UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 95-5426

ANTOINETTE NATALIE LEWIS,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Greensboro.
William L. Osteen, Sr., District Judge.
(CR-94-298)

Submitted: April 9, 1996

Decided: April 23, 1996

Before WILKINS, LUTTIG, and WILLIAMS, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Charles Jackson Alexander, II, MORROW, ALEXANDER, TASH &
LONG, Winston-Salem, North Carolina, for Appellant. Walter C.
Holton, Jr., United States Attorney, Loretta C. Biggs, Assistant
United States Attorney, Greensboro, North Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION

PER CURIAM:

Antoinette Natalie Lewis appeals from the district court's order
denying her motion to suppress evidence. Lewis entered a conditional
guilty plea to possession with the intent to distribute cocaine base,
reserving the right to appeal the denial of her motion to suppress.
Lewis claims that her Fourth Amendment right against unreasonable
searches and seizures was violated. We affirm.

Detectives A. Tackett and E. Hoover observed Lewis in a North
Carolina airport. Lewis deplaned a flight from New York and walked
toward the terminal. Tackett saw Lewis hold a carry-on bag close to
her body and periodically look behind her as she walked. Tackett
approached Lewis near a bathroom and identified herself as a police
officer. Tackett informed Lewis that they were doing a routine check
of passengers for illegal drugs. Tackett asked Lewis for identification
and Lewis showed Tackett an airplane ticket bearing the name Darius
Lewis. Lewis did not have any other identification. Tackett asked
Lewis whether she was carrying any illegal drugs and Lewis
responded that she was not. Lewis consented to a search but said she
had to use the bathroom. Tackett told Lewis that she was free to use
the bathroom.

Tackett and Lewis entered the bathroom. Lewis placed her bag on
a counter and told Tackett that she could search the bag. Tackett
searched Lewis's bag and did not find any drugs. Lewis then con-
sented to a search of her person. Tackett patted the pockets of Lewis's
coat and did not find anything. Lewis withdrew her consent to the
search when Tackett attempted to pat Lewis down around her stom-
ach area. Lewis then walked into a bathroom stall eight to ten feet
from where they had been standing and shut the stall door.

Tackett stayed by the counter, outside the bathroom stalls. After
hearing a crinkling sound from Lewis's stall, Tackett walked to the
front of the stall and stood four feet from the front of the stall. Tackett
repositioned herself, by taking a step to the right, so she could see
Lewis through an opening 5/16 to 3/8 of an inch wide between the
stall's door and the partition. Tackett observed Lewis put her hands

                     2
down the front of her pants and pull out three or four small packages,
which she placed in her carry-on bag. After Lewis finished placing
the plastic packages in her carry-on bag, Tackett stepped away from
the stall while Lewis used the toilet. Lewis came out of the stall and
appeared startled to see Tackett. Tackett told Lewis that she wanted
to talk to her about the packages Tackett observed her remove out of
her pants and place in her carry-on bag. When Lewis asked if she was
under arrest, Tackett responded that she was not under arrest but she
wanted to detain Lewis for further investigation. Tackett and Lewis
walked out of the bathroom and met Detective Hoover, who had been
waiting outside the bathroom. Tackett told Hoover what she had seen.
As Hoover took Lewis's bag and looked inside it, Lewis walked away
towards an airport exit door. After Hoover found four packages con-
taining cocaine base on top of other items, Tackett informed Lewis
that she was under arrest.

Lewis claims that she was subjected to an illegal search in violation
of the Fourth Amendment while occupying the bathroom. She con-
tends that Tackett's action of approaching the bathroom stall and
looking through the gap on the hinged side of the door constituted an
illegal search.

A person claiming to have been subjected to an unlawful search
must first establish as a threshold matter that she had a legitimate
expectation of privacy in the particular area searched. Rakas v.
Illinois, 439 U.S. 128, 148-49 (1978). An expectation of privacy is
legitimate only where "(1) the individual manifests a subjective
expectation of privacy in the object of the challenged search; and (2)
society is willing to recognize that subjective expectation as reason-
able." United States v. Pinson, 24 F.3d 1056, 1058 (8th Cir.) (citing
Katz v. United States, 389 U.S. 347, 361 (1967)), cert. denied, ___
U.S. ___, 63 U.S.L.W. 3456 (U.S. Dec. 12, 1994) (No. 94-402).

