Appeal from the United States District Court for the Northern District of Illinois, No. 83 CR 561, Paul E. Plunkett, Judge.
Cummings, Chief Judge, Cudahy, Circuit Judge, and Pell, Senior Circuit Judge.
Defendant Glen Borys was found guilty after a bench trial of one count of knowingly and intentionally possessing cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1). He was subsequently sentenced to eighteen months imprisonment, followed by a three-year special parole term. Prior to trial and after a hearing on stipulated facts at which one of the Drug Enforcement Agency ("DEA") Special Agents involved, Peter O'Brien, testified, the court below denied defendant's motion to suppress. He filed a timely notice of appeal, and we have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm the conviction.
The essential facts are not in dispute. On September 4, 1981, DEA agents O'Brien and Milo Grassman were monitoring arriving flights at Chicago's O'Hare Airport. At about 4:00 p.m., Borys was one of the first passengers to deplane from Delta Flight #558 from Orlando, Florida, a known "source" city of narcotics. Several factors focused O'Brien's and Grassman's attention on Borys. Usually passengers deplaning first are well-dressed business people, traveling first class (Stip. para. 2). In contrast, Borys was dressed casually, had collar-length hair, and a Fu Manchu-type mustache. He was carrying two bulky garment bags, although O'Brien testified that generally first-class passengers checked through such luggage. Borys walked down the concourse rapidly, which O'Brien also thought was unusual since the plane had arrived on time. As Borys walked toward the terminal proper, he looked back in the direction of O'Brien and Grassman before continuing down the concourse.
The two agents began to follow Borys. At the main terminal area, Borys boarded an escalator to the American Airlines luggage area below. But because he was walking so fast, the agents lost sight of him by the time they reached the baggage claim area. After looking for him unsuccessfully in the adjoining Delta baggage claim area, the agents located him outside the terminal by a livery stand. He then reentered the airport, walking rapidly past the two agents, and went behind a luggage lock-up area next to U.S. Air's baggage claim, where he was hidden from view from everyone in the area for about fifteen seconds. After the defendant emerged, the agents approached him, identified themselves as federal drug agents, and requested to speak to him, to which he responded "Sure, what do you want?" (Stip. para. 5). O'Brien asked Borys for identification, to which he replied that he had lost his wallet on the flight. Borys asked if he could go the Delta ticket counter to inquire about his missing wallet. The agents said "Sure, go ahead; go find your wallet" (id.).
Borys returned to the upper level of the air terminal where he spoke to a Delta agent concerning the lost wallet. The two agents followed but remained some distance away by the escalators (id.). After Borys' conversation with the Delta agent, O'Brien asked him if he had his airline ticket, and he replied no. O'Brien asked his name, and he replied "Glen Borys." Borys was asked where he was coming from, and he replied that he was returning from a four-day trip to Orlando.
Borys then returned to the counter to talk to the Delta agent. O'Brien observed the Delta employee hand Borys a ticket folder, which O'Brien subsequently asked to see. Borys complied with this request; O'Brien saw that the ticket was in Borys' name, had been purchased for cash, was a first-class Chicago-Orlando-Chicago ticket, and that Borys had been in Florida ten days. O'Brien returned the ticket to Borys.
Borys then informed the agents he had to file a claim with Delta Airlines so that he could recover his wallet. The two agents followed Borys down to the Delta baggage claim office on the lower level. At the Delta Airlines baggage claim area, Borys was visibly shaken and continuously dropped various items (Stip. para. 6). He asked if he could make a phone call and was permitted to do so.
Borys continued to be visibly nervous (Stip. para. 7). O'Brien explained that he and Grassman had reason to believe that Borys was transporting drugs, and asked permission to search Borys' luggage, advising him of his right to refuse (id.). Borys refused consent, and the four returned to the vicinity of the Delta baggage office, at which point they were joined by DEA Special Agents Anderson and Fulkerson.
Anderson observed Borys remove a briefcase from one of his pieces of luggage. O'Brien told Borys that he was not under arrest, but that the luggage would be detained and an attempt made to secure a search warrant (id.). Borys asked if he could keep the briefcase. Anderson replied he could if he would consent to a search of it; otherwise it would be detained and an attempt made to secure a warrant (id.). Borys again was advised of his right to refuse, but he said "O-k, go ahead and search it, I want that briefcase" (id.). Anderson searched the case and found several cassette tapes and a neoprene tube with a black plastic cap that appeared to have some white powder residue and seemed to be paraphernalia used to "free base" cocaine (id.). Anderson confiscated the tube and returned the briefcase to Borys. O'Brien wrote a receipt for Borys' two pieces of seized luggage and explained how he could recover his bags should no warrant be obtained or no drugs found (id.). Borys then left the airport at about 4:45 p.m.
O'Brien and Grassman took the luggage to the DEA Airport Office, where they contacted the U.S. Customs Service and requested the services of a U.S. Customs narcotics detection dog for a "sniff" test (Stip. para. 8). The dog arrived at about 6:00 p.m. and reacted positively to Borys' luggage, which had been placed in a room with three other bags (id.). O'Brien applied for an Illinois State Search Warrant, and it was approved at 9:55 p.m. (id.). A search of the luggage yielded approximately 973.19 grams of a mixture containing cocaine in several different packages in both pieces of luggage (id.). Borys now contends that this evidence must be suppressed. He vigorously argues that: (1) he was "seized" when O'Brien and Grassman first approached and questioned him, (2) they did so without the requisite reasonable suspicion that he was carrying drugs, (3) the investigative stop ripened into a full arrest for ...