United States v. Cesar Moya

COFFEY, Circuit Judge.

Cesar Moya appeals his conviction in the United States District Court for the Northern District of Illinois, Eastern Division, for possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). Moya contends that the trial court erred in denying his motion to suppress the cocaine the law enforcement officers discovered during a search of his travel bag. His claim is based upon an airport encounter and subsequent detention of his shoulder bag. Moya contends the seizure was unreason*339able and violated his Fourth Amendment rights. We hold that Moya’s contentions are without merit and affirm the conviction.

On March 20, 1980, Drug Enforcement Administration (“DEA”) Agent Kenneth Labik and Chicago Police Officer Thomas Kinsella were stationed at O’Hare International Airport monitoring the arrival of airline passengers on flights from certain “source cities” in an effort to control the flow of illegal drugs. Because the DEA had informed Labik and Kinsella that Miami, Florida was á source city for much of the illegal drug traffic into Chicago, the law enforcement officers observed the passengers deplaning from Delta Airlines Flight 142 upon its arrival from Miami at 7:85 p.m. The officers observed Cesar Moya, carrying a shoulder bag, exit the arrival gate and walk several feet in a direction away from the main terminal, whereupon Moya stopped and positioned himself against the wall momentarily, looking in all directions. Moya then walked down the concourse toward the main terminal, frequently looking backwards over his shoulder. During this time, Agent Labik and Officer Kinsella kept Moya under observation while they followed him. Upon reaching the junction of two concourses, Moya stood off to one side and, again, looked in all directions. Moya then walked into an adjoining hallway and entered a public restroom, followed by Officer Kinsella. Moya checked all of the enclosed stalls and, discovering that they were all occupied, exited the restroom and proceeded to the main terminal building, where he entered another public restroom, this time followed by Agent Labik. When he found an open stall, he entered it, closed the door, stood there • for several minutes and left without using the facilities. Upon exiting the restroom, Agent Labik next observed Moya standing between the main doors of the terminal building and the escalator opposite the Delta Airlines ticket counter. As soon as the two made eye contact, Moya boarded a down-escalator followed by Labik and Kinsella. Upon reaching the arrival area of the terminal, Moya did not go to the baggage area, but exited the terminal and entered a cab line carrying the shoulder bag, his sole piece of luggage.

As he was standing in the cab line, Moya was approached by Labik and Kinsella, who promptly identified themselves as law enforcement officers and asked Moya if they could speak with him. Moya agreed and the officers proceeded to ask Moya for some identification. Moya denied having any identification, but agreed to move back inside the terminal building in order to avoid the night chill and the pedestrian traffic while talking to the officers. The officers and Moya entered the main terminal building and situated themselves in a public area between the primary and secondary sets of exit doors where the questioning resumed.

Moya again was asked his name and replied “Cesar Moya” and was next asked to display his airline ticket. He produced a one-way ticket on Delta Flight 142 in the name of Cesar Moya. After examining the ticket, Labik asked Moya for further identification to which Moya responded by asking what the questioning was “all about.” Agent Labik ignored Moya’s inquiry and, again, asked for other identification. Moya responded by reaching into a side pocket of his shoulder bag and producing a driver’s license in his name (Moya) with his picture thereon. In reaching into the pocket, Moya gave Labik a view of a corner of a clear plastic bag. After making this observation, Agent Labik asked the defendant to remove the plastic bag. Moya replied that he had no plastic bag and Labik told him that if he (Moya) did not remove the plastic bag, he (Labik) would. Moya removed the bag which contained several other clear bags, some small bottles and some small spoons. Moya explained that he used the contents of the bag to carry jewelry.. Agent Labik, however, recognized the contents of the bag as drug paraphernalia.

Agent Labik and Officer Kinsella then asked Moya’s permission to search the travel bag and advised him that he had a right to refuse. Moya refused and freely departed the terminal alone while the officers detained the bag in order to attempt to *340obtain a search warrant. The officers then contacted the U.S. Customs office and requested the services of a dog trained to detect the existence of narcotics by “sniff testing.” Approximately three hours later, the trained canine picked out Moya’s shoulder bag from among a line up of six similar bags. On the basis of this showing, a search warrant was obtained from a Cook County, Illinois Circuit Court judge. The defendant does-not dispute the validity of the warrant. The search of the bag revealed that Moya had 501.77 grams of 35% cocaine in his possession. According to uncontested testimony adduced at the suppression hearing, this is more cocaine than one person would normally have for his personal use and has a street value of between $40,000 and $50,000.

