                      UNITED STATES COURT OF APPEALS
                           FOR THE FIFTH CIRCUIT


                                      No. 98-11503


UNITED STATES OF AMERICA,
                                                                        Plaintiff-Appellee,
                                          versus
DAVID LYNN BAKER,
                                                                     Defendant-Appellant.



                      Appeal from the United States District Court
                          for the Northern District of Texas
                                  (4:98-CR-139-1-A)


                                   November 23, 1999
Before POLITZ, DeMOSS, and BENAVIDES, Circuit Judges.
POLITZ, Circuit Judge:*

       David Lynn Baker seeks review of the district court’s order denying his
motion to suppress evidence. For the reasons assigned, we vacate the challenged
order and remand.

                                   BACKGROUND
       On the morning of July 16, 1998, Officer Greg Bewley1 received a call from


   *
    Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
  1
     Officer Bewley, an employee of the City of Grapevine Police Department, is assigned
to the Dallas/Fort Worth Airport Narcotics Task Force of the Drug Enforcement
Administration.
American Airlines regarding a passenger named David Baker, who made a cash
purchase of a round-trip ticket for travel from Los Angeles, California, to

Springfield, Missouri. The ticket was purchased on the date of travel with a return

on August 16, 1998.2 Baker was traveling with Robert Hammond on a flight that
was scheduled to arrive at the Dallas/Fort Worth International Airport around 6:20

a.m., connecting at 7:35 a.m. with a flight to Springfield. He checked no baggage.

        After receiving this information, Officer Bewley and two other task force

officers observed passengers as they deplaned the Los Angeles flight. They
tentatively identified two of the passengers as Baker and Hammond because they
were the only men on the flight who appeared to be traveling together. The officers
watched Baker as he walked alone down the terminal. He was carrying a shoulder

bag and he looked over his shoulder three times as he walked through the terminal
and then entered a men’s room. After Baker exited the men’s room Officer Bewley

approached him, displayed his credentials, and asked to speak to him. Baker
assented. Officer Bewley requested and examined Baker’s airline ticket and
driver’s license. He asked Baker whether he was traveling with anyone; Baker

responded that he was not. When asked about the purpose of his trip, Baker replied

that he was looking into buying some motorcycle parts. Officer Bewley informed
Baker that it was his job to interdict narcotics smuggled through the airport and

asked to inspect Baker’s shoulder bag. Baker declined. Officer Bewley kept Baker

under surveillance as he proceeded to his gate.

    2
        Based upon his experience, Officer Bewley viewed the thirty-day return date as
indicating that Baker actually intended to travel one-way.
                                          2
      Officer Bewley called the Grapevine Police Department and learned that
Baker had been arrested in Texas for felony possession of a controlled substance,

penalty group two. He speculated that the earlier arrest was for possession of

methamphetamine, and he suspected that Baker currently was carrying
methamphetamine due to the early hour of the flight and the fact that there had

been other methamphetamine seizures from such flights. Meanwhile, the other

officers spoke with Hammond who told them that he was traveling with Baker.

      As Baker was seated in the gate area waiting for his flight to Springfield,
Officer Bewley re-approached him and again asked if he was traveling alone. After
Baker denied that he was traveling with anyone, Officer Bewley informed him of
Hammond’s admission that they were traveling together. Baker did not respond.

Officer Bewley then asked Baker if he ever had been arrested for a drug offense.
Baker replied that he had been arrested on a misdemeanor charge for possessing a

small amount of marihuana. He denied ever being arrested on a felony drug
charge. Officer Bewley informed Baker that he was aware of Baker’s arrest on a
felony narcotic charge and suspected that Baker was then in possession of a

controlled substance. The officer informed Baker that he and his bag would be

detained until a dog could sniff his bag.
      Baker was taken by the officers outside the terminal to a vehicle. They then

conducted a pat-down search to determine whether Baker possessed any weapons.

As he conducted the search, Officer Bewley felt something inside one of Baker’s

boots, pulled up Baker’s jeans, and saw a knife pouch. When asked what was in


                                            3
the pouch, Baker replied that it contained marihuana. Baker was then handcuffed
and transported to the DEA office at the airport, where a narcotics dog sniffed and

alerted on Baker’s bag. After a search warrant was secured, Baker’s bag was

searched and three bundles of methamphetamine were recovered.
KEYBOARD(Enter Background, press Continue)                    Baker was indicted for

possession with intent to distribute more than one kilogram of a mixture and

substance containing a detectable amount of methamphetamine. He filed a motion

to suppress, maintaining that reasonable suspicion did not exist for his detention for
the dog sniff of his shoulder bag, and that the drugs should be suppressed as fruits
of the poisonous tree. Baker maintains that he was arrested without probable cause
when Officer Bewley announced that he suspected Baker of possessing a controlled

substance and that he intended to detain Baker for a check of his shoulder bag.
Baker contends that the evidence discovered as a consequence of this illegal arrest

must be suppressed. The district court was of the view that the facts relevant to
Baker’s motion were undisputed and that a suppression hearing was not necessary.
The court then denied the motion to suppress, concluding that there was reasonable

suspicion that Baker’s shoulder bag contained narcotics, thereby warranting a dog

sniff of the bag.3 The district court also concluded that the narcotics inevitably
would have been discovered, whether or not Baker was under arrest when Officer

