United States v. Marcus Hooper

TIMBERS, Before MESKILL and PRATT, Judges. Circuit TIMBERS, Judge: Circuit appeals The United States from an order September 19,1990, entered in the Western York, Arcara, District New Richard J. District Judge, granting ap- the motion of pellee Hooper suppress Marcus physical evidence seized from a suitcase. 20, 1989, September On Hooper Marcus was named in a two count indictment. charged possession Count one him with cocaine with intent to distribute it viola- 841(a)(1)(1988). tion of 21 U.S.C. Count § charged two carrying him with a firearm in drug connection trafficking crime 924(c)(1) (1988). violation of 18 U.S.C. § The physical evidence supporting those charges was seized after an encounter be- Hooper tween Drug members of a (DEA) Enforcement Administration task force at the Greater Buffalo International (the Airport airport). briefly ques- After tioning Hooper, seized a suit- case carrying pending that he was applica- tion for a search Immediately warrant. thereafter the conducted investi- gation that lasted less than 30 A minutes. search warrant approximate- was obtained ly 23 hours after the seizure. A search of grams the suitcase revealed 281 of cocaine and an Mini Uzi Carbine with a 30 round magazine. granted

The district court Hooper’s mo- suppress tion to physical evidence seized from the suitcase. The court held Hooper through a of the suitcase As walked corridor extended seizure area, fourth that led to the concourse violated rights. looking him from side side. observed glass game entered enclosed He video appeal, government contends On room, play any games. but did not video initial sei- court erred since the the district Instead, kept eyes he on the concourse supported rea- zure of the suitcase Hooper stayed game in the area. room for and, thereafter, shortly sonable’ approximately two minutes. Gerace and agents developed cause Allman decided that merited fur- pending application for a seize the suitcase ther attention. search warrant. follow, reverse For the reasons that we room, game When left the judgment of the district court and re- proceeded across the concourse in the area with this proceedings mand for consistent prior direction of the down escalator. Just opinion. escalator, getting Hooper to veered stopped public to his left and at a bank of

I. telephones, stayed approxi- where he for only shall summarize those facts and We mately Hooper appeared one minute. proceedings necessary to an prior believed change telephone, retrieve from indicat- ap- understanding of the issues raised on ing successfully complete that he did not peal. Hooper proceeded call. then to the down escalator. Ni- Police Thomas Gerace of the Officer agara Transportation Authority Frontier Hooper Gerace and Allman followed (NFTA) Border Patrol and United States airport. down to the lower level of the (collectively “the

Agent Daniel Allman Hooper bag- They located at the United agents”) assigned are to a DEA task force green gage claim area. He retrieved a immigration, drug, and cur- that enforces in bag wrapped hard shell that was airline airport at other Buf- rency laws at the and tape and headed for the exit. Before Hoo- part transportation centers. As falo exit, and Allman per reached Gerace training, of the task force members approached him. Gerace identified himself are familiarized with certain characteristics agent, displayed a DEA his identifica- as profile persons that that constitute a tion, Hooper they speak if could and asked may engaged activity. in illicit narcotics agreed speak Hooper with him. with airport Their duties at the include scrutiniz- agents. He indicated his assent they deter- ing passengers deplane At saying “yes” “okay.” either or Ge- May any profile. mine whether fit this On they a less suggestion, race’s moved to 15, 1989, duty and Allman were on Gerace they dis- congested area so that would not plain airport. in at the Gerace was clothes pedestrian exiting traffic and en- rupt the working p.m. p.m. day. to 11 shift that a 3 tering airport. approximately p.m., At 4:25 and Gerace Hooper he was com- asked where Gerace watching passengers deplane Allman were produce his ing requested from and that he flight which from United Airlines’ Hooper produced way a one airline ticket. Oakland, California, ter- originated in and paid in that ticket that had been cash Buffalo, making stop one in minated morning in Oakland. The ticket cost over Chicago. interested in were Kenny Fields. and was the name $500 flight originated in a “source that since it Kenny his name was Hooper stated that i.e., city which narcotics are city”, from appeared on the name “Fields” Fields and transported Hooper Buffalo. one of tag on the suitcase. the identification passengers plane. He the last leave Hooper for identifica- asked ap- When Gerace carrying any luggage and was not carrying tion, that he was not he stated travelling alone. Gerace peared to be Hooper familiar, any Allman asked Hooper but identification. thought that looked and for his date place for his of residence place could not his face. verify identity. call to his responded that he lived could Hooper of birth. gave Southampton was 11 trying when The address he began to stutter Buffalo. He agents provided Hooper, who was in Buffalo. The date. Street to recall his birth time, Hooper receipt that contained the initially told Allman that he 19 at the and address the DEA produc- phone then number in 1930 or but was born Hooper told that he correspond office. The ed a birth date that seemed to would rather than 58 or was free to leave appearance to his —of him he contact could contact them con- 59. Hooper cerning the return of the suitcase. Hooper point, At told this Gerace left the office without the suitcase concerned with narcotics were headed for a taxi stand. through airport and asked Hoo- coming Hooper Hooper’s departure, After Allman called per if in his suitcase. he could look key. telephone pro- number that responded that he did not have Ge- bag. person who answered the Hooper if he owned the vided. asked race identify Kenny Fields. bag, phone that he did not own the could stated possessions were in it. Allman traced the address to which the but that some of question telephone through number was listed a di- response to Allman’s as to California, rectory. telephone He determined that whether he had come from Hoo- Chicago. registered per that he had come from number was to an address at 12 stated Next, ticket, pur- attempted was Ruhland Allman When shown his which Street. Oakland, morning Hooper chased that he stated to ascertain where had been dropped airport. that he came from off when he left the All- California. Hooper gone man learned that had not Hooper carrying Gerace asked if he was directly provided to the address that he had Hooper responded any contraband. that he agents. to the questioned Hooper about was not. Gerace Hooper key to the suitcase. stated that Gerace called the Buffalo Police Narcot- people” put spoke “stuff” in the suitcase and Darnell “his had ics Unit to Detective key. Hooper’s physi- and that he did not have Gerace Parker. Gerace described Hooper people” appearance asked who “his were. cal to Parker and informed Par- Hooper divulge Hooper provided asked if he had to ker of the address Gerace phone him to which the that information and Gerace told and the address number questioned Hooper provided he did not. Gerace as he had was listed. Parker told key. person Hooper fitting Hooper’s to the whereabouts of the Gerace that a de- key Chicago scription subject and one of a recent Buffa- stated that one was was (the bulletin). key Hooper was in Buffalo. refused Ge- lo Police Information Bulletin addition, request through race’s to run the suitcase Parker told Gerace that magnetometer. appeared subject ongoing a He nervous at addresses were the suggestion. point approximate- investigation involving group At that a of individu- transpired ly transporting weapons five minutes had from the als narcotics and Moreover, agents initially approached time Hoo- from California. addresses per. also were consistent with information that was contained in the bulletin. thereupon Hooper that

