United States v. Kelly L. Cordell

SWYGERT, Senior Circuit Judge,

concurring.

I concur in the judgment of this court that the conviction of the defendant should be affirmed. I write separately, however, to express my views on the issues and why I feel constrained by the principle of stare decisis to vote for affirmance.

It cannot be disputed that the two police officers who accosted the defendant at O’Hare Airport initially had no reasonable and articulable suspicion that he was involved in illegal activity. The facts that aroused their attention — that he came from Miami and walked through the airport rapidly after leaving the plane — are insufficient to justify even an investigatory detention (a “Terry stop,” see Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)) short of an arrest. See Reid v. Georgia, 448 U.S. 438, 441, 100 S.Ct. 2752, 2754, 65 L.Ed.2d 890 (1980) (per curiam). But it is established that not every “stop” is a detention requiring the modest fourth amendment protection of “reasonable suspicion” prescribed by Terry. In particular, the Supreme Court has held that police officers may “approach[ ] an individual on the street or in another public place, ... ask[ ] him if he is willing to answer some questions, [and] put[ ] questions to him if the person is willing to listen” without implicating the fourth amendment at all. Florida v. Royer, _ U.S. _, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229 (1983) (plurality opinion); see also Reid v. Georgia, 448 U.S. at 440 n. *, 100 S.Ct. at 2753 n. *; Terry v. Ohio, 392 U.S. at 19 n. 16, 88 S.Ct. at 1879 n. 16. It is generally agreed that an encounter is not covered by the fourth amendment unless “a reasonable person would have believed that he was not free to leave.” United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980) (opinion of Stewart, J.); see also United States v. Black, 675 F.2d 129, 134 (7th Cir.1982), cert. denied, _ U.S. _, 103 S.Ct. 1520, 75 L.Ed.2d 945 (1983).

I believe that as a factual psychological matter people who are stopped for questioning of this kind by .police officers, particularly officers who identify themselves as narcotics investigators, generally do not feel “free to leave” because of the implicit show of authority and singling out of the individual as suspicious. If I were writing on a clean slate, therefore, I would hold that such stops, as contrasted with non-confrontational encounters such as asking for directions or questioning possible witnesses of a crime, satisfy the Mendenhall criterion and must be justified by reasonable, articulable suspicion. The juxtaposition of the Royer and Mendenhall lines of cases demonstrates, however, that whether a reasonable person would feel free to leave is a technical legal construct rather than a simple factual inquiry, and that the category of cases in which one would feel “free to leave” in this sense includes simple requests for questioning. I therefore am compelled to conclude that the police officers were free to approach the defendant in this case *1287and elicit answers from him without any basis for suspicion whatever. My conclusion would be different, of course, if the officers had blocked his path, approached him in a nonpublic place, displayed weapons, overcome hesitancy by the invocation of authority, or otherwise displayed their power to compel compliance.

The legality of the initial encounter does not end the inquiry, for if the officers prolong the encounter it may become a detention within the fourth amendment’s ambit. As Judge Eschbach indicates in his opinion, the initial questioning in this case ripened into a detention implicating the fourth amendment because the officers retained Cordell’s driver’s license and ticket, impeding his departure. This detention was proper only if the officers could articulate sufficient suspicion based on what they knew at that time. The additional information they had elicited was that Cordell had purchased his ticket in cash, used an alias, and was physically trembling during the questioning. The officers’ intuition based on experience does not constitute an independent datum; experience may enable officers to spot suspicious circumstances to which the untrained would be oblivious, but is no more a part of the suspicion than binoculars are part of the landscape. See Reid v. Georgia, 448 U.S. at 441, 100 S.Ct. at 2754. We cannot defer to bare intuition because “[t]he scheme of the Fourth Amendment becomes meaningful only when it is assured that at some point the conduct of those charged with enforcing the laws can be subjected to the more detached, neutral scrutiny of a judge who must evaluate the reasonableness of a particular search or seizure in light of the particular circumstances,” Terry v. Ohio, 392 U.S. at 21, 88 S.Ct. at 1879 (footnote omitted), and review is possible only if the basis for official action is articulable. Although I believe the facts then known by the officers were a slender reed on which to base a detention, like the majority I defer to the statement in Royer, analyzing similar facts, that “travelling under an assumed name, ... paying cash for a one-way ticket, the mode of checking the two bags [under an. alias and with a vague destination], and [the defendant’s] appearance and conduct in general ... were adequate grounds for suspecting [him] of carrying drugs and for temporarily detaining him and his luggage while [the officers] attempted to verify or dispel their suspicions in a manner that did not exceed the limits of an investigative detention.” 103 S.Ct. at 1326.

Finally, in the course of the detention the officers sought and received permission to search Cordell’s bag and the package it contained. It is established “that where the validity of a search rests on consent, the State has the burden of proving that the necessary consent was obtained and that it was freely and voluntarily given, a burden that is not satisfied by showing a mere submission to a claim of lawful authority.” Id. at 1324 (citations omitted). Again, if I could write afresh, I would conclude that in reality consent to a search that is so obviously contrary to one’s interest is no more voluntary than “mere submission to a claim of lawful authority” because of the likelihood that the consent was uninformed and because of the pressures of the situation. The reality here is that the officers had the defendant’s driver’s license and airline ticket in their hands. They told him that they were conducting a narcotics investigation and asked him if he was carrying narcotics. He was not told that he need not consent to the search. It is clear to me that psychologically he could only believe that'he had no choice but to consent. Nevertheless, I defer to the holding of Mendenhall, 446 U.S. at 557-58, 100 S.Ct. at 1878-79, that such considerations are not dispositive, and therefore would affirm the district court’s finding that the consent was voluntary.

I feel compelled to note in closing that the kind of random stopping of air travelers illustrated by this case is not unusual. At oral argument, government counsel was questioned about the number and proportions of people who walk away, who consent to questioning, and who are found to be carrying drugs when stopped and asked to answer questions. Government counsel answered that six to twelve stops per day are *1288made at O’Hare, and later supplemented his statistics by letter to the panel, indicating that agents had testified in another case that in their experience at O’Hare approximately ten percent of the people stopped refused to talk, thirty percent of the encounters ended after brief questioning without requests to search, thirty percent involved searches resulting in seizures of narcotics, and thirty percent involved searches that yielded nothing or contraband other than drugs. I conclude from these limited and unsystematic statistics that many innocent people are being stopped and questioned. New people who are stopped for questioning know that they need not give answers and may walk away without consequences. New people will assert their rights, even if known, in the face of police authority.

This practice is troubling for two reasons. Countenancing large numbers of minor, though unwarranted, intrusions erodes the principle of freedom from official interference guaranteed by the fourth amendment, and invites the use of arbitrary or discriminatory principles of selection abhorrent to the fourth amendment. See Brown v. Texas, 443 U.S. 47, 51, 99 S.Ct. 2637, 2640, 61 L.Ed.2d 357 (1979) (fourth amendment embodies dual concerns of protecting privacy and avoiding arbitrariness and abuse); Delaware v. Prouse, 440 U.S. 648, 654, 661, 662-63, 99 S.Ct. 1391, 1396, 1400-01 (1979); United States v. Brignoni-Ponce, 422 U.S. 873, 882-83, 95 S.Ct. 2574, 2580-81, 45 L.Ed.2d 607 (1975); Terry v. Ohio, 392 U.S. at 14 & n. 11, 15, 21-22, 88 S.Ct. at 1876 & n. 11, 1879-1880. That the amendment may, at times, protect the criminal is the price that must be paid if we are to keep these protections alive for all people. Today’s holding may presage further atrophying of an important segment of the bill of rights.