United States v. Acosta-Colon

CYR, Senior Circuit Judge

Objective reasonableness is the touchstone for the present inquiry into whether the challenged Terry stop — reasonable at its inception-remained “reasonably related in scope to the circumstances which justified the interference in the first place.” See Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). “The court must consider the circumstances as a whole, and must balance the nature of the intrusion with the governmental interests that are served.” United States v. Cruz, 156 F.3d 22 (1st Cir.1998) (quoting United States v. Hensley, 469 U.S. 221, 228, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985)). It is a fact-intensive inquiry which contemplates a case-by-case balancing of the intrusiveness of the challenged police conduct, on the one hand, against the safety of the general public and the law enforcement officers on the other. See Michigan v. Long, 463 U.S. 1032, 1046, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983) (citing Terry, 392 U.S. at 21, 88 S.Ct. 1868). In my view the majority opinion overlooks legitimate law enforcement and safety concerns which amply demonstrate the objective reasonableness of the challenged stop. See Terry, 392 U.S. at 23, 88 S.Ct. 1868 (“Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties.”).

The threshold focus is narrow: did the law enforcement officers act reasonably in relocating Acosta and his traveling companions from the jetway to the secure custom enclosure area (“CEA”)? If so, the further measures taken by the officers to protect themselves and the traveling public during the relocation — e.g., handcuffing and" preventing Acosta from boarding the scheduled flight— were entirely warranted.17

Like Acosta, the majority relies heavily upon Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983). Although Royer remains viable precedent, it is not apposite. Most notably, Royer explicitly left open the possibility that some Terry-type “transportation” might be warranted in an airport setting. See id. at 504-05, 103 S.Ct. 1319 (“[Tjhere are undoubtedly reasons of safety and security that would justify moving *23a suspect from one location to another during an investigatory detention, such as from an airport concourse to a more private area ... [but][t]here is no indication in this case that such reasons prompted the officers to transfer the site of the encounter from the concourse to the interrogation room.”) (emphasis added); V-1 Oil Co. v. Means, 94 F.3d 1420, 1427 (10th Cir.1996) (same); United States v. Glover, 957 F.2d 1004, 1012 (2d Cir.1992) (“We do not read Royer as establishing a per se rule that moving from an airport, bus, or train terminal to a police office during a Terry-type encounter, for purposes of further investigation, automatically converts an otherwise permissible stop into an impermissible arrest upon arrival at the office.”) United States v. Gonzalez, 763 F.2d 1127, 1137 (10th Cir.1985) (“Changing the place of an investigatory detention is not per se a Fourth Amendment violation.”) (Holloway, C.J., dissenting); accord Eberle v. City of Anaheim, 901 F.2d 814, 819 (9th Cir.1990) (citing Royer in upholding relocation from concourse of football stadium).

Although, as the majority opinion points out, the Acosta stop was more intrusive than that in Royer, intrusiveness is but one aspect of the balancing calculus. By their very nature Terry stops contemplate progressively intrusive law enforcement measures commensurate with the heightening levels of reasonable suspicion generated by the ongoing investigation. For example, a law enforcement officer may initiate a stop merely by asking a question to which the suspect may volunteer a response which arouses further suspicion, thereby affording grounds for increasing the intrusiveness of the stop. Should the officer acquire information which generates a reasonable suspicion that the detainee may be armed, for example, a pat-down frisk would be warranted. Similarly, should the officer acquire information which gives rise to a reasonable suspicion that the detainee has committed a crime, more probing questions may be in order.

The only basis for suspicion possessed by the law enforcement agents when Royer was stopped was that he fit their “drug courier profile.” No illegal drugs had been detected. By contrast, even before the custom inspee-tors stopped Acosta, a canine sniff had positively confirmed the presence of illegal drugs in luggage scheduled to depart on the American Airlines flight which Acosta and his traveling companions were about to board. Moreover, before the custom inspectors ever left for the jetway, an American Airlines computer check had disclosed that Acosta and Travieso were the only persons scheduled to depart on the flight being boarded who might be traveling with “Morales” and “Lebrón,” the names used by the persons who had checked the drug-laden luggage. At the jetway the custom inspectors temporarily detained Acosta and Travieso pending confirmation that “Morales” and “Lebrón” had not attempted to board the plane. At that point the inspectors reasonably concluded that the use of the names “Morales” and “Lebrón” had been a ruse, and that it was likely that Acosta and/or one or both of his traveling companions were responsible for checking the luggage. Although the government conceded that probable cause was lacking at this point, given the confirmed canine sniff and the subsequent observations by the custom inspectors the level of reasonable suspicion nevertheless exceeded the official “hunch” predicated exclusively on the drug courier profile in Royer. And that substantially greater level of reasonable suspicion demonstrated a legitimate need for further investigative measures aimed at pinpointing the true identities of “Morales” and “Le-brón.”

Inspector Herdmann testified that removing Acosta to the CEA accorded with standard operating procedure (“SOP”), which the majority opinion mischaracterizes as a rote practice dissociated from any articulable law enforcement rationale. Quite the contrary, once the custom inspectors learned they had stopped a likely drug trafficker the reasonableness of the rationale for the SOP in these circumstances not only became evident but the objective reasonableness of the heightened law-enforcement intrusion which was to follow likewise became immediately apparent.

