United States District Court, Northern District of Illinois, E.D
May 7, 1981
UNITED STATES OF AMERICA
The opinion of the court was delivered by: Decker, District Judge.
MEMORANDUM OPINION AND ORDER
Defendant Cesar Moya has been charged in a one-count
indictment with possession of cocaine with intent to
distribute. This constitutes a crime in violation of the
provisions of 21 U.S.C. § 841(a)(1). Currently pending is
Moya's motion to suppress certain evidence. Since the sole
contested questions of fact relate to the motion to suppress,
defendant has chosen to waive his right to a jury trial in the
event the motion is denied. On the basis of this waiver, the
court heard evidence in this case on December 1, 1980. Having
carefully reviewed the record and the briefs of the parties,
the court hereby enters the following findings of fact and
conclusions of law.
On March 20, 1980, Moya was observed deplaning from Delta
Airlines Flight 142. Flight 142 was arriving at Chicago's
O'Hare Airport from Miami, Florida. The flight was observed by
agent Kenneth Labik, of the Drug Enforcement Administration,
and officer Thomas Kinsella, of the Chicago Police Department.
Labik and Kinsella were observing Flight 142 because they had
been informed by their agencies that Miami was a source city
for much of the illegal drug traffic into Chicago. There was
no direct evidence introduced at trial to substantiate this
After deplaning, Moya walked across the concourse from the
arrival gate and surveyed the crowd. He then walked down the
concourse towards the main terminal, looking backwards, over
his shoulder periodically. During this time Labik and Kinsella
were following Moya in order to keep him under observation.
Before reaching the main terminal, Moya entered a men's room,
followed by Labik. Moya checked all of the enclosed stalls
and, discovering that they were all full, left the men's room.
Upon reaching the main terminal, Moya again entered a men's
room, this time followed by Kinsella. Moya found an open
stall, entered it, closed the door, stood there for several
minutes, and then left. Moya did not use the toilet. On
leaving the men's room, Moya went downstairs to the arrival
area of the terminal and entered a cab line. He did not go to
the baggage claim area, and his sole piece of luggage was a
shoulder bag, which he had carried off of the airplane.
As he was standing in the cab line, Moya was approached by
Labik and Kinsella, who promptly identified themselves and
asked Moya if they could speak with him. Moya said that they
could. Labik and Kinsella testified that at this point they
asked Moya for some identification, and that Moya denied that
he had any. Moya testified that he was not asked for
identification at this point. In any event, Moya was asked if
he would agree to move back inside the terminal building in
order to avoid the night chill and the pedestrian traffic.
Again, Moya agreed. Once inside the building's foyer the
questioning resumed. Moya was asked
his name, which he gave as Cesar Moya, and he was asked for
his airline ticket. He produced the ticket which was a one-way
fare on Delta Flight 142 in the name of Cesar Moya. After
examining the ticket Labik asked Moya for further
identification. Moya responded by asking what this was all
about. Labik ignored the inquiry, asking again for
identification. Moya testified that at about this point he
asked to leave, but that Labik and Kinsella would not let him
go. Labik denied this. Kinsella did not testify on the point.
After his question about the purpose of the interrogation was
ignored, Moya reached into a side pocket of his shoulder bag
and produced his driver's license. The driver's license was in
Moya's name and had his picture on it. In reaching into the
pocket, however, Moya gave Labik a view of a corner of a clear
plastic bag. Labik asked Moya to produce the bag. Moya denied
that he had a plastic bag. Labik told Moya that, "If he
wouldn't remove it [the bag], I would." Moya removed the bag,
which proved to contain several other clear bags, some small
bottles, and some small spoons. Moya told Labik and Kinsella
that he used the contents of the bag to carry jewelry.
Persuasive evidence adduced at the trial, however, indicates
that the contents of the bag consisted of drug paraphernalia.
At this point Labik and Kinsella asked Moya's permission to
search the bag, telling him that he had a right to refuse.
Moya refused. Labik and Kinsella then detained the bag in
order to attempt to obtain a search warrant, and Moya left.