   3
       The district court pointed out that (1) Officer Bewley had been advised to be on the
lookout for Baker and Hammond; (2) he knew Baker had made a cash-purchase of a round-
trip ticket for an early-morning flight from a source city; (3) he knew methamphetamine had
been seized on similar flights; (4) Baker did not check any luggage; (5) Baker lied about
having a travel companion; and (5) Baker lied about having been previously arrested on
felony drug charges.
                                            4
Bewley announced his suspicion and intention to detain Baker, or whether there

was probable cause for an arrest. This timely appeal followed. 4

                                        ANALYSIS
        We apply a two-tier standard of review to a trial court’s determination of

reasonable suspicion and probable cause regarding the constitutionality of

investigative stops and searches under the fourth amendment.5 The court’s ultimate

conclusion on reasonable suspicion or probable cause, a mixed question of law and
fact, is reviewed de novo.6 The events leading up to the search or seizure are

reviewed for clear error, giving "due weight to inferences drawn from those facts
by resident judges and local law enforcement officers."7 In reviewing a district
court’s ruling on a motion to suppress, we construe the facts in the light most

favorable to the prevailing party.8

        In United States v. Berry,9 we noted that courts should be ever mindful of
the constitutional rights of citizens and should liberally construe the constitutional



   4
       After his motion to suppress was denied, Baker entered a conditional guilty plea in
accordance with FED. R. CRIM. P. 11(a)(2), reserving his right to appeal the order denying
his motion to suppress. The agreement provided that Baker could withdraw his guilty plea
if he succeeded on appeal.
  5
    United States v. Tompkins, 130 F.3d 117 (5th Cir. 1997), cert. denied, ___ U.S. ___,
118 S.Ct. 1335 (1998).
   6
       Id.
   7
       Id. at 120.
   8
     United States v. Cardenas, 9 F.3d 1139 (5th Cir. 1993), cert. denied, 511 U.S. 1134
(1994).
   9
       670 F.2d 583, 596 (5th Cir. Unit B 1982) (citation omitted).
                                              5
provisions for the security of person and property to avoid any “stealthy

encroachments” on such rights. We also observed that, although the government

has an exceedingly strong interest in ending drug trafficking, we may not suspend
the fourth amendment in the effort.10 We must conclude that such was not done

herein.

        On appeal, Baker asserts that the district court erred in denying his motion

to suppress, maintaining that he was arrested without probable cause when Officer
Bewley decided to detain him and his shoulder bag for transportation to the DEA

office for a dog sniff. Because an arrest without probable cause is illegal, Baker
contends his motion to suppress should have been granted. In its order denying
Baker’s motion to suppress, the district court does not address whether an arrest

was effectuated in the airport terminal prior to the discovery of marihuana in the

knife pouch. Rather, the court determined that reasonable suspicion existed to
justify a dog sniff of Baker’s bag and that the narcotics inevitably would have been
discovered. We conclude that the challenged order is flawed in its legal reasoning

and lacks a sufficient evidentiary foundation.

        Based on the uncontested factual findings in the district court’s order,
precedent compels the conclusion that Baker was placed under arrest in the airport

terminal shortly after Officer Bewley approached him for the second time. Our

conclusion is based on the teachings in Florida v. Royer,11 Berry,12 United States


   10
        Id.
  11
     460 U.S. 491 (1983). In Royer, the Supreme Court recognized that safety and security
considerations might justify moving a suspect from one location to another during an
                                           6
v. Place,13 and United States v. Hill,14 as the factual findings in the case at bar are

akin to the facts in these cases. Even if there was reasonable suspicion to justify

