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May 7, 1981


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


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 belief.*fn1

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 flight,*fn3 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 taken place.

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 ...

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