Shortly thereafter, a trained police dog picked out Moya's bag
from among a group of six others. On the basis of this
showing, a search warrant was obtained. The validity of the
warrant is not disputed. A search of the bag revealed that
Moya had been carrying 501.77 grams of 35% cocaine. This
quantity of cocaine has a street value of between $40,000 and
$50,000. This is more cocaine than one person would normally
hold for his personal use.*fn2
The central issue in this case is whether or not the seizure
of Moya's bag was constitutionally permissible. If that
seizure was permissible, then, as defendant admits, the
ultimate search of the bag was proper, and the evidence
obtained is admissible. If, however, the seizure was improper,
then the evidence obtained from searching the bag is "fruit of
the poisonous tree" and, as such, it must be suppressed.
Wong Sun v. U.S., 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441
(1963). Agent Labik testified that he "had no intention or
thought of getting a search warrant or seizing that bag" at the
time he and Kinsella approached Moya at the cab line.
Consequently, the propriety of this seizure turns on two
questions: (1) Was Moya "seized" in violation of his Fourth
Amendment rights during the period when he was being questioned
by Labik and Kinsella. (2) Assuming that the questioning did
not amount to an unconstitutional seizure, did anything that
came to light during the course of the questioning, when taken
in conjunction with Moya's previous behavior, justify seizure
of the bag.
Seizure of Moya's person.
Moya argues that, if his interview with Labik and Kinsella
amounted to a seizure, then it was an improper one. In this
Moya is correct. In Reid v. Georgia, 448 U.S. 438, 100 S.Ct.
2752, 65 L.Ed.2d 890 (1980), the Supreme Court was considering
an appeal from the State Supreme Court of Georgia. There, as
here, the defendant had been interrogated at an airport by a
DEA agent. The agent observed Reid deplaning from a Fort
Lauderdale flight. He and another male passenger were carrying
identical flight bags. Reid and this other passenger walked
down the airport concourse separately, but at the end of the
concourse they joined one another and left the building
together. During their walk to the main terminal, Reid
occasionally looked behind
himself towards the second man. Neither man picked up any
additional luggage. As they left the main terminal, Reid and
the other man were approached by the DEA agent. Subsequent
events resulted in seizure of one of the airline bags which
turned out to contain cocaine. The court below had presumed
that the questioning of Reid and his colleague by the DEA
agent was a seizure. Consequently, the sole question before
the Supreme Court was whether or not a seizure could be
constitutionally justified on these facts. In a per curiam
opinion from which only Justice Rehnquist dissented, the Court
concluded that the DEA agent did not have sufficient grounds
for seizing Reid and his partner.
The Court began its argument by emphasizing that,
"While . . . in some circumstances a person may
be detained briefly, without probable cause to
arrest him, any curtailment of a person's liberty
by the police must be supported at least by a
reasonable and articulable suspicion that the
person seized is engaged in criminal activity."
Reid v. Georgia, 100 S.Ct. at 2753.
In Reid the only reasons given for the stop of the defendant
were the fact that he had deplaned from a flight arriving from
a principal place of origin for cocaine distribution, the fact
that defendant arrived early in the morning when law
enforcement activity is diminished, the fact that he and his
companion apparently were attempting to conceal that they were
traveling together, and the fact that defendant and his
companion had no luggage other than their shoulder bags. These
observations, taken together, were said to bring Reid into
conformity with the so-called "`drug courier profile,' a
somewhat informal compilation of characteristics believed to be
typical of persons unlawfully carrying narcotics," id., and,
therefore, to justify the stop. The Court, however, concluded:
". . . that the agent could not as a matter of
law, have reasonably suspected the petitioner of
criminal activity on the basis of these observed
circumstances. Of the evidence relied on, only
the fact that the petitioner preceded another
person and occasionally looked backward at him as
they proceeded through the concourse relates to
their particular conduct. The other circumstances
describe a very large category of presumably
innocent travellers, who would be subject to
virtually random seizures were the Court to
conclude that as little foundation as there was
in this case could justify a seizure."
Id., 100 S.Ct. at 2754.
