UNITED STATES of America, Plaintiff-Appellee, v. Gaetano Phillip PUGLISI, Defendant-Appellant.
No. 82-8592.
United States Court of Appeals, Eleventh Circuit.
Jan. 23, 1984.
723 F.2d 779
Herzbrun‘s conviction is, accordingly,
AFFIRMED.
Julie Carnes, Asst. U.S. Atty., Atlanta, Ga., for plaintiff-appellee.
Before TJOFLAT, VANCE and CLARK, Circuit Judges.
TJOFLAT, Circuit Judge:
Gaetano Puglisi was indicted by a federal grand jury for possessing cocaine with intent to distribute, in violation of
I.
The critical events in this narcotics case began at 9:05 a.m. on April 19, 1982, when Gaetano Puglisi arrived in Atlanta‘s Hartsfield International Airport on Delta Flight 1122 from Fort Lauderdale, Florida. He deplaned at gate A25 and walked amidst the other disembarking passengers down the rampway to the waiting area by the gate. Puglisi did not have any carry-on baggage. Two uniformed Delta employees were standing in the waiting area directing
According to Markonni, as Puglisi entered the waiting area he looked forward and fixed his eyes on Markonni for two to three seconds. Markonni returned this stare for one to two seconds. His curiosity piqued, Markonni observed Puglisi walk through the waiting area, turn, and look back in Markonni‘s direction for a few seconds. Markonni followed Puglisi to gate A19. After Puglisi checked in for his Las Vegas flight, Markonni went to the check-in desk and obtained the ticket Puglisi had surrendered to the Delta clerk. Markonni took the ticket to an adjoining desk and recalled Puglisi‘s reservation record from the Delta computer. The record indicated that Puglisi‘s itinerary consisted of a one-way flight from Fort Lauderdale to Las Vegas, via Atlanta. Both legs of the flight, apparently, were nonstop. The ticket had been reserved at 1:03 that morning and the person making the reservation left no callback number. The ticket had been purchased with cash.
Markonni then approached Puglisi, who was standing near a Delta information counter. Markonni showed Puglisi his badge, identified himself as a DEA agent, and asked permission to speak with Puglisi. Puglisi gave his permission, and at that point Markonni asked in a normal conversational tone if he could see Puglisi‘s ticket. Puglisi complied, and Markonni noticed that one baggage claim check was stapled inside the ticket cover and that the ticket had been issued in the name of “John Shapiro.” Markonni asked Puglisi his name and he replied, “Gaetano Puglisi.” Markonni then handed the ticket back and requested some identification. Puglisi handed over his Nevada driver‘s license which was in his true name. In response to Markonni‘s inquiry about the discrepancy in the names on the ticket and on the license, Puglisi answered that a friend had purchased the ticket for him. Then, according to Markonni,
I [Markonni] said, “Why didn‘t your friend purchase the ticket in your name?” And he hesitated for a moment and said, “Well he was at the airport.” And I said, “Well, I really don‘t understand. Apparently I don‘t understand why . . . he could have purchased the ticket in your name even if he was at the airport.” At that point, Mr. Puglisi didn‘t even answer that question. . . . He just didn‘t say anything at all.
Next, Markonni asked Puglisi how long he had been in Ft. Lauderdale. Puglisi replied that he had been there three days visiting friends. At this point, Markonni noticed that Puglisi had become very nervous and was having difficulty breathing. Markonni returned Puglisi‘s license and asked him if he would consent to a search of his person and the bag he had checked with Delta. Markonni advised him that he could refuse permission. Puglisi replied that he would consent to a frisk search and agreed to Markonni‘s suggestion that they retire to a more private place. Upon reaching a flight ramp, Puglisi spontaneously assumed the classic police search stance—hands on the wall, with legs and arms spread—to Markonni‘s surprise. Markonni patted him down but found no drugs. Markonni once more asked Puglisi if he would consent to a search of his bag. Puglisi responded without hesitation, “No, I don‘t want you to search my suitcase. I‘ve got personal things in there, personal stuff in there.” Markonni asked for the ticket again and jotted down the claim check number. Markonni returned the ticket and said, “Okay, that‘s it as far as I am concerned.” At that point, Puglisi walked away. The entire encounter had taken approximately four minutes.