Gerace informed Accordingly, and he intended to seize the suitcase and to Gerace Allman obtained office, attempt copy warrant. at the NFTA obtain search Ge- of the bulletin DEA race told that he could obtain a which was located next to the office receipt accompanied airport. agents if he in the Both had seen the up DEA Hooper picked previously. office. the suitcase The bulletin contained bulletin accompanied mug agents recog- and men. The DEA shots four office, men, airport. Hooper, which was located in the nized one of the Marcus as office, to them When arrived at the the man who had identified himself airport. provided Kenny with an address where Fields in the The bulle- staying telephone Hooper’s prior number arrest with and tin revealed two II. possession of an auto- individuals for other other his association with weapon, matic district We review the court’s factual weapons and nar- involved with individuals findings clearly under a erroneous stan approach cotics, and warned officers Uribe-Velasco, dard. United States v. No. It also list- caution. Hooper with extreme 90-1333, (2 slip op. at Cir. Southampton Hooper’s address as ed 18, 1991); Montilla, April United States v. Moreover, the address of one of Street. (2 Cir.1991); F.2d United Hooper, arrested with Anto- the individuals Jefferson, States Littlefield, 12 Ruhland was listed as nio (10 Cir.1991); Johnson, United States v. that the The bulletin also revealed Street. (9 Cir.), 903 F.2d phony used identification individuals had 111 S.Ct. 520 The district court’s past. aliases in the determination as to whether those facts a fourth establish amendment violation is examining approximately p.m., after At Uribe-Velasco, subject to de novo review. bulletin, Gerace called 3714; Montilla, supra, slip op. at Attorney’s begin pro- Office 588; Jefferson, supra, 928 F.2d at obtaining search warrant. He cess of 1248-49; Johnson, supra, 903 F.2d at obtain a told that it would be easier to 1221. following morning. Ac- warrant the search the suitcase cordingly, Gerace locked III. overnight. DEA office We turn first to the encounter be following day, prepared an Gerace Hooper. Hooper tween the obtained contends, A search warrant was grounds affidavit. as alternative for af 16, 1989, p.m. May more than 23 firming opinion, at 3:44 the district court in him approaching initial seizure of the suit- hours after the asking questions him amounted to a sei The authorized the case. warrant person any zure of his level of ob absent weapons, suitcase for narcot- to search the Hooper’s jective justification. Under at money. The search was conducted ics or subsequent yielded analysis, search p.m. yielded It 281 approximately 4:30 illegal agree seizure. fruit of this We Mini grams of cocaine and an Uzi Carbine the district court’s conclusion that this en magazine. round with a 30 implicate did the fourth amend counter not 17, 1989, May an arrest warrant was On ment. Hooper. He was not arrested issued Hooper district court found that The 14, 1989, September until fol- that warrant encounter with Gerace and consented to his lowing arrest on unrelated state his that an individu Hooper Allman. contends charged with one charges. stopped by consent to be law al cannot intent possession count of of cocaine with any He reasons that enforcement officers. it, possession and one count of to distribute inevitably invalid since it consent must be drug firearm in connection with a of a has given after the individual come must be sup- moved to trafficking offense. officers law enforcement into contact with physical gathered from press the evidence already has and the fourth amendment suitcase, contending that it was ob- Hooper’s implicated. fallacy The in been of his fourth amendment tained violation a “seizure” lies in the fact that contention 19, 1990, rights. September after hold- On of the fourth amendment purposes for the hearing at which Gerace and Allman ing a has by whether an individual is not defined testified, granted court Hoo- the district progress response halted his forward The court held that the sei- per’s motion. conduct, by the police rather is defined but bag for more than 23 hours zure police E.g., conduct. coercive nature of fourth violated 567, Chesternut, 573 486 U.S. Michigan v. rights. determining (1988)(“[t]he whether test- [for designed to is a seizure has ... appeal This followed. occurred] 490 police cating protec- the coercive effect of con- the fourth

