On Remand from the United States Supreme Court.
Cudahy and Coffey, Circuit Judges, and Swygert, Senior Circuit Judge.
SWYGERT, Senior Circuit Judge.
Cesar Moya was convicted in the United States District Court for the Northern District of Illinois of possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1). United States v. Moya, 561 F. Supp. 1 (N.D. Ill. 1981), aff'd, 704 F.2d 337 (7th Cir.), vacated and remanded, 464 U.S. 979, 104 S. Ct. 418, 78 L. Ed. 2d 355 (1983). The district judge refused to suppress the evidence obtained from searching Moya's shoulder bag--501.77 grams of 35% cocaine -- as "fruit of the poisonous tree." Id. at 3 (quoting Wong Sun v. United States, 371 U.S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963)). He concluded that the law enforcement officers had reasonable suspicion that Moya was carrying contraband and that therefore they were justified in detaining Moya's shoulder bag for three hours before obtaining a valid search warrant and conducting a dog-sniff test.
The district judge's conclusion was based on the following facts. After deplaning, Moya surveyed the crowd, then walked toward the main terminal, periodically looking back over his shoulder as if trying to detect whether he was being followed. He entered a stall in a men's room and remained there for a few minutes without using the facilities. Although his only luggage was a shoulder bag, he hurriedly left the main terminal and did not go to the baggage claim area. When questioned by the law enforcement officers, Moya was hesitant to offer any identification. Finally, as he was reaching into the side pocket of his shoulder bag for identification, Moya exposed a corner of a clear plastic bag. When Moya was asked about the plastic bag, he denied that it existed. 561 F. Supp. at 11. Ultimately, Moya produced the plastic bag containing drug paraphernalia after one of the officers threatened to forcibly remove it from Moya's shoulder bag. But in his determination of reasonable suspicion, the district judge specifically refused to consider the drug paraphernalia found in the clear plastic bag because he found that evidence to be the result of an "unconstitutional, warrantless search." 561 F. Supp. at 9.
On appeal, a majority of this court affirmed. United States v. Moya, 704 F.2d 337 (7th Cir.), vacated and remanded, 464 U.S. 979, 104 S. Ct. 418, 78 L. Ed. 2d 355 (1983). We agreed with the district judge that the evidence, excluding the contraband found in the clear plastic bag, supported a finding of reasonable suspicion. Id. at 343.
The Supreme Court vacated and remanded our decision for further consideration in light of United States v. Place, 462 U.S. 696, 103 S. Ct. 2637, 77 L. Ed. 2d 110 (1983). In Place, the Court held that a ninety-minute detention of luggage while awaiting the arrival of a trained narcotics detecting dog based upon less than probably cause violated the fourth amendment. Id. at 2645-46.
This court then sought additional briefing from the parties on the following points:
(1) Whether there was probable cause for the seizure of Moya's shoulder bag?
(2) Whether there was any legal justification for the warrantless seizure of the clear plastic bag from Moya's shoulder bag, in particular whether the plastic bag fit within the "plain view" exception to the warrant clause?
(3) Whether the three hour detention of Moya's shoulder bag could be persuasively distinguished from the ninety-minute detention that occurred in Place?
We now hold that the facts on which the district court based its finding of reasonable suspicion do not support a finding of probably cause*fn1 and that the district court was correct in finding that the seizure of the plastic bag was unconstitutional, so that its contents cannot be considered in the determination of probable cause.
The implications for personal privacy resulting from a finding of probable cause require that the standard be rigorously enforced. Probable cause requires sufficient evidence to lead a reasonable and prudent person to believe, not merely suspect, that a crime has been or is being committed. Brinegar v. United States, 338 U.S. 160, 175-76, 93 L. Ed. 1879, 69 S. Ct. 1302 (1949). We must be especially cautious when the evidence that is alleged to establish probable cause is entirely consistent with innocent behavior. See Reid v. Georgia, 448 U.S. 438, 441, 65 L. Ed. 2d 890, 100 S. Ct. 2752 (1980) (per curiam); United States v. Saperstein, 723 F.2d 1221, 1229 (6th Cir. 1983). We find that the evidence available to the officers in this case was insufficient to lead a reasonable person to believe that a crime was being committed.
It is clear that the officers did not have probable cause at the time that they approached Moya in the taxicab line outside the airport. At that time the officers knew that Moya was arriving from Miami, had only carry-on luggage, scanned the crowd repeatedly, looked back over his shoulder, and "sought privacy of a washroom stall for some reason other than a desire to relieve himself." Moya, 561 F. Supp. at 4. Indeed, this information was insufficient to establish even reasonable grounds for suspecting that Moya was carrying contraband. Id. ; see Reid, 448 U.S. at 441 (reasonable suspicion not established by observations that suspects deplaned from a principal place of origin of cocaine for distribution, arrived in the early morning when law enforcement activity is diminished, carried only shoulder bags, and attempted to conceal the fact that they were traveling together).
After being approached in the taxicab line, four events occurred that the district court found sufficient to give rise to reasonable suspicion. First, when asked for identification Moya responded that he had none. Then, when asked again for identification once inside the terminal, Moya proceeded to produce driver's license from his shoulder bag. Third, while reaching into the bag, Moya exposed the corner of a clear plastic bag. Finally, when asked to produce the plastic bag, Moya responded ...