Markonni phoned the Douglas County, Georgia, Sheriff‘s Department from his office and requested that they bring “Sergeant Bandit,” a narcotics detector dog, to the airport. The dog handler was at the Georgia Police Academy some miles away and had to drive back to Douglas County to pick up the dog before bringing him to the airport.1 The handler and Sergeant Bandit arrived at the airport at approximately 11:27 a.m., and ten minutes later the dog alerted2 to Puglisi‘s bag. Nearly 140 minutes had elapsed since Markonni had seized the bag. Markonni immediately took the bag to the federal courthouse in Atlanta, obtained a search warrant, and searched the bag. He found two parcels of white powder in the pocket of a pair of jogging shorts. A field test revealed this powder to be cocaine, and Markonni called Las Vegas to request DEA agents there to arrest Puglisi upon his arrival. They informed him that Puglisi‘s flight from Atlanta had been cancelled prior to takeoff due to mechanical problems that arose after it left the gate. Markonni promptly obtained a warrant for Puglisi‘s arrest, and found him at the airport waiting for a flight to Dallas/Ft. Worth and, ultimately, a flight to Las Vegas.3 Markonni placed Puglisi under arrest, at 2:00 p.m.
Puglisi was indicted for possession of cocaine with intent to distribute. Following his arraignment, he moved to suppress the cocaine Markonni had seized from his suit bag. His motion was denied. Puglisi submitted to a bench trial, and the court found him guilty. He appeals, raising one issue, the validity under the fourth amendment of Agent Markonni‘s seizure of his suit bag and subsequent search.
Puglisi claims (1) that Markonni‘s original questioning of him constituted a “stop” or “seizure” without any articulable objective facts that criminal activity was afoot, the sort of conduct condemned in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889
Notes
We hold that Markonni‘s initial encounter with Puglisi was a consensual encounter, not a Terry seizure, and thus did not have to be founded on reasonable suspicion. We further hold that the removal of Puglisi‘s luggage from the Delta baggage cart was a limited seizure of luggage under Terry and United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983), and that it was supported by articulable and reasonable suspicion. One hundred and forty minutes thereafter, when the dog alerted, Markonni had probable cause to search the bag; by then, however, the limited seizure had become an unlimited one. The 140 minutes, combined with the intrusiveness on Puglisi‘s right to the possession of the bag, rendered this seizure unreasonable under the standards set forth in Terry and Place. We therefore hold that the cocaine found in Puglisi‘s bag should have been suppressed.
II.
The Initial Encounter
Puglisi contends, as he did in the district court, that Markonni‘s initial encounter with him constituted a stop that did not meet the Terry standard; it was not based on reasonable suspicion. We have prescribed specific rules for airport stops. United States v. Berry, 670 F.2d 583 (5th Cir. Unit B 1982) (en banc). There are three levels of police-citizen encounters: encounters in which the police officer seeks to communicate with the citizen without the coercion or detention proscribed by the fourth amendment; brief Terry-type seizures that must be founded on reasonable suspicion; and full scale arrests, requiring probable cause. Id. at 594-95. Accord, United States v. Jensen, 689 F.2d 1361, 1363 n. 2 (11th Cir.1982); United States v. Elsoffer, 671 F.2d 1294, 1297 (11th Cir.1982). To define a seizure in an airport-stop context, we adopted, in Berry, the test Justice Stewart prescribed in his plurality opinion in United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980). A seizure occurs when, “in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” We stressed that courts should scrutinize the record carefully to ensure that the totality of the circumstances shows an absence of coercion unless the police have reasonable suspicion or probable cause.4
Berry points to some specific factors that may indicate whether a police-citizen contact is consensual or a seizure. Blocking a citizen‘s path or impeding his progress is an indicator that a seizure has occurred. Similarly, retaining his ticket or identification may indicate a seizure if his freedom is thereby restrained. 670 F.2d at 597. An officer‘s statement that the individual is the focus of an investigation or that a truly innocent person would cooperate with police tends to indicate lack of consent and therefore a seizure. The Supreme Court has suggested still other factors: the suspect‘s age, education and intelligence; the length of the suspect‘s detention and questioning; the number of police officers present; the display of weapons; any physical touching of the suspect; and the language and tone of voice of the police. Id. at n. 12, citing Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973); United States v. Mendenhall, 446 U.S. 544, 554-55, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980) (Stewart, J., plurality opinion).