An occupant of a toilet stall in a public rest room may have a rea-
sonable expectation of privacy against surreptitious police surveil-
lance of the interior of the stall. See United States v. White, 890 F.2d
1012, 1015 (8th Cir. 1989), cert. denied, 497 U.S. 1010 (1990). But
that expectation is not absolute. Id. #7F 79AD#A]n occupant of the toilet stall
would reasonably expect to enjoy such privacy as the stall afforded.'"

                    3
Id. (quoting People v. Kalchik, 407 N.W.2d 627, 631 (Mich. App.
1987)).

Immediately before Detective Tackett made her observations,
Lewis was the subject of a lawful consensual search. See United
States v. Delaney, 52 F.3d 182, 188 (8th Cir.), cert. denied, ___ U.S.
___, 64 U.S.L.W. 3246 (U.S. Oct. 2, 1995) (Nos. 95-5118, 95-5134).
Lewis had no indication that Tackett had left the bathroom. Further-
more, Tackett made her observations from the common area of the
bathroom by looking through the gap between the stall door and the
partition from four feet away. See White, 890 F.2d at 1015. She was
standing in a position where she had a legal right to be. Id. She did
not position herself in a way that would be unexpected by someone
using the bathroom stall, i.e., she did not peer in"`knothole fashion'"
through the gap between the stall door and the partition. Id. Nor did
Tackett look under or over Lewis's bathroom stall door. Id. Thus,
although Lewis could reasonably expect a significant amount of pri-
vacy in the bathroom stall, her expectation was not violated because
the design of the stall allowed Tackett to make her observations with-
out placing herself in a position that would be unexpected by Lewis.
Id.

Lewis next claims that Detective Hoover's search of her bag after
she left the bathroom violated the warrant requirement of the Fourth
Amendment. The Fourth Amendment requires that a warrantless
arrest be based upon probable cause. United States v. Watson, 423
U.S. 411, 417 (1976). Probable cause exists when the facts and cir-
cumstances within the officer's knowledge justify a person of reason-
able caution to believe that someone has committed a crime. Beck v.
Ohio, 379 U.S. 89, 91 (1964). Probable cause is based upon the total-
ity of the circumstances. Illinois v. Gates, 462 U.S. 213, 230-31
(1983). Furthermore, a search conducted incident to a valid custodial
arrest is permissible. New York v. Belton, 453 U.S. 454, 462-63
(1981). Where a formal arrest quickly follows the challenged search
it is not important that the search preceded the arrest. Rawlings v.
Kentucky, 448 U.S. 98, 110-11 (1980).

Detective Tackett observed Lewis as she deplaned a flight from
New York. Lewis appeared nervous and held a carry-on bag close to
her body. Lewis periodically looked behind her as she walked

                    4
towards the terminal. When Tackett asked Lewis for identification,
Lewis only revealed an airplane ticket for Darius Lewis. Lewis did
not have any other identification. Lewis consented to a search of her
person, but abruptly ended the search when Tackett attempted to pat
Lewis down around her stomach area. Furthermore, while Lewis was
in a bathroom stall, Tackett heard the noise of plastic crinkling.
Tackett also observed Lewis remove what appeared to Tackett as sev-
eral small packages from the front of her pants and place them in her
carry-on bag, which Tackett had previously searched. When Lewis
came out of the bathroom stall she appeared startled to see Tackett.
Therefore, based on the totality of the circumstances, probable cause
to arrest existed. Gates, 462 U.S. at 230-31. A search incident to that
arrest was valid. Belton, 453 U.S. at 462-63. Further, it is irrelevant
that the search preceded the arrest. Rawlings , 448 U.S. at 110-11.

Accordingly, we affirm Lewis's conviction and sentence. We dis-
pense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.

AFFIRMED

                    5
