United States v. Steven E. Saperstein

male, approximately 28 years age, with KEITH, JONES, Before MERRITT and short black hair and a full beard. He was Judges. Circuit purportedly wearing gray sports coat and sunglasses when purchasing his ticket. JONES, NATHANIEL R. Circuit Judge. information, Based Demnik con- Defendant-appellant, Saper Steven E. ducted surveillance of the individual de- stein, was stopped Metropoli Detroit scribed and him flight watched board the tan Airport by Drug Enforcement Agency Agent New York. Demnik then inter- (DEA) personnel ultimately who conducted agent. viewed the ticket She stated that a search of his suitcase and discovered mari the reservation had been made at two juana. Saperstein from appeals his subse on the previous day o’clock and had been quent conviction for possession with intent paid for in cash. Demnik and another to distribute marijuana violation of 21 agent decided to monitor incoming flight 841(a)(1).1 U.S.C. His contention on ap 215, § returning to Detroit from New York. peal is that the district court in deny erred appellant The exiting observed ing his motion to suppress plane evidence and. was followed to the baggage during seized the airport search. The claims area. ap appellant retrieved a pellant objects to large gray-black the initial seizure suitcase. Judging of his lifted, person and the manner which the suitcase was subsequent seizure of his luggage, believed that the suitcase was claiming that both were in viola but, rather, empty “had to it.” weight tion of the Fourth Amendment. In However, the agents description had no most recent pronounce the suitcase checked through to New York ments on scope of permissible airport and, thus, had no way knowing whether searches, _, Florida v. Royer, 460 U.S. the bag appellant claimed in Detroit was (1983) L.Ed.2d 229 the same one the ticket agent had believed Place, _ U.S. _, United States v. empty. (1983), 77 L.Ed.2d 110 we agree. We, thus, vacate the conviction and sen Agent appellant Demnik followed the tence entered by the district court and re outside the airline terminal to the curb. mand for further proceedings not inconsist The appellant stood at for twenty curbside ent with opinion. seconds, thirty as if he were waiting to sion, 1. The Saperstein, herein, indictment reads as follows: Steven E. defendant knowingly, intentionally unlawfully Jury Charges Grand possess approximately Count One with intent to distribute (21 841(a)(1) marihuana, I, U.S.C. kilograms § with In- a Schedule con- —Possession Marihuana) tent to Distribute substance; trolled in violation of Section 25, 1981, That on or about March 841(a)(1), Title United States Code. Michigan, Eastern District of Southern Divi- deliver the up. approached ap- Demnik defendant suitcase to the picked pick friend was to him at the De- up identified himself as a federal nar- who pellant, Noticing troit officer, airport. tag the suitcase cotics and asked if “Larry Glazer”, bore name of Demnik answering would mind a few questions. asked was the clothes, if Glazer individual to whom was dressed casual suitcase, he was to ap- deliver and the He weapon facing with no drawn. stood pellant yes. said Demnik wheth- to also asked appellant pickup the with his back the er the had appellant any baggage checked The to some appellant agreed lane. answer left Detroit contrary he questions. claim, ticket he said agent’s no. Although as he was confused to the order appellant At this the was asked to of his questions, statements and Demnik to in the accompany agents the their office the appellant testified that he informed clarify “to some discrepancies.” terminal he was in the involved surveillance The to do appellant agreed agents so. The he drug specifically couriers and that had again appellant’s for the ticket and asked concerning appellant’s pos- information the questioning license and continued him transportation. sible involvement agents about travels. The out pointed just the had appellant Demnik asked if that a claim check Detroit- baggage for the from he arrived New York and stated New route was his ticket York attached to he had. then asked see the Demnik to why bag and asked it would be there if no airline ticket some identification. The and had The no appellant been checked. had the ticket and a driver’s appellant handed Demnik response. Agent again asked how license the name Edward bearing Steven appellant possess the had come to the suit- The Saperstein appellant to Demnik. again case appellant and the stated that out the pointed discrepancy the between had received it in New York and was asked ticket, Saperstein, name on the and that on give to license, upon arriving it to Glazer Detroit. Sh aperstein, indicating the request A to search the suitcase was second airline had miss- agent apparently ticket denied. pelled his name. The testified that

he attached significance point. contacted the Demnik then United States office Detroit and was ad- Attorney’s he had appellant why

