Case Information

UNITED STATES of America, Plaintiff-Appellee, v. Sylvia L. MENDENHALL and David A. Camacho, Defendants-Appellants.

Nos. 78-5064, 78-5081

United States Court of Appeals, Sixth Circuit.

Argued Feb. 20, 1979. Decided April 6, 1979.

596 F.2d 706

The company asserts that OMS personnel have authority "responsib[ly] to direct" other employees because when they discover an upset in a monitored pipeline the OMS on duty has the authority to deploy the field personnel near the site to correct the problem. The OMS, the company argues, makes an independent judgment whether a problem must be corrected immediately, even to the extent that field employees must work overtime, or whether a problem is minor and may be attended to later. The record amply demonstrates, however, that the OMS does little more than notify the field that a certain problem has occurred and request assistance in remedying it. He has no further authority or responsibility to direct the field personnel in the manner of performing their remedial duties. The field personnel are in a wholly separate department of the company and thus function in a different supervisory hierarchy from that of the OMS. The OMS must call on field personnel in a particular sequence required by the lists promulgated for each field division and thus may not usually call on a "wage employee" until he has unsuccessfully attempted to locate the local supervisor. Since it is the "joint mission and objective" of the two parallel departments to move oil through the system, the field employees and their supervisors probably have prior independent authorization to do whatever is necessary in the event of a serious upset, even if overtime results. In addition, there was testimony that someone from the field department participates equally with the OMS in reaching a joint decision as to whether and when a repair will be effected.

These circumstances persuasively distinguish this case from those relied on by Exxon Pipeline. In Arizona Public Service Co. v. N. L. R. B., 453 F.2d 228, 231-32 (9th Cir. 1971), for instance, the systems supervisors had the power to "choose which linemen are to work, when and where." The supervisors there, in great contrast to OMS personnel here, had "clear delegated authority over virtually everybody in the company." Id. In N. L. R. B. v. Detroit Edison, 537 F.2d 239, 241, 243 (6th Cir. 1976), the supervisors in question issued "literally thousands of instructions" to field personnel. The reviewing court concluded that the instructions, though couched in terms of request, amounted to orders derived from the supervisors' independent judgment. Having no access to the record in that case, we cannot observe the character of those instructions for ourselves. Our careful review of the record herein convinces us that the requests issued by OMS personnel do not amount to supervisory direction of the type required. The OMS's do not "direct appropriate action to remedy the problem," nor can they "take over any operator under system control that would ordinarily be under local control" any time they see fit. Id. Once notified of a suspected problem, the field personnel here are left to their own devices and chain of command in doing what the situation requires. There is, of course, close communication between the two bases of operation so that the OMS will shut down pipelines or pumps as needed and will not restart the system precipitously. But as regards the field employees, the OMS is little more than a night watchman, who can hardly be said to supervise the police when he calls to report and request investigation of the burglary he has just discovered. Accordingly, the order of the Board is hereby ENFORCED.

Gershwin A. Drain, F. Randall Karfonta, Detroit, Mich., for defendant-appellant Mendenhall.

James K. Robinson, U. S. Atty., Victoria A. Toensing, Asst. U. S. Atty., Detroit, Mich., for plaintiff-appellee.

Before EDWARDS, Chief Judge, and WEICK, CELEBREZZE, LIVELY, ENGEL and KEITH, Circuit Judges, sitting en banc.*

PER CURIAM.

On petition filed by the United States, this court, on January 12, 1979, vacated the decisions in No. 78-5064, United States v. Sylvia L. Mendenhall, and No. 78-5081, United States v. David A. Camacho, and scheduled arguments on both before the court en banc. The cases have now been briefed and orally argued before the full court.

On careful review of the records, and the authorities cited to us in the Supreme Court and the Courts of Appeals, we now conclude that the panel decisions in both Mendenhall and Camacho should be and are hereby reinstated.

Our review of the facts in both of these cases convinces the majority of this court that in neither case was there valid consent to search within the meaning of United States v. McCaleb, 552 F.2d 717 (6th Cir. 1977). We also hold that the so-called drug courier profile does not, in itself, represent a legal standard of probable cause in this Circuit. We recognize, of course, that the drug enforcement agency's employment of this profile in educating its officers as to what conduct to look for in relation to drug couriers is a perfectly valid law enforcement device.

Examination of these records and re-examination of precedent in these airport drug search cases in this and other Appellate Courts have led to our decision not to attempt to formulate definitive rules. Despite some general similarities, every single case differs from every other in material degree.

In view of our en banc decision set forth above, we now reverse our preceding denial of bail to Mendenhall and Camacho and remand these cases to the District Court for determination of an appropriate bond pending petitions for writ of certiorari.

WEICK, Circuit Judge, dissenting.

I respectfully dissent. En banc consideration of the present appeals was ordered so that we could re-examine and reconsider our decision in McCaleb, which has been under continuous attack by the Government in an increasing number of narcotics cases coming from traffic in drugs at Detroit's Metropolitan Airport.

