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U.S. v. SCHUMACKER

December 20, 1983

UNITED STATES OF AMERICA, PLAINTIFF,
v.
CURT LEE SCHUMACKER, DEFENDANT.



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

  MEMORANDUM OPINION AND ORDER

This matter is before the court on defendant's motion to suppress. The defendant asserts that he was stopped and searched by law enforcement officers at O'Hare Airport in violation of the Fourth Amendment, and that all evidence seized must be suppressed. The defendant argues that the encounter between the defendant and the law enforcement officers in this case was a seizure within the meaning of the Fourth Amendment, made without either a reasonable articulable suspicion of criminal activity or probable cause. The defendant further asserts that no consent was given for the search of the defendant's person. The government, on the other hand, asserts that the encounter with the defendant was a voluntary police-citizen encounter not implicating the Fourth Amendment.

An evidentiary hearing was held on the motion beginning on August 8, 1983. For the reasons set forth below, defendant's motion is denied.

FACTS

At the hearing on the motion to suppress, three law enforcement officers testified on behalf of the government: Drug Enforcement Administration Agent Bob Fulkerson, and two Indiana police officers who were with Agent Fulkerson at the time of the seizure, Detective James Stout, of the LaGrange, Indiana Sheriff's Department, and Detective Robin Wiley, of the Indiana State Police. Testifying for the defense were the defendant, Curt Schumacker, and the two young men who were with him at the time of the seizure, John Quinones and Michael Bogdamovic.

These witnesses gave testimony that conflicted on several crucial matters, requiring the court to make important credibility determinations for each witness. In judging the credibility of each witness and the weight to be given the testimony of each, the court has taken into account for each witness the intelligence, ability and opportunity to observe, the age, the memory, the manner while testifying, any interest, bias, or prejudice the witness may have, and the reasonableness of the testimony considered in the light of all the evidence in the case. The court has also reviewed its notes taken at the time each witness testified regarding their credibility.

Having heard the arguments of counsel, read the memoranda submitted to the court, reviewed the testimony of witnesses with the Court's detailed notes concerning the witnesses and the exhibits presented at the hearing, the court makes the following findings of fact:

On February 17, 1983, at approximately 3:10 p.m., Agent Fulkerson, working as a member of the Drug Enforcement Administration Task Force at O'Hare Airport, was awaiting the arrival of a flight from Fort Lauderdale, Florida. Agent Fulkerson, who had been working on the O'Hare task force for four years, testified that Fort Lauderdale is a major source city for drugs. Along with Agent Fulkerson at the terminal were two DEA Task Force Officers, and four Indiana detectives who Agent Fulkerson was training.

Before the flight arrived, Agent Fulkerson observed Michael Bogdamovic sitting in the boarding area looking around at other people. He looked at Agent Fulkerson for a moment, and then Went from the boarding area to a small alcove adjacent to the area.

At approximately 3:20 p.m. the flight arrived. Among the passengers who exited the plane were the defendant, Curt Schumacker, and John Quinones. The defendant was carrying a hang-up bag, while Quinones carried both a hang-up bag and a brief case. The two walked down the concourse toward the main terminal at a slow pace. Bogdamovic joined them when they reached the alcove where he had been standing, and the three proceeded together down the concourse toward the main terminal at a slow pace. Agent Fulkerson and Detectives Wiley and Stout followed them. Both the defendant and Bogdamovic looked back over their shoulders in the direction of the officers on several occasions.

When the defendant, Quinones and Bogdamovic reached a short concourse connecting the E and F concourses, they turned and walked down the connecting concourse, to an area near some phone booths and washrooms. They stopped in front of the telephones, and stood approximately two feet away from them. This concourse was spacious, well-lit, open to the public, and people were passing through freely. A large number of people could be seen walking down both of the main concourses from where they stood.

Quinones squatted down and opened one of the bags on the floor. While he was looking inside the bag, Agent Fulkerson and Detectives Wiley and Stout walked up to them. The three officers stood opposite the three young men, a short distance away from them. The officers were not surrounding the young men, as the defendant testified. The young men could have walked away from the officers either to their right or to their left, or they could have walked between the officers.

Agent Fulkerson identified himself as a federal agent and showed them his badge. He identified Detectives Wiley and Stout as police officers. Agent Fulkerson then asked the three if he could talk to them. All three agreed to talk with him. Agent Fulkerson asked the defendant and Quinones, the two who had gotten off the plane, for some identification. Both produced driver's licenses with their names on them. The defendant asked Agent Fulkerson what the interview was about. Agent Fulkerson responded that they were not under arrest, but that he was conducting a drug investigation and would like to ask them a few questions.

Agent Fulkerson then asked the defendant and Quinones for their airline tickets. Quinones produced two tickets and handed them to Agent Fulkerson. The tickets appeared to have been issued to Mr. C. Quinones and Mr. J. Quinones.*fn1 Agent Fulkerson asked the defendant about the difference in the name on his ticket and his driver's license. The defendant did not reply. After a brief hesitation, Quinones stated that he had purchased the tickets for himself and his wife, and that she had planned to come to Chicago with him. He said that when she could not accompany him, he gave the ticket to the defendant. Agent Fulkerson asked them why they had come to Chicago. Quinones responded that he had come to talk with a Chicago lawyer about his pending divorce, and that the defendant had come with him. The tickets and ...


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