Demnik asked the a vised the suitcase obtain keep and appellant to New the indi- gone York and appellant given search warrant. on a trip. cated he had been business min- receipt Forty-five left the office. and why When asked he would have such the time elapsed utes an hour large trip, suitcase for a short business the appel- of the curbside encounter until appellant reply. When asked lant the office. left personal whether suitcase contained be- longings appellant papers, business office, left Dem- appellant After the knowing denied what suitcase con- dog a narcotic-detecting nik tried to secure tained. police dog from the Detroit but the handler next was unavailable. At 10:30 a.m. the time, agent joined About this Anderson one-half day, approximately thirteen and agents Demnik at curbside. Both purport- suitcase, hours the seizure of law after attempted edly clarify “discrep- certain personnel enforcement conducted a canine Specifically, agents ancies”. wanted appellant’s suitcase “sniff and search” why bag know had claimed the A search “positive hit.” designated it if he did not know what contained. pounds then obtained and ten warrant was permission When the asked for lug- inside the marijuana discovered suitcase, search the told them appellant gage. he had no idea what combination 21, 1981, the lock indict- By way explanation, May single-count was. On filed, charging an ment appellant appellant indicated that he had met marijua- with intent to possession individual New York who had asked distribute Florida v. 841(a)(1). Court decided in violation of U.S.C. § na it hand- Royer, supra, on June held on June 15 hearings were Evidentiary United States decision in ed down its 16, 1981, the constitution- to determine Place, legal- supra. The first addressed DEA agents. of the of the conduct ality based on the ity of seizures opinion, an oral gave The trial court then profile courier use sup- motion to previously-filed denying discussed the seizure of ab- latter during the search. press the evidence seized further clari- pair sent cause. 24,1981, held a trial was before July On fies the nature of the Fourth Amendment guilty was found court. context and analysis required jail to four months with a sentenced guid- the most clearly provides pertinent appeal term. This three-year special parole this appeal. ance for a resolution of followed.2 A. of the Person —Florida Seizure II. the evi- first contends stops As the incidents of because it was suppressed dence must be expanded searches increase with the use of of pursuant illegal obtained to an seizure “drug profile,”3 courier so-called meaning within the person define the carefully permissible need to government Amendment. The con- Fourth activity bounds of law enforcement in this tends, held, and the district court that at no pronounced. context hss become more Un time was the defendant seized. In the al- recently, Supreme sup til Court had ternative, the district court ruled that even area, guidance leaving little plied seizure, the seizure was if there had been grapple proper lower courts to with the and, thus, permissible reasonable under Ohio, v. 1, application 392 U.S. 88 Amendment. Fourth 1868, (1968), 20 L.Ed.2d 889 S.Ct. Mendenhall, v. 544,

United States 446 U.S. question The first then is whether or 1870, (1980) 100 64 L.Ed.2d 497 S.Ct. not was ever seized at the De Georgia, Reid v. 438, not, airport. 100 If our consideration of S.Ct. troit United States 2752, 23, In (1980).4 appeal 65 L.Ed.2d 890 On March is at an end. filing present appeal, Saper- 2. Before the office. Either was deemed sufficient to invali- requested, granted, ultimately given by stein and was release on date the consent to search pending appeal. Supreme bond reversed in Mendenhall. The Court extremely opinion. fractured majority the initial ‘drug profile’ divided on whether 3. “The courier is an abstract of stop enough trigger protec- typical persons was intrusive characteristics found transporting illegal drugs.” fourth tions of the amendment. Justices Stew- Florida v. U.S. _, _ n. 2, 1319, Rehnquist art and found that no seizure had S.Ct. (1983). Three other Justices concurred in n. 75 L.Ed.2d 229 See also note occurred. did not deal with the seizure infra. the result but question, finding simply that the issue could it not serve as a basis for reversal because was seemingly contradictory rulings 4. In decided Powell, Blackman) (Burger, not raised below. apart, one month Court first justices stop reversed, a sei- upheld, Four believed that the and then convictions which Brennan, Marshall, Stevens). (White, partially zure. were through based on evidence obtained purportedly justified by Georgia, searches In Reid v. the court held that law, not, drug profile. use of the courier DEA there could as a matter suspected petitioner have ing traffick- Mendenhall, In United States v. 446 U.S. conformity purported based on his (1980), 64 L.Ed.2d 497 the Su- opinion “profile” certain characteristics. preme Court reversed an earlier decision of this per very form of a curiam with little dealing with the use of the courier Powell, analysis. Burger Justices There, substantive profile. finding possibly give we had reversed a conviction again in the result but and Blackman concurred profile that the use of the not could seizure issue. Justice suspicion declined reach the rise to reasonable suffi- plurali- Rehnquist dissented the basis of the cient for an intrusion and that even if the intru- sion Interestingly, ty opinion permissible, probable Jus- in Mendenhall had been cause was required majority. taking suspect joined per before to a DEA tice Stewart curiam Stewart, implication Mendenhall, writ The clear of the concur- supra, v. Justice close. held ultimately that assum- Court, rence —which took the ing position for the occurred, it ing, a seizure had was a reason- federal not been seized when defendant had that a seizure analysis able one—was her, requested her iden agents approached Moreover, to the appropriate. extent a few posed ticket and tification and airline holding Justice Stewart’s nonseizure can be Justice her travels. questions regarding precedent, read to clear it has any establish in the rec “nothing Stewart reasoned clearly been limited to its facts. In United had suggests respondent any ord Jefferson, v. supra, this Court con- States objective reason to believe that she was government’s sidered contention that a free to the conversation in the con end not occurred circumstances course and on her 446 U.S. proceed way.” to those we somewhat similar now consider. 555, 100 Although at 1878. Justice There, we concluded: a plu in Mendenhall was opinion Stewart’s case, Markonni did not In binding little rality opinion, providing thus stop merely Jefferson to ask him a few precedent,5 this Court has the test adopted questions; stopped’him he and immedi- utilized whether and determining there ately identifying after himself as a DEA whether, when a seizure has occurred —i.e. agent requested accompany Jefferson to circumstances, totality under baggage him to the claims office. reasonable would have believed he circumstances, these Jefferson could not away. or she was not free to walk United reasonably believe that was free to Moore, Cir.1982); (6th 675 F.2d 802 States leave. This was a “seizure” within the Jefferson, United 650 F.2d meaning of the Fourth Amendment. (6th Cir.1981). (footnote at omitted). 650 F.2d 856 In oth present court The district found words, beyond er once factors those present comparable case to relied Mendenhall and exist, in Mendenhall which would factors holding on its find that no plurality to person indicate to a reasonable that he or seizure had occurred. The district court leave, was not the precise she free to hold simply analy reads the Mendenhall court’s ing inapplicable. of Mendenhall is also See Berry, (5th sis of the seizure issue too Justice United v. 636 F.2d 1075 broadly. States Cir.1981) were (“appellants ‘seized’ at the Stewart reasoned that mere “encounter” agent appellant Berry time Markonni told had during initial’questioning occurred they Georgia by giv that had violated law of Only Rehnquist Mendenhall. Justice to a ing false identification law enforce view, joined in this The concur however. officer”). ment rence refused to reach the seizure issue below, because it not but had been reached approved Court implicitly question if the were before indicate that when it that precise analysis this held extremely the Court it would have v. stop been occurred Florida Mendenhall, e.g. States, 188, 5. See v. United Applying principles Marks 430 U.S. to it these 193, 990, 993, (1977) grounds appears 97 51 that S.Ct. L.Ed.2d 260 the narrowest for deci- (“when fragmented procedural because the court decides a case and sion are ones —i.e. below, single enjoys explaining issue raised it should rationale the result seizure was not Justices, and, hence, holding grounds as for assent of five not serve reversal may by position concurring court as those be viewed that taken was addressed Thus, 4, supra. result. See discussion judgment in note those members who concurred in the ”); Gregg precise binding v. grounds appears on the rule of law narrowest ... it Georgia, 153, 2909, 15, gleaned arguably Mendenhall 169 lim- 428 U.S. n. 96 S.Ct. is 15, (court reading (1976) 2923 n. 859 ad own for 49 L.Ed.2d ited Court’s standards Trans Airlines capital punishment opinions. See also World Georgia dressed law such Hardison, 63, 8, 2264, Georgia, nine-opinion v. 73 n. 97 Furman 432 U.S. S.Ct. decision 8, (1977) (citing Neil v. 113 408 U.S. 33 L.Ed.2d 346 2271 n. 53 L.Ed.2d 92 S.Ct. 188, 192, Biggers, (1972) only grounds” 34 93 that “narrowest U.S. — held (1972) (judgment precedential weight entered were entitled L.Ed.2d highest equally prece- is not defined denomi divided court entitled those as common weight). majority agreement.) dential nator Mendenhall, Moore, certainly was most seizure. See United supra, factors which emphasized on, Demnik 675 F.2d went however. of authority amounted to a sufficient show re- arguably He followed innocuous Royer to indicate to that his freedom with the definite he quest statement that limited: concerning had information the appellant

