existed for a warrantless arrest, we examine if, at the time of arrest, the facts and

circumstances within the officer’s knowledge and of which the officer had

reasonably trustworthy information were sufficient to warrant a prudent officer in

believing the defendant had committed or was committing a crime.        United States

v. Snow , 82 F.3d 935, 942 (10th Cir. 1996). “Probable cause must be evaluated

in light of circumstances as they would have appeared to a prudent, cautious,

trained police officer.”   Id. (quoting United States v. Morgan , 936 F.2d 1561,

1568 (10th Cir. 1991)). We review de novo the district court’s determination of

probable cause , while we review its findings of historical fact for clear error,

United States v. Barron-Cabrera     , 119 F.3d 1454, 1457 (10th Cir. 1997).

       Gordon argues Tate’s viewing of the cellophane-wrapped packages alone

was insufficient to create probable cause. Our view of the evidence is not that

limited. We determine the existence of probable cause to arrest based on the

totality of the circumstances.    See United States v. Vazquez-Pulido   , 155 F.3d

1213, 1216 (10th Cir. 1998). By focusing narrowly on Tate’s failure to establish

before the arrest that the cellophane-wrapped packages contained cocaine, Gordon

in essence asks that we fundamentally alter the nature of the probable cause

requirement from one based on a reasonably fair likelihood of criminal conduct to

one satisfied only upon a positive showing of criminal conduct. Such a high

threshold is inconsonant with the nature of our inquiry. Probable cause rests on a


                                            -8-
reasonable probability that a crime has been committed, not on certainty that

illegal activity is afoot.   See id. (“Probable cause to arrest does not require facts

sufficient to establish guilt, but does require more than mere suspicion.”);      United

States v. Buchanan , 70 F.3d 818, 826 n.5 (5th Cir. 1995);       United States v. Potter ,

895 F.2d 1231, 1234 n.1 (9th Cir. 1990) (rejecting defendant’s argument that

officer “should have tested the powder to make sure it was methamphetamine

before arresting him”) .

       Tate clearly had probable cause to arrest Gordon. At the time of arrest,

Tate knew Gordon (1) had purchased a one-way ticket with cash only minutes

before the train departed, (2) was traveling under another name, (3) was carrying

a large amount of cash (later determined to be $28,000 bundled in $20 bills), and

(4) had in his possession two brick-shaped, cellophane-wrapped packages, a type

of packaging Tate testified is commonly used to transport narcotics. This

combination of facts could lead a reasonable officer to believe Gordon was

committing or had committed a crime.        See United States v. Harlan , 35 F.3d 176,

179 (5th Cir. 1994) (probable cause to arrest where individual had one-way ticket

purchased with cash, gave misleading information, had $8,000 in cash, and had

“large bulge” in his jacket);   United States v. Prandy-Binett    , 995 F.2d 1069, 1071

(D.C. Cir. 1993) (probable cause to arrest where individual possessed rectangular

package wrapped in silver duct tape, gave deceptive answers to officers’


                                             -9-
questions, and moved quickly through train station when he realized he was being

watched); United States v. Taylor , 956 F.2d 572, 578 (6th Cir. 1992) (probable

cause to arrest where individual paid cash for one-way ticket from source city,

provided implausible answers to officers’ questions, and search of bag revealed

“two spherical, tape-bound parcels”);   United States v. Tartaglia , 864 F.2d 837,

841-42 (D.C. Cir. 1989) (facts that individual paid cash for one-way ticket and

call-back number was out of service were properly considered in probable cause

analysis); see also United States v. Mendez , 27 F.3d 126, 129 (5th Cir. 1994).

The district court properly determined Tate had probable cause to arrest Gordon.

                                Identity of Informant

       Gordon filed a pretrial motion for disclosure of the identity of the Amtrak

employee who divulged information regarding Gordon’s ticket purchase. Gordon

claimed the tip was not based on any legitimate articulable grounds but solely on

the basis of Gordon’s race, in violation of the Equal Protection Clause. The

motion was denied because the court had “not seen anything . . . that creates any

alarm or raises any suspicion in me that this was a race-based tip.” Aplt’s App. at

209.