Here the reasons given by Labik and Kinsella for suspecting
Moya prior to the time they approached him at the cab line
were no more substantial than the reasons rejected by the
Court in Reid. At the time they approached him, Labik and
Kinsella knew only that Moya had deplaned from a Miami
that he was carrying no luggage other than a
shoulder bag, that he had repeatedly scanned the crowd and
looked back over his shoulder, and that he had sought the
privacy of a washroom stall for some reason other than a desire
to relieve himself. As it turned out, of course, Labik and
Kinsella were correct to find this behavior suspicious. But it
would not be difficult to imagine perfectly innocent
explanations for every one of Moya's actions. If interrogations
based on such suspicions are indeed constitutional seizures,
then it is likely that numerous innocent people are routinely
"seized" in violation of the Constitution every week. Indeed,
Labik himself testified that he routinely approaches two or
three people a day on the basis of similar suspicions, but that
these stops have led to only 70 or 80 arrests during his three
years at O'Hare. Thus, as defendant has pointed out, presuming
a 5-day work week and a 50-week work year, stops based on the
sort of evidence that led to Moya's questioning result in
arrests only 3-5% of the time. In short, there is every reason
to believe that Moya's questioning would be constitutionally
insupportable if that questioning rose to
the level of a Fourth Amendment "seizure."*fn4
Moya, of course, contends that the questioning did trigger
the Fourth Amendment's protections. He is mistaken. Not every
contact between a law enforcement officer and the public is a
matter of constitutional dimensions. Here the undisputed
testimony shows that Labik and Kinsella did not engage in any
show of force in approaching Moya, that they did not lay hands
on him at any time, and that Moya showed no hesitancy in
agreeing to respond to their questions or in agreeing to
remove himself from the taxi line and enter the terminal
foyer. Moreover, Moya himself characterized the officers' tone
of voice and attitude as "relaxed" throughout the
encounter.*fn5 While Moya did testify that, at one point, he
was barred from leaving, Labik directly and expressly
contradicted this testimony. The court finds Labik's account
the more credible. On the whole, Labik gave a more precise,
detailed narrative of the relevant events. Moreover, his was
an account that was largely corroborated by Kinsella's
testimony and by the affidavit filed in support of the search
warrant that was ultimately issued in this case. Finally, as
a law enforcement officer Labik is an experienced and trained
observer whose memory can be given particular credence. Given
all of these circumstances, it is apparent that Moya would
have been free to walk away from Labik and Kinsella at any
time, that a reasonable man in his position would have
realized this, and, therefore, that his participation in the
questioning was entirely voluntary. Under these circumstances,
no constitutionally cognizable seizure can be said to have
In United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870,
64 L.Ed.2d 497 (1980), the Supreme Court was faced with another
airport narcotics interrogation. There, as here, DEA agents
approached an air traveller whose behavior they considered
suspicious in order to ask her a few questions. As was also
true in this case, the agents in Mendenhall revealed their
identities to the defendant without any show of force or any
laying on of hands. While the encounter eventually led to a
more intensive confrontation, at least initially the agents
merely asked Mendenhall for her ticket and some identification.
Writing the lead opinion in the case, Justice Stewart
concluded that no constitutional questions were raised by the
stop because it was not sufficiently intrusive to constitute
a "seizure." Contending that several of the Court's previous
opinions had expressly refrained from deciding whether mere
questioning of a cooperative citizen
invoked Fourth Amendment considerations, the opinion took as
its keynote the Court's earlier observation in Terry v. Ohio:
"Obviously, not all personal intercourse between
policemen and citizens involves `seizures' of
persons. Only when the officer, by means of
physical force or show of authority has in some
way restrained the liberty of a citizen may we
conclude that a seizure has occurred."
Mendenhall, 100 S.Ct. at 1876, quoting Terry,
392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 1879 n. 16, 20
L.Ed.2d 889 (1963).
The opinion went on to emphasize that any other construction
of the scope of the Fourth Amendment's protection would extend
that provision beyond any rational understanding of its policy
"We adhere to the view that a person is `seized'
only when by means of physical force or a show of
authority, his freedom of movement is restrained.
Only when such restraint is imposed is there any
foundation whatever for invoking constitutional
safeguards. The purpose of the Fourth Amendment
is not to eliminate all contact between police
and citizenry, but `to prevent arbitrary and
oppressive interference by enforcement officials
with the privacy and personal security of
individuals.'" [Citation omitted.]
Mendenhall, 100 S.Ct. at 1877.