I.

The central issue in this case is whether or not the seizure of Moya’s bag was constitutionally permissible. If that seizure was permissible, then, as Moya admits, the ultimate search of the bag was proper and the evidence obtained was admissible. If, however, the seizure was improper, he contends the evidence obtained from searching the bag was “fruit of the poisonous tree” and, as such, should have been suppressed. Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441 (1963). Consequently, as noted by the district court, the propriety of the seizure turns on two questions:

(A) Did the questioning of Moya by Agent Labik and Officer Kinsella in a public area of O’Hare International Airport amount to a “seizure” in violation of his Fourth Amendment rights?
(B) If the circumstances of the questioning did not give rise to an unconstitutional seizure, did anything that came to light during the course of the questioning, when taken in conjunction with Moya’s previous behavior, justify seizure of his travel bag?

A.

In determining whether a police-citizen encounter violated a defendant’s Fourth Amendment rights, the court must first determine whether the encounter was a “seizure” within the meaning of the Fourth Amendment. See United States v. Mendenhall, 446 U.S. 544, 553, 100 S.Ct. 1870, 1876, 64 L.Ed.2d 497 (1980) (Stewart, J.) (with Rehnquist, J., concurring). Although the Supreme Court has recognized that the Fourth Amendment proscription against unreasonable searches and seizures “applies to all seizures of the person, including seizures that involve only a brief detention short of traditional arrest,” United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 2578, 45 L.Ed.2d 607 (1975), the Court also has recognized that “not all personal intercourse between policemen and citizens involves ‘seizures’ of persons.” Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 1879 n. 16, 20 L.Ed.2d 889 (1968).

This circuit has adopted Justice Stewart’s “reasonable person” test for determining whether seizures have occurred in airport surveillance cases such as the one before us. See United States v. Black, 675 F.2d 129, 134 (7th Cir.1982), petition for cert. filed, 51 U.S.L.W. 3026 (U.S. June 3, 1982) (No. 81-2239). In Mendenhall, Justice Stewart, joined by Justice Rehnquist, concluded:

“[A] person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.”

Mendenhall, 446 U.S. at 554, 100 S.Ct. at 1877. Numerous other circuits have also adopted Justice Stewart’s test. See Black, 675 F.2d at 134 and cases cited therein. As noted in this court’s opinion in Black:

“Imposition of an objective standard requiring the presence of circumstances which indicate that that freedom to disregard has been obumbrated properly provides a reliable basis on which the court may determine whether valuable liberty interests have been infringed, without hamstringing the ability of the police to engage in some modicum of legitimate contact with the citizenry.”

Id. at 134.

The determination whether an encounter between a defendant and law en*341forcement officers rises to the level of a seizure under the “reasonable person” test is a highly factual one, dependent on the circumstances of the particular case. “Our standard of review is accordingly limited to inquiry into whether the decision of the district court is clearly erroneous, and requires that particular deference be given to the district judge who had the opportunity to observe the testimony and demeanor of [the witnesses].” Id. at 134.

In determining whether a given police-citizen encounter constitutes a seizure in the context of airport surveillance, the courts have looked at a variety of factors. The inquiry has focused on three major areas: (1) The conduct of the police; (2) The person of the individual citizen; and (3) The physical surroundings of the encounter. Id. at 134.

In examining the conduct of the police in a particular case, courts have sought to determine whether “the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen such as he is not free to walk away.” Id. at 134. The district court here found that no physical force or show of authority was used to detain Moya. In its opinion, the district court determined:

“[T]he undisputed testimony shows that Labik and Kinsella did not engage in any show of force in approaching Moya, that they did not lay hands on him at any time, and that Moya showed no hesitancy in agreeing to respond to their questions or agreeing to remove himself from the taxi line and enter the terminal foyer. Moreover, Moya himself characterized the officers’ tone of voice and attitude as ‘relaxed’ throughout the encounter. While Moya did testify that, at one point, he was barred from leaving, Labik directly and expressly contradicted this testimony. The court finds Labik’s account the more credible. On the whole, Labik gave a more precise, detailed narrative of the relevant events. Moreover, his was an account that was largely corroborated by Kinsella’s testimony and by the affidavit filed in support of the search warrant that was ultimately issued in this case. Finally, as a law enforcement officer, Labik is an experienced and trained observer whose memory can be given particular credence. Given all of these circumstances, it is apparent that Moya would have been free to walk away from Labik and Kinsella at any time, that a reasonable man in his position would have realized this, and, therefore, that his participation in the questioning was entirely voluntary. Under these circumstances, no constitutionally cognizable seizure can be said to have taken place.”