assess amendment’s tions”). duct”). Thus, parameters Hooper did consent to a of the doctrine seizure; rather, permitting consensual encounters between there was no seizure since law enforcement officers and individuals Hooper consented to the encounter with Royer, were set forth in Florida v. 460 agents. (1983): U.S. 491 types There are three of encounters enforcement officers do not vio “[L]aw may occur between law enforcement by merely late the Fourth Amendment v. officers and individuals. approaching an individual on the street Bradley, 923 F.2d 362, (5 Cir.1991); 364 public place, by asking or in another him Johnson, United States v. 910 F.2d willing questions, if he is to answer some (7 Cir.1990), 1508 111 S.Ct. by putting questions him person if the Flowers, (1991); 764 909 listen, willing by offering is (6 Cir.1990) curiam). (per prosecution evidence in a criminal type The first occurs when an individual voluntary questions. answers to such agrees speak to a law enforcement offi York, Dunaway See v. New [442 duress or coercion. Brad any cer absent Ohio, Terry (1979)]; n. 364; Johnson, supra, ley, su at U.S., (Harlan, J., con 1508; Flowers, pra, 910 F.2d at supra, id., curring); (White, J., at 34 concur F.2d at 147. The second involves a limited ring). Nor would the fact that the offi detention of individual based on a rea police officer, cer identifies himself as a activity sonable that criminal is more, without convert the encounter into underway. Bradley, supra, 923 F.2d at requiring a seizure objec some level of 364; Johnson, supra, 910 F.2d at 1508; Men justification. United States v. tive Flowers, supra, 909 F.2d at 147. The third denhall, (1980) (opin involves an arrest based on cause Stewart, J.). person ap ion of that a crime has been committed. Brad however, proached, any need not answer Johnson, ley, su 923 F.2d at him; indeed, question put may de 1508; Flowers, pra, 910 F.2d at supra, questions cline to listen to the at all and type F.2d at 147. The first of encounter Ohio, way. may go on his implicate amendment, does not the fourth U.S., (Harlan, J., concurring); at 32-33 while the latter two are “seizures” within id., (White, J., at 34 concurring). He meaning of the fourth amendment. may momentarily not be detained even 364; Johnson, Bradley, supra, 923 F.2d at reasonable, objective grounds without 1508; Flowers, supra, supra, 910 F.2d at so; doing for and his refusal to listen or 909 F.2d at 147. not, more, answer does without furnish grounds. United States v. Men those It is well settled that Fourth “[t]he denhall, supra, (opinion at 556 of Stew proscribe Amendment does all contact art, J.). If there is no detention —no citizens, police between the and but is de- meaning seizure within the of the Fourth signed prevent arbitrary oppressive ‘to and Amendment —then no constitutional by interference enforcement officials with rights infringed.” have been privacy personal security of indi- ” Id. (plurality opinion). at 210, Delgado, INS v. viduals.’ 466 U.S. (1984) (citation omitted); see also Unit- 215 short, “[p]olice enjoy In officers ‘the lib- Mendenhall, ed States v. 544, 446 U.S. (... citizen) erty possessed by every ” (1980) Stewart, J.) (opinion 553-54. questions persons.’ address to other Ohio, (same); Terry v. 1, 19 n. 16 Mendenhall, 392 U.S. supra, (opin- 446 U.S. at 553 (1968) (“[o]bviously, personal not all inter- Stewart, J.) (quoting Terry, ion of policemen course between and citizens in- (Harlan, J., concurring)); see 392 at 32 U.S. volves Terry, supra, 392 persons”); (White, ‘seizures’ of also at 34 U.S. Lee, (2 Cir.1990) J., (“[tjhere 916 F.2d 819 concurring) nothing is in the (“[n]ot every police prevents policeman encounter between a Constitution which and an impli- addressing questions anyone officer individual is a seizure from Bour, streets”); subjective police 40 The intentions of the offi- People v. De (1976) (“the during only cers an encounter are practical nec- relevant N.Y.2d conveyed are to the extent and the obvious essities of law enforcement 7; approached. individual at 575 n. society may Id. any person in our fact that Mendenhall, supra, 446 at 554 n. U.S. person attempt approach any other Stewart, J.). (opinion of conversation, make it clear that up strike approach authority police have previously have identified We factors civilians”). an individual is The fact that might be relevant to a determination likely respond to a law enforce- more implicating of whether a seizure the fourth individual ment officer than to another has occurred. These factors nature of “hardly eliminates the consensual include: supra, 466 U.S. response.” Delgado, threatening presence “the of several offi- that, analysis this at 216. It follows from cers; display weapon; physical of a seized within the mean- if was not officer; touching by person amendment, ing his encounter of the fourth language indicating compli- or tone implicate the with the did not fourth compulsory; ance with officer was

