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June 2, 1983


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


The defendant, Maxwell Freymuller, is charged with unlawful possession of cocaine*fn1 found in a search of his luggage at O'Hare Airport in Chicago on November 3, 1982. He has moved to suppress the evidence found in his luggage as well as certain evidence obtained from him when he was interviewed by police officers prior to the search of his luggage. The defendant testified in support of his motion, and two Chicago police officers, Richard Boyle and Rosemary Burzinski, testified in opposition.

Officers Boyle and Burzinski testified that at 2:00 p.m. on November 3, they were watching the passengers who arrived on Flight 650 from Tampa, Florida, a known "source city" for narcotics.*fn2 These officers were in plainclothes and their guns were not visible. Officer Boyle noticed defendant as he left the jetway leading from the plane and saw that defendant "looked cautiously around at the people in the concourse area." Officer Burzinski did not observe this. The defendant testified that he had no recollection of looking around and that as far as he knows he displayed no signs of nervousness. Defendant was carrying a briefcase. He started down the concourse toward the baggage area in the main terminal, and the two officers fell in step behind him. Boyle stated that the defendant did not appear nervous as he walked down the corridor.

After defendant had proceeded a short way, the two officers overtook him. Boyle said, "Excuse me, I'm a police officer. Would you mind speaking to me for a few minutes?" Both officers displayed their badges. The defendant replied "Okay." Boyle motioned the defendant over toward the corridor wall, where there were some newspaper vending machines. He testified that his purpose was to have a convenient place for a search of defendant's briefcase. From previous experience (both Boyle and Burzinski are veteran members of the O'Hare Narcotics Task Force), he had learned that the top of the machine makes a convenient table on which to place items being searched.

Defendant testified that at this point Boyle said the officers had information that someone meeting defendant's description was transporting a large amount of narcotics from Tampa, and asked defendant for his identification. The officers agree that they asked defendant for his identification, but deny that anything was said about defendant meeting the description of someone carrying narcotics. The officers testified that they had no such information. Officer Boyle testified on cross examination that the police occasionally do receive tips of this kind and in those situations they will sometimes confront the suspect with the information.

The officers' version is that defendant produced the airline ticket before the search of the briefcase. Their testimony is that immediately after he produced his driver's license the defendant first denied that he had a ticket, then admitted that he did have one and produced it. Then the search of the briefcase occurred. Again, the officers deny that they said anything about a person carrying narcotics.

Defendant testified that even though he was told that he was not under arrest, he did not feel free to go. He stated that throughout the encounter the officers were positioned so that they blocked his way. The officers denied that they were blocking the way and testified that defendant was left a clear path down the concourse.

Officer Boyle testified that when he produced his airline ticket the defendant was breathing rapidly and his voice was trembling. Officer Burzinski testified that defendant was sniffing and shaking. Defendant denies that he was trembling or sniffing.

After the ticket was produced, the officers asked defendant whether he had any other luggage besides his briefcase. Defendant answered that he did not. The officers noted, however, that there was a baggage stub stapled to defendant's ticket. Officer Burzinski wrote down the baggage stub number before handing the ticket back to the defendant.

The interview ended at that point and defendant continued down the concourse. He testified that the encounter lasted seven to ten minutes. Officer Boyle testified that it lasted three to five minutes.

What happened thereafter is not in dispute. Defendant engaged in a number of highly suspicious maneuvers in an obvious effort to throw the officers off his trail before claiming his checked luggage. The officers, using the number on the baggage stub, found defendant's suitcase in the baggage area and presented it, along with a number of other suitcases, to the now familiar U.S. Customs Service sniffing dog. The officers state that the dog "alerted positively" for the presence of narcotics in the bag. On the basis of all this information, the bag was held until a search warrant could be obtained. A search of the bag pursuant to the warrant revealed approximately 9 ounces of a mixture containing cocaine.


Defendant agrees that the suspicious circumstances made known to the officers during the initial interview — the discrepancy between the name on the driver's license and the name on the ticket, defendant's initial denial that he even had a ticket and his denial that he had baggage when a baggage ticket was stapled to his ticket — together with defendant's evasive behavior following the interview, amply justified the detention of defendant's luggage for the purpose of having a dog sniff it, since the officers had a reasonable suspicion that the luggage contained contraband. United States v. Klein, 626 F.2d 22 (7th Cir. 1980). When the dog "alerted" to the bag, there was probable cause for issuance of a warrant. Id. at 27. If the information derived from the interview was unlawfully obtained, then it cannot be used to support what ...

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