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April 2, 1981


The opinion of the court was delivered by: Bua, District Judge.


The defendant, Ronald Black, has been charged in a one count indictment with violating 21 U.S.C. § 841(a)(1) by knowingly and intentionally possessing, with the intent to distribute, approximately 540 grams of a mixture containing cocaine.

On March 13, 1981 the court held a hearing on defendant's motion to suppress the mixture seized from him at the time of his arrest. The defendant and two Chicago police officers, Rosemary Burzinski and Thomas Kinsella, testified at the hearing. At the conclusion of the hearing, the court denied the defendant's motion. The defendant then waived his right to a jury trial and stipulated to a trial by the court based on the testimony taken at the hearing on the motion. In addition, the defendant stipulated to the admission of a lab report relating to the composition of the mixture seized from him, and to the testimony of a Drug Enforcement Agency chemist, Sanford Angelos, that after analysis the mixture was found to contain cocaine. Over the objection of the defendant, the court admitted Government Exhibit 2 in evidence. Exhibit 2 is the mixture seized from Black and later analyzed by Sanford Angelos.

The following constitutes the court's findings of fact and conclusions of law on the defendant's motion to suppress and the court's findings on the merits. Fed.R.Crim.P., Rules 12(e), 23(c).

The testimony taken at the hearing revealed the following facts. On May 14, 1980, Officers Kinsella and Burzinski were engaged in surveillance of flights arriving from the Miami-Fort Lauderdale area at O'Hare Airport. They were assigned to assist the Drug Enforcement Agency in conducting narcotics investigations at the airport. The officers focus much of their surveillance activity at O'Hare on incoming flights from southern Florida, because the DEA has determined that this area is the main source of cocaine distribution in the United States.

Rosemary Burzinski has been a Chicago police officer for eight years. She has been assigned to narcotics investigations for the last eighteen months. At the time of the defendant's arrest she had been assigned to O'Hare Airport for two months. Thomas Kinsella has been a Chicago police officer for seventeen years and has been engaged in narcotics investigations for the last nine years. He has participated in over a thousand seizures of narcotics. He has been assigned on a full-time basis to O'Hare for one year and prior to March, 1980 he had been assigned to O'Hare on a part-time basis for two years, and had participated in approximately fifty seizures of narcotics and seventy-five investigatory stops of suspected drug couriers at O'Hare. Officer Burzinski had participated in approximately ten seizures and fifty stops at O'Hare prior to the defendant's arrest.

Black proceeded at a very slow pace to the intersection of the E and F concourses where there was a United Airlines flight information screen. He viewed the screen for about thirty seconds and then spent several minutes observing his surroundings. He looked continually around and behind him in all directions in a manner that suggested to Officer Burzinski that he was not looking for anyone or anything in particular but was surveying the people in the area. The officers kept him under surveillance from a distance of about twenty feet. Officer Kinsella testified that there was nothing unusual about Mr. Black's demeanor at this time.

After several minutes at the flight screen, the officers observed Mr. Black proceed to gate F-3 where he entered the waiting area and sat down without checking in. The check-in counter was manned and passengers were checking in for the next flight scheduled to depart from that gate. The next flight scheduled to leave from gate F-3 was a non-stop flight for Honolulu, scheduled to depart at 1:15 p.m. It was now approximately 12:15 p.m.

Mr. Black sat in the waiting area at gate F-3 for about five minutes. He then picked up his travel bag and walked out of the waiting area to the concourse. As Black entered the concourse, the two officers, who had been standing in the concourse just outside the waiting area, identified themselves to him. Both of the officers were casually dressed in blue jeans. The officers showed Black identification and Kinsella then asked Black in a normal voice if he could speak to him for a second. Black said, "sure". Kinsella asked Black if he had identification and an airline ticket. Black presented a Hawaii driver's license and a first-class one-way ticket to Honolulu. The ticket was in the name of Mr. R. Plack. It cost $587.50 and had been purchased for cash at the Hollywood Travel Agency in Hollywood, Florida.

Kinsella then asked Black why he was traveling under a fictitious name. Black offered no explanation, but merely shrugged his shoulders in response, Kinsella asked Black what he had been doing in Florida. Black told Kinsella that he had been in Florida surfing for the past three months and, after he had run out of money, he had harvested coconuts to earn money for his return ticket to Hawaii. At or about this time Kinsella suggested that they move a few feet away from the area of the initial stop in order to avoid blocking traffic in the concourse. Kinsella also handed Black's license and ticket to Burzinski at or about this time.

By now Black appeared to both officers to be extremely nervous. Kinsella asked Black what was in the travel bag and Black said that it contained books, clothes, and toilet articles. Kinsella asked Black in a normal voice if he would consent to a search of the travel bag. Black responded in the affirmative. After Black consented to the search, Kinsella specifically informed Black that he need not consent to a search of the bag. Without responding further, Black immediately knelt down, unzipped the bag, took out a book and handed it to Kinsella. Kinsella inspected the book, put it on the floor next to the bag and then reached in the bag and took out a shaving kit. Kinsella opened the kit, inspected the articles in it, and then placed it on the floor next to the bag. Black said nothing and made no attempt to stop Kinsella from inspecting the shaving kit and its contents.

Kinsella then reached into the travel bag again and grasped a shirt. Kinsella felt an object through the shirt. As Kinsella began to withdraw the shirt from the bag, Burzinski, who was standing across from her kneeling partner, could see a clear plastic bag containing white powder wrapped in the folds of the shirt. The plastic bag containing the powder was itself wrapped in a torn paper bag. Because of the way the bag containing the white powder was wrapped in the folds of the shirt it was not visible to Kinsella as he brought the shirt to the top of the open travel bag. Just as Kinsella's hand reached the top of the travel bag, Black grabbed Kinsella's wrist and while pulling Kinsella's hand out of the travel bag, told Kinsella not to search any further. As Black yanked Kinsella's hand out of the travel bag, the bag containing the mixture fell out of the shirt to the bottom of the travel bag. Kinsella saw the plastic bag containing the white powder in plain view on the bottom of the travel bag and told Black he was under arrest.

At no time during this sequence of events did either of the officers display their weapons, raise their voices, or otherwise threaten or coerce Black. The entire incident, from the time the officers identified themselves to Black until the defendant's arrest, lasted no more than a few minutes. The incident took place ...

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