amendment. prolonged person’s person- retention of a effects, airplane al such tickets meaning A seizure within identification; request by and a the offi- “[o]nly occurs when the fourth amendment accompany police cer to him to the sta- officer, by physical means of force or police tion or a room.” way re authority, has in some show of Lee, 819; supra, 916 F.2d at see also Men Ter liberty strained the of a citizen....” denhall, supra, (opinion of 446 U.S. at 554 at 19 n. 16. The test ry, supra, 392 U.S. Stewart, J.); Montilla, supra, 928 F.2d at determining whether an individual has 588; Barrios-Moriera, police coercive been restrained (2 Cir.), forth first in Justice Stewart’s was set S.Ct. 364 Mendenhall, opinion in factors, (1980): recently Applying these we have individuals held that encounters between ‘seized’ within the person has been “[A] officers, and law enforcement similar to only meaning the Fourth Amendment case, instant do not the one involved if, circumstances in view of all of the meaning constitute seizures within the incident, surrounding the a reasonable Lee, supra, the fourth amendment. person have believed that he was would a case in which F.2d at we considered not free to leave.” approached as he two officers an individual adopted by test was the Court That After the leaving airport. the Buffalo Chesternut, subsequent supra, 486 eases. themselves, the individu- officers identified Delgado, supra, U.S. at and agreed al to talk with the officers 502; see Royer, supra, 460 U.S. way pedestri- agreed to move out of the D., v. U.S.L.W. also Hodari 59 California an traffic. The officers asked individu- (U.S. 23, 1991) (Menden 4335, April 4337 ticket, plane al for identification and for his not a necessary, test “states a but hall him posed questions several to about and (emphasis condition for seizure” sufficient in question, the response his travels. to a original)). objective test allows law This they the individual that officers informed predict the ramifi enforcement officers to carrying contraband. Id. suspected he was a uni of their conduct and ensures cations that this was not the at 816-17. heldWe pro application of fourth amendment form that amount- police of coercive sort similarly situated individuals. tection to under the fourth amend- ed to a seizure Chesternut, It supra, 486 U.S. at 574. ment. approach that takes calls for a contextual Montilla, v. Similarly, each particular account the facts of into (2 Cir.1991), we considered varying circumstances. 928 F.2d 583 case to meet law en- Chesternut, individuals and at 572-73. encounter between (two supra, 923 F.2d at 364-65 Bradley, ter- at the Buffalo bus forcement officers individual, case, ap- identified approached two officers officers minal. In that they themselves, questioned were after proached two individuals individual individual); The offi- terminal. receiving speak to leave the bus to with about consent asked if Cooke, themselves and cers identified 915 F.2d 251- v. United States The indi- individuals. speak Cir.1990) (same); could with the (6 United States speak the officers. agreed viduals to with (7 Cir.1990) 909 F.2d Sterling, iden- asked the individuals for The officers Johnson, (same); supra, 903 F.2d at 1221 questions their posed tification and about Gordon, (same); held that those journey. Id. at 585. We (4 Cir.) (same), facts, true, if did not amount to a taken as (1990); v. Her 111 S.Ct. under the fourth amendment. Id. seizure (8 Cir.1988) nandez, 854 F.2d at 589-90. (same). case also lead to The facts the instant person would have Since a reasonable pos the conclusion that “the encounter leave, agents to were not felt free au the indicia of force or sessed none of required justify approach to to Hoo typically a Fourth thority that earmarks any suspicion per by demonstrating level of seizure_” Amendment Barrios-Mori activity underway. The that criminal era, agents did supra, 872 F.2d at 15. The sig may “expose that such encounters fact to physical use or threaten to use force not law-abiding passengers nificant numbers of voluntarily agreed to Hooper. He restrain questioning by police” random does to agents. agents not speak with the did into an unconsti not convert encounter weapons display their and were courteous long tutional seizure as as the individual is throughout the encounter. The fact compelled participate by coercive not agents inform at the did not Lewis, police conduct. United States that he was free to leave did not outset (D.C.Cir.1990). convert the encounter into a seizure. Del did not seize We hold that 215; Montilla, gado, supra, 466 U.S. at meaning Hooper within the of the fourth Moreover, when supra, 928 F.2d at 589. they initially approached when Hooper inquired he had to as whether person him since a reasonable would have question, informed answer a Accordingly, agents’ felt free to leave. honored his him that he did not approach Hooper implicate not initial did ensuing Similarly, silence on that issue. fourth amendment and the were apply any pressure did not when required justify that conduct based request Hooper refused their to run the any suspicion level of through magnetometer. While suitcase activity. in criminal engaged legal provide refusal itself could not this for an enhancement of the basis suspicions, necessarily it contributed IV. agents’ delay ending their encounter brings This us to the seizure of the suit- Hooper. delay, The resultant how government contends that the ease. ever, benefit should not inure initial seizure of the suitcase and the inves- police-citizen and transform a encounter tigation justified followed were into a seizure under the fourth amendment. on reasonable that the suitcase agents the fact that the asked

Nor did government contained contraband. carrying if he contraband re Hooper that, agents the de- further contends since finding had been quire a that the encounter thereafter, veloped probable cause soon Lee, supra, E.g., converted into a seizure. pending continued seizure of the suitcase confronting courts 916 F.2d at 819. Other application justi- for a search warrant was factual scenarios have held that law similar agree. fied. We indi officers do not seize an enforcement Ohio, Terry him in an In 392 U.S. at merely by approaching vidual Supreme held need of posing questions E.g., to him. Court airport and respond point of the initial seizure to “on- of the suit- enforcement officers law case, a limited justified agents the-spot observations” were not aware of facts subsequent individual and gave of an seizure that them cause to believe weapons based on facts that did search govern- that it contained contraband. The In probable cause. so hold- not constitute contends, however, ment that the initial appro- in that ing, the Court “established] justified seizure was reason- Amend- the Fourth priate circumstances suspicion able that the suitcase contained or properly limited ‘search’ ment allows agree. contraband. We on facts that do not constitute ‘seizure’ It is clear that seized the cause to arrest or to search for meaning suitcase within the of the fourth or evidence of crime.” United contraband they amendment when informed Brignoni-Ponce, U.S. that intended to hold the suitcase for on this doctrine Seizures purpose obtaining a search warrant. amend- governed by the fourth are not Place, supra, According- at 707. 462 U.S. rather, requirement, but ment’s warrant that, ly, government must demonstrate competing balancing of the on a “rest[] seizure, point at the of the determine the reasonableness interests to at least a reasonable based on type of involved within the seizure specific and articulable facts that the suit- gen- meaning of ‘the Fourth Amendment’s case contained contraband. against unreasonable proscription eral ” and seizures.’ United States searches detention, justify Terry type To (1983) (citation Place, 696, 703 law enforcement officer must have “a rea omitted). suspicion supported by sonable articulable Place, supra, 462 at U.S. activity ‘may facts criminal ” test, Court, balancing applying this held Sokolow, afoot’.... United States v. seized personal luggage could be for a (1989); Terry, supra, U.S. see also upon suspicion that period brief reasonable suspi at 30. The term U.S. “reasonable purpose it contained narcotics “for the capable precise cion” is not of a definition. investigation, pursuing a limited course clear, however, It is that “an ‘inchoate and ” luggage, opening the that would short of unparticularized suspicion or hunch’ on dispel the authorities’ quickly confirm part of a law enforcement officer will of an individu- suspicion.” Since a seizure suspi reasonable not suffice to establish luggage al’s “intrudes on both the sus- (cita Sokolow, supra, cion. 490 U.S. at 7 luggage pect’s possessory interest in his Rather, omitted). the officer must tion liberty proceeding in well as his interest “specific provide reasonable inferences applied the itinerary,” the Court is entitled to draw from which [the officer] standards to determine reason- same light experience.” the facts of his Ter of a limited seizure of an individu- ableness making 27. In this ry, supra, 392 U.S. at luggage forth in al’s as it set determination, totality we consider the of an determine reasonableness investi- Sokolow, supra, 490 the circumstances. individual. at gative detention of an Id. at 8. Acts that considered isolation step inquiry 708-09. That involves two travel, are consistent with innocent never the officer’s ac- determination: “whether theless, together, may es when considered inception, justified at its tion investigation. Id. tablish cause for further reasonably scope related in whether it was at 9-10. justified circumstances which place.” Terry, interference the first su- facts known to We turn now to the pra, 392 U.S. at 20. the time seized the suitcase. The knew