Markonni‘s conduct did not violate the Berry/Mendenhall proscription; on the totality of circumstances a reasonable person would have known he was free to leave or to cut off questioning. The initial encounter between Puglisi and Markonni clearly did not constitute a seizure.5 Directly on point is United States v. Jensen, 689 F.2d 1361 (11th Cir.1982) (per curiam) (no seizure when DEA agent approached suspect, asked for and returned ticket and identification, asked if suspect was carrying drugs, asked to search suspect and suitcase). See also United States v. Waksal, 709 F.2d 653 (11th Cir.1983) (stressing that key facts rendering encounter a seizure were retention of ticket until suspect had agreed to search, and suspect not advised of right to refuse consent); United States v. Sanford, 658 F.2d 342, 343-44 (5th Cir. Unit B 1981), cert. denied, 455 U.S. 991, 102 S.Ct. 1618, 71 L.Ed.2d 852 (1982) (finding no seizure or “stop“); United States v. Pulvano, 629 F.2d 1151, 1152-54 (5th Cir.1980) (finding no seizure or “stop“).
III.
The Seizure of the Suit Bag
A. Terry, Place, and Seizure of Luggage
Puglisi contends that (1) the initial stop and seizure of his suit bag was not supported by reasonable suspicion and (2) the length and intrusiveness of the detention of the luggage caused the detention to ripen into a “full seizure” that could be justified only by probable cause. These claims must be analyzed in light of Terry and Place, supra.
Terry permits a forcible seizure and pat down of a suspect for weapons, if the police officer has a reasonable, articulable, suspicion that criminal activity is afoot. Because the seizure is not based on probable cause, it may only be a brief stop and frisk for the purpose of protecting the officer and bystanders. In the parlance of legal commentators, this seizure is known as the “Terry stop.” See, e.g., 3 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 9.2 (1978 & 1983 Supp.) [hereinafter LaFave Treatise]. In Terry the police briefly detained and frisked a person believed to be carrying a handgun. The Supreme Court struck a balance between the suspect‘s interest in avoiding the pat down and interference with his freedom of movement, and society‘s interest in safety and proper police investigation. Concluding that society‘s interest in preventing crime outweighed the
In United States v. Place, supra, the Supreme Court extended the scope of the Terry stop to luggage. The Court held that if the police possess reasonable suspicion to stop someone under Terry, they may also seize any luggage he may be carrying, for a brief, investigatory purpose. Even though such detention restricts the possessor‘s freedom of movement, the seizure is permissible if the police possess reasonable, articulable suspicion, in view of the totality of the circumstances, that the luggage contains contraband or evidence of a crime. Place requires the same test as Terry: a court must weigh the intrusiveness of a limited seizure of the individual against society‘s interest in detection and prevention of crime. The Place Court stated:
The exception to the probable-cause requirement for limited seizures of the person recognized in Terry and its progeny rests on a balancing of the competing interests to determine the reasonableness of the type of seizure involved within the meaning of “the Fourth Amendment‘s general proscription against unreasonable searches and seizures. . . .” We must balance the nature and quality of the intrusion on the individual‘s Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion. When the nature and extent of the detention are minimally intrusive of the individual‘s Fourth Amendment interests, the opposing law enforcement interests can support a seizure based on less than probable cause.
U.S. at 703, 103 S.Ct. at 2642, citing Terry, 392 U.S. at 20, 88 S.Ct. at 1979. See also 3 LaFave Treatise at 27. A court analyzing a fact situation under Place must determine (1) whether the seizure of luggage was based on reasonable suspicion and, if so, (2) whether the seizure was of such a duration and so restricted the possessor‘s freedom of movement that, given the circumstances, the seizure may only be supported by probable cause.
