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United States v. $84 000 U.S. Currency

September 12, 1983

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
$84,000 U.S. CURRENCY, DEFENDANT, V. DONALD HOLMES AND MAX REYES, CLAIMANTS-APPELLANTS.



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 81 C 1500 -- Charles P. Kocoras, District Judge.

Author: Coffey

Before CUDAHY and COFFEY, Circuit Judges, and SWYGERT, Senior Circuit Judge.

COFFEY, Circuit Judge. The government, as plaintiff, filed this civil action for the forfeiture of $84,000 in U.S. currency seized from the claimants pursuant to 21 U.S.C. § 881(a)(6). Donald Holmes and Max Reyes, as claimants, answered the government's forfeiture claim contesting the legality of the seizure of the currency and the applicability of the forfeiture statute. The district court held that 21 U.S.C. § 881(a)(6) was applicable and that the currency had not been illegally seized. We affirm.

On the evening of September 10, 1981, Drug Enforcement Administration ("DEA") Agent Michael Streicher and Chicago Police Officer Rosemary Burzinski were assigned to Chicago's O'Hare International Airport to monitor the arrival of passengers on flights from certain "source cities" in an effort to control the flow of illegal drugs.*fn1 The law enforcement officers were awaiting the arrival of United Airlines Flight 149 from Fort Lauderdale, Florida, a DEA designated source city, to observe the passengers as they left the aircraft. At approximately 8:45 p.m., Flight 149 parked at United Airlines Gate F-7, and the passengers deplaned and walked into the concourse. Two members of the first group to emerge from the gate were the claimants, Donald Holmes and Max Reyes.

Holmes and Reyes milled aroaund the gate are after deplaning, glancing about as if looking for someone or something. The officers' attention was attracted to the two young men because of their anxious manner, suspicious conduct, casual dress and the fact that Holmes was fair-skinned and displayed no tan; all factors fitting the DEA "drug courier profile"*fn2 utilized by officers to alert them to possible drug traffickers.

Following their survey of the gate area, Holmes and Reyes entered the concourse and proceeded to a television monitor screen displaying the arrival and departure times of United Airlines flights. After viewing the screen for what seemed to Officer Burzinski to be an inordinately long period of time, Holmes and Reyes continued down the concourse corridor followed by Agent Streicher and Officer Burzinski. The appellants walked slowly down the corridor toward the junction of Concourses E and F, glancing back over their shoulders several times as if trying to determine whether they were being followed. Holmes and Reyes entered a cocktail lounge located at the juncture and purchased two drinks. Agent Streicher and Officer Burzinski then observed the claimants leave the lounge and take their drinks to the check-in area at Gate E-2. The officers at this time positioned themselves opposite the gate to continue their observation.

Holmes and Reyes stood in line at Gate E-2 and checked in for a 9:35 p.m. flight to Omaha, Nebraska. After reserving their seats, the claimants walked away from the gate and were approached by agent Streicher and Officer Burzinski. The law enforcement officers promptly identified themselves and asked Holmes and Reyes for identification. The claimants produced first-class tickets and driver's licenses issued in their appropriate names. The officers noticed, however, that Reyes' ticket portfolio contained no baggage claim stub and they questioned him about the discrepancy. Reyes' ticket was returned to him and he proceeded to the check-in counter to inquire about the issuance of baggage claim check. During this conversation between the officers and the claimants, Reyes' voice quivered, and both he and Holmes appeared to the officers to be nervous throughout the encounter.

Prior to Reyes' return to the check-in counter, the claimants were asked by Agent Streicher and Officer Burzinski during the initial encounter if they would voluntarily consent to a search of their luggage. After being advised of their right to refuse, the claimants agreed to let the officers search their baggage.Oficer Burzinski then copied down Holmes' claim ticket number and a description of Reyes' luggage and left the corridor to contact United Airlines personnel about locating the claimants' luggage. After originally giving his consent and while Burzinski was arranging for the search of the luggage, Reyes voiced some hesitation about consenting to a search of his luggage. To allay Reyes' Fears, Agent Streicher informed the claimants "that [the officers] were not interested in small quantities of marijuana or pills or coke, and that if . . . all they had in their luggage was a small quanity, that [the officer] would just check that, and if there was some [the officers] would take it and discard it and they could be on their way." In response to Agent Streicher's comments, the claimants stated that their bags contained small quantities of marijuana and cocaine and that they would allow the officers to open the luggage.

Officer Burzinski returned to the group after arranging with United Airlines personnel for the segregation of Holmes' and Reyes' luggage. Shortly thereafter, the officers were informed that the luggage had been placed in a basement area below Gate E-2. Officer Burzinski, Agent Streicher, Holmes and Reyes descended a flight of stairs and entered a small, dark non-public area. The claimants identified the luggage located in the secluded area as theirs but prior to searching the baggage Agent Streicher noticed bulges in Reyes' pants legs at the tops of his boots. Agent Streicher stated that for his safety he "patted down" Reyes and felt a hard object which he was unable to identify by touch. Streicher then directed Reyes to remove his boots and bundles of money spilled out of his pants legs and his boots. Streicher placed the money in Reyes' suitcase and proceeded to search Holmes who also had large quantities of money in his boots and inside his waistband and pants legs.