Asking Royer’s for ticket examining a drug activities as courier. and his license were no driver’s doubt appellant having testified that once themselves, but permissible in when drug trafficking by been accused of a DEA officers identified themselves as narcotics standing directly who was between Royer that agents, suspected told he him and any transporta- reasonable form narcotics, him and asked transporting tion, being clearly while asked incrimina- room, police them to the accompany reasonably he ting questions, believed retaining his ticket and while driver’s not free leave.7 Considering indicating in any way license and without added pres- factor combination that he was depart, Royer free agent, request ence of second to move effectively purposes seizéd office, request to the DEA the second Fourth Amendment. These circumstanc- fail- Saperstein’s license and ticket and the es surely amount to a show of official leave, ure to inform him that he was free to authority such that “a person reasonable person we are convinced a reasonable would have believed he was not free to Saperstein’s position would have believed Mendenhall, leave.” United States v. and, thus, that he was not free to leave 544, 554, 1870, 1877, clearly been seized. Flor- Stewart, J.). L.Ed.2d 497 (opinion Royer, supra. ida v. at _; 460 U.S. 1326.6 Royer, S.Ct. at Accordingly, to the extent test, by citing the Mendenhall seizure clear of the suppression denial motion was based ly establishes the outer limits of a mere on the district court’s that no conclusion “encounter”. One need look to readily appellant’s had oc conclude the district court curred, erred it held that clearly wrong any was nev order er seized under Fourth Amendment. subsequent conviction must be vacated. address, however, must We still the district Agent began inquiry by Demnik his sim- court’s alternative and the holding, govern asking ply appellant the if he would answer argument, ment’s additional that if sei a questions. a ap- few This nonthreatening occur, zure it was reasonable. A proach has resolu something been deemed less and, thus, a generally than the tion of this issue would a placed require within in two-step (1) bounds the of initial encounter the analysis: whether elements type Ohio, 1868, Terry 1, transportation 6. In v. 392 U.S. 88 S.Ct. involved with the of narcotics. (1968) L.Ed.2d 889 might the court considered the There been a have drawable inference circumstances which under there be suffi- will suspect, from that that the defendant was a cient restraint to constitute a seizure: a seizure but the court does not find in this record by has occurred when “the officer means of testimony the that defendant himself was physical authority, force or in show has specifically suspect. way liberty some the of a restrained citizen.” finding If statement was meant be a 19, (Em- Id. at phasis added). n. n. 88 S.Ct. at 16. specifically the that that not told suspect, clearly finding he was a that errone- following ous. error is evident from the rejected appellant’s judge 7. The district the ar- exchange between and defense counsel Demnik gument as follows: suppression hearing: at the [P]laintiff, argument in his before the court you Saperstein Did advise Mr. not Q. that today, questioning that in indicates which you potential investigating were couri- place curbside, took at the the defendant was ers, you concerning but that had information suspect. he told was a The court does not Saperstein possible Mr. and his involvement interpret testimony manner, in that rath- drug transportation? feeling testimony er that that they pur- A. Yes. said that were within the duties, investigating of their view couriers between 25 and and by young, he was drug profile courier exhibited dressed; (5) he casually pale, nervous justify any were sufficient others; so, (2) looked at continually if whether and around initial stop; form of lug (6) were carried American Tourister justifiable stop of a he the boundaries Ohio, appeared heavy. v. at The Court overstepped. Terry gage See U.S. 1878; v. Royer, _ at Florida that when these factors in taking 88 S.Ct. reasoned at _, combination, “adequate at 1325. they constituted U.S. suspecting Royer carrying grounds Mendenhall, concurring Jus the three In drugs detaining him temporarily elements that tices reasoned verify attempting and his while they as were manifest drug-courier profile, dispel suspicions their in a manner that par Mendenhall and observed ed investigative the limits did not exceed of an involved, justified an investi ticular at _, 103 S.Ct. at detention.” 460 U.S. noted that stop. The concurrence gative all nervous that very Mendenhall indicated a de her motions activities however, Significantly, From the time to evade detection.8 sign condone, specif- did not or even Court still allegedly reinforced plane she left she address, the use of the courier ically her move suspicions every agent’s justify investigative stops all profile ac that Mendenhall’s ment. The conclusion Rather, acknowl- simply cases. the Court only joined by justified a seizure was tions of the various edged that confluence however, even Justices, and was not three Royer exhibited by characteristics could addition, In opinion. lead mentioned degree suspicion create a sufficient concurrence, Powell, for the writing Justice that significant It is also case. did not believe that he emphasized its Supreme Court did overrule earlier profile, would courier reliance supra, it Georgia, decision in Reid suspi necessarily demonstrate reasonable There, held, Royer. the Court handed down cion, noting raising “each case following per opinion, curiam judged issue must be Fourth Amendment support any insufficient to sei- factors were 6, 100 own facts.” 446 n. on its defendant had arrived from (1) zure: at 1883 n. 6. Lauderdale, (2) the city;” Fort a “source morning, early in the defendant arrived opinion plurality was dimin- it, activity enforcement that, facts when law indicated on the before ished; companion (3) the defendant and suspicion existed sufficient reasonable there the fact trying to be to conceal appeared detention within temporary (4) the traveling together; were Ohio, they supra. The Court bounds short; stayed trip was fact defendant’s this conclusionon the based (5) day; one which DEA offi- Fort Lauderdale exhibited several factors lug- had no companion and his drug to be traf- defendant cers claim characteristic bags. than shoulder Royer gage travel- other identical They (1) were: fickers. name; Moreover, in (2) opinion the Court paid ing under assumed denominations, concurring cash, one-way only plurality. for a a large in also Brennan, thus constitut- ticket; of Justice (3) complete opinion rather the airline than the ultimate majority purposes a for full, ing which in included tag identification reached, that under number, specifically result found telephone space for an address and was itself destination; stop the initial (4) Terry v. Ohio only a name and he wrote Pittsburgh, an Eastern Ange- she for from asked arrived in Detroit Los 8. Mendenhall les, last, gate plane the entire to the same destination. This left the scanned Airlines ticket and, slowly baggage significant highly toward the and walked area final was deemed factor there, she no When she arrived claimed area. rest of her with the when taken in combination and, instead, baggage Air- went Eastern behavior, purportedly prompted Though she carried an ticket counter. lines stop her. her Airlines ticket which would take American pro- suspicion, courier sonable Court has still drug the DEA Clearly, illegal. stamp simply has not received a blanket deemed certain behavior characteristics in file Rather, approval Supreme Court. unsuspicious thus, herently entitled question of are still left to answer the we weight e.g. calculation. See Unit the combi- particular whether in each case Andrews, (6th ed v. F.2d States manner in present of facts and the nation Cir.1979)(nervousness entirely deemed con stop. a they justifies which are exhibited air among sistent with behavior innocent analysis a review of the case-by-case While arid is entitled to no port weight). travelers in the various search cases found McCaleb, also United States 552 F.2d See a somewhat, resort to inquiry narrows Cir.1977). (6th Travel to and from Terry v. Ohio principles the elemental upon a relied in the city, source instant finally dictates the resolution of Fourth case, is one such innocent behavior trait: presented issue here. Amendment Angeles travel from Los Similarly, cannot like before Saperstein, many so others any way suspicious. as in regarded him, characteris- allegedly exhibited certain may indeed Angeles major Los be a nar- which Special Agent tics Demnik deemed center, but the proba- cotics distribution significant experience of his with any given bility airplane passenger First, drug traveling traffickers. he was city drug from that is a courier infini- York, New purported city, from a source factor tesimally flimsy small. Such Detroit, a ac- city “very characterized as help be allowed to justify should not —or drug appar- tive” trade. He also stopping of travelers from —the suitcase, ently large checked a an act empty Moreover, largest the nation’s third city. the government very suspi- which “a dubs our with DEA experience agent testimo- addition, factor.” cious cases ny in other makes us wonder made the reservation on the p.m. at 2:00 whether there exists any city coun- preceding day, a reservation short-notice DEA try which a will not charac- purportedly typical couriers. major terize as either narcotics distribu- paid fact that the airline ticket for in city through tion center which was also since significant cash deemed cash on their pass way major couriers to a Finally, upon transactions leave no record. narcotics distribution center. return, his appellant lifted suitcase Andrews, United 600 F.2d at 567. “in manner” which Demnik to caused similarly unwilling Court empty. conclude that it was not then Obvi- to find the of this factor determi- presence these ously, are not the same elements of native in The same holds true Reid. profile which acted Royer purportedly cites; short-trip government argument out, nor are they identical to those Reid presence weight its carried little or no or Mendenhall. no statement Accordingly, the court in Reid because it was so com- the Supreme ad- specifically pletely consistent the normal behavior dressing profile the conclu- commands of innocent business commuters. not, are, sion that either ade- they or are quate give suspicion rise to the kind of Moreover, it is significant would support any which detention. government’s pres- extended reliance on the ence cash transaction carries no large

