Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 80 CR 295 -- Nicholas J. Bua, Judge.
Before Swygert, Senior Circuit Judge, Pell, Circuit Judge, and Grant, Senior District Judge.*fn*
The defendant-appellant Ronald Black was charged with possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1). The defendant moved to suppress the introduction of the cocaine as evidence against him on the ground that it had been obtained from him through an unlawful search and seizure by Chicago Police Department Officers. The district court denied the motion, and the defendant was convicted following a trial on stipulated testimony. The defendant appeals on the ground that the trial court erred in not granting his motion to suppress. The defendant contends first, that he was seized within the meaning of the Fourth Amendment; second, that the seizure was unreasonable; and third, that he withdrew his consent to a search of his luggage before cocaine was discovered by the arresting officers.
The testimony of the defendant and the two police officers at the hearing on the motion to suppress established how the police had obtained the evidence. Although the thorough opinion of the district court, set out at 510 F. Supp. 989 (N.D.Ill.1981), lays out the facts in detail, we repeat them here at some length because the resolution of cases of this type is heavily dependent on their particular facts. On May 14, 1980, Chicago Police Officers Burzinski and Kinsella were engaged in surveillance of flights arriving at Chicago's O'Hare Airport from the Miami-Fort Lauderdale area. The officers had been assigned to assist the Drug Enforcement Agency (DEA) in conducting narcotics investigations at the airport. Because the DEA has determined that the southern Florida area is the main source of cocaine distribution in the United States, police officers were trying to monitor as many flights as possible arriving from that area.
Burzinski, a Chicago Police Officer for eight years, had been assigned to narcotics investigations for eighteen months at the time of the trial, and had been on the O'Hare detail for two months at the time of the defendant's arrest. Prior to Black's arrest, she had participated in approximately fifty stops and ten seizures of narcotics at the airport. Kinsella, a Chicago Police Officer for seventeen years, had been engaged in narcotics investigations for nine years at the time of the trial, and had been assigned to O'Hare for one year full-time, and two years part-time, prior to the defendant's arrest. Kinsella has participated in over a thousand seizures of narcotics, including approximately fifty seizures of narcotics at O'Hare, and seventy-five investigatory stops there of suspected drug couriers.
At around noon on May 14, the officers were monitoring United Airlines Flight 965 from Fort Lauderdale. The first passenger to disembark was the defendant. The officers observed his leaving the jetway alone, walking rapidly or jogging to the waiting area of the gate. The defendant, who was carrying a black Continental Airlines travel bag, appeared to both officers to be disoriented. As he reached the concourse, he stopped to look around, and after several minutes proceeded down the concourse in the direction of the terminal. Kinsella determined, based on the defendant's apparent nervousness, disorientation, and rapid exit from the plane, that it would be appropriate to follow the defendant.
Black walked slowly down the concourse. He appeared to be unsure of his footing, and stumbled at least once. The officers followed Black to the intersection of the F and E concourses where Black viewed a United information television monitor screen for thirty seconds or so. Black then surveyed the area, looking continually around and behind him for several minutes, in a manner that suggested to Burzinski that he was not looking for anyone or anything in particular, but rather was surveying the people in the area. Black then proceeded, with the officers still following, to Gate F-3. It was then about 12:15 p.m. The next scheduled flight was a 1:15 p.m. non-stop flight to Honolulu. The check-in counter was open, and passengers were checking in for the Honolulu flight. The defendant entered the waiting area without checking in, and sat down. The officers noted that Black continued to scan the waiting area and concourse while seated.
After remaining seated for some five minutes, the defendant picked up his bag and walked into the concourse. As he reentered the concourse, the two officers, who had been standing in the concourse just outside the waiting area, approached him. Neither officer was in uniform. They identified themselves as Chicago Police Officers by showing their badges and I.D. cards, and Kinsella asked Black in "an average everyday" tone of voice if he could talk to him for a moment. The defendant responded, "Sure."
Kinsella then asked Black if he had identification and an airline ticket. Black, who now appeared very nervous and visibly shaken, presented a Hawaii driver's license and a first-class one-way ticket to Honolulu. The ticket was in the name of R. Plack, and had been purchased for cash at a travel agency in Hollywood, Florida. Kinsella asked Black why he was traveling under a fictitious name. Black offered no explanation, but merely shrugged his shoulders in response. Kinsella then asked what Black had been doing in Florida. Black responded that he had gone to Florida three months earlier to go surfing, had run out of money, and had worked picking coconuts to earn money for his return ticket to Hawaii.
At about this point, Kinsella suggested the group step to the side of the concourse to avoid blocking traffic, and the three of them moved a few feet away from the area of the initial encounter. Kinsella then asked Black what was in the travel bag. Black said it contained books, clothes, and toilet articles. Kinsella asked if Black would consent to a search of the bag. Black said yes. Kinsella informed Black that he need not consent to the search of the bag. Without responding further, Black immediately knelt down, unzipped the bag, took out a book and handed it to Kinsella. At about this time Kinsella handed Black's license and ticket to Burzinski. Kinsella inspected the book, placed it on the floor next to the bag, and took out a shaving kit. He opened the kit, inspected its contents, and placed it on the floor next to the bag.
