in which Fulkerson stopped and interrogated him, defendant
said he believed he was under arrest and had no alternative
but to "just let him do what he was going to do."
Of course, defendant's credibility must be judged with the
point in mind that he has an interest in the outcome of this
proceeding; therefore, he was a biased witness. Saladino v.
Winkler, 609 F.2d 1211, 1214 (7th Cir. 1979). But his
insistence that, under the circumstances, he would not have
consented to the search finds support in an oft cited
observation of an experienced judge; namely, that "no sane man
who denies his guilt would actually be willing that police
search his room for contraband which is certain to be
discovered." Higgins v. United States, 209 F.2d 819, 820 (D.C.
Cir. 1954)*fn1; see Leavitt v. Howard, 332 F. Supp. 845, 855
(D.Rhode Is. 1971); Porter v. Ashmore, 298 F. Supp. 951, 956-57
(D.So.Car. 1969); State v. Williams, W. Va. Ct. App.,
249 S.E.2d 758, 763 (1978). Thus, referring particularly to
Fulkerson's claim of consent, defendant relies on the principle
that a court may not accept the testimony of a witness which is
contrary to common sense and human experience. United States v.
Ortiz, 331 F. Supp. 514, 520 (D.Puerto Rico 1971). This court
agrees. And, accordingly, has subjected Fulkerson's testimony
to the scrutiny it deserves.
Almost immediately into this process, the court's attention
has been attracted to the details of Fulkerson's testimony
which raise questions of credibility. He swears that his
decision, and that of his fellow agents, Burzinski and
Kinsella, to subject defendant and his cousin to surveillance
were entirely without any preplanning, communication or
coordination of information among the three of them. As
innocuous as this fact may be, it is difficult to believe.
Common sense tells us that when three government agents follow
two men through an airport concourse, they either act in
accordance with prearranged plans, or they do it by
More astounding, however, is Fulkerson's testimony that he
and Burzinski followed the men to a point where defendant used
a telephone. According to Fulkerson, he and Burzinski took
phone booths on each side of defendant that enabled them to
overhear defendant's conversation with a person who,
apparently, defendant had expected to meet on arrival at
O'Hare. Fulkerson swears that defendant said something about
being hungry and wanted supper, and then added that he "had
the stuff with him and would see him [the friend] later on."
This was an important occurrence; indeed, it could be
described as an investigative scoop which one drug enforcement
agent would be anxious to share with his cooperating agents.
It has been said that the word "stuff" carries with it "a
customary meaning peculiar to the illegal narcotics trade";
Parente v. United States, 249 F.2d 752, 754 (9th Cir. 1957);
and that, in the jargon of narcotics peddlers, the word means
illicit drugs, United States v. Lugo-Baez, 412 F.2d 435, 437
(8th Cir. 1969). It is reasonable to assume that Fulkerson, a
veteran with more than 11 years of experience investigating
possession and importation of illegal narcotic substances,
would know this meaning of the word "stuff" when used by a
suspected drug courier.
Moreover, the overheard conversation of a suspect is
important evidence. The prisons of this nation are densely
populated with persons convicted by evidence consisting of
conversations either advertently or inadvertently overheard by
law enforcement officers. See, e.g., United States v. Eisler,
567 F.2d 814 (8th Cir. 1978), hallway conversation overheard by
trespassing drug enforcement agent; Autry v. Estelle,
706 F.2d 1394 (5th Cir. 1983), telephone conversation
between defendant and his mother overheard by police officer;
United States v. Agapito, 620 F.2d 324 (2d Cir. 1980),
defendants' conversation overheard by DEA agents who pressed
their ears to door of adjacent room; United States v. Mankani,
738 F.2d 538, 35 CrL 2270 (2d Cir. 1984), conversation
overheard by government agent who pressed ear to hole between
his room and that of suspected drug traffickers. Yet, as
important as was Fulkerson's overhearing of defendant's alleged
incriminating statement, he never told either Burzinski or
Kinsella about it; nor did he confront defendant with the fact
he had been overheard using words that suggested he had drugs
in his possession.
Burzinski contradicts Fulkerson. She testified to having
heard defendant telephone his friend, just as had Fulkerson;
but she denied having heard defendant say he had any "stuff";
all that she heard defendant say was "something to the effect
that the subject had returned home and he was hungry."
