UNITED STATES оf America, Appellee, v. David Isaac WALTZER, Appellant.
No. 1012, Docket 82-1015
United States Court of Appeals, Second Circuit
Argued April 21, 1982. Decided June 25, 1982.
The Williams Act was not designed to tip the balance of regulation in favor of management. Rondeau v. Mosinee Paper Corp., 422 U.S. 49, 58-59, 95 S.Ct. 2069, 2075-76, 45 L.Ed.2d 12 (1975). Neither was it designed to provide the SEC with an amorphous regulatory power, the boundaries of which preclude definition by the most skilled of attorneys. The SEC‘s bland statement in its brief that, even though Eberstadt represented the Fund as well as Mr. Dickinson, there was no “need” to hоld the Fund liable, is a prime example of such unfathomable regulation.
With all due respect to my learned colleagues, I cannot join them in affirming a decision that unjustifiably has besmirched an honorable name. I would reverse the district court‘s holding that aрpellant Dickinson violated section 13(d) of the Securities Exchange Act. I agree with my colleagues that the balance of the district court‘s judgment should be affirmed.
Gregory J. Wallance, Asst. U. S. Atty., E. D. N. Y., Brooklyn, N. Y. (Edward R. Korman, U. S. Atty., E. D. N. Y., Jane Simkin Smith, Asst. U. S. Atty., Brooklyn, N. Y., of counsel), for appellee.
Before OAKES, CARDAMONE and WINTER, Circuit Judges.
WINTER, Circuit Judge:
David I. Waltzer appeals from a judgment of conviction of the United States District Court, 528 F.Supp. 646, for the Eastern District of New York, Platt, Judge, after a jury trial, for violation of
BACKGROUND
The sequence of events leading to Waltzer‘s arrest began in the Ft. Lauderdale Airport. Waltzer was observed waiting at the Delta Airline Terminal by Broward County Sheriff James Carl. Carl noted behavior on Waltzer‘s part whiсh drug investigators believe is common to drug couriers—extreme nervousness, fidgeting, and shaking—and which they say constitutes a reliable “profile.”1 Sheriff Carl approached the Delta ticket counter and overheard Waltzer identify himself as Walker and observed him purchase a one-way ticket to New York City on Delta flight 1052. After Waltzer left the ticket counter, Carl noted the claim numbers and identification labels of defendant‘s two pieces of luggage. He then contacted DEA officials at Kennedy International Airport in New York and informed them of his observations. Waltzer was neither questioned nor detained in Ft. Lauderdale.
DEA investigation and observation began as soon as Delta flight 1052 landed. A specially-trained dog named Kane was dispatched to the Delta pаckage area to “sniff” the baggage as it was unloaded. According to the testimony,2 Kane was capable of determining whether a particular piece of luggage contained narcotics and of alerting agents to the presencе of drugs by biting and gnawing at the luggage. Kane had a perfect record—on each occasion his alerting of agents to a particular bag had led to the discovery of narcotics. Kane alerted the agents to the luggage described by Sheriff Carl.
Meanwhile, DEA Agent Terry Valentine was observing Waltzer. Upon disembarking, Waltzer left the gate area quickly, ab-
Shortly thereafter, Waltzer made his way back toward the stairway from which he had come. He darted to the right of the stairway, ducked around a corner, returned to stare at Valentine for a third time and then went to make another phone call. After that call, he wаlked to the stairway for the third time and went up an adjacent escalator. Waltzer proceeded through the upper corridor away from the Delta terminal. Midway through the corridor, he abruptly turned around and again confronted Valentine who wаs only a short distance away. Waltzer turned and continued away from Delta toward the adjacent Northwest Airlines terminal area. Valentine gave up his observation of Waltzer and returned to the Delta baggage area.
Waltzer returned to the Deltа baggage carousel. He retrieved the two bags which had been identified by the dog, and the trio of agents asked to speak to him. He agreed and the group walked over to a wall to avoid the flow of passengers.
A somewhat bizarre conversаtion ensued in response to the agents’ questions. Waltzer denied having a baggage claim although he was holding one in his hand. He purported not to know why he was traveling under an assumed name. He stated that he was carrying $1,000 on his person so as to entertain rеlatives in Ft. Lauderdale with whom he had stayed. Finally, Waltzer indicated he was traveling alone and denied there were drugs in his bags. The agents asked Waltzer if he would consent to a search of his bags. He refused and, following that refusal, was arrested and given his Miranda rights. The entire conversation took about 10 minutes.
Subsequently, а search warrant was issued, and cocaine was discovered inside Waltzer‘s luggage. The claim check, airline tickets, cash, cocaine and his statements to the officers were used against him at trial.