Luggage, unlike a person, has no fourth amendment rights. The fourth amendment, accordingly, is implicated only when a police seizure of an item impairs a person‘s possessory interest, or a search impairs a person‘s reasonable privacy interest in the item.7 We add to Justice Stewart‘s pronouncement in Katz v. United States:8 the fourth amendment protects people, not places, or things. The fourth amendment applies to places and things only when people have reasonable privacy or possessory interests in them. Katz, 389 U.S. at 353, 88 S.Ct. at 512; United States v. Chadwick, 433 U.S. 1, 7, 97 S.Ct. 2476, 2481, 53 L.Ed.2d 538 (1977); accord, Place, 462 U.S. at 707, 103 S.Ct. at 2643. In the airport setting, privacy and possessory interests in luggage are often high. The traveler often has his most important and private possessions in his suitcase, and may want to shield them from the prying eyes of strangers, especially the government. At the same time, the traveler may wish to retain possession of his luggage lest he arrive at his destination with only the clothes on his back. Air travelers for many reasons may simply be unable to function if they arrive without their luggage. If a DEA agent seizes an air traveler‘s luggage, the seizure may be, for all practical purposes, tantamount to a seizure of the traveler himself, even an arrest. 3 LaFave Treatise 61. A person may not be arrested without probable cause, however; nor may he be “stopped” against his will, for even a moment, without reasonable suspicion. Terry; Berry, supra. Because police seizure of an air traveler‘s luggage may effectively stop or even arrest the traveler, the fourth amendment applies to protect the traveler‘s reasonable possessory interest in his luggage.
The Supreme Court in Place relied upon these concepts of privacy and possessory interests to determine whether the seizure of Place‘s luggage violated his fourth amendment rights. The Court held that no privacy interests were implicated because the agents did not open the luggage; they merely subjected it to a dog sniff, which intrudes on no reasonable expectation of privacy.10 The Court held, however, that Place‘s possessory interest in his luggage
The Court rejected Place‘s contention that once his luggage was seized dispossession became absolute and required probable cause. Instead, the Court held that police intrusion on possessory and privacy interests in “personal effects can vary both in its nature and extent.” Id. at 705, 103 S.Ct. at 2643. Because some intrusions can be brief and fairly innocuous—not severely interfering with an individual‘s right to travel freely with his luggage—the government‘s interest in halting drug traffic may predominate in the balance which Terry requires. Thus the Place Court held that while the DEA agents were entitled to a brief and reasonable delay of Place‘s ability to travel unimpeded with his luggage, this interference, given the facts of the case, was too severe.
Place also makes clear that because the fourth amendment protects people, not things, courts should concern themselves with seizures of luggage only when those seizures impair the right of the possessor to freedom of movement with his luggage. In airport luggage cases, the traveler‘s possessory interest would be impaired if the seizure of his luggage were tantamount to a seizure of his person, whether actually, because he could not leave without his luggage, or constructively, as in the cases of Place and Puglisi, where travel plans required him to proceed without his luggage.12 Place teaches that a seizure of luggage qua seizure, with no deleterious effects on the air traveler, is simply not a fourth amendment issue. This is in accord with a prior holding of this circuit, United States v. Goldstein, 635 F.2d 356 (5th Cir. Unit B) cert. denied, 452 U.S. 962, 101 S.Ct. 3111, 69 L.Ed.2d 972 (1981). In that case we held that the removal of a suspect‘s luggage from a baggage cart for an immediate on-the-spot sniff by a detector dog did not implicate the fourth amendment. Neither the removal of the luggage from the cart nor the sniff by the dog impaired in
The facts of the instant case and Place are different from those in Goldstein, however. Here, and in Place, the seizure of luggage impaired the freedom of the owner to continue unimpeded upon his travels, and thus implicated the fourth amendment. In such a case:
The person whose luggage is detained is technically still free to continue his travels or carry out other personal activities pending release of the luggage. Moreover, he is not subjected to the coercive atmosphere of a custodial confinement or to the public indignity of being personally detained. Nevertheless, such a seizure can effectively restrain the person since he is subjected to the possible disruption of his travel plans in order to remain with his luggage or arrange for its return.13
Place, 462 U.S. at 708, 103 S.Ct. at 2645 (citations omitted). The Place Court also stated that “Although we decline to adopt any outside time limit for a permissible Terry stop, we have never approved a seizure of a person for the prolonged 90-minute period involved here and cannot do so on the facts presented by this case.” Id. at 709-10 (emphasis added), citing ALI Model Code of Pre-Arraignment Procedure § 110.2(1) (1975) (recommending a maximum of twenty minutes for stopping a person under Terry.) The inquiry under Place, then, focuses on the seizure of persons, through their luggage.14
The Court in Place declined to put an outside time limit on a permissible seizure of luggage based on reasonable suspicion. For time even to be relevant, the seizure of luggage must have actually or constructively seized the person, as it did in Place. A Place seizure, just like a Terry stop, must be a minimal intrusion. See United States v. Brignoni-Ponce, 422 U.S. 873, 881, 95 S.Ct. 2574, 2580, 45 L.Ed.2d 607 (1975). Place establishes that the amount of time the owner is actually or constructively detained is a good yardstick for assessing the reasonableness of a reasonable suspicion seizure. A court should also look to the severity of the disruption in the suspect‘s travel plans, whether the luggage was seized from the suspect‘s person15 or in a manner likely to cause him great embarrassment, and, as in Place, whether the length of the seizure was unnecessarily extended by lack of police diligence.
B. The Initial Seizure of Puglisi‘s Bag Was Supported by Reasonable Suspicion
The brief seizure of luggage, which interferes with the owner‘s freedom of movement, permissible under Place, must be based on a reasonable, articulable suspicion that a crime is being, or soon will be, committed. Although Markonni did not possess this suspicion when he first approached Puglisi, by the time he directed the Delta employee to remove the suit bag from the baggage cart, he possessed the
The district court found ten specific facts that gave Markonni reasonable suspicion as a result of his first encounter with Puglisi at gate A19:16 (1) Puglisi had just arrived from Ft. Lauderdale which, along with Miami and Palm Beach, was the most significant entrance point for marijuana, cocaine, and methaqualone in the United States; (2) Puglisi stared directly at Markonni as Puglisi entered the waiting area; (3) Puglisi walked through the waiting area and then turned and looked back at Markonni, who was still standing at the gate; (4) Puglisi‘s one-way ticket was reserved at 1:03 a.m. the morning of his flight; (5) the person who reserved the ticket left no callback number, even though Puglisi claimed that he had been staying with friends in Ft. Lauderdale for three days; (6) Puglisi paid cash for the ticket; (7) the ticket was not issued in his true name; (8) Puglisi did not have a good explanation why he was travelling under another name; (9) he assumed the classic search position spontaneously; and (10) he grew increasingly nervous as Markonni questioned him, to the point where he was having trouble breathing properly.
None of these facts, standing alone, was sufficient to give Markonni the reasonable suspicion needed to make a limited seizure of Puglisi‘s suit bag, but the test is whether considered together they gave rise to reasonable suspicion. Terry, 392 U.S. at 22-23, 88 S.Ct. at 1880-81; see also Berry, 670 F.2d at 601. Taking all these factors into consideration, especially Puglisi‘s inexplicable traveling under an alias, spontaneous assumption of the search position, and excessive nervousness, we think it clear that an experienced DEA agent, such as Paul Markonni, would have had reasonable suspicion that criminal activity was afoot.