A search of Reyes' and Holmes' suitcases uncovered small quantities of marijuana and cocaine. The claimants were placed under arrest, informed of their Miranda rights and taken, along with their suitcases, to the DEA office at O'Hare.*fn3 Holmes and Reyes were processed and the money in their possession was counted in their presence. In the case of Reyes, $30,000 of the money found on his person was confiscated by the officers and $25 was returned to him. The officers seized $54,000 of the money discovered in Holmes' suitcase and on his person and returned $91 to him. A DEA supervisor, Joseph Salvemini, arrived and interviewed the claimants. After the claimants completed and signed written statements regarding the seized currecny they were released and conveyed by Streicher and Burzinski to a nearby hotel to await the next flight to Omaha the following morning.*fn4

On March 17, 1981, the United States filed its complaint for civil forfeiture of the $84,000 seized under 21 U.S.C. § 881*fn5 and Holmes and Reyes filed their claims thereafter. The claimants denied that the monies were used or were intended to be used for illegal purposes and alleged that their constitutional rights had been violated during the seizure of the funds. A trial was held in the district court and a judgment was entered orderiang the appellants' previously confiscated $84,000 forfeited to the United States. It is from the court's order of forfeiture that the claimants appeal.

ISSUES PRESENTED

Issue 1: Did the district court err in determining that the $84,000 involved herein was not seized in violation of Holmes' and Reyes' constitutional rights?

Issue 2: If the circumstances of the seizure did not give rise to a constitutional violation, did the district court commit error in determining that the monies taken from Holmes and Reyes were properly forfeited to the United States?

I.

The claimants contend that the evidence introduced by the government in support of the forfeiture was illegally obtained in violation of their constitutional rights for the following reasons:

(A) The initial encounter between the law enforcement officers and Holmes and Reyes constituted an unlawful arrest and detention in violation of their Fourth Amendment rights against unreasonable seizures;

(B) The money uncovered during the "pat down" searches of their persons was illegally obtained in violation of their Fourth Amendment rights against unreasonable searches; and

(C) The statements signed by the claimants while in custody were improperly procured and involuntarily given and the admission of the statements violated their Fifth Amendment rights against self-incrimination.

The government concedes the applicability of the exclusionary rule to forfeiture proceedings but contends the district judge properly concluded that the government demonstrated that no violation of the claimants constitutional rights occurred. United States v. Eighty-Eight Thousand, Five Hundred Dollars, 671 F.2d 293, 297 n.6 (8th Cir. 1982).In order to review the propriety of the district court's determination of the legality of the actions of the law enforcement officers, we will address each of the claimants' alleged constitutional violations separately.

A.

First of all, Holmes and Reyes maintain that the initial contract by the government agents was an unlawful seizure rendering all evidence obtained thereafter (including the funds seized and the statements obtained while the claimants were under arrest) inadmissible as "fruit of the poisonous tree." Wong Sun v. United States, 371 U.S. 471, 488, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963). This court has recently reiterated the test to be applied in determing whether a seizure has occurred in an airport police/citizen encounter such as the one involved herein. See United States v. Seventy-Three Thousand, Two Hundred Seventy-Seven Dollars, 710 F.2d 283, 288 (7th Cir. 1983) (citing Florida v. Royer, 460 U.S. 491, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983)). Applying the objective "reasonable person" test we affirm the district court's determination that no seizure of Holmes and Reyes occurred until after the officers and the claimants entered the non-public area below Gate E-2, as the appellants were free to leave up until that time and voluntarily accompanied the officers.

In affirming the forfeiture in Seventy-Three Thousand, Two Hundred Seventy-Seven Dollars, this court followed Justice Stewart's "reasonable person" test, as set forth in United States v. Mendenhall, 446 U.S. 544, 554, 64 L. Ed. 2d 497, 100 S. Ct. 1870 (1980), in determining whether a seizure has occurred in an airport surveillance case.

"[A] person has ben "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 (footnote omitted).

The determination of whether Holmes and Reyes were seized under the "reasonable person" test is a highly factual one, dependent upon the specific circumstances of this case. Our standard of review is limited to inquiry into whether the district court's determination is clearly erroneous, and requires that particular deference be given to the district judge who had the opportunity to hear the testimony and observe the demeanor of the claimants and the law enforcement officers. Seventy-Three Thousand, Two Hundred Seventy-Seven Dollars, 710 F.2d at 288.*fn6

Three major issues are addressed in reviewing an airport police/citizen encounter: (1) the conduct of the police; (2) the characteristics of the individual citizen; and (3) the physical surroundings of the encounter. Id. at 9.

In examining the conduct of Agent Streicher and Officer Burzinski, the district court had to determine whether "the officer[s], by means of physical force or show of authority, had in some way restrained the liberty of [the claimants] such as [they were] not free to walk away." United States v. Moya, 704 F.2d 337, 341 (7th Cir. 1983) (citing 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 reviewing all the testimony, the trial judge came to the conclusion "that there was not any threatening presence by the officer and the agent. There was no display of weapons here. The officers were in civilian clothes. There was no use of language or a tone of voice indicating that compliance might be compelled or would be compelled." Relying on the record before us we hold that the findings of the district court are not clearly erroneous and we defer to the findings and conclusion of Judge Kocoras who was in the best position to weigh the evidence before him.

The characteristics of the individual defendants are another factor for the court to consider in determining whether even a facially innocuous encounter might, under the circumstances, have overborne the citizens' freedom to walk away. Here, there is no evidence to even suggest that Holmes and Reyes were either so naive or vulnerable to coercion that special protection from police contacts was required ...


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