On the basis of this analysis, Justice Stewart enunciated the
following test for determining whether or not a seizure has
"We conclude that a person has been `seized'
within the meaning of the Fourth Amendment only
if, in view of all of the circumstances
surrounding the incident a reasonable person
would have believed that he was not free to
leave. Examples of circumstances that might
indicate a seizure, even where the person did not
attempt to leave, would be the threatening
presence of several officers, the display of a
weapon by an officer, some physical touching of
the person of the citizen, or the use of language
or tone of voice indicating that compliance with
the officer's request might be compelled."
Patently, application of this test to the facts of this case
indicate that Moya was not "seized" by Labik and Kinsella.
Arguably, however, this court should not view Justice
Stewart's opinion as controlling. Only Justice Rehnquist
joined in Stewart's opinion, and the three concurring Justices
expressly declined to adopt Justice Stewart's analysis of the
Fourth Amendment's scope. These Justices did not reach the
seizure question, holding, instead, that the officers in the
Mendenhall case had sufficient grounds to warrant their stop of
the defendant even if the constitutional protections were
applicable. Writing for these concurring Justices, Justice
Powell stated that he was not inclined to address the seizure
question because it had not been properly raised below. He
noted, however, that the issue was "extremely close." 100 S.Ct.
1880, n. 1.
In addition to the three concurring Justices, there were
four dissenters who declined to follow Justice Stewart's
reasoning. While they too doubted that the issue was properly
before the Court, the dissenters, in an opinion written by
Justice White, expressly disapproved Justice Stewart's
holding. They argued that:
"In Terry we `emphatically reject[ed]' the notion
that a `stop' `is outside the purview of the Fourth
Amendment because . . . [it is not a] "seizure"
within the meaning of the Constitution.' Terry v.
Ohio, 392 U.S. at 16 [88 S.Ct. at 1877] . . . We
concluded that `the sounder course is to recognize
that the Fourth Amendment governs all intrusions by
agents of the public upon personal security and to
make the scope of the particular intrusion, in
light of all the exigencies of the case, a central
element in the analysis of reasonableness.' id. at
18 n. 15 [88 S.Ct. at 1876]." Mendenhall, 100 S.Ct.
The dissenters' argument, however, begs the question. While it
is undeniable that Terry was meant to bring all police
"intrusions . . . upon personal security" within the
Constitution's protections, the issue raised by Justice Stewart
is precisely that
of when such an "intrusion" has taken place.
Indeed, as Justice Stewart points out, Terry itself expressly
left this question open. In that case the police officer
involved "had been a policeman for 39 years and a detective for
35 and . . . [he] . . . had been assigned to patrol this
vicinity of downtown Cleveland for shoplifters and pickpockets
for 30 years." 392 U.S. at 5, 88 S.Ct. at 1871. While the
officer was unable to articulate precisely what it was about
the defendants' conduct that first attracted his attention, his
continued surveillance of the defendants led him to believe
that they were "casing" a store in preparation for a robbery.
At this point he concluded that
"the situation was ripe for direct action . . .
[and he] . . . approached the three men,
identified himself as a police officer and asked
for their names. . . . When the men `mumbled
something' in response to his inquiries . . .
[the officer] . . . grabbed petitioner Terry,
spun him around so that they were facing the
other two, with Terry between . . . [the
officer] . . . and the others, and patted down the
outside of his clothing." Id., at 6-7, 88 S.Ct. at
This "frisk" of Terry eventually led to the arrest and
conviction of Terry and one of his companions on charges of
possession of a concealed weapon. The case was before the
Court on the issue of whether the weapons uncovered by the
frisk were admissible evidence. In reviewing this matter, the
Court recognized that the threshold question was whether and
when a constitutional "seizure" had taken place. Rejecting the
rule proposed below — that no seizure occurred until the point
at which defendants were actually arrested — the Court had
little trouble finding an earlier seizure on the facts before
"In this case there can be no question . . .
that . . . [the police officer] . . . `seized'
petitioner and subjected him to a `search' when
he took hold of him and patted down the outer
surfaces of his clothing. We must decide whether
at that point it was reasonable for . . . [the
Officer] . . . to have interfered with
petitioner's personal security as he did."
Id., at 19, 88 S.Ct. at 1878.