There are a variety of traits particular case. The weight purport- have characteristically been attributed couriers, drug such then com- ed benefit of transactions to drug may traits which However, anonymity. or interact in of couriers the any ways.9 bine number is Recognizing that it effect government is the overall of a admits that the in person’s behavior which rise to rea- gives only this case not furnished his own name amalgam port Greenburg, Drug is no 9. There consistent of traits that as well. See Courier ineluctably fact, stop. Profiles, Analyzing leads to a In the combi- Mendhall and Ried: Police only Cause, nation of factors looked varies Less for not Intrusions on Than Probable among agents, (1981). air- but varies from to Am.Crim.L.Rev. n. 24 was ease but left a valid dation as there in this could agent, airline ticket to the there Finally, as well. call-back number justify a seizure. appellants claim that the demeanor

was no at 438. innocent reasons Similarly, behavior, boarding when either general checking empty can be for suitcase given to upon York or return plane the New may An be travel- to New York. individual Detroit, in or indic- way suspicious was any to for a or to ing shopping spree, New York desire evade detection. ative of a to materials, samples or documents in pick up recognized apparently The district court with his or business. connection trade case government’s weakness the the of not, Thus, alone or empty the suitcase could to to only ability point based its on with the other factors combination noted that the use these factors. The court here, a reasonable basis for present provide itself” insuffi- “in and of profile of this was a seizure.10 However, the justify to seizure. cient a key Court’s decision in Supreme the fact court then concluded district Ohio, Terry supra, clearly supports the v. empty was when the de- the suitcase of traits elicit amalgam conclusion weight” when departed but “had fendant justify were to ed insufficient evidence suspi- he returned bolstered the of Terry the DEA actions.11 Before barely to where “it activity point cious the permis were deemed of seizures something the minimum threshold meets Fourth profile.” in addition to the courier sible under the Amendment absent a probable cause., Terry created limited disagree with the compelled are to We in -allowing exception general to this rule — of the suitcase evi- lower court’s assessment less vestigative steps something than such dence and its decision that evidence in governmental cause where the in this could be determinative case. enforce important terest and the law is factors rejected Court in Reid the Supreme specific “able to to ment officer is because the upon government relied the facts, together with articulable taken circumstances: cited from facts reason rational inferences those category very large presum- describe 392 U.S. at ably warrant intrusion.” travelers, who be innocent would ably added) 21, 88 1880. See (Emphasis were virtually to random seizures subject at _, to that as little foun- also Florida v. 460 U.S. the Court conclude profile dealing drug apparent attempt signifi- bolster with the courier 10. In an to Court case Reid, factor, government plurality which was not a decision of the suitcase cance only per purportedly recognize and Reid itself curiam. If the cites three cases which interpret- Supreme guidelines checking empty large own is a be- Court’s suitcase supra, true, ing opinions see note couriers: United holds characteristic such havior Chatman, (9th Cir.1977); compelled return are States v. then lower courts 573 F.2d Himmelwright, Fourth Amendment States the basic statement United 551 F.2d 991 Forbicetta, Terry Terry. provides Cir.1977); lower courts States (5th United concerns (United only majority Cir.1973). (5th clear statement Brief at F.2d 645 19). be considered in this context. In that none of these interests Examination reveals position. Supreme supports government’s to issue Court’s refusal cases Chatman, profile luggage. clear statement on use the defendant carried no Himmelwright, facially inconsistent results reached at 566. In the defend- 573 F.2d issue, both in luggage, case case treatment there was no indica- ant did have but courts, empty and most lower a return tion that it was and the contraband Terry only logi- majority person. statement is 551 F.2d And concealed on her Forbicetta, defendant, inquiry necessarily though cal. narrows incidental- Terry: reasonable, suitcase, similarly carrying ly carrying whether there are one bounds of person. on her pounds facts and rational inferences Not one articulable cocaine 2V2 any stop presence large justify upon would if of the cases of a facts which relied those so, sufficiently empty intrusion limited suitcase the seizure. is whether justifiable probable cause. absent It remain in terms of this basic Fourth Amend- way v. Ohio is the clearest 11. A return analysis profile can courier ment raised to resolve the Fourth Amendment issues date, properly only Supreme addressed. in this To context. 1230 govern- though finding that there Recognizing Royer, at 1325. was

