### The HONORABLE DAVID S. DOTY, United States District * 

### Judge for the District of Minnesota, sitting by designation. ___________ No. 96-1363

___________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * Southern District of Iowa Michael Dale Fletcher, * * Appellant. *

___________ Submitted: June 10, 1996 Filed: July 24, 1996

___________ Before WOLLMAN, Circuit Judge, HENLEY, Senior Circuit Judge, and D O TY , * District Judge.

___________ DOTY, District Judge.

Michael D . Fletcher (“Fletcher”) appeals his conviction on a charge of con spiracy to distribute methamphetamine in violation of 21 U.S.C

. § 846. The issue on appeal is whether the district

### The Honorable Harold D. Vietor, United States District Judge 1 

### for the Southern District of Iowa.
-2- court erred in denying Fletcher’s motion to suppress evidence. We affirm.

1

I. The material facts surrounding the detention of Fletcher’s bag ar e not in dispute and ar e hereafter reported as found by the district court. On July 4, 1995, Fletcher purchased a round-trip ticket on America Wes t Airlines (“AWA”) from Des Moines, Iowa to Phoeni x, Arizona, for $561 cash. He flew to Phoenix as scheduled on July 4. Although he was scheduled to retu rn on July 7, he changed his return flight to July 6. Despite th e scheduled change, Fletcher did not return to Des Moines on July 6, bu t returned on July 7.
On July 7, Fletcher arrived at the Phoenix airport shortly befo re his flight time and checked one bag. Due to his lat e arrival, he was informed that his bag might not make his flight and might arrive in Des Moines on
a later flight. Fletcher left a telephone number where he could be reache d in Des Moines. Upon arrival at the Des Moines airport, he quickly exited the plane and walked briskly ahead of his fellow passengers to th e restroom. Fletcher’s actions were noticed by Officer Lynn Aswegan, a plai n clothes police officer assigned to the Des Moine s Metropolitan Task Force. While Fletcher was in the restroom, a public add ress announcement was made that a white pick-up truck with Arizona license plates was illegally parke d outside of the terminal. After

### -3-

the announcement, Fletcher exited the restroom with what Officer Aswegan described as a “worried look” and walked directly to the vehicle described

. Offic er Aswegan and his partner, Officer Randy DePhillips, followe d Fletcher.

Fletch er tried to get into the pick-up truck, but the doors wer e locked. Fletcher then went back into the terminal and had a brie f conversation with two women. The officers noted the Arizona license plate s and the supplemental gas tanks, at times used fo r concealing drugs, before continuing their surveillance of Fletcher. Flet cher then proceeded to the baggage claim area with one of the women and was informed that his bag had not ar rived but would most likely be on the next flight from Phoeni x arriving late that evening. Fletcher left the airport in the white pick-u p truck “extremely fast.”

Officers Aswegan and DePhillips approached an AWA ticket agent an d learned that the individual they had observed was Michael Dale Fletcher. The agent told the of ficers that Fletcher had been scheduled to arrive in Des Moines on July 6, but had not shown up for t hat flight and instead had purchased a one way ticket on July 7 from Phoenix to Des Moines for $561 cash. Th e ticket agent also gave the officers the Des Moines telephon e number that Fletcher had left with the airline. The telephone numbe r belonged to Michelle Robertson at 1212 East 27th Court in Des Moines.
Officers Aswegan and DePhillips drov e past this address and observed the white pick-up truck with Arizona plates in the driveway. A polic e records search of the address disclosed that a

### -4-

caller had previously reported heavy traffic at the residence and suspecte d drug activity. The call was investigated but surveillance had not reveale d any narcotics related activity.
Officers Aswegan and DePhillips retu rned to the airport that evening with Officer Ted Cobine to observe Fletcher pick up his bag. Officer Mike Stueckrath and Office r DeJoode, along with Oby, a drug sniffing dog, were also at the airport.

Fletcher returned to the airport and received his bag from an AW A ticket age nt. He set the bag down, opened it briefly, closed it an d started to leave the ticket area. At this point, Fletcher was approached by Officers DePhillips and Cobine. The officers identified themselves and asked if Fletcher would speak to them. He agreed and, upon request , produced identification which matched the name o n his luggage. During the conversation, Fletche r told the officers that he had a round trip ticket, information that conf licted with the officers’ information. The officers asked Fletcher if they could search his bag. Fletcher agreed but the n asked i f he had to consent to the search. Fletcher revoked his consen t when he was informed that he had a right to withhold consent. At tha t poin t Fletcher was told that he was free to leave but his bag would b e detained for a dog sniff. Fletcher’s bag was placed with other baggage, Obywas brought in and alerted on Fletcher’s bag. Fletcher was informed of the positive alert , told again that he was free to go but that his bag would be detained while a search warrant was secured. Fletcher left the airport. The officers applied for and obtained a search warrant. A searc h of the bag revealed methamphetamine inside a stereo speaker.