a dog sniff,15 we must conclude that the detainment evolved into an arrest when


investigatory detention in an airport without transforming a Terry stop into an arrest.
Nevertheless, the Supreme Court held that agents, in moving Royer from the airport
concourse to an interrogation room elsewhere in the airport to effectuate a baggage search,
transformed a Terry stop into an arrest requiring probable cause. The facts in the present
case are equally or more compelling, as Baker was removed from the airport terminal to be
placed in a vehicle for transportation to another location within the airport complex.
   12
         In Berry, 670 F.2d at 602, we held that
          [r]equiring an individual to accompany police to an office indicates a detention
          for a time period longer than that permitted in a seizure; cuts the individual off
          from the outside world, without indication of when he might be allowed to
          leave; places him in unfamiliar surroundings; may subject him to increased
          implicit police pressure; and leaves him without third parties to confirm his
          story . . . . Such a detention, if not by consent . . . is only constitutional if
          accompanied by probable cause.
    13
        462 U.S. 696 (1983). In Place, the Supreme Court suppressed evidence that was
uncovered by a dog sniff where a suspect’s luggage was seized for ninety minutes and
transported to another location for the dog sniff. The Court concluded that the detention of
the luggage on less than probable cause violated the fourth amendment. Again, the facts in
the present case are clearer than the facts in Place, as both Baker and his luggage were
detained for transport to another location where a dog sniff could be conducted. Although
the record is unclear regarding the time period in which Baker and his bag were detained, we
do not believe it is appropriate to apply a rigid time limitation to investigatory detentions.
Place, 462 U.S. 709-10 (questioning the wisdom of a rigid time limitation and declining to
adopt an outside time limitation for a permissible Terry stop). Rather, we believe the
totality of the circumstances surrounding the detention controls.
  14
      626 F.2d 429 (5th Cir. 1980). In Hill, we held that a DEA agent’s request that a suspect
accompany him to the airline office, without informing him that he was free to leave,
exceeded the bounds of a Terry stop and amounted to an arrest requiring probable cause.
We reasoned that the agent had not limited himself to a brief, on-the-spot questioning, and
the request to accompany him to the office signaled a more intensive interrogation that was
to occur in a place other than where it began. In the case at bar, the facts reflect that Officer
Bewley did not ask Baker to accompany him to the DEA office for a dog sniff. Rather, he
told Baker that he was being detained. Officer Bewley did not inform Baker that he was free
to leave.
   15
       We do not hold that there was reasonable suspicion to detain Baker in a Terry-type
setting. Terry v. Ohio, 392 U.S. 1 (1968).
                                                  7
Officer Bewley informed Baker of his belief that Baker was in possession of

narcotics and determined that Baker and his bag would be detained and transported

to another location for a dog sniff. At this point, reasonable suspicion–if any
existed–was no longer sufficient to justify the officers’ actions. Rather, probable

cause for an arrest was required.16 Absent probable cause, the evidence obtained

after Baker’s arrest is inadmissible and would have to be suppressed.

        Although the district court did not address whether there was an arrest or
probable cause, it determined that the drugs inevitably would have been discovered.

Under the inevitable discovery exception, evidence is not subject to suppression if
the government demonstrates by a preponderance of the evidence that: (1) there
is “a reasonable probability that the contested evidence would have been

discovered by lawful means in the absence of police misconduct” and (2) the

government was in active pursuit of “a substantial alternate line of investigation at
the time of the constitutional violation.”17 We are not persuaded. We find an
insufficient basis in the record on appeal and in the trial court’s factual findings to

support the essential conclusion that the discovery of the drugs was inevitable. 18


   16
       Berry, 670 F.2d at 601. Probable cause exists “when the facts and circumstances
within the knowledge of the arresting officer and of which he has reasonably trustworthy
information are sufficient in themselves to warrant in a person of reasonable caution the
belief that an offense has been or is being committed.” United States v. Maldonado, 735
F.2d 809, 815 (5th Cir. 1984) (citation omitted).
   17
        United States v. Kirk, 111 F.3d 390, 392 (5th Cir. 1997) (citation omitted).
  18
     In denying the motion to suppress the trial court states, “Whether or not defendant was
arrested, the sniff of his shoulder bag by the dog would have alerted officers to the presence
of the methamphetamine.” Yet, the record is devoid of any evidence that a dog sniff would
have occurred absent Baker’s arrest and transportation to the DEA office.
                                              8
      We conclude that Baker was placed under arrest at the time that Officer

Bewley informed him of his suspicion and detained both Baker and his bag for

transportation by vehicle to the DEA office for a dog sniff. The record before us
does not contain sufficient evidence of probable cause for an arrest, nor does it

support the inevitable discovery exception. Accordingly, we must vacate the

challenged order and remand.

      On remand, the district court is to conduct an appropriate suppression
hearing and determine whether probable cause existed at the time Baker was

arrested. If the trial court concludes that there was no probable cause for that
arrest, it may deny the motion to suppress based upon the inevitable discovery
exception if the government meets the burden set forth in Kirk.

      The order denying suppression of evidence is VACATED and the matter is

REMANDED for further proceedings consistent herewith.




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