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.
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.
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
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 ...