S.Ct. exception to urging justify upon is us to sufficient which to a Ter justify ment basis requirements, general investigative Fourth Amendment stop, the Court con ry-type grounds set believe the narrow simply we the seizure was cluded that otherwise un are not Terry exception in for such an out it ultimately reasonable because over govern- Granting here. present the limited bounds of Our stepped Terry.13 surge quelling ment interest in above, that a conclusions seizure did occur extremely impor- in country traffic this reasonable, was and that no seizure obviate tant, in case remains un- the intrusion this Accordingly, the need to reach issue. noted, First, we believe that justifiable. as do so. simply we decline to We find that from the illegality the conclusion of drawn seizure, illegal of the given occurrence checking of an suitcase is a “ra- empty gathered any pursuant evidence to that sei meaning inference” tional within the and, thus, necessarily zure was tainted inad himself, Moreover, Terry. Demnik rele- v. Royer; missible. Florida see also United officer, vant law enforcement had basis Lara, 892, (5th 638 F.2d 895 States v. Cir. apparently from which to conclude that the 1981) (link any illegal activity between and weighted suitcase claimed in De- cocaine is too direct discovery proxi was the purportedly troit same as that he finding mate permit attenuation through Having checked to New York. illegality from such to allow admission characteris- concluded above that the other cocaine). the discovered allegedly appellant are tics exhibited of Property B. Seizure States — United weight entitled little or no deter- v. Place mining whether a seizure it is justified, The initial order in this appeal, filed unable simply obvious Demnik was 1982, 27, indicated August that a resolution' to the facts specific, articulable neces- abey of the issues raised was to be held in Terry under his actions.12 sary justify in Supreme ance pending in decision Supreme Terry: As Court cautioned Place, _ U.S. _, United determining whether the officer acted L.Ed.2d 110 (1983). Though S.Ct. circumstances, reasonably in such due would, by analysis our issue weight must his inchoate given, not to itself, vacation of the judgment unparticularized suspicion case, a consideration of Place seems “hunch,” but specific reasonable appropriate of that order. inferences which- he is entitled draw experience.- facts in light of his claims that even if the 392 U.S. at (emphasis 88 S.Ct. at 1883 initial of his justifiable seizure added) (citations omitted). on the reasonable suspicion, basis luggage seizure of his was not. This was Accordingly, we are unconvinced that issue addressed precise Mendenhall the govern- dictates the result Raymond Place’s Court in Place. behavior urges fact, that, ment are convinced aroused the allegedly suspicions of law conjunction Reid, when read in Terry, officers now enforcement at the Miami Interna- Royer, the Supreme analy- Court’s again sis of the issue tional New York’s La- opposite commands the con- such, As He was airport. briefly stopped clusion. we conclude that the dis- Guardia court’s denying questioned trict alternative Miami and further when he basis for suppression York. motion in this case also reached New Place refused to con- erroneous. sent to a of his and one search Texas, 47, 51, See U.S. _, _, also Brown v. 13. Florida v. 443 U.S. 2637, 2640, (1979) (“the (1983) (“We L.Ed.2d 357 L.Ed.2d 229 requires Fourth Amendment a seizure be also think that officers’ conduct was more specific objective indicating necessary based on facts to effectuate an intrusive than inves society’s legitimate require tigative otherwise interests detention authorized particular cases.”) individual”). line of is investigation that the detention they going to ed him that were

