From this court's sense impressions of this witness, and observing her
demeanor and manner while answering questions put to her, it finds that
Burzinski had read the court of appeals opinions before she became a
witness in this case; and, in addition, she and Fulkerson had discussed
the parameters of Black with assistant United States attorneys in
preparing for their testimony. Both Burzinski and Fulkerson have testified
that when Cantero was asked for his identification, and he produced his
Illinois driver s license and airplane ticket, they examined the two
documents and returned the driver's license to him but kept the airline
ticket. Cantero has denied that either document was returned to him. He
states under oath that Fulkerson kept the documents and had them in his
possession up until the time of the arrest at the international terminal.
At two points, Cantero is corroborated by the government's evidence.
First, both Fulkerson and Burzinski say that after seeing the two cookie
tins, and asking Cantero for permission to examine their contents, he was
told by them that he was not under arrest; and that when Fulkerson took
possession of the suitcase to carry it to the international terminal,
where they could use Rebel's trained nose, Cantero was told he was free
to leave the airport, or if he chose, go with them with the suitcase.
Second, when, after his arrest, Cantero was delivered to the Chicago
Metropolitan Correctional Center for processing, it was either
Fulkerson, Burzinski, or another DEA agent who had Cantero's driver's
license and produced it for the inventory clerk.
This court finds it unbelievable, and untrue, that two experienced drug
enforcement agents would stop a total stranger, take from him a suitcase
which they believed contained narcotic drugs, and then tell the suspected
suitcase owner that he was free to leave their presence without their
having ready at hand means by which they could locate him later and
arrest him if their suspicions were substantiated.*fn2 It is evident,
therefore, that at the time Burzinski and Fulkerson told Cantero he was
free to leave the airport, they did so because they had in their
possession his Illinois driver's license and his airline ticket which they
could use to trace him in the event the time came for them to arrest
him. For these reasons, the court finds that when Cantero handed to
Fulkerson his driver's license and plane ticket, Fulkerson kept the
documents in his possession. And when, moments later, Cantero's suitcase
was opened, it was Fulkerson, not Cantero, who opened it. At the time
that Fulkerson decided to retain possession of Cantero's travel
documents, and when he opened the suitcase, neither he nor Burzinski had
knowledge of any specific and articulable fact which could support a
reasonable belief that Cantero had committed a crime.
From the facts shown by the evidence, this court concludes that the
initial contact which Fulkerson and Burzinski had with Cantero, up to and
including the point where Fulkerson retained possession of Cantero's
driver's license and airplane ticket, was lawful, and was not a seizure
triggering the protections of the Fourth Amendment. United States v.
Black, 675 F.2d 129, 135 (7th Cir. 1982). It has long been the law in
Illinois, consistent with the Bill of Rights in the federal
constitution, that a peace officer can always, without violence or
coercion, approach a citizen, disclose his official purpose, and inquire
of the citizen his name, his reason for being where he is, and what he is
about. People v. Howlett, 1 Ill. App.3d 906, 274 N.E.2d 885 (1971); see
People v. Henneman, 367 III. 151, 10 N.E.2d 649 (1937).
However, when in this case Fulkerson took Cantero's airplane ticket and
driver's license and kept them from him, Cantero
was seized within the meaning of the Fourth Amendment. See Brown v.
Texas, 443 U.S. 47, 50, 99 S.Ct. 2637, 2640, 61 L.Ed.2d 357 (1979); cf.
United States v. Palmer, 603 F.2d 1286, 1288 (8th Cir. 1979). A person is
seized in a constitutional sense when, in view of all the circumstances
surrounding the incident, a reasonable person would believe that he is
not free to leave. United States v. Mendenhall, 446 U.S. 544, 554, 100
S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980). United States v. Jefferson,
650 F.2d 854, 857 (6th Cir. 1981); United States v. Viegas, 639 F.2d 42,
44 (1st Cir.) cert. denied, 451 U.S. 970, 101 S.Ct. 2046, 68 L.Ed.2d 348
(1981). This was Cantero's situation.
He had an automobile parked in the international terminal parking lot;
under Illinois law, he could not drive it from the airport without
possession of his license. The seizure of these documents from him was
unlawful because at the time it was effected neither Fulkerson nor
Burzinski had knowledge of any specific and articulable fact sufficient
to give rise to reasonable suspicion that Cantero had committed or was
committing a crime. United States v, Brignoni-Ponce, 422 U.S. 878,
881-82, 95 S.Ct. 2574, 2580, 45 L.Ed.2d 607 (1975); cf., United States
v. Black, 510 F. Supp. 989, 993 (N.D.Ill. 1981), aff'd, 675 F.2d 129 (7th
The opening of Cantero's suitcase by Fulkerson was a government search
requiring application of the Fourth Amendment. United States v. Newton,
510 F.2d 1149, 1158 (7th Cir. 1975). Except as incident to a lawful
arrest or on invitation or consent, a search without a warrant, of
portable personal effects in the immediate possession of their owner is
illegal. Faubion v. United States, 424 F.2d 437, 440 (10th Cir. 1970).
There was no warrant in this case; the search was not incident to a
lawful arrest; and Cantero did not give consent or invite it. He was
subjected to an unreasonable search when his suitcase was opened by
Fulkerson. United States v. Rodriguez, 525 F.2d 1313 (10th Cir. 1973);
see United States v. Lonabaugh, 494 F.2d 1257 (5th Cir. 1973); cf. United
States v. Garay, 477 F.2d 1306 (5th Cir. 1973). Therefore, his motion to
suppress is granted, and the evidence consisting of his airline ticket,
Illinois driver's license, the red Samsonite suitcase, the two large
black and blue "Prince of Denmark" cookie cans, and their contents, the
986 grams of a mixture containing cocaine, will be refused admission in
evidence in any trial of the charges in this case. An appropriate order
will be entered.