       A defendant seeking to force disclosure of an informant’s identity has the

burden to show the informant’s testimony is relevant or essential to the fair

determination of defendant’s case. In determining whether to require disclosure,


                                         -10-
a court must balance the public interest in protecting the flow of information

against the individual’s right to prepare his defense.      Roviaro v. United States ,

353 U.S. 53, 62 (1957). The court conducts this balancing in light of the crime

charged, the possible defenses, and the significance of the informant’s testimony.

United States v. Sinclair , 109 F.3d 1527, 1538 (10th Cir. 1997). “Where it is

clear that the informant cannot aid the defense, the government’s interest in

keeping secret [the informant’s] identity must prevail over the defendant’s

asserted right of disclosure.”      Id. (quoting United States v. Martinez , 979 F.2d

1424, 1429 (10th Cir. 1992)). We review a district court’s denial of a motion to

disclose for abuse of discretion.      See Sinclair , 109 F.3d at 1538.

       The informant’s role in Gordon’s arrest was extremely limited. The

informant did not detain Gordon, and did not participate in or witness Gordon’s

detention or the transaction in which Gordon purportedly agreed to transport

cocaine in exchange for money. We have refused disclosure in similar cases

where the informant has limited information, was not present during commission

of the offense, and cannot provide any evidence that is not cumulative or

exculpatory. See United States v. Brantley , 986 F.2d 379, 383 (10th Cir. 1993);

United States v. Mendoza-Salgado        , 964 F.2d 993, 1001 (10th Cir. 1992);   United

States v. Scafe , 822 F.2d 928, 933 (10th Cir. 1987);     United States v. Halbert , 668

F.2d 489, 496 (10th Cir. 1982). The Amtrak employee here simply provided a


                                             -11-
lead and in that sense was a mere “tipster” whose identity and testimony are

unrelated to any issue in Gordon’s case.    See United States v. Wynne , 993 F.2d

760, 766 (10th Cir. 1993);   United States v. Moralez , 917 F.2d 18, 19 (10th Cir.

1990); United States v. Zamora , 784 F.2d 1025, 1030 (10th Cir. 1986) (“if a

confidential informant was only a ‘tipster,’ and not an active participant in the

criminal activity charged, disclosure of the informant’s identity is not required”).

      Gordon makes much of the fact that the description provided by the

informant referenced his race and from that he reasons the tip was race-based.

This rampant speculation is not supported by any evidence in the record. We will

not require disclosure of an informant’s identity based on “mere speculation”; the

informant’s testimony must be shown to be valuable to the defendant.     United

States v. Leahy , 47 F.3d 396, 398 (10th Cir. 1995). Gordon ignores the evidence

that prompted the Amtrak employee to contact the DEA in the first place -- he had

purchased a one-way ticket, with cash, only minutes before the train departed.

The Amtrak employee contacted the DEA after noting these facts because the

employee previously had been told by the DEA that these facts fit the DEA

profile of an individual who is a likely transporter of drugs.

      Gordon has failed to satisfy his burden of demonstrating disclosure of the

informant’s identity would contribute meaningfully to his defense. In addition,

the totality of the circumstances does not permit even a remote inference that the


                                           -12-
tip was race-based.

                              Motion for New Trial

      Gordon timely filed a motion for new trial, arguing prosecutorial

misconduct during cross-examination violated his right to a fair trial. Gordon

made several references to his four children during his direct examination, noting

he had purchased clothing for them in Los Angeles and had discussed the children

with Tate at the time of his arrest. The following exchange occurred during

cross-examination:

