UNPUBLISHED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Affirmed by unpublished per curiam opinion.

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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Unpublished opinions are not binding precedent in this circuit.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 consented 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 stomach 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

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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 containing 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 contends 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 reasonable." 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 reasonable expectation of privacy against surreptitious police surveillance 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.'"

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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. Furthermore, 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 privacy in the bathroom stall, her expectation was not violated because

the design of the stall allowed Tackett to make her observations without 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 circumstances within the officer's knowledge justify a person of reasonable caution to believe that someone has committed a crime. Beck v.

Ohio, 379 U.S. 89, 91 (1964). Probable cause is based upon the totality 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

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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 several 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 dispense 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

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