(A) passengers deplane was one of the last arriving city”, a “source flight from a from first whether consider We continually looked deplaning after he agents’ justified incep at its that conduct was concourse, that, paid for that he had government The concedes about the tion. morning, to that the suitcase in that facts believe way ticket cash his one any produce carrying unable to contained that he was was contraband. and factors are consistent Those identification. profile that drug courier

with the (B) as result agents were familiar with scope We consider next whether The fact that training. agents’ permissi- exceeded the profile from such a does drew inferences Terry type any greater The those inferences to of a detention. not entitle ble bounds weight determining in whether or lesser the extended seizure court held that district Id. at 10. suspicion. there was reasonable justified of the suitcase could not be based government suspicion. reasonable on Moreover, and Hooper gave confused that the district court erred contends agents’ responses to the contradictory considering period the entire time that coming questions. asked if he was When prior and to the elapsed after the seizure California, he com- he stated that from Although flight agree government had with the ing Chicago. from search. We made clear stopped Chicago, his ticket this issue. He departed he had from California.

that in The warrantless intrusion on an recall his birth date. initially was unable to answers, liberty possessory interests obviously false dividual’s giving After two and Place gave response. a reasonable finally he sanctioned in that was toward agents’ suspicions were directed “reasonably scope related in must be by other statements made the suitcase initially.” justified which it circumstances example, Hooper. For he told Hernandez, Montoya de people” put “stuff” in the that “his a seizure 473 U.S. Such departure prior to his from Oak- suitcase “minimally intrusive of individ must be [an Despite the fact that some of his land. Fourth Amendment interests” to be ual’s] suitcase, possessions were stated suspicion. justifiable based on reasonable key opened that it. that he did have Place, supra, 462 U.S. at 706. If intru explanation about the whereabouts of His excessive, it sion becomes ceases be suspicious. Finally, Hoo- key also was Terry type detention that can be justified throughout the en- per appeared nervous suspicion instead on reasonable These facts warranted counter. requires showing becomes a seizure suspicion reasonable suit- E.g., United States v. cause. carrying contained con- case (1985) (“[o]bvi Sharpe, Nurse, traband. Cf investigative stop ously, if an continues (D.C.Cir.1990) (fact that individ- point longer indefinitely, at some it can no night late at on train from a ual arrived justified investigative stop”). cash, dis- city, purchased source ticket with “[wjhile The district court here held that behavior, with played nervous combined continued nervous conduct of the de- vague questions during consen- answers answers, fendant, with law enforcement offi- and his evasive combined sual encounter cers, suspicion); amounted to reasonable the information the obtained with (fact supra, 909 F.2d at 1083-84 Sterling, questioning, may sup- from their have passen- that individual was one of the last finding suspicion ported a of reasonable flight arriving from gers deplane from a justify a detention of the sufficient to brief cash, city, purchased a source ticket with suitcase; make either ... this Court cannot airport concourse re- and looked about conceptual transition from the factual or peatedly, suspicious state- combined with suspicion for a detention reasonable brief during consensual encounter ments made justify the seizure of cause officers, amounted to with law enforcement length considering the suitcase.” suspicion). reasonable detention, the district court concluded “the detention of the suitcase was We hold that the had a reasonable lengthy, day passing almost a full specific and articulable based on credibility. The credibility the search warrant was obtained district court’s before findings binding Montilla, are opened.” suitcase us. su- and the pra, Although 928 F.2d at 586. the district agree government’s with the We explicit finding court made no on the erred in that the district court contention agents’ credibility, reject it did not the period of time that considering the entire agents’ version Accordingly, of events. we the seizure of the elapsed between initial rejecting no basis for have it. We will time a search warrant was suitcase and the proceed assumption slightly on the opened. Only and the suitcase obtained elapsed less than 30 minutes after the ini- period elapsed of time that between the the tial seizure of the suitcase before the com initial seizure of the suitcase and agents probable established cause to be- investigation gave rise pletion of the it contained lieve contraband. in determin probable cause is relevant scope inquiry permissible Once the ing scope of the detention. Our cause, developed probable Terry type begins a war of a detention with Place, pending application suspect’s luggage for a Place. In rantless seizure Place, ninety justified. su detained for minutes while en- search warrant law Indeed, in pra, 462 U.S. at 701. Place forcement officers awaited the arrival of a Friday dog. Although on a narcotics detection dog sniff was conducted late it de- place positive afternoon. After a reaction from clined to a time limit on such sei- zures, luggage, dog, ninety seized the but the Court held that the min- procure permissible until the ute seizure did not search warrant “exceeded the lim- Yet, in following Monday. Terry-type investigative stop.” Id. at 699. its of a Place, determining of the de According- the reasonableness U.S. at 709. tention, ninety ly, justified the seizure could not the Court considered be absent elapsed minute interval that between the cause. The Court held that the luggage posi length important initial seizure of the and the of detention was determining dog gave tive sniff that rise to factor its intrusiveness. Id. detention, cause, considering length rather than the entire weekend dur bag pending diligence ing the officers held the the Court focused on the with which agents pursued investiga- application for a search warrant. Id. at which the case, police, The in that also v. Mondel tion. Id. see (9 Cir.1991)(reason lo, suspect’s advance notice of the arrival and arranged dog at the suspicion justified lug detention of could have to be able minutes; airport suspect luggage when the and his gage for 30 continued seizure arrived, thereby minimizing luggage subsequent positive dog sniff intrusion cause). rights. justified by