Kinsella then reached again into the bag, and grasped a shirt. As he did so, he could feel a harder object through the shirt. As he began to withdraw the shirt, Burzinski, who was standing across from Kinsella as he knelt beside the bag, could see a clear plastic bag containing a white powder inside a torn paper bag, wrapped in the shirt. As Kinsella's hand, holding the shirt, reached the top of the travel bag, Black grabbed Kinsella's wrist, and while pulling Kinsella's hand out of the bag, told Kinsella not to search any further. As Black pulled Kinsella's hand free of the travel bag, the plastic bag fell out of the shirt to the bottom of the travel bag. Kinsella saw the plastic bag containing white powder in plain view at the bottom of the travel bag. At that point, Kinsella placed Black under arrest.
At no time during the entire incident, which lasted no more than a few minutes, did the officers display their weapons or raise their voices. The entire incident took place in a well-lit and spacious public concourse with other travelers present.
Based on the above evidence, the trial court denied the motion to suppress. The court first determined that the officers' initial request to speak to Black did not constitute a seizure under the standard of United States v. Mendenhall, 446 U.S. 544, 552-54, 100 S. Ct. 1870, 1876-77, 64 L. Ed. 2d 497 (1980), and Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1879, 20 L. Ed. 2d 889 (1968). The court noted that the officers merely identified themselves in a conversational tone as Black walked past, and asked if they could speak with him. The court concluded, in light of all the circumstances surrounding the initial contact, that no reasonable person would have believed that he was not free to disregard the request, and walk away. The court further ruled that even if Burzinski's failure to return the defendant's ticket and license turned the incident into an investigatory stop, the stop was justified by reasonable suspicion based on the facts gleaned in the officers' initial interview with Black.
Finally, the court concluded that Black consented to the search of his bag; that by the time Black sought to revoke that consent Burzinski had already seen the cocaine; and that Black's attempt to remove Kinsella's hand from the bag caused the cocaine to come into Kinsella's view as well.
The primary issue raised on appeal is whether the defendant was unlawfully seized before the search of his travel bag. Analysis of this issue further breaks down into two questions: was the defendant seized, and if so at what point; and, if the defendant was seized, was there objective justification sufficient to create reasonable suspicion that the defendant was engaging in criminal activity.
A. Did a Seizure Occur, and, If So, When?
The issue of when a seizure has occurred is a somewhat unsettled one. As a preliminary matter, we note that the case law has developed three tiers or categories of police-citizen encounters. The first, an arrest, is characterized by highly intrusive or lengthy search or detention; the Fourth Amendment requires that such an arrest be justified by probable cause to believe that a person has committed or is committing a crime. See, e.g., Dunaway v. New York, 442 U.S. 200, 99 S. Ct. 2248, 60 L. Ed. 2d 824 (1979); Beck v. Ohio, 379 U.S. 89, 85 S. Ct. 223, 13 L. Ed. 2d 142 (1964). The second category, the investigatory stop, is limited to brief, non-intrusive detention during a frisk for weapons or preliminary questioning; this type of encounter is also considered a "seizure" sufficient to invoke Fourth Amendment safeguards, but because of its less intrusive character requires only that the stopping officer have specific and articulable facts sufficient to give rise to reasonable suspicion that a person has committed or is committing a crime. United States v. Brignoni-Ponce, 422 U.S. 873, 881-82, 95 S. Ct. 2574, 2580, 45 L. Ed. 2d 607 (1975); Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). The third category of police-citizen encounter is that in which no restraint of the liberty of the citizen is implicated, but the voluntary cooperation of the citizen is elicited through non-coercive questioning; this type of contact does not rise to the level of a seizure. United States v. Mendenhall, 446 U.S. 544, 553-55, 100 S. Ct. 1870, 1876-78, 64 L. Ed. 2d 497 (1980) (Stewart, J.) (with Rehnquist, J., concurring); Terry, 392 U.S. at 19, n.16, 88 S. Ct. at 1879, n.16.
The proper test for determining whether a given police-citizen contact rises to the level of a Fourth Amendment seizure was the focus of inquiry in the recent case of United States v. Mendenhall, supra. In Mendenhall, two federal DEA agents observed the defendant arrive at the Detroit Airport from Los Angeles, and determined that her conduct was characteristic of drug couriers. After following Mendenhall briefly, the agents identified themselves and asked to see her identification and ticket. On observing that the names on the two items were not the same, the agents questioned Mendenhall on the discrepancy and on her stay in California. The agents returned her ticket and license, and asked her to accompany them to the DEA's airport office. The defendant did so, and consented to a search of her person in the office. Heroin was found, and Mendenhall was arrested.
A majority of the Court concluded that no constitutional violation had occurred. The Court could not, however, reach consensus on the rationale. Justice Stewart, in an opinion joined only by Justice Rehnquist, concluded
that a person has been "seized" within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would ...