the told scope. a to limited in judge properly to federal luggage take the When Place de- a search warrant. obtain _ U.S. at _, 103 The S.Ct. at 2644. offi- to the accompany clined an invitation in to which the re scope limitation Court numbers cers, gave telephone him they for purpose ferred was then defined the reached confiscat- they where could be nature of the length the seizure and the were to Ken- bags. bags The taken ed his these Applying principles detention. were they where nedy International Court, and the assuming facts before the by a canine examination subjected a of Justice presence suspicion, reasonable dog. Approxi- trained narcotics detection that of concluded the detention O’Connor the ninety elapsed between mately minutes limited in properly Place’s was not luggage dog “sniff test.” The initial seizure and the scope. and a Place’s positively luggage reacted stated majority opinion expressly The obtained pursuant subsequently search the fell within purpose that the for seizure 1,125 cocaine. grams warrant of revealed of a in- Terry-type the bounds permissible never considered Appeals The Court of detention, the ex- finding that vestigative stop and of the initial the reasonableness nature of the intrusion tremely limited on denied certiorari the (unlike manual a canine sniff of the issue raising Place’s cross-petition search) against govern- the balanced Hence, nev- the court reasonable suspicion. couriers, detecting drug mental interest encounter, of element the er addressed this probable even seizure absent justified of control the resolution leaving Royer to fact, that majority reasoned cause. deci- here. The Place first issue raised to a canine exposure luggage of Place’s however, does, provide considerable sion in a sniff, while was located luggage that resolution proper guidance place, simply did not constitute public of his that seizure appellant’s claim meaning the Fourth within the of “search” impermissible, requiring luggage conclude, majority Amendment. there- evidence contained suppression of all however, ninety holding bags in. sniff, before the canine exacerbat- minutes give respon- agents’ failure ed by Justice O’Con- opinion In an authored luggage of where the any indication dent nor, legality the Court addressed re- when it could be was to be taken or effects when based personal seizures trieved, seizure unreasonable. rendered the probable cause. anything less than the Court concurred The remainder of majority concluded: the seizure narrow determination that them observations lead When officer’s suppression impermissible a traveler reasonably to believe that warranted.14 evidence narcotics, carrying that contains luggage earlier Putting aside our discussion Terry progeny its' principles of an in- there was officer the which we concluded permit would to detain any justify which to upon basis investigate the circum- sufficient luggage briefly no probable it is at least obvious that stop, his suspicion, provid- stances aroused luggage Brennan, permit temporary for in- Blackmun 14. Justices Marshall and lug- separate opin- vestigative purposes, the seizure of Place’s result concurred in the two beyond gist complaint gage intrusions ma- went well minimal with the ions. of their Terry contemplated exception. opinion majority’s Both jority haste to under the with the majori- agreed dog more was a far dog sniff issue issue and with the resolve sniff majority analysis Terry complicated indicated ty’s issue than v. Ohio in the context and, thus, reached where personal not have been Brennan should seizures of effects. Justice below, never Terry reached not be it had been was of the Ohio could view unnecessary parties, property and was than on less briefed used seizures holding Mar- Justice probable in the case. felt the ultimate cause. Justice Blackmun joined may both concurrences. shall while v. Ohio some circumstances cause existed when the was seized. permitting cause a search or an Place, the Court noted: arrest.15 outset, At reject we must the Govern- government The also contends that there suggestion ment’s that the at which was probable bags cause to detain the probable luggage cause for seizure of any length of time once Demnik learned from person’s presence becomes nec- that the was “of record” on the essary is more than in distant the case of computer.16 assuming Even NADDIS that Terry stop person himself.... cause, give this would rise to an probable police luggage seize from the [W]hen assumption we do not concede is a suspect’s custody, we think the limita- one,17 justifiable the government is still un- tions applicable investigative deten- justify First, able to the detention here. person tions of the should the per- define in Place specifically Court held that scope investigative missible of an deten- occurring events after the seizure are out- person’s luggage tion of the on less than side the relevant time frame for determin- probable standard, cause. Under this it is ing the reasonableness of that seizure. See police clear that the conduct here exceed- page discussion at supra. Secondly, if permissible ed the limits Terry-type of a existed, probable cause had there was no investigative stop. need to await the use of the canine search _ U.S. at _, Thus, at 2645. justification and no obtaining it is clear that the pertinent point of inquiry warrant immediately, cutting thus short the is the point at which luggage was seized detention. appellant. cause, Given the lack probable government The argues Saperstein’s that proceeding on the unjustifiable otherwise answers to the inquiries curbside did not assumption that sufficient suspi- reasonable satisfactorily resolve the discrepancies the cion existed for any stop appellant, agents perceived were, thus, sufficient the seizure must fit within the narrow give probable rise to Virtually