### -5- Fletcher moved to suppress the methamphetamine found in his bag

. Following an evidenti ary hearing, the district court denied the motion to suppress. The district court held that the detention of Fletcher’s bag wa s not supported by a re asonable articulable suspicion of criminal activity, thus, the detention violated the Fourth Amendment. Because the search tha t Fletch er challenged was authorized by a warrant, however, the distric t court analyzed the suppression motion under the standards set forth i n United States v. Leon , 468 U.S. 897 (1984), and concluded that suppression was not warranted bec ause the facts of the case were “close enough to the line o f validity to make the officers’ belief in the validity of th e detention and the val idity of the search warrant objectively reasonable.” We review the district court’s conclusion regarding the objectiv e reasonableness of the officers’ reliance on the validity of the detention and the validity of t he warrant de novo . United States v. Green , 52 F.3d 194, 19 7 (8th Cir. 1995) (standard of review for reasonable suspicio n determination); United States v. Jackson , 67 F.3d 1359, 1366 (8th Cir

. 1995) (standard of review regarding application of the good faith exceptio n under Leon ), cert. denied ,116 S. Ct. 1684 (1996). The district court’ s finding of good faith will not be set aside unless clearly erroneous

. Jackson , 67 F.3d at 1366.

II. Th e Fourth Amendment guarantees “[t]he right of the people to b e secure in their persons, houses, papers, and eff ects, against unreasonable searches and seizures.” Police detention of an individual or their luggag e without a warrant conforms to the Fourth Amendme nt only where there exists reasonable suspicion,

### -6-

supported by articulable facts, that criminal ac tivity is afoot. Terry v. Ohio , 392 U.S. 1, 20- 23 (1968); United States v. Place , 462 U.S. 696, 708 (1983). As has so often been stated, reasonable suspicion is more than an officer ’s inchoate or unparticularized hunch. Terry , 392 U.S. at 27

. Rather, the police officer must point to particularized facts, and th e rational inferences that may be drawn, which, vi ewed together and in light of the officer’s experience, suggest illegal conduct. United States v

. Sokolow , 490 U.S. 1, 7-8 (1989); United States v. Weaver , 966 F.2d 391, 39 4 (8th Cir.), cert
. denied , 506 U.S. 1040 (1992).

The officers who detained Fletcher’s bag relied on the followin g circumstances: (1) Fl etcher arrived from Phoenix, a drug source city; (2) he was first off the plane (3) and proceeded dir ectly to the restroom; (4) he was connected to a white pick-up truck with supplemental gas tanks and Arizona license plate s; (5) he told the police he had a round trip ticket when the officers believed he had a one way ticket purchased with cash; (6 ) Fle tcher withdrew his consent after initially agreeing to a search; an d (7) he was associated with a woman at a local address where a narcotic s
com plaint had been made. The district court held these facts wer e insufficient to support a reasonable suspicion that Fletcher was engaged in illegal activity. We agree. Each factor, sa ve the perception of lying and the association with someone who had a previous, though ultimatel y unsubstantiated narcotics complaint lodged against her, is as consistent wit h innocent activity as with criminal conduct. Moreover, under thes e facts, no adverse inference can be drawn from Fl etcher’s revocation of his consent to search his bag. When Fletcher consented, he did not

### -7-

und erstand that he had the right to withhold consent. But cf

. Unite d States v. Weaver , 966 F.2d 391, 393 (8th Cir. 1992) (noting the defendant initially consented and then changed his mind); United States v. Green , 52 F.3d 194, 200 (8th Cir. 1992) (relying on Weaver : “Weaver’s initial consen t and the manner in which he withdrew his consent contributed to th e officer’s reasonable articulable suspicion.”). Here, there was nothin g suspic ious in the manner in which Fletcher revoked his consent

. Cons idering all circumstances, the officers’ information fell short o f establishing reasonable suspicion. The detention of Fletcher’s bag for a dog sniff thus violated Fletcher’s Fourth Amendment rights.
The district court correctly noted, however, that its inquiry d id not end wi th that determination. In United States v. Leon , 468 U.S. 89 7 (1984), the Supreme Court held that evidence sei zed pursuant to a warrant,
even if obtained in violation of the Fourth Amendment, should not b e exclud ed if an objectively reasonable officer could have believed th e search was valid. Id. at 918 (“[S]uppression of evidence obtained pursuan t to a warrant should be ordered on a case-by-case basis and only in those
unusu al cases in which exclusion will further the purposes of th e exclusionary rule.”). This circuit has held Leon applicable to th e subsequent warrant-authorized search of a bag where the original detentio n violated the Fourth Amendment. United States v. White , 890 F.2d 1413, 141 9 (8th Cir. 1989), cert. denied , 498 U.S. 825 (1990); United States v. Kiser , 948 F.2d 418 (8th Cir . 1991), cert. denied , 503 U.S. 983 (1992); see also United States v. O’Ne al , 17 F.3d 239, 243 n.6 (8th Cir. 1994) (discussing White ). The relevant inquiry is whether the facts surrounding reasonable suspicion are “close