As the district court correctly observed, the custom inspectors rightly understood to a practical certainty, given the positive canine *24sniff on four suitcases, that a substantial quantity of drugs was being transported by one or more passengers about to board the departing American Airlines flight.18 The more egregious the drug trafficking, the greater the stakes and risks; and the more likely that the suspected perpetrators might attempt to avoid, resist and/or escape detention by resorting to force. Thus, the longer the suspected high-stakes drug traffickers remained in an unsecured area during the airport “rush hour,” the more palpable the threat posed to the traveling public as well as the law enforcement officers themselves. See United States v. Mendenhall, 446 U.S. 544, 561-62, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980) (“The public has a compelling interest in detecting those who would traffic in deadly drugs for personal profit.... Much of the drug traffic is highly organized and conducted by sophisticated criminal syndicates ... [so that] the obstacles to detection of illegal conduct may be unmatched in any other area of law enforcement.”) (Powell, J., concurring) (emphasis added). Furthermore, since one of the detainees weighed approximately 300 pounds, the physical threat he and his two companions posed to the traveling public and the law enforcement officers strongly supported the reasonableness of the decision to relocate the three suspects to a secure, private area of the airport pending further investigation.

Second, the evidence that two persons (i.e., “Morales” and “Lebrón”) had checked four suitcases containing illegal drugs afforded a rational basis for the district court finding that multiple persons were involved in the drug smuggling, some of whom may have remained at large and in a position to assist the three detainees. See United States v. Gilliard, 847 F.2d 21, 25 (1st Cir.1988) (noting that in the Terry context it is “common knowledge that drug traffickers often carry deadly weapons”); United States v. Trullo, 809 F.2d 108, 113 (1st Cir.1987) (“ ‘[W]e have recognized that to substantial dealers in narcotics, firearms are as much “tools of the trade” as are most commonly recognized articles of drug paraphernalia.’ ”) (citation omitted). Thus, in my view the district court supportably found that the custom inspectors were not required to complete their Terry-stop investigation in the unsecured jetway, exposed to the various articulable safety risks — to themselves and the traveling public — which could readily be avoided simply by relocating the suspects to a secure area nearby.19 The majority opinion simply ignores the serious safety risks and the reasonableness of the more prudent alternative utilized by the law enforcement officers at the scene.

Finally, I find no case law which precludes law enforcement officers from resorting to an appropriate prophylactic SOP in circumstances which pose particularly serious safety risks either to the traveling public or the law enforcement officers themselves. Instead, there is considerable authority to the contrary. See, e.g., Pennsylvania v. Mimms, 434 U.S. 106, 109-10, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977) (endorsing government position that although “[i]t was apparently [police] practice to order all drivers out of their vehicles as a matter of course whenever they had been stopped for a traffic violation, ... this practice was adopted as a ‘precautionary measure to afford a degree of protection to the officer and that it may be justified on that ground.”); see also Maryland v. Wilson, 519 U.S. 408, 117 S.Ct. 882, 884, 137 L.Ed.2d 41 (1997) (extending Mimms to an SOP allowing police to order *25all occupants from a stopped car); United States v. Kimball, 25 F.3d 1, 8 (1st Cir.1994) (sustaining, on safety grounds, a “[police] department policy not to engage in detailed interviews on the side of the road”).

Nor does resort to such an SOP insulate law enforcement conduct from appropriate judicial review. Rather, the reviewing court must examine the reasonableness of the SOP in light of the circumstances in which it was utilized. Tellingly, however, the defense has never challenged either the efficacy of the SOP or the implicit foundation for its employment; that is, that no public area of the airport afforded a safe environment for detaining and interrogating the potentially dangerous suspects in these circumstances.20 In these circumstances, given the high level of reasonable suspicion supporting the initial Terry stop, the safety threat posed to the traveling public and the law enforcement officers themselves, and the escape risk presented by any criminal associates remaining at large, it is unrealistic to second-guess the reasonable actions taken by the law enforcement officers at the scene. Accordingly, I respectfully dissent.

. The majority warns that handcuffing — if deemed reasonable in these circumstances— would be rendered reasonable in all airport Teiry stops since handcuffing invariably enhances officer safety. I cannot agree. Officer Herdmann testified, unequivocally, to the particular considerations which warranted handcuffing in these circumstances: (1) the relatively high level of reasonable suspicion that Acosta was involved in a large-scale drug trafficking offense; (2) the evidence indicating a concerted, high-volume, multi-person drug operation, as distinguished from the isolated conduct of a single person; (3) the Terry stop took place in an airport during “rush hour,” when the concourse would be unusually crowded; and (4) one of Acosta's traveling companions weighed approximately 300 pounds, thereby posing an abnormal escape threat. Thus, these particularized record facts plainly do not ordain a per se "handcuffing” rule in airport Terry-stop cases.

. The majority argues that there is no record support for the district court finding that the several suitcases contained a substantial amount of illegal drugs. I cannot agree. Although the record does not reflect the exact quantity of drugs involved, it was entirely reasonable for the district court to infer that it was most unlikely that the culprits would have elected to increase the risk of detection by dividing an insubstantial amount of illegal drugs among several suitcases.

. The majority suggests that only the "public concourse” would have been crowded during the airport "rush hour,” and that the government did not prove that the jetway was open to the public. Be that as it may, the gate area immediately adjacent to a jetway normally is accessible to members of the public who submit to metal detector screening. Thus, it was by no means unrealistic to anticipate the risk that any of Acosta's confederates who remained at large may have been able to gain access to the jetway itself, prepared to use force. Furthermore, a jetway— the narrow passageway between the gate area and the aircraft being boarded — hardly offered the custom agents a reasonably "secure” area in which to conduct an ongoing criminal investigation.

. Rather than shift the burden of proof to the defendant, as the majority charges, I simply suggest that reasonable inferences fairly may be drawn from the SOP proffered in evidence by the government. Absent countervailing evidence, surely one reasonably may infer that security considerations militated against conducting jet-way interviews of multiple felony suspects in these circumstances.