            Q: Mr. Gordon, where are your four children now?
            A: I have two sons in Wisconsin. My oldest daughter is in
      North Carolina, and my youngest daughter is in Joliet, Illinois.
            Q: And did you claim these children as dependents when you
      were in the military?
            A: One. The others I didn’t have when I was in the military.
            Q: Is your check at work garnished so that you can pay
      support for these children?
            Defense Counsel: Your Honor, I would object and ask to
      approach.
            The Court: Yes, please come up to the bench.
            Defense Counsel: Judge, I am going to object and move for a
      mistrial.
            Prosecutor: He is testifying.
            The Court: Well, the specific question is whether his check
      has been garnished. What is the probative value of that?
            Prosecutor: Your Honor, it tends to show why he is carrying
      drugs and attempting to make large quantities of money, because he
      is unable to support--provide support otherwise.
            The Court: Well, I think that the probative value of that
      information is significantly outweighed by the danger of unfair
      prejudice. I am going to keep it out under Rule 403.
            Defense Counsel: Judge, I would also like to move for a
      mistrial. We did not get into his family situation or his kids. This is

                                        -13-
      just a complete cheap shot.
             The Court: Mistrial on what?
             Defense Counsel: On the basis of introducing this as totally
      extraneous and prejudicial.
             The Court: I will instruct the jury to disregard the last
      question. There is no basis for a mistrial. . . .
                     (Whereupon, in the presence of the jury.)
             The Court: Members of the jury, I am going to instruct you to
      disregard the last question. Remember what I have told you before.
      The questions, the statements, the arguments, the objections, the
      explanations by the lawyers are not evidence in the case.

Aplt App. at 602-03. Gordon contends the mere asking of the “garnishment”

question was “devastating,” as it undermined his credibility and

      raised in the jurors’ minds a stereotyped image of an unsavory
      character: a young Black man with children by apparently different
      mothers, who has been irresponsible and has not supported his
      children to the point that the state had to intervene, and who was
      likely to resort to drug trafficking not only out of necessity, but
      because it is part of his life style.

Aplt Br. at 43.

      We review the district court’s denial of a motion for new trial based on

prosecutorial misconduct for abuse of discretion.     See United States v. Gabaldon ,

91 F.3d 91, 94 (10th Cir. 1996). We engage in a two-step process in reviewing

claims of prosecutorial misconduct. First, we determine if the conduct was

improper. Second, we determine if any improper conduct warrants reversal.

United States v. Lonedog , 929 F.2d 568, 572 (10th Cir. 1991). Reversal is

necessary only if the improper conduct influenced the verdict.    United States v.

Alexander , 849 F.2d 1293, 1296 (10th Cir. 1988). In determining whether

                                           -14-
misconduct affected the outcome of a trial, we consider “the curative acts of the

district court, the extent of the misconduct, and the role of the misconduct within

the case as a whole.”   Lonedog , 929 F.2d at 572 (quoting      United States v.

Martinez-Nava , 838 F.2d 411, 416 (10th Cir. 1988)).

       We agree with the district court that the prosecutor’s question was improper

in that the potential for prejudice to Gordon outweighed any probative value of

any response the question would have elicited. However, we do not conclude this

improper conduct warrants reversal of Gordon’s conviction in this case. Here, the

district court promptly instructed the jury to disregard the question and reiterated

that “questions . . . by the lawyers are not evidence in the case.” Absent evidence

to the contrary, we assume the jury follows a curative instruction.      See United

States v. Iribe-Perez , 129 F.3d 1167, 1171 (10th Cir. 1997);     see also Greer v.

Miller , 483 U.S. 756, 766 (1987) (prejudicial effects of improper question

generally cured by objection and issuance of curative instruction). In addition,

the purported misconduct is insignificant when the trial is considered as a whole.

It consisted of a single question in a two-day proceeding that was not answered by

Gordon nor commented on by the prosecutor in closing argument.           Cf. Longdog ,

929 F.2d at 573 (no prejudice where improper question not answered). Because

the effect of any misconduct in asking the question was exceedingly slight, the

district court did not abuse its discretion in denying Gordon’s motion for new


                                            -15-
trial. See United States v. Ivy , 83 F.3d 1266, 1288 (10th Cir. 1996).

      AFFIRMED.




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