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U.S. v. CANTERO

November 18, 1982

U.S., PLAINTIFF,
v.
JOSE LUIS CANTERO, DEFENDANT.



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

Memorandum

This is a motion to suppress evidence seized from a suitcase which defendant was carrying near a baggage retrieval area at O'Hare International Airport in Chicago. The issue presented is whether he was subjected to an unreasonable search when his suitcase was opened after he was stopped at the airport by government narcotic agents. Evidence consisting of defendant's testimony and that of three government witnesses has been heard, the testimonial conflicts have been resolved, and the court finds that the following are the material facts.

I

Chicago police officer Rosemary Bursinski, at the time in question, was assigned to the narcotics detail at O'Hare International Airport. One of her duties was to monitor incoming flights in the attempt to identify drug couriers. As a part of her assignment, she ordinarily stood in an airport concourse and observed people deplane from flights that originated in cities which have come to be known as source cities for drugs brought into and distributed within the United States. If a deplaning passenger becomes suspect, Officer Burzinski will maintain additional surveillance and sometimes stop and question that person about illicit drugs. Whenever an encounter uncovers any drugs, then an arrest and seizure will occur. Officer Burzinski has worked at O'Hare for two and one-half years, has participated in about 200 encounters, and has been involved in about 50-75 seizures. One of her co-workers was Robert Fulkerson who was also assigned to O'Hare Airport as a special agent with the United States Department of Justice as part of a Task Force to detect drug couriers. In the last two and one-half years assigned to the airport, he has participated in four to five encounters per week, and in approximately 100 arrests.

Just before he reached it, Fulkerson tapped Cantero on the shoulder and showed him a DEA identification badge, and asked Cantero if he could speak to him. Cantero answered, "Sure." Burzinski was a short distance away; a third agent, Officer Lowry had joined the group but was not participating in the transaction. Fulkerson, in a conversational tone of voice, asked Cantero to identify himself; he produced a valid Illinois driver's license and an airline ticket which showed an original booking for an earlier flight. After examining the documents, Fulkerson asked Cantero if he had drugs in the suitcase. Cantero said, "No." Then Burzinski and Fulkerson told Cantero that they wanted to see if there were narcotic drugs in the red Samsonite. They asked Cantero for permission to open the suitcase; Cantero refused, saying he found it embarrassing to be subjected to such treatment in the presence of the many people in the area, some coming in and out of the automatic doors. Fulkerson then suggested that they move to one side, to the right of those exiting the area; and when they did, he took the suitcase from Cantero and opened it.

Among the items which could been seen immediately were two large blue and white "Prince of Denmark" cookie cans, approximately eight inches in diameter, sealed tight with tape around the edges. They were ordinary looking; and with the exception of the tape, nothing about them suggested they contained anything but cookies. Upon seeing the two cans, Fulkerson and Burzinski asked Cantero if he would consent to an inspection of their contents. Cantero refused, saying that they contained "voodoo items". Fulkerson, then, with Burzinski joining in the conversation, told Cantero that it was necessary for them to take the suitcase to the international terminal where they had "Rebel", a trained drugsniffing canine that would be used to determine whether the two cans contained narcotics,

Fulkerson took possession of the Samsonite; and when Cantero objected, he was told he could go with the agents to the other terminal; but that he was free to leave the airport, without his suitcase. Cantero decided to stay with the agents. The four of them then, Fulkerson leading, Lowry next, and Burzinski with Cantero along, began the walk to the international terminal, a distance away. On arrival there, Burzinski took the suitcase; and, in a separate room, exposed the cookie cans to Rebel's trained nose. She reported to her co-workers that from Rebel's reactions, the two cookie cans contained drugs. Cantero, who in the meantime had been kept under the careful surveillance of Fulkerson and Lowry, was arrested.*fn1 A short time later, a search warrant was obtained, the cans were searched, and in them were found 986 grams of a mixture containing cocaine. It is this evidence which defendant asks this court to suppress on the ground that his suitcase was opened at O'Hare Airport by Agent Fulkerson without a warrant, without lawful cause, and without consent. The government asks this court to deny defendant's motion to suppress on the ground that he consented to the opening of his suitcase, in fact opened it himself.