We hold that the district court’s finding on this question of fact is not clearly erroneous and we affirm the court’s determination that Moya’s freedom was not restrained by an overbearing show of authority. Id. at 135.

The characteristics of the individual defendant are another factor for the court to consider in determining whether even a facially innocuous encounter might, under the circumstances, have overborne the citizen’s freedom to walk away. Here, there is no evidence suggesting that Moya was “so naive or vulnerable to coercion that special protection from police contacts was required by the Fourth Amendment.”1 Id. at 135.

A final element to be considered under this court’s Black decision in determining whether a police-citizen encounter was voluntary or coerced is the physical setting in the area where the encounter took place. Here, the initial encounter between Moya and the officers occurred on a public side*342walk with other travelers present. Next, the officers requested him to move into the nearby terminal foyer away from the flow of pedestrian traffic and the night chill and Moya readily acquiesced. This movement of eight-ten feet into the public terminal did not result in Moya’s isolation, restraint or any sort of quasi-imprisonment, and was therefore of no legal significance as he was free to walk away from the officers at any time and, in fact, subsequently did walk away. Based on the factors outlined by this court in Black, we affirm the district court's conclusion that no seizure occurred during the “personal intercourse” between Moya and the law enforcement officers and a “reasonable person” would have believed that he was free to leave.

B.

Moya’s second contention is that the detention of his shoulder bag was an unconstitutional seizure of his personal property. It is clear from a reading of this court’s decision in United States v. Klein, 626 F.2d 22, 25-26 (7th Cir.1980), that the law of this circuit is that reasonable suspicion that luggage contains contraband is sufficient to justify temporary detention of the baggage in an airport courier situation. Accord United States v. Corbitt, 675 F.2d 626, 629 (4th Cir.1982); United States v. Viegas, 639 F.2d 42, 45 (1st Cir.), cert. denied, 451 U.S. 970, 101 S.Ct. 2046, 68 L.Ed.2d 348 (1981); and United States v. Martell, 654 F.2d 1356, 1359-61 (9th Cir.1981), petition for cert. filed, 50 U.S.L.W. 3803 (U.S. March 15, 1982) (No. 81-1772).2

The appellant argues that the facts known by Agent Labik and Officer Kinsella at the time they improperly seized the plastic bag from Moya were insufficient to create a reasonable suspicion in the minds of the officers that the shoulder bag contained contraband.3 The trial court. determined that the officers did not have sufficiently well supported suspicions regarding Moya to support a seizure of the bag at the time they initially approached him in the taxi line prior to any questioning. However, during the subsequent interview, according to the trial court, the following additional facts were adduced justifying detention of the luggage:

“The first question addressed to Moya at the time he was standing in the cab line was a request for identification. Moya’s contention that he had none was, of course, suspicious in itself. The suspicious nature of this response is underlined when a subsequent request for identification in the building foyer led Moya to produce his driver’s license, thus giving lie to his initial statement.... In addition to dissembling about his possession of identification, one additional event during the questioning gave Labik and Kinsella reasonable grounds for suspecting that Moya was engaged in a criminal enterprise. When Moya finally reached into the pocket of his travel bag to produce his license, Labik glimpsed a corner *343of a clear plastic bag. He promptly-asked Moya to remove this bag and show it to him. Moya did not simply refuse to comply with this request, rather he insisted that no plastic bag existed. This was a lie and Labik knew that it was the moment it was uttered. Thus, by the time that Moya initially failed to produce the plastic bag, he had given Labik and Kinsella several grounds for suspecting that his travel bag contained contraband: His behavior in walking from the arrival gate to the taxi stand was sufficient to arouse the officers’ inchoate suspicions. After they approached Moya and began to question him, these inchoate suspicions have been sharpened by the disclosure that Moya was hesitant to provide them with information about his identity and by the disclosure that Moya was carrying a plastic bag whose contents he wished to keep a secret. While this information taken as a whole may not have amounted to probable cause to believe that the bag contained contraband, it certainly gave Labik and Kinsella ‘reasonable and artieuable’ grounds for suspecting that this was the case.”

