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January 11, 1984


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


This is a motion to suppress evidence filed pursuant to Rule 41(f), Fed.R.Crim.P., the procedure as provided by Rule 12(b)(3). It presents to this court another case of an airplane passenger arriving at O'Hare International Airport in Chicago who complains that agents of the Drug Enforcement Administration, in violation of his Fourth Amendment rights, subjected him to an unreasonable search and seizure. Having heard the evidence, the court agrees with defendant; and therefore, grants his motion to suppress.


Special Agent Karl Ekman of the Drug Enforcement Administration was on duty at O'Hare Airport on February 25, 1983. He has been with DEA for about thirteen years (Tr. 9/2 at 18),*fn1 but he was new to the O'Hare assignment. (Tr. 9/2 at 72-73). At approximately 1:30 p.m. that afternoon, Ekman was in the vicinity of Gate H-11B waiting for the arrival of Delta Airlines Flight 1136 from Fort Lauderdale and Miami, Florida. He saw defendant Giuliani leave the airplane after about half of the passengers had preceded him (Tr. 9/2 at 19). Giuliani was suntanned (Tr. 9/2 at 45-46), was wearing a light beige sport-coat, a maroon shirt, and bluejeans (Tr. 9/2 at 19-20). Prior to his seeing Giuliani on this occasion, Ekman had never seen him before (Tr. 9/2 at 49-50); and although Ekman knew that 95% of the cocaine imported into the United States comes through the Miami-Fort Lauderdale area (Tr. 9/2 at 19), he had no information about Giuliani (Tr. 9/2 at 49-50), nor could he articulate any reason to believe that Giuliani had any part in the narcotics traffic. Nonetheless, Ekman continued to observe Giuliani as he left the gate area (Tr. 9/2 at 21).

Ekman viewed Giuliani from a point at about ten feet from the gate (Tr. 9/2 at 20). He saw him walk 20 to 25 feet down the concourse, pass a bank of telephones, stop for two or three seconds, look back toward Gate H-11B, and glance around (Tr. 9/2 at 21). Giuliani was walking at a slower pace than the other passengers; he paused and looked around several times (Tr. 9/2 at 21). He proceeded to the ticket counter, and then took the escalator that empties into the American Airlines baggage area, 100 to 150 feet from the Delta Airlines baggage retrieval point. After again looking around, Giuliani made his way slowly to the place where he was to retrieve his bag. Ekman followed him throughout his passage from the departure gate to the baggage area from an average distance of approximately 30 feet (Tr. 9/2 at 22-23).

Giuliani proceeded to the luggage belt; Ekman observed that he repeatedly looked around at other people in the area, rather than at the baggage belt (Tr. 9/2 at 25). This behavior, to Ekman, differed from that of other passengers who, according to Ekman, looked at the baggage belt for their bags more than they looked around them (Tr. 9/2 at 26). Giuliani then picked up a full sized dark blue bag; he walked to the center of the baggage area where he encountered a Delta baggage employee. At this time Ekman was two or three feet from Giuliani (Tr. 9/2 at 26). When the Delta employee asked Giuliani to produce his baggage claim ticket, Giuliani flinched and appeared to Ekman to be startled. The baggage checker asked Giuliani a second time for his baggage claim ticket which Giuliani produced. He was then cleared by the Delta employee and began to walk toward the American Airlines baggage claim area (Tr. 9/2 at 27).

After Giuliani walked 20 to 25 feet, retracing the route by which he came to the baggage area, Ekman approached him from behind and asked if he could speak with him, showing him his credentials. Giuliani agreed and asked, "What's it all about?" (Tr. 9/2 at 28; 7/29 at 28). Ekman did not touch defendant, nor physically stop him at this first encounter (Tr. 9/2 at 30). He informed Giuliani that he was a narcotics agent for the DEA, assigned to the airport; Ekman was dressed in casual clothes, he was carrying a weapon whose holster clip Giuliani could notice (Tr. 7/29 at 50). Giuliani then showed Ekman his airline ticket, for one way and had been paid for by cash (Tr. 9/2 at 55). Ekman had difficulty reading the name and asked Giuliani what was his name; Giuliani responded, "Tony Ciao" which Ekman wrote on a newspaper. At this point, Giuliani again asked Ekman for his credentials which was produced (Tr. 9/2 at 28-29). Ekman returned the ticket to Giuliani (Tr. 9/2 at 31); and in the conversation that ensued, told him, in response to his questions, that he, Ekman, did not have a tip on him nor was he under arrest (Tr. 9/2 at 29).