probable on his fourth amendment Id. found the intrusion exacerbated Court According agents’ calcula accurately “the failure of the here, elapsed less than 30 minutes tions suspect] place of the to which inform [the the suitcase between the time seized transporting luggage, were they completed their investi and the time length might dispossessed, of time gave probable cause to gation that rise to arrangements be made and of what would that the suitcase contained contra believe luggage investiga- if for return of the ap This estimate is based on the band. suspicion.” Id. at 710. dispelled tion proximate Hooper’s flight arrival time of (4:25 has declined to establish p.m.), the amount of time the Court observing speak bright line rule for the duration they spent estimate minutes), 470 U.S. at (8 ap stops. E.g., Sharpe, supra, ing ‘bright line’ rule would (“[m]uch call as a proximate phone time of Gerace’s desirable, in- evaluating whether an Attorney’s office to be be the United States unreasonable, com- obtaining vestigative detention is gin process a search war (5 ordinary experience sense and human p.m.). rant The calculation of this time mon criteria”); Place, rigid entirely govern over period dependent is on the must (“we weapons. Upon at 709 decline to cotics and confirmation of supra, 462 U.S. ceased, suspicion, investigation per- for a their the adopt any outside time limitation Rather, agents the focused their efforts on stop”). we must missible obtaining a search warrant. purposes the law enforcement to “consider stop be served the as well as the time agents pursued The fact that reasonably pur- needed to effectuate those investigation exposing course of other than at poses.” Sharpe, supra, 470 U.S. luggage dog to a narcotics detection (“an Royer, supra, see also does not render their conduct unreason- investigative temporary detention must be that, Hooper contends since the able. longer necessary no than is to and last sniff, agents arrange dog did not for purpose stop”). effectuate the technique gives either rise to dispels suspicion, they cause or intended to We consider now the conduct in indefinitely they seize the suitcase until Initially, in the instant case. we volved established cause. He contends agents exchanged phone num note that the suitcase, the detention of his there- arrangements Hooper bers with so that fore, permissible exceeded the limits of a could be made for the return of the suit Terry type detention. This fo- contention suspicions in the event their not case were agents’ subjective on the cuses intentions confirmed; they gave Hooper receipt also point at the of the initial seizure. weWere Moreover, for suitcase. facts of it, accept effectively to we would limit the the instant case differ from those of Place type investigation law enforcement offi- First, significant ways. in three conduct, may detaining luggage cers when did not move suitcase to another loca upon reasonable that it contains Second, informing Hooper. tion without contraband, exposing luggage to ato Place, unlike the situation in dog. narcotics detection We decline the Hooper’s were not informed of arrival in invitation limit the to Place doctrine this therefore, They, advance. could not have way. expected arrange been to for a narcotics dog Hooper’s applied detection to be available on The Court in Place a bal arrange any ancing arrival or to other investi test to determine the reasonable gative technique prior investigative to his per arrival. Final ness of an detention of ly, luggage. the detention the instant case was sonal substantially shorter than that in Place. quality “We must balance the nature and the intrusion on the individual’s Once the seized the suitcase against Fourth Amendment interests pursued investigation diligently. All- importance governmental interests sought verify man some of the informa- alleged justify the intrusion. When Hooper tion that had disclosed. He learned the nature and extent of the detention person phone who answered the minimally are intrusive of the individu- Hooper provided number had could not interests, op- al’s Fourth Amendment Fields, identify Kenny Hooper and that did posing law enforcement interests can go directly pro- to the address he had support a seizure less than He vided. also traced the address to which probable cause.” phone Hooper provided number Gerace, Place, thought Finding was listed. who that Hoo- atU.S. 703. familiar, per government’s looked called a Detective at interest in narcotics interdic- “substantial,” id., the Buffalo Police Narcotics Unit. Detec- tion the Court held that tive Parker was able to direct the “when an officer’s him observations lead the bulletin from which were reasonably able to to believe that a traveler is identity narcotics, establish true carrying luggage and learn that contains Hooper’s prior Moreover, about principles progeny arrest. its Terry and the bulletin permit lug- also tied and his associ- would the officer to detain ates to the addresses that subject gage briefly investigate were the the circum- ongoing investigation of an involving suspicion, provid- nar- stances that aroused his investigative prop- detention is apply ed that the tended to for a search warrant. The erly scope.” Briefly at 706. limited Id. inferences that draws from this are detaining luggage expose it to a narcot- not warranted. dog example is an of the sort ics detection case, cases, In the instant as in most the that, police diligent- conduct if conducted of only gauge real of agents’ subjective ly, minimally intrusive of fourth is so intentions is their actual conduct. The fact may justi- amendment that it interests agents that the precise could not state a upon suspicion. fied It reasonable does not time investigation that their would end follow, however, only that it is the means they does not mean that seized the suitcase by police may which the conduct a brief indefinitely. agents’ The conduct was cir- investigation dispel to confirm their sus- designed cumscribed and to confirm or dis- picions. pel suspicions their in period a brief Law enforcement officers must be agents time. The did not airport. leave the permitted flexibility adapt to the Moreover, they did any not initiate sort of Accordingly, they circumstances at hand. investigation they that had any reason to may luggage detain an individual’s based believe would continue over an extended on a it reasonable that contains period. making Their conduct consisted of investiga and contraband conduct brief calls, phone asking two dispatcher the taxi provided minimally tion it is intrusive gone, locating where had the ad- fourth amendment interests and does not phone dress to which number longer necessary last than to achieve its listed, provided had retrieving