The Court, however, appended a footnote to this passage
emphasizing what issues it did not intend to reach:
"We thus decide nothing today concerning the
constitutional propriety of an investigative
`seizure' upon less than probable cause for
purposes of `detention' and interrogation.
Obviously, not all personal intercourse between
policemen and citizens involves `seizures' of
persons. . . . We cannot tell with any certainty
upon this record whether any such `seizure' took
place here prior to . . . [the officer's] . . .
initiation of physical contact for purposes of
searching Terry for weapons, and we may thus
assume that up to that point no intrusion upon
constitutionally protected rights had occurred."
Id., at 19 n. 16, 88 S.Ct. at 1879 n. 16.
The point is that the Terry decision explicitly recognized
that not all contacts between a police officer and a suspect
are automatically seizures, and that, in that case, it was an
open question as to whether a seizure had taken place at the
time when the officer had merely approached Terry and asked him
his name. Consequently, to argue, as did the Mendenhall
dissenters, that, under Terry, an individual is
constitutionally seized every time he is approached by a police
officer whose suspicions have been aroused and who wishes to
ask the citizen some questions is to simply misread that
opinion. Moreover, as Justice Stewart points out, it is to
torture the term "seizure" beyond all recognition. Certainly,
so long as the cooperation is truly voluntary, the suspect's
liberty cannot be said to be infringed at all. In short, this
court views Justice Stewart's reading of the Terry decision as
more accurate, and more consistent with the language and
policies of the Fourth Amendment than the reading advocated by
the Mendenhall dissenters. As has already been noted, the
principles articulated in his opinion dictate that no
constitutional seizure of Moya's person occurred in this case.
It is not, however, disputed that Labik and Kinsella
detained Moya's flight bag or that this constituted a seizure
of Moya's property. Consequently, the question which remains
is whether or not this seizure was permissible.
Seizure of Moya's property.
In United States v. Klein, 626 F.2d 22 (7th Cir. 1980), the
Seventh Circuit held that defendants' constitutional rights
were not violated where their bags were detained for the
purpose of obtaining a search warrant, where the bags were
detained subsequent to an airport narcotics interrogation, and
where, as a result of the interrogation, the DEA agents "had
reasonable suspicion to believe that the bags contained
contraband." 626 F.2d at 26. The court expressly rejected
defendants' contention that a temporary seizure of their
luggage was only proper on a showing of probable cause. 626
F.2d at 24-26.
Thus, the issue in this case is whether Labik and Kinsella
had a "reasonable suspicion" that Moya's bag contained
contraband at the time that they detained it. The court
concludes that they did.
For the reasons already given, the court does not believe
that Labik and Kinsella had sufficiently well supported
suspicions regarding Moya to support a seizure of the bag at
the time they approached him in the taxi line. The subsequent
interview, however, was ample to justify detention of the
luggage. The first question addressed to Moya at the time he
was standing in the cab line was a request for identification.
Moya's contention that he had none was, of course, suspicious
in itself. The suspicious nature of this response was
underlined when a subsequent request for identification in the
building foyer led Moya to produce his driver's license, thus
giving lie to his initial statement.
Moya denies that he initially refused to produce his
license. However, both Labik and Kinsella testified to the
contrary. The reasons given previously by the court for
crediting the agents' testimony above that given by Moya are
equally applicable here. Additionally, the record suggests a
plausible reason why Moya might have hesitated to produce his
license. The driver's license was in the same pocket of his
travel bag as the drug paraphernalia that emerged at a later
point in the questioning. Moya might well have feared that
opening that pocket of the bag would permit the agents to view
the drug paraphernalia.
In addition to dissembling about his possession of
identification, one additional event during the questioning
gave Labik and Kinsella reasonable grounds for suspecting that
Moya was engaged in a criminal enterprise. When Moya finally
reached into the pocket of his travel bag to produce his
license, Labik glimpsed a corner of a clear plastic bag. He
promptly asked Moya to remove this bag and show it to him.
