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United States v. Espinosa-Alvarez

: September 9, 1987.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
DARIO ESPINOSA-ALVAREZ, DEFENDANT-APPELLANT



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 86 CR 330 -- Charles P. Kocoras, Judge.

Cummings, Coffey, and Easterbrook, Circuit Judges.

Author: Coffey

COFFEY, Circuit Judge.

Defendant-appellant Dario Espinosa-Alvarez appeals his conviction of possession of cocaine with intent to distribute and travelling in interstate commerce with the intent to promote and the promotion of an unlawful activity involving a narcotics offense. We affirm.

I.

On April 23, 1986, Miami Police Detective Claudius Noriega and his partner were on surveillance detail of passengers departing from the Miami International Airport when his partner observed Espinosa making a cash purchase of a first class ticket to Chicago. The detectives had noticed that when Espinosa's brown-beige tote bag passed through the x-ray screening device at the security check point, it contained an object resembling a miniature football. The detectives approached Espinosa after he picked up his bag, but they did not block his path. Speaking in Spanish, Detective Noriega identified himself and his partner to Espinosa and asked him whether he would be willing to speak to them, and Espinosa agreed. Detective Noriega asked Espinosa what his destination was, and Espinosa responded that he was going to Chicago. When asked separately about the length of his stay and where he was going to stay, Espinosa hesitated before answering each question. He responded that he would be in Chicago for three days and staying with an uncle.

Detective Noriega asked Espinosa if he could see Espinosa's airline ticket and some identification. Espinosa handed him the ticket and a Florida driver's license which Noriega reviewed and returned. The detective testified that Espinosa became nervous and his hands were shaking as he put the license away. Noriega asked Espinosa if he would agree to let him search his bag and advised him that he could refuse if he so desired, and Espinosa refused. Espinosa asked the detectives in English if everything was okay and could he leave. Noriega responded yes and Espinosa left to board the plane. The conversation between Noriega and Espinosa took place in a public area and lasted two minutes or less, and at no time did the detectives, who were dressed in plain clothes, display any weapons.

After airline personnel verified that Espinosa had boarded the plane, Noriega called the Chicago Drug Enforcement Administration to relay the information regarding Espinosa's purchase in cash of a one-way ticket, his observation of Espinosa's nervousness and hesitation in answering questions, and Espinosa's refusal to consent to a search of his tan tote bag which contained a large bulge-like object. Noriega also provided the DEA office with a physical description and date of birth of the passenger. A secretary at the DEA relayed this information to DEA Senior Special Agent Bob Fulkerson, who was at the airport to observe passengers arriving on Espinosa's flight. At this time, Fulkerson was accompanied by three DEA special agents. It was Fulkerson's practice to monitor this flight because it arrives nonstop from Miami, a major source city for drugs transported into the United States.

As the passengers from the flight entered the lounge area of the International Terminal, a public area with seating available, Fulkerson observed a man walk into the lounge area who matched the physical description supplied from Miami -- 5'6" tall, 160 pounds, dark hair, and twenty-eight years old, wearing a multi-colored striped shirt, gray corduroy pants, and gray boots and carrying a tan tote bag. The man looked directly at Fulkerson and hastened his pace past Fulkerson and two other agents. As the man continued through the lounge area, Fulkerson approached him from the side, displayed his badge, and identified himself as a federal agent. In the presence of one other agent, Fulkerson asked whether the man would consent to talk to him, and the man answered "Sure, what's going on?"

Fulkerson responded that they were conducting a drug investigation but that the man was not under arrest. Fulkerson asked for some form of identification, and the man handed him a Florida driver's license registering the name Dario Espinosa. Fulkerson also asked to see his airplane ticket which Espinosa handed to him along with his boarding pass. The ticket, listing the name of D. Espinosa, was a one-way cash ticket purchased that day. Fulkerson returned Espinosa's license, ticket, and boarding pass to him.

Fulkerson noticed that Espinosa's hands were shaking as he received the items. Fulkerson also observed that Espinosa was not appropriately dressed for the cool weather, wearing only a short sleeve shirt and corduroy pants, and that the tote bag on Espinosa's shoulder did not appear full. When Fulkerson asked Espinosa if he had any additional baggage, Espinosa said no. Fulkerson asked Espinosa how long he was staying in Chicago, and Espinosa responded two days. Fulkerson observed that Espinosa spoke in a low, quivering voice, was very nervous, and hesitated before he answered the questions.

Fulkerson asked Espinosa about his job, and Espinosa replied he was a tow truck driver. At that point Fulkerson asked Espinosa if he was carrying any drugs, and Espinosa answered no, that he only had clothes in his bag. Fulkerson asked if Espinosa would consent to a search of the bag and informed him that the search was voluntary and he need not consent. Espinosa responded that a police officer in Miami had searched the bag and that he would not consent to another search. Because this statement was inconsistent with the information received from the Miami police detective, one of the special agents informed Espinosa that there was reason to believe the bag contained drugs. The special agent told Espinosa that he could leave, but that the bag would be detained for a "sniff test" by a narcotics detection dog. Espinosa was informed that if the dog did not alert to the bag, it would be returned. Espinosa declined a receipt for the bag when asked, and one of the special agents gave him a business card to inform him where the bag was. The agents assumed custody of the bag, and Espinosa left the immediate area.

The entire conversation between Espinosa and the agents in the lounge area lasted four to five minutes. At no point during the conversation did any agent physically block Espinosa's path, prevent him from continuing on his way into the lounge area, or physically touch him. Other people were present, and Espinosa was never asked to accompany the agents to another area. During the conversation with the agents, Espinosa made no attempt to walk away nor indicate any desire to leave or discontinue the conversation. Espinosa displayed no problems understanding Fulkerson. At no point was a weapon displayed to Espinosa, and the agents did not raise their voices above a conversational level.

The DEA dog performed the "sniff test" a few moments later and smelled drugs, and Espinosa was arrested as he left the International Terminal. A short time thereafter, Espinosa consented to a search of his bag which contained two packages of cocaine, one weighing two kilograms and the other weighing one kilogram. Espinosa was charged with possessing with intent to distribute cocaine and travelling in interstate commerce with the intent to promote and the promotion of an unlawful activity involving a narcotics offense. The district court denied Espinosa's motion to suppress the cocaine and statements he made to the agents, finding in pertinent part that the encounter at the airport did not constitute a search, seizure, or arrest and that the detention of the bag and the sniff test were lawful and ...


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