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United States v. Grogg

July 28, 2008

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
CLARENCE GROGG, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 07 CR 27-Larry J. McKinney, Judge.

The opinion of the court was delivered by: Bauer, Circuit Judge

ARGUED JUNE 6, 2008

Before BAUER, RIPPLE and MANION, Circuit Judges.

On November 16, 2007, Clarence Grogg entered a conditional plea of guilty to an indictment charging him with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The only issue before us on the appeal is the district court's denial of Grogg's motion to suppress evidence obtained by the government when law enforcement agents searched his car at the Indianapolis International Airport. For the following reasons, we affirm Grogg's conviction.

I. BACKGROUND

On September 18, 2006, Special Agent Eric Jensen of the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), notified the Indianapolis office of the Bureau of Customs and Immigration Enforcement that Clarence Grogg, a suspicious person, would be arriving that day at the Indianapolis International Airport from France via Detroit.

The government had been monitoring Grogg based on a report from a "concerned citizen" that Grogg possessed weapons or drugs, and that he might be involved in child molestation or child pornography.

The investigation disclosed that Grogg's car had been left in short-term parking at the airport for more than twenty days, accruing parking fees in excess of five hundred dollars; that Grogg had changed his return flight multiple times; and that at some point prior to Grogg's return, Indiana State Police had used a narcotics-detecting dog to perform a sweep of Grogg's car in the airport parking lot and the dog had positively alerted.

Two plain-clothed agents waited for Grogg's plane to arrive in Indianapolis. After disembarking, Grogg appeared to be very confused. He spoke with several ticket agents and then proceeded to the baggage claim area. Before getting his bags, Grogg stepped outside to smoke a cigarette. The agents followed Grogg and overheard him ask an unidentified woman for a ride to a hotel. While he was loading his luggage into her car, the agents approached Grogg, identified themselves as law enforcement officers, and asked to speak with him. Grogg agreed. The agents explained to Grogg that they had observed him acting suspiciously and that they were looking for people carrying contraband. At some point during the conversation, the agents instructed the woman who had offered to drive Grogg to a hotel to leave.

During the encounter, Grogg was very cooperative and insisted that he did not have any contraband. Grogg told the agents, "You can search my bags. . . . You can search anything you want." The agents searched Grogg's bags but found nothing illegal. The agents then asked him if he had a car parked at the airport and what he was doing in Indiana. Grogg, a Virginia resident, first told the agents that he was in Indiana visiting a friend (whom he refused to name), but then changed his story and said he was in town for an air show. Grogg confirmed that he had a car at the airport and that it was parked in the short-term parking lot. The agents asked Grogg if they could search his car, to which Grogg responded, "Sure. I have nothing to hide."

At the car, the agents requested and again received Grogg's permission to search the car. The agents also asked for and received Grogg's permission to search a suitcase found in the backseat of the car. In the suitcase, the agents found a Weihrauch .357 magnum revolver containing six live rounds of .38 special ammunition and a box of ammunition. Grogg appeared surprised and stated that he had forgotten about the weapon, and that it belonged to his late father. Grogg was arrested, and because he had two prior felony convictions, he was indicted on March 7, 2007 for one count of felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).

On August 1, 2007, Grogg filed a motion to suppress, arguing that he had been stopped by the agents without reasonable suspicion and that his consent to search the suitcase in the car was invalid. The district court ruled that the agents had reasonable suspicion to seize Grogg in light of the positive dog alert on Grogg's car. Accordingly, the district court found that Grogg's consent to the searches was valid.

II. DISCUSSION

On appeal, Grogg argues that he was stopped without reasonable suspicion and that his subsequent consent to search both his car and the suitcase inside the car was therefore "fruit of the poisonous tree." Grogg seeks to distinguish his circumstances from the "typical drug dog cases" based on the break in the temporal connection between Grogg and his vehicle. Grogg argues that he was seized almost three weeks after he had left his car in the parking lot at the airport and that he was not even attempting to return to the car when the agents seized him. So, Grogg asserts, the stop while Grogg was loading his baggage into the unidentified woman's car ...


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