purposes. Beyond proviso, that we will not bulletin from the office next door. When “indulge second-guessing” in unrealistic as investigation suspi- did confirm their may to the means law enforcement officers cions, agents immediately steps took employ investigations. to conduct their obtain a search Speculation warrant. Sharpe, supra, 470 U.S. at see also agents about what the would have done Alexander, investigation had their not confirmed their (2 Cir.1990)(“[t]he fact that an investi suspicions second-guessing is the sort of in abstract, gative stop might, in the have engage. which we decline to accomplished by been some less intrusive accept Even if we were inclined to Hoo- not, itself, in means does and of render a intent, per’s agents’ characterization of the unreasonable”), stop it would not be clear that his fourth amend- S.Ct. 983 doctrine calls Place rights ment would have been violated by approach for a case case that examines solely on the intent at the whether the officers’ conduct exceeded the outset. on the Our focus is nature and justified. bright bounds for which it was A actually by extent of the intrusion caused investiga line rule that limits the means of Thus, agents. Hooper’s argument is unduly tion would restrain law enforce essentially agents that the would have vio- ability varying ment officers’ to meet cir rights, lated his fourth amendment but for cumstances. good quickly discovering their fortune event, any support the record does not information sufficient to establish Hooper’s characterization of the officer’s Adopting approach cause. this would ne- suggests agents He conduct. engaging speculation cessitate our plan investigation no an that opposed of the events as examination quickly dispel suspi- would confirm or they actually transpired. Rather, suggests they cion. that must actually con- Finally, investigation have intended to hold the suitcase indefi- minimally ducted intru- nitely suspicions until such time as their inter- dispelled, sive of fourth amendment regardless were confirmed or It did long a ests. It lasted less than 30 minutes. how detention that entailed. He any delay unnecessary to the supports argument by pointing not “involve legitimate investigation fact that the told him when of the law enforce- initially luggage supra, seized the in- Sharpe, ment officers.” weapon, that he was of an automatic open or other- sion did at 687. involved narcotics the suitcase. associated with others contents of disturb wise violations, weapons of Hoo- addresses Indeed, no intrusive it was more provided interests than sim- were he had fourth per’s exposing ongoing investigation purpose of an con- subject ilar detentions dog weapons trafficking detection cerning narcotics narcotics and to a luggage E.g., Buffalo, as reasonable. and that upheld have California and between courts (30 Mondello, facts, min- F.2d at 1471 dangerous. These he was considered reasonable); Nurse, supra, already detention known to ute with the facts combined (20 detention to 30 minute F.2d at cause to agents, established supra, 909 F.2d Sterling, reasonable); contra- that the suitcase contained believe (75 reason- 1081, minute detention 1085 band. Sullivan, v. able); 903 F.2d United authorities law enforcement “Where (45 (7 Cir.1990) minute deten- 1093, to believe that con- have cause govern- reasonable). of the view tion of a contraband or evidence tainer holds narcotics “significant” interest ment’s warrant, crime, the have not secured but interdiction, Hoo- intrusion on this minimal interpreted the Amend- has Court [Fourth] justi- interests was per’s fourth amendment property, the permit seizure of ment suspi- agents’ the reasonable on fied based to examine pending issuance of warrant contra- suitcase contained cion that contents_” Place, supra, 462 U.S. its band. of the Accordingly, the seizure at 701. did not agents’ hold that We pending for search application suitcase of a permissible bounds exceed permissible. The search of warrant was on type The intrusion detention. pursuant the suitcase itself conducted was caused interests fourth to a valid warrant. justi- was was minimal and agents’ conduct seizure of We hold that continued suspi- on the reasonable based fied pending for a search application suitcase contained contra- that the suitcase cion on justified was warrant band. the suitcase contained cause to believe that contraband.

V. brings us to the continued

This investiga the suitcase after seizure of VI. agree complete. with was We tion summarize: To seizure was government that this continued that the suit by probable justified cause that encounter between We hold airport contained contraband. case at the meaning of the not a seizure within the magistrate determined A hold amendment. We further that fourth that the suit- probable cause to believe justi- the suitcase was the initial seizure of We accord the contained contraband. case suspicion that it on a reasonable fied based “substantial magistrate’s determination hold that contraband. We contained Nichols, 912 deference.” United States completed investigation, which was ensuing 598, (2 Cir.1990). agree We 602 F.2d minutes, gave rise to in less than 30 magistrate’s determination. the suitcase that probable cause believe probability fair cause means ‘a “Probable contraband, not exceed the did contained of a crime will contraband evidence Terry type deten- bounds of a permissible ” Sokolow, supra, 490 U.S. at 7 found.’ Finally, the continued we hold tion. (citation omitted). gathered by The facts application pending seizure suitcase During standard. agents met justified based for a search warrant agents learned that investigation, probable cause. alias, that travelling Hooper was under Reversed and remanded. posses- previously arrested he had been