cause. bounds of Place if it per- is to be deemed the same argument rejected by the missible. According to the analysis in Supreme Court in Royer. government Place, the detention of the appellant’s lug- specifically claimed as its third and final gage must amount to no more argument, than an that the time consent to investigative stop as Royer’s permitted search under luggage given, Terry. the re- sponses majority Place ongoing investigation had concluded that the sub- given rise to mission of probable cause. The to a trained canine was was unpersuaded that Royer's unsatisfac- not a search under the Fourth Amendment tory answers could and, hence, have escalated the tenu- permissible was a “purpose” for ous reasonable suspicion present to the level which to detain personal effects Ter- under U.S. _, In Florida v. 15. felony rested and held to answer for a serious (1983), rejected 75 L.Ed.2d 229 the Court charge. government’s argument following: with the (cid:127) Dangerous Drug 16. agree Narcotic and We Information Ap- with the Florida Court of System. peals, however, probable cause to arrest Royer did not exist at the time he consented luggage. to the search of his The facts are Though pres- the officer’s own belief young that a nervous man with two Ameri- probable ence of cause does not foreclose the bags paid can Tourister cash for an airline attempt justify state’s to now the seizure on “target city”: ticket to a These facts led to basis, we do find it relevant inquiry which in turn revealed that the ticket experienced apparently DEA officer himself bought had been under an assumed name. probable not believe that there was sufficient proffered explanation satisfy did not warrant, cause to secure a even with the NAD- agree state, officers. We cannot if with the Instead, DIS information. Demnik chose to position, every young this is its nervous attempt to establish cause to paying man cash for a ticket to New York through warrant the use of the narcotics detec- carrying under an assumed name and two dogs. tion heavy bags may American Tourister be ar- proceed- for further to that court was manded language recognize ry. We judgment. with this not inconsistent ings holding to the Court’s ultimate unnecessary we thus, technically Because is, dicta. MERRITT, dissenting. Judge, Circuit otherwise seizure was not conclude that narcotic type holding the limited The Court’s legal scope of within the with the defendant at ad- Demnick’s encounter Place, we need not seizure outlined Detroit constitutes invalid of whether this Court issue dress the under the Fourth seizure of follow, the should choose to by, bound appears directly to me to be Amendment analysis. majority’s of the portions earlier to the Court’s recent contrary Supreme in Place Court concluded _ U.S. _, in Florida v. opinion re of of that, length the detention “[t]he 1319, (1983), 75 229 if L.Ed.2d S.Ct. the con luggage precludes alone spondent’s stand, an end to the put to will allowed the seizure was reasonable clusion Department’s of effectiveness the Justice _ U.S. of cause.” probable the absence program in the airport investigation bags at Place’s _, at 2645. S.Ct. I, therefore, dissent. Circuit. Sixth prior for minutes ninety detained had been expressed a In one Justice court While the to canine examination. the contrary following to the statement of view set limits on unwilling to outer was opinion: the law Court’s the was that implication clear stops, the enforcement officers do violate [L]aw stops frame based permissible time for merely ap- by the Fourth Amendment restrict severely cause is less than an the individual on street or proaching guide to a definitive refusing adopt ed. In public asking place, by in another him if ALI, to the referring line the Court willing questions, some by he is answer Pre-arraignment procedure of Model Code if the questions person to him is putting max which 110.1(1) (1975) recommends § listen, offering evi- willing by and Terry stop. twenty minutes for imum in a his prosecution dence criminal volun- 10. at _, n. at 2646 n. Id. questions, answers such tary [cita- this reference with the Court’s Combining the fact tions Nor would omitted.] for, the or nature analyze purpose failure to police as a the officer himself identifies detention, finding minute sim ninety officer, more, the en- without convert ply length the detention into a some lev- requiring counter seizure establish that sufficient in and itself to objective United justification. el of unreasonable, establishes the seizure was Mendenhall, [100 limited time frame in which law extremely (1980). L.Ed.2d 497] in this con may officials act enforcement however, need not an- approached, text. him; indeed, any questions put to swer questions decline listen to the may he too, we, adopt see reason to While no way. may go all and on his at case, we every definitive time formula one- thirteen and have no doubt happened at 1324. That is all that 103 S.Ct. detention this case renders half hour agent to the in time when up here clearly warranted impermissible defendant,. defendant asked agreed, order.18 the sen- suppression Accordingly, expressly come specifically clarify the district “to some airport conviction entered to an office tence and time the agent Before that discrepancies.” the case Re- hereby court vacated and arrangements Place, dispossessed and of what 18. noted that while court length itself if the detention was sufficient be made return of the would unreasonable, suspicion. investigation dispelled the seizure to render _ U.S. at _, appears failure 2646. It violation was exacerbated 103 S.Ct. at accurately respondent inform that the same the record before this Court they transporting place exacerbating present were were also here. factors might luggage, length of time defendant, told him up walked and had some