The officers were entitled to assess the totality of Moya’s conduct in light of their own experience. Among the circumstances that can give rise to reasonable suspicion are the officers’ knowledge of the methods used in drug courier activity, characteristics of persons engaged in such illegal practices, the behavior of a suspect who appears to be evading police contact and the suspect’s efforts to conceal the truth during a police-citizen encounter. See Mendenhall, 446 U.S. at 563, 100 S.Ct. at 1882 (Powell, J., concurring).

We affirm the district court’s determination that the officers had a reasonable suspicion to believe that Moya’s travel bag contained contraband even before Moya turned the plastic bag over to them. The officers’ curiosity was initially aroused by: (1) Moya’s initial movement away from the main terminal after deplaning; (2) Moya removing himself from the flow of pedestrian traffic and surveying the concourse in all directions in a manner consistent with trying to detect surveillance; (3) While Moya walked to the terminal he frequently glanced behind him, as if trying to detect whether he was being followed; (4) Moya entered two public restrooms without utilizing the facilities; (5) Moya, a second time, removed himself from the pedestrian traffic and surveyed the entire surrounding area; and (6) Moya hurriedly exited the main terminal carrying only his shoulder bag. The information recited above by the district court, gleaned during the constitutionally permissible initial encounter, viewed in conjunction with Moya’s uneasy, furtive and hesitant movement through the airport provided the officers with a reasonable suspicion to believe that Moya’s shoulder bag contained contraband.

Given the lack of effective alternatives available to the officers under the circumstances (allowing Moya to leave with the travel bag or illegally searching it), and the strong likelihood that Moya, now fully alerted, would take immediate steps to dispose of any contraband located in the shoulder bag, the officers’ action in detaining the bag for investigation and subsequently obtaining a search warrant was reasonable. See United States v. West, 651 F.2d 71, 74 (1st Cir.1981), petition for cert. filed, 50 U.S.L.W. 3132 (U.S. Aug. 14, 1981) (No. 81-307). “We feel that the [officers] proceeded in the best way possible to protect both [Moya’s] right to privacy and the government’s access to potentially valuable evidence.” United States v. Benjamin, 637 F.2d 1297, 1302 (7th Cir.1981).

In accordance with the foregoing reasons, the judgment of the district court is Affirmed.

. Considering this factor, the district court’s opinion recited, in pertinent part:

“Along the same lines, it is worth noting that Moya did not feel compelled to comply with all of the agents’ requests and that they did not insist that he do so. Thus, for example, Moya testified that he was asked to permit the agents to inspect his boots. He refused to do so, and this refusal was honored. Again, the agents asked Moya’s permission to search his shoulder bag. He refused to give them permission and no search occurred until a warrant was subsequently obtained.”

. The appellant urges us to follow the Second Circuit’s decision in United States v. Place, 660 F.2d 44 (2d Cir.1981), cert. granted, 457 U.S. 1104, 102 S.Ct. 2901, 73 L.Ed.2d 1312 (1982). As this opinion is contrary to the established precedent of this circuit and others, we decline to find Place controlling. See Place, 660 F.2d at 56 n. 2 (Kaufman, J., dissenting) and United States v. Regan, 687 F.2d 531, 538 (1st Cir.1982).

. The district court determined that the seizure of the plastic bag subsequent to Agent Labik’s demand that Moya remove it from his travel bag was illegal. The court further determined that because the officers had an independent basis for detaining the luggage “suppression of this evidence [based on Labik’s demand] would not be consonant with the policies that underlie the fruit-of-the-poisonous-tree doctrine and its various limitations.” The appellant does not take issue with the district court’s application of the exclusionary rule and we, therefore, need not review the court’s interpretation. The appellant correctly notes that “the lower court declined to take this factor [possession of narcotics paraphernalia] into consideration” in reviewing the propriety of the seizure of the shoulder bag. Moya argues that “this Honorable Court should conclude that Labik at no time had reasonable grounds to seize the Defendant’s luggage.” Accordingly, we only address the propriety of the detention of Moya’s shoulder bag on the basis of the information available to the officers prior to the seizure of the plastic bag.