DISCUSSION
Waltzer claims that the initial stop and, therefоre, all that flowed from it, was based on little more than a flimsy suspicion generated by overreliance upon the so-called courier profile. If so, this case might raise far more serious legal issues. See Reid v. Georgia, 448 U.S. 438, 100 S.Ct. 2752, 65 L.Ed.2d 890 (1980); United States v. Place, 660 F.2d 44 (2d Cir. 1981), cert. granted, --- U.S. ---, 102 S.Ct. 2901, 73 L.Ed.2d 1312 (1982). The DEA agents had more specific grounds to stop Waltzer than general similarities to the profile, however, for, unlike Place, the dog had designated luggage independently connected to him before he was stopped.
We regard the dog‘s designation of the luggage as itself establishing probable cаuse, enough for the arrest, more than enough for the stop. Cf. United States v. Johnson, 660 F.2d 21 (2d Cir. 1981); United States v. Bronstein, 521 F.2d 459 (2d Cir. 1975), cert. denied, 424 U.S. 918, 96 S.Ct. 1121, 47 L.Ed.2d 324 (1976). The testimony indicated that the dog Kane had a record of 100 percent accuracy. Given that record of accuracy and the designation of luggage connected to Waltzеr by independent evidence, the DEA agents did not have to stand helplessly by while Waltzer claimed the luggage and left the airport.
Canine identification is a non-intrusive, discriminating and, in cases such as Kane, reliable method of identifying pack-
We reaffirm, moreover, our prior rulings that canine sniffing is neither a search nor seizure for purposes of the Fourth Amendment. Johnson, supra; Bronstein, supra. The Ninth Circuit has recently ruled otherwise and stated that the reasoning of our prior cases “seems to have [been] rejected” by the Supreme Court. United States v. Beale, 674 F.2d 1327, 1331 (9th Cir. 1982). We disagree. The cases cited, Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979); United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977), stand for the proposition that individuals have a privacy interest in their personal luggage. The issue, however, is not whether such a privacy interest exists but whether caninе sniffing intrudes on that interest. We again hold it does not. Odor is extrinsic to the luggage, which is not opened, and the sniffing discloses only contraband, not other items in the bags. The owner is not subjected to the inconvenience and possible humiliation entailed in other less disсriminate and more intrusive methods. Sniffing results in virtually no annoyance and rarely even contact with the owner of the bags, unless the scent is positive, in which case, as we hold, probable cause has been established. The only privacy intruded on is thus the secrеt possession of contraband.
Waltzer also claims that the initial stop constituted an arrest and thus triggered the need to advise him of his Miranda rights. We reject the claim.
First, the existence of probable cause does not by itself compel officers to forego an investigatory stоp and make an arrest. As the Court recognized in Hoffa v. United States, 385 U.S. 293, 310, 87 S.Ct. 408, 417, 17 L.Ed.2d 374 (1966)
There is no constitutional right to be arrested. The police are not required to guess at their peril the precise moment at which they have probable cause to arrest a suspect, risking a viоlation of the Fourth Amendment if they act too soon, and a violation of the Sixth Amendment if they wait too long. Law enforcement officers are under no constitutional duty to call a halt to a criminal investigation the moment they have the minimum evidence to establish probable cause. . . .
Second, whether an initial stop constitutes an arrest depends upon the degree of intrusion and assertion of custody by the officers. No court has held that a stop such as the one before us requires Miranda warnings at the very outset. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The agents simply asked to speak to Waltzer. He agreed and the conversation took place on the spot in a public, well-traveled area of the airport. There was thus no assertion of custody or restriction of mobility. Compare United States v. Mendenhall, 446 U.S. 544, 574-575, 100 S.Ct. 1870, 1887-88, 64 L.Ed.2d 497 (1980) (White, J. dissenting). That we know from 20/20 hindsight the DEA agents would have arrested him had he attempted to leave, does not alter the character of the stop. The subjective, future intentions of the officers do not transform an investigatory stop into an arrest. United States v. Hall, 421 F.2d 540 (2d Cir. 1969), cert. denied, 397 U.S. 990, 90 S.Ct. 1123, 25 L.Ed.2d 398 (1970).
Affirmed.
OAKES, Circuit Judge (concurring):
I have previously made clear my regulatory-view position in regard to the so-called drug courier “profile.” United States v. Place, 660 F.2d 44, 53 (2d Cir. 1981) (concurring opinion), cert. granted, --- U.S. ---, 102 S.Ct. 2901, 73 L.Ed.2d 1312 (1982); United States v. Vasquez, 612 F.2d 1338, 1352 (2d Cir. 1979) (dissenting opinion), cert. denied, 447 U.S. 907, 100 S.Ct. 2991, 64 L.Ed.2d 857 (1980); cf. United States v. Barbera, 514 F.2d 294 (2d Cir. 1975) (border stop case). While I adhere to that position, the majority‘s non-reliance on the profile but reliance on the able, canny canine, Kane, with thе perfect record—all hits and no misses—accords with the precedents of this court and common sense. I therefore join happily in Judge Winter‘s opinion as well as the judgment.