Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 80 CR 341 -- Bernard M. Decker, District Judge.
Before CUDAHY and COFFEY, Circuit Judges, and SWYGERT, Senior Circuit Judge.
COFFEY, Circuit Judge. Cesar Moya appeals his conviction in the United States District Court for the Northern District of Illinois, Eastern Division, for possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). Moya contends that the trial court erred in denying his motion to suppress the cocaine the law enforcement officers discovered during a search of his travel bag. His claim is based upon an airport encounter and subsequent detention of his shoulder bag. Moya contends the seizure was unreasonable and violated his Fourth Amendment rights. We hold that Moya's contentions are without merit and affirm the conviction.
On March 20, 1980, Drug Enforcement Administration ("DEA") Agent Kenneth Labik and Chicago Police Officer Thomas Kinsella were stationed at O'Hare International Airport monitoring the arrival of airline passengers on flights from certain "source cities" in an effort to control the flow of illegal drugs. Because the DEA had informed Labik and Kinsella that Miami, Florida was a source city for much of the illegal drug traffic into Chicago, the law enforcement officers observed the passengers deplaning from Delta Airlines Flight 142 upon its arrival from Miami at 7:35 p.m. The officers observed Cesar Moya, carrying a shoulder bag, exit the arrival gate and walk several feet in a direction away from the main terminal, whereupon Moya stopped and positioned himself against the wall momentarily, looking in all directions. Moya then walked down the concourse toward the main terminal, frequently looking backwards over his shoulder. During this time, Agent Labik and Officer Kinsella kept Moya under observation while they followed him. Upon reaching the junction of two concourses, Moya stood off to one side and, again, looked in all directions.Moya then walked into an adjoining hallway and entered a public restroom, followed by Officer Kinsella. Moya checked all of the enclosed stalls and, discovering that they were all occupied, exited the restroom and proceeded to the main terminal building, where he entered another public restroom, this time followed by Agent Labik. When he found an open stall, he entered it, closed the door, stood there for several minutes and left without using the facilities. Upon exiting the restroom, Agent Labik next observed Moya standing between the main doors of the terminal building and the escalator opposite the Delta Airlines ticket counter. As soon as the two made eye contact, Moya boarded a down-escalator followed by Labik and Kinsella. Upon reaching the arrival area of the terminal, Moya did not go to the baggage area, but exited the terminal and entered a cab line carrying the shoulder bag, his sole piece of luggage.
As he was standing in the cab line, Moya was approached by Labik and Kinsella, who promptly identified themselves as law enforcement officers and asked Moya if they could speak with him. Moya agreed and the officers proceeded to ask Moya for some identification. Moya denied having any identification, but agreed to move back inside the terminal building in order to avoid the night chill and the pedestrian traffic while talking to the officers. The officers and Moya entered the main terminal building and situated themselves in a public area between the primary and secondary sets of exit doors where the questioning resumed.
Moya again was asked his name and replied "Cesar Moya" and was next asked to display his airline ticket. He produced a one-way ticket on Delta Flight 142 in the name of Cesar Moya. After examining the ticket, Labik asked Moya for further identification to which Moya responded by asking what the questioning was "all about." Agent Labik ignored Moya's inquiry and, again, asked for other identification. Moya responded by reaching into a side pocket of his shoulder bag and producing a driver's license in his name (Moya) with his picture thereon. In reaching into the pocket, Moya gave Labik a view of a corner of a clear plastic bag. After making this observation, Agent Labik asked the defendant to remove the plastic bag. Moya replied that he had no plastic bag and Labik told him that if he (Moya) did not remove the plastic bag, he (Labik) would. Moya removed the bag which contained several other clear bags, some small bottles and some small spoons. Moya explained that he used the contents of the bag to carry jewelry. Agent Labik, however, recognized the contents of the bag as drug paraphernalia.
Agent Labik and Officer Kinsella then asked Moya's permission to search the travel bag and advised him that he had a right to refuse. Moya refused and freely departed the terminal alone while the officers detained the bag in order to attempt to obtain a search warrant. The officers then contacted the U.S. Customs office and requested the services of a dog trained to detect the existence of narcotics by "sniff testing." Approximately three hours later, the trained canine picked out Moya's shoulder bag from among a line up of six similar bags.On the basis of this showing, a search warrant was obtained from a Cook County, Illinois Circuit Court judge. The defendant does not dispute the validity of the warrant. The search of the bag revealed that Moya had 501.77 grams of 35% cocaine in his possession. According to uncontested testimony adduced at the suppression hearing, this is more cocaine than one person would normally have for his personal use and has a street value of between $40,000 and $50,000.
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 Moya admits, the ultimate search of the bag was proper and the evidence obtained was admissible. If, however, the seizure was improper, he contends the evidence obtained from searching the bag was "fruit of the poisonous tree" and, as such, should have been suppressed. Wong Sun v. United States, 371 U.S. 471, 488, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963). Consequently, as noted by the district court, the propriety of the seizure turns on two questions:
(A) Did the questioning of Moya by Agent Labik and Officer Kinsella in a public area of O'Hare International Airport amount to a "seizure" in violation of his Fourth Amendment rights?
(B) If the circumstances of the questioning did not give rise 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 his travel bag?
In determining whether a police-citizen encounter violated a defendant's Fourth Amendment rights, the court must first determine whether the encounter was a "seizure" within the meaning of the Fourth Amendment. See United States v. Mendenhall, 446 U.S. 544, 553, 64 L. Ed. 2d 497, 100 S. Ct. 1870 (1980) (Stewart, J.) (with Rehnquist, J., concurring). Although the Supreme Court has recognized that the Fourth Amendment proscription against unreasonable searches and seizures "applies to all seizures of the person, including seizures that involve only a brief detention short of traditional arrest," United States v. Brignoni-Ponce, 422 U.S. 873, 878, 45 L. Ed. 2d 607, 95 S. Ct. 2574 (1975), the Court also has recognized that "not all personal intercourse between policemen and citizens involves "seizures' of persons." Terry v. Ohio, 392 U.S. 1, 19, 20 L. Ed. 2d 889, 88 S. Ct. 1868 n.16 (1968).
This circuit has adopted Justice Stewart's "reasonable person" test for determining whether seizures have occurred in airport surveillance cases such as the one before us. See United States v. Black, 675 F.2d 129, 134 (7th Cir. 1982), cert. denied, 460 U.S. 1068, 103 S. Ct. 1520, 75 L. Ed. 2d 945 (1983). In Mendenhall, Justice Stewart, joined by Justice Rehnquist, concluded:
"[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 have believed that he was not free to leave."
Mendenhall, 446 U.S. at 554. Numerous other circuits have also adopted Justice Stewart's test. See Black, 675 F.2d at 134 and cases cited therein. As ...