United States v. Tracey Viegas

BOWNES, Circuit Judge

(dissenting).

Although the question of whether and when a seizure occurred is not without difficulty, I accept the majority’s assumption that a seizure occurred at the initial contact. I do not agree, however, that at that time there were such reasonable grounds for suspicion as to justify the police invasion of defendant’s fourth amendment rights.

The majority opinion sets forth correctly, for the most part, the principles and approach that apply to a case of this type. It, however, relegates to a footnote and then dismisses with a cavalier conclusory statement the case which in my opinion is clearly controlling. Reid v. Georgia, — U.S. —, 100 S.Ct. 2752, 65 L.Ed.2d 890 (1980). In both Reid and the instant case, it was assumed, without deciding, that the initial questioning constituted a seizure. The issues are therefore identical: whether the agents’ actions were justified by articulable and reasonable grounds for suspicion.

The facts of Reid as set forth in the opinion are as follows:

The petitioner arrived at the Atlanta Airport on a commercial airline flight from Fort Lauderdale, Fla., in the early morning hours of August 14, 1978. The passengers left the plane in a single file and proceeded through the concourse. The petitioner was observed by an agent of the DEA, who was in the airport for the purpose of uncovering illicit commerce in narcotics. Separated from the petitioner by several persons was another man, who carried a shoulder bag like the one the petitioner carried. As they proceeded through the concourse past the baggage claim area, the petitioner occasionally looked backward in the direction of the second man. When they reached the main lobby of the terminal, the second man caught up with the petitioner and spoke briefly with him. They then left the terminal building together.
*47The DEA agent .approached them outside of the building, identified himself as a federal narcotics agent, and asked them to show him their airline ticket stubs and identification, which they did. The airline tickets had been purchased with the petitioner’s credit card and indicated that the men had stayed in Fort Lauderdale only one day. According to the agent’s testimony, the men appeared nervous during the encounter. The agent then asked them if they would agree to return to the terminal and to consent to a search of their persons and their shoulder bags. The agent testified that the petitioner nodded his head affirmatively, and that the other responded, “Yeh, okay.” As the three of them entered the terminal, however, the petitioner began to run and before he was apprehended, abandoned his shoulder bag. The bag, when recovered, was found to contain cocaine.

Reid v. Georgia, — U.S. —, 100 S.Ct. 2752, 65 L.Ed.2d 890. The factors triggering DEA action, remarkably similar in kind to those present in the instant case, were

that (1) the petitioner had arrived from Fort Lauderdale, which the agent testified is a principal place of origin of cocaine sold elsewhere in the country, (2) the petitioner arrived in the early morning when law enforcement activity is diminished, (3) he and his companion appeared to the agent to be trying to conceal the fact that they were travelling together, and (4) they apparently had no luggage other than their shoulder bags.

Id. 100 S.Ct. at 2753. In vacating the judgment of the Georgia Court of Appeals, the Supreme Court concluded that

the agent could not, as a matter of law, have reasonably suspected the petitioner of criminal activity on the basis of these observed circumstances. Of the evidence relied on, only the fact that the petitioner preceded another person and occasionally looked backward at him as they proceeded through the concourse related to their particular conduct. The other circumstances describe a very large category of presumably innocent travellers, who would be subject to virtually random seizures were the Court to conclude that as little foundation as there was in this case could justify a seizure. Nor can we agree, on this record, that the manner in which the petitioner and his companion walked through the airport reasonably could have led the agent to suspect them of wrongdoing. Although there could, of course, be circumstances in which wholly lawful conduct might justify the suspicion that criminal activity was afoot, see Terry v. Ohio, supra, at 27-28, 88 S.Ct. at 1883, this is not such a case. The agent’s belief that the petitioner and his companion were attempting to conceal the fact that they were travelling together, a belief that was more an “inchoate and unparticularized suspicion or ‘hunch,’ ” id., at 27, 88 S.Ct. at 1883, than a fair inference in the light of his experience, is simply too slender a reed to support the seizure in this case.

Id. 100 S.Ct. at 2753.

Although I accept the facts as set forth by the majority in the instant case,1 I cannot in view of Reid concur in the inferences drawn. The salient facts in the instant case are: (1) the defendant arrived from Miami, a recognized source of cocaine; (2) the defendant’s friend, Brooks, asked where the baggage of the Miami flight could be retrieved and, after moving his car to a parking lot adjacent to the baggage area, went to the lounge and had a couple of drinks while waiting for the plane; (3) Brooks scanned the concourse while appearing to make a telephone call; (4) the agents testified Brooks did not shake hands with the defendant when he met him; (5) the defendant and Brooks, the agents testified, entered adjacent phone booths and neither put coins into the phones; (6) on the way to the baggage carousel and while waiting for the luggage, Brooks and defendant were “constantly looking around”; and (7) the *48defendant appeared anxious and nervous when the agents questioned him.