Important questions of law are involved in connection with investigations of drug traffic at the airport, such as the right of federal agents to stop and question suspects where such agents have reasonable grounds to believe that the suspects are engaged in narcotics transactions; and such questions as: Where the agents by their questions learn that the suspects are traveling under assumed names, and are acting in a suspicious manner, may they request that the suspects accompany them to a private room at the airport in order to comply with airport regulations designed to prevent confrontation in public areas and possible re-sulting injury to the public? and Where the suspects consent to accompany the officers to the private room, is such consent, or their consent in the private room to a search, coercive per se?

After receiving supplemental briefs filed by the parties and hearing oral arguments, the en banc majority, consisting of only five of the six Judges constituting the en banc Court (our normal complement is nine Judges and two more judgeships are provided in the recent Bill passed by Congress) summarily disposed of the appeals by a simple two-page per curiam order without deciding any of the important questions of law involved, which were the very reasons for granting en banc consideration.

It was suggested by a colleague that we withhold decision to await the determination by the Supreme Court of similar questions of law in pending "stop and frisk" cases, but such suggestion was not followed by the en banc majority. The similar cases in which the Supreme Court granted certiorari, heard oral arguments in one of them, and fixed the time for oral arguments in another, are as follows: Delaware v. Prouse, 440 U.S. 648, 99 S. Ct. 1391, 59 L. Ed. 2d 660 (1979); Michigan v. DeFillippo, 443 U.S. 31, 99 S. Ct. 2627, 61 L. Ed. 2d 343 (1979) (scheduled during weeks of February 23 and 26 (one hour)); Brown v. Texas, 443 U.S. 47, 99 S. Ct. 2637, 61 L. Ed. 2d 357 (1979).

The Government, in its petition for rehearing en banc, points out questions of exceptional importance to be considered in connection with investigations by experienced federal agents of traffic in huge quantities of narcotics flowing into the Detroit airport, principally from Los Angeles, San Diego, Miami, and New York.1

The investigations involve persons who, in the trained mind of experienced federal agents, are regarded as suspicious. Usually such persons are traveling between distant places, without luggage or with little luggage, and are looking around and appear to be nervous. The agent will stop such a person in the airport, identify himself, ask the suspect for identification, and ask to see his plane ticket.

When identification has been made the agent usually discovers that the suspect is traveling under an assumed name. The plane ticket may also reveal stop-offs at a place or places other than Detroit. Sometimes the suspect is seen in the presence of a known narcotics dealer. The agent will then invite the suspect to accompany him to a private room in the airport. The reason is that the agent must comply with airport regulations which are designed to prevent public confrontation and injury which may result therefrom. When they arrive at the room the agent then asks the suspect for permission to search him. If consent is given, such consent ought not be vitiated by an appellate court where the District Court has found the consent to be voluntary, in the absence of a finding by the appellate court that the District Court's finding is not supported by substantial evidence. Where consent is not given, the agent would have the right to arrest and search, if he has probable cause to do so.

In the present appeals each District Judge hearing the case granted an evidentiary hearing on a motion to suppress evidence, and held that the federal agents had reasonable grounds to stop and question the defendants, that defendants acquiesced in following the agents to the private room, and that consent to the search was either given voluntarily or that the agents had probable cause to arrest and search. The District Judges who presided in the present cases were the Honorables Ralph B. Guy, Jr. and Robert E. DeMascio, both able jurists with extensive experience in the trial of cases in the Eastern District of Michigan.

The en banc majority, relying on McCaleb, reverses the judgments of the District Judges without specifically finding that the District Judges' findings of fact on the issues of reasonable grounds to stop and question, acquiescence in following the agents to the private room, and probable cause to arrest and search or voluntary consent to the search, were not supported by substantial evidence, and are clearly erroneous, and that their conclusions of law are incorrect.

Apparently the en banc majority regard McCaleb as holding that the facts are per se coercive. If this is so, it is time to overrule McCaleb and its progeny. The McCaleb opinion also regards circumstances (which to the trained mind of the federal agents are regarded as suspicious), as such that they may be treated as innocent by an appellate court.

With the ever increasing traffic in narcotics causing so much damage and injury to the public, we ought not sanction a set of rules which hamstring the federal officers in making legitimate investigations. It is also noteworthy that the investigations in each of the present cases, as in many others, produced real results. The defendants were couriers of narcotics.

I would affirm the judgment of conviction in each appeal.

Footnotes

* Judge Merritt recused himself from this hearing.

1 The amount and type of illegal narcotics seized at the Detroit Metropolitan Airport are as follows:

	1975	1976	1977	1978
Heroin	41.1 lbs.	66 lbs.	14.5 lbs.	10 lbs.
Cocaine	5.1 lbs.	7 lbs.	5.3 lbs.	4.8 lbs.
Phencyclidine	15 lbs.	5.5 lbs.	3 ozs.	1 lb.
Marijuana	794 lbs.	189.5 lbs.	347.8 lbs.	47.5 lbs.
LSD	6,000 dosage units		11,000 dosage units
Hashish	5.8 ozs.		8 ozs.
Amphetamines	41 grams
Methamphetamines			29 ozs.
Dangerous Drugs	93 grams		2,000 dosage units	1,536 dosage units

[p. 2, Petn for rehearing en banc]