United States v. Randy Lee Erwin

WIGGINS, Circuit Judge,

dissenting.

I agree with the majority that the Alaska state troopers needed articulable and reasonable suspicion to seize Erwin’s day pack and that we determine reasonable suspicion from the specific circumstances. Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968). However, hindsight is not the measure of reasonable suspicion. The troopers guessed right about Erwin, but based their suspicion on drug courier profile characteristics so sweeping as to ensnare the innocent as well as the guilty. As I believe Reid v. Georgia, 448 U.S. 438, 100 S.Ct. 2752, 65 L.Ed.2d 890 (1980) (per curiam), dictates a contrary result, I respectfully dissent.

In Reid, the government agent suspected Reid carried drugs because Reid: (1) departed from a cocaine-source city, (2) arrived in the early morning when law en*1512forcement activity is low, (3) traveled with only his shoulder bags, and (4) appeared to conceal that he was traveling with a companion by walking in front of him and occasionally glancing back at him. Id. at 441,100 S.Ct. at 2754. The Court held that the first three facts were not sufficient to create reasonable suspicion, for if it were to conclude otherwise “a very large category of presumably innocent travelers would be subject ... to virtually random seizures.” Id. Further, the agent’s belief that Reid and his companion were concealing that they were traveling together was a mere hunch, not a ground for reasonable suspicion. Id.

Like Reid, Erwin departed from a drug-source city. He carried a day pack, which he clutched tightly, and appeared not to have luggage. As in Reid, these general characteristics describe a large group of innocent travelers. Most planes arriving in Anchorage depart from drug-source cities. Many people travel with only a day pack; the Court in Reid found little reason for suspicion from that fact. Id. While Erwin made a two-day turnaround from Anchorage, such a turnaround is not particularly fast and can be explained by a number of legitimate business or personal reasons; indeed, Erwin gave a satisfactory explanation.

Upon deplaning, Erwin scanned the passenger area. He walked quickly through the airport, looking over his shoulder. The majority asserts, without support in the record, that his conduct suggests he was nervous. Neither the troopers nor the magistrate ever claimed Erwin was nervous before the troopers questioned him.1 It is plausible that Erwin, like many passengers arriving on a flight that was one-hour late, scanned the passenger area to see if friends were waiting to meet him, walked fast to meet them, and glanced over his shoulder to make sure he did not miss them. In fact, a friend was waiting to pick Erwin up. Erwin’s conduct describes that of a large group of innocent travelers.

Erwin took a roundabout route through the airport, and when questioned explained he was trying to avoid strikers even though no pickets were present that day. The majority relies heavily on these facts as particularized evidence of suspicious activity. Erwin’s explanation was plausible; there was an ongoing strike at the airport and Erwin had no reason to know the strikers were not picketing when he deplaned. The troopers’ doubt about his explanation was more an “ ‘inchoate and unparticularized suspicion or “hunch” ’ ... than a fair inference in the light of [their] experience.” Reid, 448 U.S. at 441, 100 S.Ct. at 2754 (quoting Terry, 392 U.S. at 27, 88 S.Ct. at 1883). Their doubt is too weak a foundation to support seizing Erwin’s pack.

The cases the majority relies upon found reasonable suspicion under circumstances involving far more incriminating conduct by the defendant, such as the use of an alias or other misrepresentation. See United States v. Moya, 704 F.2d 337, 342-43 (7th Cir.) (defendant first denied having identification, then later showed identification, and denied existence of plastic bag in plain view), vacated on other grounds, 464 U.S. 979, 104 S.Ct. 418, 78 L.Ed.2d 355 (1983); United States v. Ramirez-Cifuentes, 682 F.2d 337, 342 (2d Cir.1982) (defendant used alias); United States v. Sanford, 658 F.2d 342, 345 (5th Cir. Unit B Oct. 1981) (defendant left false call-back number with airline), cert. denied, 455 U.S. *1513991, 102 S.Ct. 1618, 71 L.Ed.2d 852 (1982); see also Florida v. Royer, 460 U.S. 491, 502, 103 S.Ct. 1319, 1326, 75 L.Ed.2d 229 (1983) (defendant used alias). The absence of any clear incriminating conduct by Erwin distinguishes this case from those the majority cites.

I acknowledge that the troopers were experienced . narcotics agents who might perceive things the untrained eye would overlook, United States v. Mendenhall, 446 U.S. 544, 563, 100 S.Ct. 1870, 1882, 64 L.Ed.2d 497 (1980) (plurality), and that the government has a compelling interest in stemming the drug traffic, Florida v. Royer, 460 U.S. at 508, 103 S.Ct. at 1329 (Powell, J., concurring). However, we walk a fine line between rewarding good police judgment and authorizing arbitrary government action. I believe that line was crossed here.

. The troopers observed Erwin become nervous only after they advised him that they were investigating him for cocaine trafficking and read him his Miranda rights. I agree with the majority that Erwin’s initial encounter with the troopers was consensual. As the majority notes, however, if the troopers subjected Erwin to a Terry stop when they read him his rights, the magistrate erred in relying on Erwin’s subsequent nervousness. See supra p. 1510 note 2. While the majority does not decide whether Erwin was subjected to a Terry stop when the troopers read him his rights, id., I believe that he was, for he could no longer have reasonably felt free to leave. See United States v. Lara, 638 F.2d 892, 898 n. 10 (5th Cir. Unit B Mar. 1981) (dictum). As the troopers needed reasonable suspicion to subject him to the stop, his subsequent nervousness resulting from the stop could not furnish further ground for reasonable suspicion for seizing the pack.