I consider each factor in turn. That Vie-gas arrived from Miami, a city known to be a drug source, is as tenuous a reason to suspect him of criminal activity as it was in Reid. Such a circumstance, “describe[s] a very large category of presumably innocent travellers, who would be subject to virtually random seizures were the Court to conclude that as little foundation as there was in this case could justify a seizure.” Id. 100 S.Ct. at 2753. Further, I find it difficult to fathom why Brooks’ inquiry about the location of the baggage depository should lead the agents to focus attention on him. Brooks’ question could be expected from anyone meeting an incoming flight. That Brooks then drove his car from the upper level in the parking garage to the parking lot adjacent to the baggage area indicated nothing more except a desire not to have to carry luggage any further than necessary. The fact that Brooks returned to the lounge after reparking his car is also without significance. It is subsequent to this that the activities which have been construed to be suspicious commence. Brooks went to the gate and in the words of the majority “appeared” to place a phone call. During the time he was in the booth, he kept the door open and looked up and down the concourse. The inference is that he used the phone booth only for the purpose of detecting surveillance. He could, of course, have been telephoning while, at the same time, keeping a watchful eye for the arriving passengers from Miami. My brethren make a point of the fact that when Brooks met the defendant he did not shake hands with him; in the absence of any explanation of the significance of this, I fail to appreciate its relevance. This observation of the agents, it should be noted, was contradicted by Brooks and, sometimes, these agents did not see things as they actually happened.

After the defendant and Brooks met, both men went into adjoining phone booths. The agents were positive that neither put any coins into the phones. Brooks proved through telephone records that he did call his home collect. My brethren explain the agents’ mistake with the rationale that, because the call was collect, they could easily have missed seeing the coin inserted into the phone. I agree that even trained observers, as these agents supposedly were, make mistakes. But it is not for this court to provide justification for errors in observation of witnesses. I note parenthetically that if the majority were to consider all reasonable explanations for the agents’ mistake, it should have recognized that DEA agents attempting to fit activities into a drug courier profile may sometimes see things that do not happen and fail to see things that do. Observations depend as much on the mind-set of the observer as they do on his eyes. This is not so much a criticism as it is a recognition of the foibles of the human condition to which we are all subject — an awareness which should make us ever more vigilant before sanctioning encroachments on personal freedom.

Although not specifically stated, it is clear that my brethren’s assessment of reasonable suspicion is based mainly on the phone booth activities of Brooks and defendant. And, as they implicitly recognize, these were equally consistent with innocent behavior. I am not as willing as my brethren to allow actions consistent with innocent behavior to be transformed into suspicious criminal activity on the say-so of a police observer, no matter how well trained he may be.2 The sanctioning of an intrusion of a constitutionally protected liberty *49should require more than the judgment call of the police.

That Viegas and Brooks were “constantly” looking around while going to the baggage carousel and waiting for defendant’s luggage could, I agree, arouse some questions. But it is behavior that is similar to that which in Reid was not thought grounds for reasonable suspicion. In Reid, “[o]f the evidence relied on, only the fact that the petitioner preceded another person and occasionally looked backward at him as they proceeded through the concourse related to their particular conduct.” Id. 100 S.Ct. at 2753. I fail to understand why the quantum of suspicion should be greater here than in Reid, as the majority argues, because Brooks and defendant glanced over their shoulder at no one in particular, whereas Reid was looking at one person.

There was certainly nothing suspicious in the answers that that defendant gave to the questions asked by the agents. And the license identification was, unlike the situation in Mendenhall, consistent with the name on the airline ticket.

There are two problems that I have with my brethren’s recitation of defendant’s physiological reactions when asked by the agents if he had drugs in his bag. The first is the failure to criticize, even impliedly, the fact that the agents deliberately lied to defendant during their questioning of him. I do not subscribe to the view that, even when combating something so insidious as drug traffic, the ends justify the means. More to the point, however, defendant’s physical manifestations could not be considered on the question of whether there were reasonable grounds for suspecting him of criminal activity. The majority opinion is based on the assumption that defendant’s person was seized at the initial contact. The defendant’s reactions to the agent’s question, like Reid’s dropping of his bag and running, are not relevant to the inquiry.

The only factual difference between this case and Reid is the phone booth activities of Brooks and defendant. I realize that, as Reid and Mendenhall illustrate, the result in this kind of a case mainly depends on where the court decides to draw the line. I am sure that the apprehension of drug couriers would markedly increase if the luggage of all passengers from a known “source city” were searched, or even if the search were restricted to those who were met at the plane and then used the telephone. The police, of course, have a duty to combat the terrible drug problem that besets our society. It is the court’s duty, however, to preserve inviolate our constitutionally protected rights and liberties. Although, as the majority emphasized, the police intrusion here was slight, it was, in my opinion, unjustified and unconstitutional. I would reverse the denial of the motion to suppress.

. I also recognize that without the benefit of findings of fact by the district court its denial of the motion to suppress is to be upheld if any reasonable view of the evidence supports it. United States v. Payton, 615 F.2d 922, 923 (1st Cir. 1980).

. United States v. McCaleb, 552 F.2d 717 (6th Cir. 1977), does not stand for the proposition, as the majority opinion implies at p. 5, that the fact that defendant’s actions were consistent with innocent behavior is of no consequence. The court in McCaleb found that there were no specific and articulable facts justifying an investigatory stop and noted in arriving at this conclusion: “The activities of the appellants in this case observed by DEA agents, were consistent with innocent behavior.” Id. at 720.

I disagree with the reasoning and conclusions of United States v. Price, 599 F.2d 494 (2d Cir. 1979), as to that portion of the opinion dealing with grounds for reasonable suspicion. It must also be noted that Price was decided before Reid v. Georgia.