Moya did not simply refuse to comply with this request, rather
he insisted that no plastic bag existed. This was a lie and
Labik knew that it was the moment it was uttered. Thus, by the
time that Moya initially failed to produce the plastic bag, he
had given Labik and Kinsella several grounds for suspecting
that his travel bag contained contraband: His behavior in
walking from the arrival gate to the taxi stand was sufficient
to arouse the officers' inchoate suspicions. After they
approached Moya and began to question him, these inchoate
suspicions had been sharpened by the disclosure that Moya was
hesitant to provide them with information about his identity
and by the disclosure that Moya was carrying a plastic bag
whose contents he wished to keep a secret. While this
information taken as a whole may not have amounted to probable
cause to believe that the bag contained contraband, it
certainly gave Labik and Kinsella "reasonable and articulable"
grounds for suspecting that this was the case. Consequently,
if the bag had been detained at this point, the propriety of
the seizure would have been clear. Unfortunately, several
significant events intervened between Moya's attempt to disown
the plastic bag and the seizure of the travel bag.
After Moya denied having a plastic bag, Labik repeated his
request that the
bag be produced and stated that "if he [(Moya)] wouldn't
remove it, I [(Labik)] would." It was immediately following
this threat that Moya handed over the plastic bag. Thus,
production of the drug paraphernalia was not a voluntary act.
It is well established that a citizen has a privacy interest,
cognizable under the Fourth Amendment, in protecting against
searches of his luggage. It is also well established that,
absent "exigent" circumstances, this interest can only be
overridden by demonstrating to the satisfaction of an
authorized judicial officer that probable cause to search the
luggage exists. Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct.
2586, 61 L.Ed.2d 235 (1979); U.S. v. Chadwick, 433 U.S. 1, 97
S.Ct. 2476, 53 L.Ed.2d 538 (1977). Here, no exigent
circumstances were present.*fn6 Thus, the order compelling
Moya to disclose the contents of his shoulder bag amounted to
an unconstitutional warrantless search. Because this is the
case, and because it is also the case that discovery of the
drug paraphernalia was at least partially responsible for
Labik's and Kinsella's decision to detain the luggage, it may
be that any evidence discovered as a result of that detention
is "fruit of the poisonous tree." The court, however, declines
to reach this conclusion.
Essentially, this argument for suppressing the contents of
Moya's bag turns on the likelihood that Labik and Kinsella may
have subjectively been motivated to seize the bag because of
unconstitutionally obtained information. However, to require
suppression of the evidence on the basis of this subjective
causal link where alternative constitutional grounds for the
seizure exist would entail expanding the "fruit of the
poisonous tree" doctrine beyond its traditional and proper
"Fruit of the poisonous tree", like other forms of the
exclusionary rule, is designed primarily as a prophylactic
against police misconduct. The notion is that the police will
be deterred from violating citizens' rights in the course of
criminal investigations if the principal incentive for such
conduct — the expectation that admissible evidence will come
to light — is removed. E.g., Brown v. Illinois, 422 U.S. 590,
599-600, 95 S.Ct. 2254, 2259-2260, 45 L.Ed.2d 416 (1975).
Application of the doctrine, thus, is not intended to vindicate
the rights of the individual defendant, so much as it is
intended to further the social policies favoring police
restraint and the integrity of judicial proceedings. Brown,
supra. But any application of the exclusionary rule, by
definition, entails suppression of material evidence in a
criminal trial; a result which is patently inconsistent with
certain other social policies, namely, those favoring the
prosecution of crime. As a consequence, in each application of
the exclusionary rule,
"two opposing concerns must be harmonized: on the
one hand, the stern enforcement of the criminal
law; on the other, protections of that realm of
privacy left free by [the] Constitution . . ."
Nardone v. U.S., 308 U.S. 338, 340, 60 S.Ct. 266,
267, 84 L.Ed. 307 (1939).
This tension is built into all forms of the exclusionary rule,
and it is the touchstone regulating the rule's limitations.
Thus, the Supreme Court has never treated "fruit of the
poisonous tree" as an omnivorous doctrine:
"We need not hold that all evidence is `fruit of
the poisonous tree' simply because it would not
have come to light but for the illegal actions of
the police. Rather, the more apt question in such
a case is `whether, granting establishment of the
primary illegality, the evidence to which instant
objection has been made
has come at by exploitation of that illegality or
instead by means sufficiently distinguishable to
be purged of the primary taint." Wong Sun v. U.S.,
371 U.S. 471, 487-488, 83 S.Ct. 407, 417, 9 L.Ed.2d
441 (1963). Quoting, Maguire, Evidence of Guilt 221
Specifically, the Court has carved out two exceptions to the
doctrine. First, it has held that the exclusionary rule is
inapplicable where the evidence at issue is not, in reality,
"fruit" of an unlawful act, but, instead, has been "come at"
from a source "independent" of the unlawful conduct,
Silverthorne Lumber Co. v. U.S., 251 U.S. 385
, 392, 40 S.Ct.