Ekman then asked Giuliani if he could look into the bag he was carrying; defendant told Ekman that he had business papers in it which he did not want Ekman to see (Tr. 9/2 at 29). For a third time, Giuliani requested of Ekman his credentials, which were produced. Ekman asked Giuliani where he lived; and he responded that he lived in Chicago Heights, but would not give Ekman any further information (Tr. 9/2 at 29, 60). When asked if he had other identification, Giuliani said, "I didn't carry any this time." (Tr. 9/2 at 29). Ekman then told Giuliani that he might want a dog to sniff his bag; Giuliani responded by saying, "Do what you have to do." Ekman then said, "I'm going to call for a dog", and Giuliani repeated, "Do what you have to do." (Tr. 9/2 at 30). Once again Giuliani asked Ekman, "Well, am I under arrest?" Ekman replied, "No, but I would like to know where you live, because if I have the dog smell the bag and the bag is clean, I have to get it back to you somehow. I will ship it to you." Giuliani then said, "Okay, I'll stay." (Tr. 9/2 at 31).

At this point, Giuliani and Ekman had moved over to a wall where a courtesy telephone was located (Tr. 7/29 at 29-30; 9/2 at 30-32). After some conversation between them concerning Giuliani's business and his reason for going to Florida, Giuliani refused to give Ekman any further personal information, stating that he did not have to tell Ekman anything further; and that he believed Ekman was infringing on his rights (Tr. 7/29 at 36; 9/2 at 29). Ekman was not satisfied with Giuliani's responses and asked him if he had any other identification (Tr. 9/2 at 29). Giuliani responded he had none on him (Tr. 9/2 at 29). Ekman again told Giuliani he was going to call for a dog to come and sniff the bag (Tr. 9/2 at 29-30, 62), although he knew that Giuliani had not violated any law or "done anything that appeared to [him] to be criminal behavior." (Tr. 9/2 at 72). By this time, Ekman's encounter with Giuliani had lasted fifteen to twenty minutes.

Ekman then telephoned the DEA office (Tr. 9/2 at 31). He told a DEA agent that he "was interviewing a suspect . . . who did not have any identification and had aroused his suspicion and he had asked him for consent to search of [sic] and the gentleman declined. . ." (Tr. 9/2 at 86). Ekman requested that a dog be brought to him (Tr. 9/2 at 62), a request overheard by Giuliani (Tr. 7/29 at 38). About five minutes later, two DEA agents, Bob Fulkerson and Ken Labik, arrived (Tr. 9/2 at 34). Before he made the call, Ekman told Giuliani that although he was not under arrest, his address was needed because he, Ekman, would return the bag to him if the results of the dog sniff were negative (Tr. 9/2 at 31).

At the time he joined Ekman, Fulkerson knew that Giuliani had been exercising his right not to respond to the questions put to him (Tr. 9/2 at 88); nonetheless, he began asking Giuliani the same questions he had previously refused to answer (Tr. 7/29 at 40; 9/2 at 77). In response to Fulkerson's questions, Giuliani repeated that he had no identification. Fulkerson walked around Giuliani and noticed a bulge in his sport coat and asked what it was. He asked Giuliani about "what appeared to me to be a driver's license or an ID card." (Tr. 9/2 at 89). Fulkerson then reached into Giuliani's back pocket and pulled out what turned out to be an ID case and looked through it (Tr. 7/29 at 40). He saw that the driver's license bore the name Louis Anthony Giuliani. The license was either kept by one of the agents or returned to Giuliani.

He was again asked what he was doing, and what was in his bag (Tr. 7/29 at 41). Giuliani again refused to respond. Fulkerson then told him that they were going to have a dog sniff his bag; and that if the results were negative he would be free to go, but if they were positive, he would be under arrest (Tr. 7/29 at 49). At this time, at about 2:20 p.m., Labik announced the arrival of the customs dog (Tr. 9/2 at 38). Ekman and Labik then took Giuliani's bag from him, carrying it behind the baggage claim area where a "line-up" of suitcases and bags, including Giuliani's, was presented to the customs dog; it growled and bit at Giuliani's, a reaction indicating the presence of narcotics (Tr. 9/2 at 38-39). The agents then returned and placed Giuliani under arrest (Tr. 9/2 at 40). He was transported to the DEA office at O'Hare and searched (Tr. 9/2 at 40-41). That evening, a warrant was obtained based on the dog's positive reaction to the bag, and it was opened (Tr. 9/2 at 41). Inside were found five plastic bags containing cocaine (Tr. 9/2 at 42).

I ...

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