he was a narcotics America, UNITED STATES of that he about activities information Plaintiff-Appellee, about. would like to ask defendant voluntar- questions defendant answered Anthony PICCOLO, Defendant-Appellant. there to it. There ily. That was all No. 81-1238. was no detention and no seizure of the person just questions some and answers — Appeals, United States Court of No airport. on the street front of the Sixth Circuit. arrest, threats, no no accusa- hostility, June 1983. Argued im- suggestion suspicion tion beyond in all such encounters between Dec. plied Decided who is a narcotics officer and a citizen

approached. encounter, how- happened

What

ever, very significant from the officer’s view. The defendant lied about

taking empty suitcase to New York ear-

lier day. falsely the same The defendant

claimed that some had person New York

given delivery him the suitcase for to a

third person Detroit and that what agent

know was in the suitcase. The

knew that the defendant had carried an

empty suitcase to New York as a result conversation, knew that the defend-

ant was trying to conceal what was in the

suitcase through a series of fabrications. that, all

Knowing only remaining

question is whether cause under the Fourth Amendment _ Place,

light of United States v.

_, (1983), L.Ed.2d 110 overnight seize and hold the suitcase

inspection. The District Court has not

ruled on that I question, and would there

fore remand the case to the District Court

for consideration of the issue. We should

not try to decide that issue until the record developed

has been District Court

has had an opportunity to consider it. Ac I

cordingly, respectfully dissent from the

opinion of the holding illegal that an

seizure of the occurred this case.

Case Details

Case Name: United States v. Steven E. Saperstein

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Dec 8, 1983

Citation: 723 F.2d 1221

Docket Number: 81-1670

Court Abbreviation: 6th Cir.