182, 183, 64 L.Ed. 319 (1920); Costello v. U.S., 365 U.S. 265
278-281, 81 S.Ct. 534, 541-542, 5 L.Ed.2d 551 (1961).
Additionally, the Court has recognized that the exclusionary
rule is inapplicable where the causal link between the unlawful
conduct and the discovery of the disputed evidence has been "so
attenuated" by intervening factors "as to dissipate the taint."
Nardone, supra, 308 U.S. at 341, 60 S.Ct. at 267. See, Wong
Sun, supra, 371 U.S. at 484-486, 491, 83 S.Ct. at 415-416,
419; Brown, supra, 422 U.S. 597-605, 95 S.Ct. at 2258-2262.
This case probably does not fall strictly within either of
these exceptions to the fruit-of-the-poisonous-tree doctrine.
The discovery of the drug paraphernalia was clearly a prime
factor in the officers' decision to detain Moya's luggage.
Thus, it can hardly be said that the ultimate discovery of
cocaine was "come at" from a source of information wholly
independent of the illegal search. Additionally, since the
unlawful search was obviously calculated to produce evidence
that Moya was carrying contraband; since the decision to
detain the bag followed within a matter of minutes after
discovery of the drug paraphernalia; and since discovery of
the cocaine was a direct result of the decision to detain the
luggage, it also cannot be concluded that the causal link
between the unlawful search and the discovery of the cocaine
was "so attenuated as to dissipate the taint." See Brown, 422
U.S. at 603-604, 95 S.Ct. at 2261-2262. Still, this does not
mean that the fruit-of-the-poisonous-tree doctrine is properly
applicable to these facts.
There is nothing in the Court's opinions to indicate that
these limitations on fruit-of-the-poisonous-tree reasoning
represent anything more than a common sense recognition of two
points beyond which the doctrine's deterrent policies are
outweighed by the costs it imposes on effective law
enforcement. Indeed, it has always been this balancing process
that has controlled the scope of the doctrine and the
application of its various limitations. As a result, it would
be inaccurate to view the exceptions thus far expressly
recognized by the Court as written in stone. Certainly, their
formulation was not intended to exclude careful case-by-case
evaluation of the doctrine's applicability. Broadly speaking,
they seem merely to stand for the principle that law
enforcement efforts are to be left in the condition they would
have occupied had no unlawful conduct occurred.
Indeed, several circuits have, under appropriate
circumstances declined to exclude evidence even though the
evidence was come at, at least in part, from an unlawful
source and even though the link between the unlawful source
and the discovered information was not attenuated. In U.S. v.
DeMarce, 513 F.2d 755 (8th Cir. 1975), for example discovery of
a rifle used in the crime was directly facilitated by
statements made by the defendants under unlawful conditions.
Despite its holding that the statements had to be suppressed,
the court concluded that the rifle was admissible because the
police had independent information which "would" have led to
recovery of the gun in any event. 513 F.2d at 758. Similarly,
in U.S. v. Sor-Lokken, 557 F.2d 755 (10th Cir. 1977), cert.
denied, 434 U.S. 894, 98 S.Ct. 274, 54 L.Ed.2d 181 (1977), the
court approved admission of a rifle where police initially
discovered the rifle during the course of an unlawful search.
The rifle was eventually seized during a second, this time
lawful, search. The court concluded that the rifle was not
fruit of the poisonous tree because, prior to their unlawful
conduct, the police had independent information as to the
rifle's whereabouts. See also,
U.S. v. Edwards, 602 F.2d 458, 469 n. 12 (1st Cir. 1979).