II

The evidence in support of the government's contention that Cantero opened his own suitcase is the testimony of Burzinski and Fulkerson. This is not a case in which it is claimed that Cantero's physical or behavioral characteristics fit a drug courier profile; nor is it one in which the government claims that at the time its agents took possession of Cantero's driver's license and airline ticket they had knowledge of specific articulable facts which gave rise to a reasonable belief that he had committed or was committing a crime. This case is one in which the government claims that Cantero, on being asked by two agents, voluntarily consented, opened his suitcase, and put in open view the two cookie cans that were later shown to contain a substantial quantity of cocaine.

Consent may constitute a waiver of Fourth Amendment rights. United States v. Fike, 449 F.2d 191, 192, (5th Cir. 1971). It can be given in the form of words, gesture, or conduct, United States v. Griffin, 530 F.2d 739, 742 (7th Cir. 1976); and a search conducted pursuant to consent is an exception to both the requirement of a warrant and probable cause, United States v. Bolin, 514 F.2d 554, 559 (7th Cir. 1975). However, consent to a search is not lightly inferred and depends on the facts of each case, United States v. Cogwell, 486 F.2d 823, 837 (7th Cir.) cert. denied, 416 U.S. 959, 94 S.Ct. 1975, 40 L.Ed.2d 310 (1974), the question whether a consent was voluntary being itself one of fact to be determined from the totality of all the circumstances. United States v. Mendenhall, 446 U.S. 544, 558-59, 100 S.Ct. 1870, 1879, 64 L.Ed.2d 497 (1980); Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973).

It is well established that when relying on consent as justification for a warrantless search, the prosecution has the burden of establishing that consent was, in fact, freely and voluntarily given. United States v. Glasby, 576 F.2d 734, 737 (7th Cir.) cert. denied, 439 U.S. 854, 99 S.Ct. 164, 58 L.Ed.2d 159 (1978). The credibility of those who testify concerning this fact is always important and crucial; so for this reason, a court should consider the whole nexus of its sense impressions of the witnesses. Dyer v. MacDougall, 201 F.2d 265, 268-269 (2d Cir. 1952); see Hall v. United States, 465 F. Supp. 571, 574 (N.D.Ill. 1979). And the demeanor of such witnesses is a highly useful, even if not an infallible method of ascertaining the truth and accuracy of their narratives. Arnstein v. Portor, 154 F.2d 464, 470 (2d Cir. 1946); see Sartor v. Arkansas Nat. Gas Corp., 321 U.S. 620, 628, 64 S.Ct. 724, 729, 88 L.Ed. 967 (1944).

This court has applied these tests of credibility to the testimony of Cantero, Burzinski, and Fulkerson. It has noticed, in the process, that Burzinski was one of the arresting officers and a witness in United States v. Black, a case that produced an opinion by Judge Nicholas J. Bua of this court, 510 F. Supp. 989; one for the majority of a court of appeals panel by Judge Fell, 675 F.2d 129; and a dissenting opinion by Judge Swygert, 675 F.2d 138. In its response to defendant's motion to suppress, the government submitted a legal discussion in which it argued that "[t]his case is controlled by the Seventh Circuit's recent opinion in United States v. Black, 675 F.2d 129 (7th Cir. 1982). The facts in Black are virtually identical to the facts in the present case." This is no doubt true; there is a surprising similarity in some details of the facts testified to in this case by Burzinski and Fulkerson and the ones which she and her fellow agent described in United States v. Black.

Black, like Cantero in this case, was observed by Burzinski as he disembarked from a United Airline flight that originated in a Florida city considered by the DEA to be a main source of cocaine distribution in the United States. Black, like Cantero, according to Burzinski and her fellow officer Kinsella, was the first passenger to deplane. He engaged in conduct which Kinsella in his testimony said was not unusual. Burzinski and Kinsella watched Black as he entered Gate F-3 and sat down without checking in. About five minutes later, Black picked up his travel bag and walked to the concourse. As he did, Burzinski and Kinsella identified themselves to him. They showed him their identification and Kinsella then asked him, in a normal tone of voice, if they could speak to him. According to ...


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