499 PRATT, Judge, GEORGE C. Circuit One of deplane first United States v. Millan, dissenting: 912 F.2d at Cir.1982), Moore, 802, (6th 675 F.2d “When I use a word,” Humpty Dump- denied, rt. 1068, 460 U.S. said, ce ty tone, in rather a scornful “it 1521, (1983). S.Ct. 75 L.Ed.2d 945 just means what I choose it to mean— One of deplane last United States v. neither more nor less.” Mendenhall, 544, 1, 547 n. is,” Alice, question “The said “whether 1870, S.Ct. 1873 n. 64 L.Ed.2d 497 you can make words mean many so dif- (1980); Sterling, things.” ferent (7th Cir.1990); question is,” Humpty “The said Dump- White, States v. (8th 890 F.2d ty, “which is to be master —that’s all.” — Cir.1989), U.S.-, Carroll, Through Looking- Alice L. (1990). S.Ct. 112 L.Ed.2d 50 Glass Deplaned in the middle United States v. presents This case example another Buenaventura-Ariza, the erosion protections of our constitutional (2d Cir.1980). resulting wasteful, country’s from this in- one-way Used a ticket United States v. effective, stop self-destructive efforts Johnson, (7th 910 Cir.1990), F.2d 1506 — drug trafficking. I denied, Because believe that cert. U.S.-, 764, 111 S.Ct. majority’s holding govern- (1991); now 112 allows L.Ed.2d 783 United States v. Colyer, 469, ment 878 F.2d virtually any (D.C.Cir.1989); to seize air trav- 471 Sullivan, United v. States 9, 625 F.2d luggage they eller’s while 12 make an investi- (4th Cir.1980). gation, I dissent. Used a round-trip ticket United States v. justify To Hooper’s bag seizure of Craemer, 594, (6th 555 F.2d 595 Cir. testified he had come from a 1977). city” “drug “source and fit the DEA’s Carried brand-new luggage United States profile”. government courier Yet the con Taylor, v. 1403; 917 F.2d at United argument ceded at oral city” that a “source Sullivan, States v. 625 F.2d at 12. drug traffic virtually any city with gym Carried a United States v. bag small major airport, a concession that was met Sanford, 342, (5th Cir.1981), 658 F.2d 343 laughter deserved the courtroom. denied, cert. (1982). 455 U.S. 991 “drug profile” courier is similarly White, Travelled alone United States v. laughable, because it is so fluid that it can 1415; 890 United States v. F.2d justify be used to designating anyone a Smith, 882, (6th Cir.1978). 574 F.2d 883 potential drug courier if the DEA so companion Travelled with a choose. “The has not committed [DEA] Garcia, v. 557, (1st Cir.), 905 F.2d 559 profile writing” and “the combina — denied, cert. U.S.-, 522, 111 S.Ct. tion of factors among looked for varies (1990); 112 L.Ed.2d 533 United States v. agents.” United v. Taylor, States 917 Fry, 1218, (5th Cir.1980). 622 F.2d 1219 1402, 1407 (6th Cir.1990), vacated, F.2d n. 8 Acted too nervous United States v. Montil (6th Cir.1991). Moreover, 925 F.2d 990 la, 583, (2d Cir.1991); 928 F.2d Unit 585 canvass of numerous cases reveals the Cooke, ed States v. 250, 915 F.2d 251 drug profile’s courier way “chameleon-like (6th Cir.1990). adapting any particular set of obser McKines, too calm United States v. Acted Sokolow, vations.” United States v. 831 (8th Cir.1991); 933 1412 United F.2d (9th Cir.1987), rev’d, 1413, F.2d 1418 490 Himmelwright, States v. 991, 551 F.2d 1, 1581, (1989): U.S. 109 S.Ct. 104 L.Ed.2d 1 denied, (5th Cir.), cert. 902, 992 434 U.S. United v. night Arrived late at States 298, (1977). 98 S.Ct. 54 L.Ed.2d 189 Nurse, 20, (D.C.Cir.1990). 916 24 F.2d expensive clothing gold Wore jewelry early Arrived in morning Chambers, United States v. 918 F.2d Reid, v. 438, 441, 2752, 100 S.Ct. 1455, (9th Cir.1990). 1462 2754, (1980); 65 L.Ed.2d 890 United corduroys, pullover Dressed in black white Millan, States v. 1014, 912 F.2d 1017 shirt, socks United loafers without (8th Cir.1990). McKines, supra. States v. 500 may slacks, shirt, point of Place is that and hat work in dark

Dressed F.2d at Taylor, something specific v. 917 extended to allow States United 1403. sniffing dog, like a that will either quick, jacket, suspi- aviator dispel leather the “reasonable in brown confirm Dressed chain, to shoulders hair down Unit- gold cion”; surely it not meant to allow Millan, F.2d at 1015. v. 912 ed States “buy time” in order government agents to and den- loose-fitting Here, sweatshirt only develop probable Dressed cause. Flowers, v. jacket im States United for detain- advanced reason Cir.1990). (6th F.2d they time luggage was that needed ing the through airport United rapidly Walked warrant, though even to obtain a search Millan, F.2d at Unit- v. States cause at admittedly lacked Rose, ed States to do so. There is no evidence point Cir.1989). (6th “swift action” or to any plan to undertake through airport aimlessly Walked satisfy- means of adopt a “less intrusive” Gomez-Norena, 908 F.2d States curiosity. majority’s I fear the ing their — denied, Cir.1990), (9th cert. U.S. Terry and Place now allows extension of -, 112 L.Ed.2d 326 111 S.Ct. agents to make seizures based government (1991). can, suspicion” so that on “reasonable Airport Washington National in to Flew indeed, buy develop probable cause time Shuttle United the LaGuardia later. (4th Cir.1989), Powell, ag yet example of the This is another — -, S.Ct. employed by fed gressive recently tactics 1144, 107 L.Ed.2d 1049 in the Buffa eral law enforcement officials in his hand Unit Had a handkerchief white area, chronicled in our lo which are well 58, (4th Garcia, 848 F.2d 59 v. ed States See, v. Montil e.g., cases. 957, Cir.), 109 488 U.S. S.Ct. la, (2d Cir.1991); United 395, 102 L.Ed.2d 384 $37,780 Currency, v. in States drug “Looking-Glass” world of In our Lee, (2d Cir.1990); States v. United enforcement, apparently DEA seeks (2d Cir.1990); 916 F.2d 814 by having “drug courier master” “to be (2d $359,500 F.2d 930 Currency, mean, Hump- like a word means profile” Cir.1987). Sadly, improvement yet ap no I it Dumpty, “just what choose ty horizon, decision, like pears on the and this more nor less.” mean—neither above, encourage may simply those cited city” assuming that the “source But even governmental even more intrusive profile” gave elements “drug courier there and elsewhere. suspicion, the level of some permit the conclu- facts of this case do not hearing, agents During suppression DEA had a reasonable sion that the Allman testified that Gerace and cause, to de- suspicion, let alone potential spend days approaching Terry Neither tain suitcase. suspects Buffalo Inter- drug at Greater 1868, Ohio, 1, 20 L.Ed.2d 88 S.Ct. 392 U.S. Airport. According to their own national Place, (1968), nor suspects in testimony, they detained 600 77 L.Ed.2d 103 S.Ct. year resulted yet their hunches (1983), intrusion the extensive countenance only appears arrests. It ten rights that occurred here. privacy have sacrificed the fourth pat-down in- approved Court people in detaining 590 innocent order vestigation on less than name of ten are not—all arrest who cause, dealing they were because When, tell, pray will drugs”. the “war on predicat- “necessarily action need for swift going? it end? Where are we on-the-spot upon ed observations at Terry, officer on beat.” The Place Court said 88 S.Ct. 1879. less than sniff could be based on

canine the sniff —“sui probable cause because ” much according to the Court—“is

generis typical than a search.” intrusive less

Place, at 2644. 462 U.S. at S.Ct.

Case Details

Case Name: United States v. Marcus Hooper

Court Name: Court of Appeals for the Second Circuit

Date Published: Jun 5, 1991

Citation: 935 F.2d 484

Docket Number: 1168, Docket 90-1584

Court Abbreviation: 2d Cir.