### Though the officers’ information regarding the one way 2 

### ticket was wrong, we must evaluate the circumstances as known to the officers at the time of the decision to detain the bag.
-8- enough to the line of validity” that the police officers were entitled to
a belief in the validity of the warrant and the existence of reasonabl e suspicion. White , 89 0 F.2d at 1419. If the case presents such a “close” question, the Leongood faith exception to the e xclusionary rule should be considered. O’Neal , 17 F.3d at 243 n.6 (noting that this consideration is not automatic, rather “[i]t is the closeness of the particular facts that push[ed] this case into the gray area created by Leon .”)(citation omitted)

.

This case is indeed within the gray area of Leon . Reasonabl e suspicion is a fact-based determination where “s imilar fact patterns [can] led to different results.” O’Neal , 17 F.3d at 241 (citing United States

v. Weaver , 966 F.2d 391 (8th Cir. 1992) and United States v. Millan , 912 F.2d 1014 (8th Cir. 1990)); see also United Stat es v. Sokolow , 490 U.S. 1, 13 (1989) (Marshall, J. dissenting). Here, many facts identified wer e consistent with innoc ent behavior, but some weight should be accorded the inferences drawn from Fletcher’s travel origins, the supplemental tanks on the out-of-state vehicle and the same day cash t icket purchase. Moreover, two very probative facts supported the officers’ suspicion: the perceptio n tha t the officers held that Fletcher lied to them about his trave l itinerary and that he was associated with an individual and an addres s

2 where once a narcotics complaint had been filed. Considered together , while falling short of Fourth Amendment requirem ents, we conclude that the officers had

### -9-

mor e reason to suspect that Fletcher’s bag contained narcotics than th e officers in either Un ited States v. White , 890 F.2d 1413 (8th Cir. 1989),
or United States v. K iser , 948 F.2d 418 (8th Cir. 1991). Both cases were so close to the line of validity as to warrant application of Leon
.

In White , drug agents relied upon th e following: White traveled from a source city, Los Angeles, arriving early in th e morning on a flight that had previously yielded narcotics arrests by way of a ticket purchased with cash

. White also appeared nervous when questioned by the police an d clutched his carry-on bag in a nervous or unusua l manner. White , 890 F.2d at 1414-1415. In Kiser , officers relied on the fact that Kiser traveled from Miami, another source city, and looked around while stopping at a drink ing fountain but failed to take a drink. On a similar trip a wee k earlier, Kiser had rented a car and had been “ev asive” about his plans and addres s. Kiser also provided inconsistent information to rental agent s about the name on his credit card, could not produce an airplane ticket, became nervous when questioned and refused to give his consent to search his bag. Kiser , 948 F.2d at 422. While neither case supported a finding of reasonable suspicion, both were “close to the line of validity.” Similarly, we conclude that the facts presented here are sufficiently clos e to the line of validity. Considering all circum stances, we agree with the district court that the officers had an objectiv ely reasonable belief that they po ssessed a reasonable suspicion such as would support the vali d det ention of Fletcher’s bag as well as an objectively reasonable belie f that the warrant issued was valid.

### -10- Notw ithstanding this conclusion, Fletcher argues that the evidenc e seized should be suppressed because its exclusion will further th e deterrent purposes of the exclusionary rule. We disagree. None of th e factors which bar application of the Leon good faith exception exist i n this case. See Leon , 468 U.S. at 923. Here, the officers collecte d information to corroborate their suspicions befo re approaching Fletcher by
co nducting additional surveillance and checking police records. Th e dist rict court held that the officers’ belief in the validity of th e detention and warrant was not only objectively reasonable, but also in goo d faith. Based on a review of the record, no facts suggest that this findin g is clearly erroneous. The purpose of the exclus ionary rule, deterrence of police misconduct, will not be served by its application to this case.

III. For the foregoing reasons, we conclude the district court did n ot err in denying Fletcher’s motion to suppress the methamphetamine seized from his bag. The decision of the district court is upheld. Fletcher’ s conviction is affirmed.

A true copy.

Attest:
Clerk, U.S. Court of Appeals, Eighth Circuit.