Like these other courts, the Seventh Circuit has taken a
flexible attitude towards application of the
fruit-of-the-poisonous-tree doctrine. Thus, it has been held
that evidence is admissible in this Circuit even though
partially obtained as a direct result of unlawful conduct so
long as a legitimate source of information would "inevitably"
have led to discovery. U.S. ex rel. Owens v. Twomey,
508 F.2d 858, 865-866 (7th Cir. 1974). In the same vein is the court's
opinion in U.S. v. Piet, 498 F.2d 178 (7th Cir. 1974), cert.
denied, 419 U.S. 1069, 95 S.Ct. 655, 42 L.Ed.2d 664 (1974).
There FBI agents had been reliably informed that stolen
property was being stored in a warehouse in which one of the
defendants had been leasing space. On the basis of this
information, the FBI searched the warehouse without a warrant,
locating the stolen goods. The FBI then obtained a warrant,
returned to the warehouse, and seized the contraband. The
Seventh Circuit held that the initial search of the warehouse
had been permissible because the agents had been voluntarily
admitted by the warehouse foreman. However, the court went on
to hold that,
"Even if the March 23 search had been unlawful,
that investigation would not have tainted the
March 26 search and seizure of the edgers [the
contraband]. Prior to the March 23 search,
Johnson [the informant] told FBI agents that
Markham [one of the defendants] had told him to
deliver the stolen edgers to the Able warehouse.
Thus, an independent basis existed to support the
agents' suspicion that Markham was storing stolen
goods at the Able facility." 498 F.2d at 181.
In this case Labik and Kinsella detained Moya's shoulder bag
after unlawfully obtaining information about the bag's
contents. Even though the unlawfully obtained information was
a motivating factor in the decision to seize the bag, the
court concludes, for the reasons summarized above, that Labik
and Kinsella had previously accumulated in a lawful manner
sufficient knowledge to justify the bag's detention. This
finding brings this case squarely within the holding in
Piet and the other court of appeals decisions cited above.
Moreover, this finding makes an exception to the
fruit-of-the-poisonous-tree doctrine proper under the policies
that regulate that rule's application. The point of the
exclusionary rule is to assure that the police will not have
an incentive for violating a citizen's constitutional rights.
This concern is satisfied so long as the police are not
permitted to put themselves in a better investigatory position
than they would have occupied but for the unlawful conduct. In
a case such as this one, where the officers making the seizure
have properly obtained information sufficient to justify their
conduct, suppression of the evidence because the seizure was
also prompted by improperly obtained knowledge would leave the
police worse off than if no wrongdoing had occurred. Such a
rule has substantial deterrent value only if it is assumed
that police routinely transgress on constitutional rights even
when they have no investigatory reason for doing so. The facts
of this case, of course, are adequate to demonstrate that the
rush of events may prompt a police officer to engage in such
gratuitous wrongdoing. But the court declines to conclude that
there is any substantial risk that this is commonplace
behavior or that such motiveless conduct would be
substantially restrained by application of the doctrine.
Certainly, the policies favoring "the stern enforcement of the
criminal law," Nardone, 308 U.S. at 340, 60 S.Ct. at 267, would
militate against suppressing evidence whose seizure could
readily have been supported by good, lawful police work. In
short, suppression of this evidence would not be consonant with
the policies that underlie the fruit-of-the-poisonous-tree
doctrine and its various limitations.
Since this policy analysis is well supported by the case law
in this circuit, this court cannot but conclude that the
temporary seizure of Moya's shoulder bag was not tainted by
the unlawful seizure of the drug
paraphernalia. Since the court has already concluded that
seizure of the bag was otherwise proper, it follows that
defendant's motion to suppress the cocaine which came to light
as a result of that seizure must be denied.
Having found that the cocaine Moya was carrying at the time
he was questioned by the police is admissible evidence, there
is nothing in this record to raise a reasonable doubt as to
Moya's guilt. He was apprehended in possession of roughly 500
grams of cocaine. The uncontested evidence was that this
amount of cocaine is more than any person would carry for his
individual use. Such a showing suffices to support an
inference that the defendant intended to distribute the
cocaine in his possession. U.S. v. Muckenthaler, 584 F.2d 240,
247 (8th Cir. 1978). On the basis of all of the evidence before
it, this court concludes that such an inference is appropriate
in this case.
Accordingly, this court finds the defendant guilty beyond a
reasonable doubt of having violated the provisions of
21 U.S.C. § 841(a)(1) as charged in the indictment.