Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 79 CR 145 -- Prentice H. Marshall, Judge .
Before Sprecher and Wood, Circuit Judges, and East, Senior District Judge.*fn**
On October 9, 1979, after a bench trial, defendants-appellants were found guilty of knowingly and unlawfully possessing with intent to distribute a Schedule II controlled substance cocaine in violation of 21 U.S.C. § 841(a) (1). The cocaine was seized from their suitcases after a search conducted pursuant to a warrant. Defendants appeal from the denial of their pre-trial motion to suppress the cocaine.*fn1 We hold that the trial court properly denied the motion and we affirm defendants' convictions.
At the hearing on the motion, the parties stipulated to the facts as recited in the affidavit for the search warrant; therefore, we will use those facts in our analysis.
Prior to seeking the warrant to search the suitcases defendants were carrying and before formally placing defendants under arrest, Drug Enforcement Administration (DEA) agents stopped defendants for questioning. The agents had earlier been informed by a Broward County, Florida deputy sheriff that two men matching defendants' descriptions had run to an airline ticket counter in Fort Lauderdale Airport and had purchased with cash two one-way tickets to Chicago's O'Hare Airport. The men were carrying identical, unmarked suitcases. Because Florida is a major center for cocaine trafficking and because of what the experienced deputy sheriff deemed to be defendants' suspicious behavior, he alerted the Chicago DEA.
Upon defendants' arrival at O'Hare, DEA agents followed them. Though traveling together, the men separated in the airport, each walking alone toward the same destination. Both men frequently looked over their shoulders and made unexplained diversions from the corridor to the main terminal, finally meeting each other near the United Air Lines baggage check-in. They were still carrying identical, unmarked suitcases.
Based on the aforementioned facts, we hold that although there was no probable cause for an arrest, the initial stop of defendants by DEA agents was well within the scope of Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), and Adams v. Williams, 407 U.S. 143, 92 S. Ct. 1921, 32 L. Ed. 2d 612 (1972). "(A) police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest," Terry, supra, 392 U.S. at 22, 88 S. Ct. at 1880; that is precisely the situation in this case. See also U. S. v. Vasquez-Santiago, 602 F.2d 1069 (2d Cir. 1979); U. S. v. Rico, 594 F.2d 320 (2d Cir. 1979); U. S. v. Smith, 574 F.2d 882 (6th Cir. 1978); U. S. v. Chatman, 573 F.2d 565 (9th Cir. 1977).
The trial court held, and the Government does not dispute on appeal, that some subsequent activities by the agents were tantamount to an unlawful arrest of defendants, requiring suppression of the fruits of that unlawful arrest.*fn2 Before the unlawful arrest, however, and as a consequence of the Terry -type investigatory stop of defendants, the agents validly obtained some other information that is important to this case. They determined that one of the men was traveling under an assumed name; that both men said they had left their tickets on the plane; and that both men denied having keys to open the locked suitcases they were carrying. These facts coupled with the agents' previous observation of defendants and the information from the Florida deputy sheriff were not enough to establish probable cause, either for an arrest or for a search of defendants' luggage, but were certainly enough to give the agents reasonable suspicion to believe that the suitcases contained contraband.
DEA Agent Labik then told defendants that they were free to go, but that he was going to detain their suitcases while he attempted to get a search warrant. Although subsequent actions by the agents amounted to an unlawful arrest and precluded defendants from leaving the airport, the luggage was not seized incident to that unlawful arrest and therefore cannot be suppressed on that basis.
Nevertheless, we are left with the important question whether probable cause was necessary to detain the suitcases, given the fact that no probable cause existed at that point to search the suitcases. As mentioned above, in Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), the Supreme Court sanctioned the detention of individuals for further investigation when a police officer had reasonable suspicion to believe something unlawful was afoot. Our research has uncovered no case in which a court has confronted a detention situation precisely like the one before us now, but the Supreme Court did address an analogous situation in U. S. v. Van Leeuwen, 397 U.S. 249, 90 S. Ct. 1029, 25 L. Ed. 2d 282 (1970), where it extended the Terry logic to the detention of parcels of mail believed to contained contraband.
In Van Leeuwen, a postal clerk received for first-class mailing two packages, each weighing twelve pounds, with one addressed to a post-office box in Van Nuys, California and the other to a post-office box in Nashville, Tennessee. Each package was registered and insured for $10,000 and was to be sent airmail. The postal clerk found all these facts suspicious and voiced his suspicions to a policeman who happened to be present. The policeman then noticed that the return address on each package was that of a vacant housing area and that the person who had mailed the packages was driving a car with Canadian license plates.
Because of these suspicious facts, the police detained the packages pending further investigation. By the next day, there was information sufficient to establish probable cause for issuance of a search warrant; a search warrant was obtained, the packages were opened, inspected, resealed and sent on their way.
Recognizing that the parcels in question were first-class mail and therefore free from postal inspection except in accordance with the Fourth Amendment, 397 U.S. at 251, 90 S. Ct. at 1031, the Court nevertheless held that the detention pending ...