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
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).