Puglisi claims however, that Reid v. Georgia, 448 U.S. 438, 100 S.Ct. 2752, 65 L.Ed.2d 890 (1980) (per curiam), requires us to conclude that Markonni could not, as a matter of law, have reasonably suspected Puglisi on these facts. In Reid, the High Court addressed whether reasonable suspicion for a Terry stop of two air travelers had arisen when DEA agents noticed that the travelers had arrived in Atlanta on an early morning flight from Fort Lauderdale, had tried to conceal the fact that they were traveling together, and apparently had no luggage other than shoulder bags. The Court stated that these facts did not support reasonable suspicion. 448 U.S. at 441, 100 S.Ct. at 2754. Reid is quite distinguishable from Puglisi‘s case. The few factors that bore upon reasonable suspicion in Reid do not even begin to equal the ten facts leading to reasonable suspicion in Puglisi‘s case. Accord, Sanford, supra (reasonable suspicion for Terry stop of drug courier justified on fewer objective facts than instant case); United States v. Herbst, 641 F.2d 1161 (5th Cir. Unit B 1981) (unsatisfactory answers to agent‘s questions tipped scales to reasonable suspicion); United States v. Bowles, 625 F.2d 526 (5th Cir.1980) (Terry stop of drug courier justified on fewer and less suspicious objective facts than instant case); United States v. Himmelwright, 551 F.2d 991 (5th Cir.), cert. denied, 434 U.S. 902, 98 S.Ct. 298, 54 L.Ed.2d 189 (1977) (border search; reasonable suspicion justified on fewer objective facts than instant case).
C. The Initial Seizure Became So Intrusive That It Required Probable Cause
Although Markonni possessed reasonable suspicion sufficient to seize Puglisi‘s suit bag and subject it to a fairly prompt exami-
1. Privacy Interests
Markonni did not subject the suit bag to any type of an examination other than a sniff by a detector dog. He did not open, weigh, measure, or X-ray the bag. Puglisi‘s legitimate interest in keeping his possessions away from the view of police and public was respected. Markonni, the other DEA agent, and the Delta employee did jointly confront Puglisi with the bag in the public waiting area outside gate A19. Although this encounter was no doubt embarrassing to Puglisi and could weigh in the fourth amendment calculus had it been used to coerce Puglisi‘s consent to a search, Markonni did not open or threaten to open the bag at the gate.
2. Possessory Interests
Puglisi was dispossessed of his luggage and his freedom to travel was impaired when he left gate A19. This situation continued as Puglisi rerouted himself to Las Vegas via Dallas/Ft. Worth. The impairing of an air traveller‘s reasonable possessory interest in his luggage is especially intrusive when the seizure causes him to depart without his luggage or miss his flight.17 The former situation is most aggravating, can simply ruin a trip and is a sufficient interference in the traveler‘s possession of his luggage to constitute a constructive seizure of the traveler himself, regulated by the fourth amendment.18 The latter situation is tantamount to an actual seizure of the person. Law enforcement agents making seizures on reasonable suspicion owe a special duty of diligence to ensure that a traveler‘s flight plans are not unnecessarily impaired. “[I]n assessing the effect of the length of the [traveler‘s] detention, we take into account whether the police diligently pursue their investigation.” Place, 462 U.S. at 709, 103 S.Ct. at 2645. Police diligence, then, weighs in the required balance between the public‘s interest in effective crime investigation and the interest of the traveler in proceeding unimpeded through the airport. In this case, Agent Markonni had approximately twenty-five minutes after reasonable suspicion arose to get a detector dog to sniff the luggage. Markonni may have been able to hold the luggage beyond twenty-five minutes if doing so would have been reasonable. As we noted above, whether a seizure is reasonable depends upon the intrusion into possessory and privacy interests, in light of police diligence and the alternatives open to the police in conducting the investigation.
Here, Markonni had a number of lesser intrusive means of conducting the investigation. First, he could have made certain that a detector dog was within a reasonable
REVERSED.
CLARK, Circuit Judge, concurring:
I concur in the result and in Part III(C) of the opinion, which is the rationale for the result.
In this case the district court found, and the government contends on appeal, that the seizure of the suit bag did not constructively seize Puglisi because his possessory interests in his suit bag were not impaired. We reject this contention. He boarded one flight, departed, returned, and was waiting to board another, without his bag. He was not given a receipt or even a phone number that he might use to regain possession. Had his possession of the suit bag not been disrupted, he might have changed air carriers after the aborted flight or left the airport altogether.