Fulkerson attempts to explain his discrepancy by saying that
Burzinski walked away from the booth just as defendant was
uttering the incriminating words. Burzinski does not give this
explanation; she does not claim she walked away from the
telephone booth at that crucially important moment. As a
consequence, this court does not believe Fulkerson's testimony
in this regard.
Burzinski contradicts Fulkerson on yet another point. She
swore that throughout the time Fulkerson was questioning
defendant, she was a short distance from them and could see
both men. She insisted that they were where she could see them
most of the time they were talking with each other; she was
only a few feet away and close enough for her to hear the
conversation about defendant's identification. However,
Burzinski testified that she did not hear anything said,
either by defendant or Fulkerson, about search of the bag; the
only time she saw Fulkerson open the bag was after he had
arrested the defendant. Fulkerson stated under oath that he
went through the bag with defendant's consent, and it was
thereafter that he arrested defendant.
Inconsistencies or discrepancies in the testimony of a
witness, especially when given under oath, impose on the court
the burden of considering whether they pertain to matters of
importance or unimportant details. In Re Carr, 436 F. Supp. 493,
495 (N.D.Ohio 1977). The inconsistencies and discrepancies
which have attracted this court's attention do not concern
unimportant details. They touch on the substance of what
occurred in the airport stop that took only a few moments.
Moreover, since this is a case in which the court must decide
which witness to believe, it has carefully observed their
manner and demeanor as they gave testimony. The demeanor of
witnesses is a highly useful, even if not an infallible method
of ascertaining the truth and accuracy of their narratives.
Oscar Gruss & Son v. Lumbermens Hut. Cas. Co., 41 F.R.D. 279,
282 (S.D.N.Y. 1966); see Arnstein v. Porter, 154 F.2d 464,
469-70 (2d Cir. 1946).
From this truth-finding process, and because of their
importance, the court has considered the inconsistencies in
Fulkerson's testimony, the discrepancies between his testimony
and that of Burzinski, and concludes that either he is not
telling the truth, or he is mistaken. As the court said in
United States v. Berry, 670 F.2d 583, 596 (5th Cir. 1982), "in
such a situation [i.e., during an airport stop of a person by a
law enforcement agent] it would be easy to misinterpret
acquiescence to an officer's demands as consent. . . ." And it
is worth adding, as the court did in Berry, that "however great
is the government interest, and however great is the difficulty
in ending drug smuggling, we cannot use those reasons for
suspending the Fourth Amendment." 670 F.2d at 602.
Therefore, since Fulkerson's testimony is the only evidence
to support the government's contention that defendant, during
the airport stop in question, consented to the search of his
carry-on bag, it is this court's judgment that the government
has not carried its burden of proving
the claimed consent. See Florida v. Royer, 460 U.S. 491, 103
S.Ct. 1319, 75 L.Ed.2d 229 (1983); cf. Schneckloth v.
Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973);
see, e.g., United States v. Robinson, 690 F.2d 869 (11th Cir.
1982); United States v. Cantero, 551 F. Supp. 397 (N.D.Ill.
1982); United States v. Guiliani, 581 F. Supp. 212 (N.D.Ill.
1984). It follows that since he had neither warrant, probable
cause, nor consent, Fulkerson's search of defendant's bag was
unconstitutional, and the evidence he found was illegally
obtained. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93
S.Ct. 2041, 2043, 36 L.Ed.2d 854 (1973).
This means that Fulkerson should not have used the illegally
seized Deering preparation kit as probable cause to arrest
defendant; the arrest was the fruit of a prior illegal search.
It has been said by a highly respected authority on the
subject that "[i]f the police conduct an illegal search and as
a consequence discover evidence which provides cause that a
particular person has committed a crime, an arrest of that
person based upon this information is unquestionably
tainted. . . ." 3 LaFave, Search and Seizure 11.4(e) (1978);
see Silverthorne Lumber Co., Inc. v. United States,
251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319 (1920); cf. United States v.
Politano, 491 F. Supp. 456, 459 (W.D.N.Y. 1980). In this case,
the only reason Fulkerson had for arresting defendant was his
unconstitutional finding of the kit. Use in this prosecution of
that evidence, and what Fulkerson found in defendant's boot
after the unlawful arrest, will violate defendant's Fourth
Amendment rights. Weeks v. United States, 232 U.S. 383, 34
S.Ct. 341, 58 L.Ed. 652 (1913). For these reasons, in the trial
of this case, the government will not be permitted to use as
evidence either the kit or what was seized from defendant after
his arrest. An appropriate order will be entered.