and driver's license constitutes a non-coercive encounter, rather than a seizure); Borys, 766 F.2d at 310 (court held that asking defendant for identification, ticket, name, and how long he had been in the city was not overly intrusive and did not create a seizure). These questions, then, which did not last long, did not change the nature of this consensual encounter.
Nor did the physical surroundings of the encounter transform it into a seizure. Mostek and Scheuler approached Yearwood just outside of an airport terminal. The Seventh Circuit has stated that "a reasonable person is less likely to feel the coercive pressure of law enforcement officers when the encounter takes place in a public place." Id. at 1083. (The court noted that foyers of airport terminals are non-coercive public places, and held that the baggage area at Midway Airport was also such a place.) Accordingly, the location of the encounter argues against the finding of a seizure.
Finally, when Yearwood stopped, put his bag down, and consented to speak with Mostek the agent was on his left side, rather than blocking his path. In fact, Yearwood had to turn 90 degrees to face him. Scheuler, moreover, was behind Mostek and to the right of Yearwood, when the defendant agreed to talk. Although Yearwood claims that the agents created a "picket fence" which prevented him from moving forward, any such positioning occurred after the initial stop and Yearwood's consent to the interview. See Id. 909 F.2d at 1079-82 (court held that where agents approached defendant, stood at her side, and asked her if they could speak to her, this did not constitute a seizure). Accordingly, under the totality of the circumstances -- the non-coercive arena of the airport, the low-key nature of the request to speak, and the fact that neither agent was in uniform or displayed a weapon -- the Magistrate Judge properly found the approach, identification, and initial questioning to be consensual.
B. The Existence of Reasonable Suspicion During the Encounter
It may be that at some point, the interview with Yearwood progressed into an investigatory stop. See, e.g., United States v. Place, 462 U.S. 696, 707, 103 S. Ct. 2637, 2644, 77 L. Ed. 2d 110 (1983); Sterling, 909 F.2d at 1083. An investigatory detention is something more than a consensual encounter and something less than a full-blown arrest. See Borys, 766 F.2d at 308. As such, it implicates the Fourth Amendment. Accordingly, in order to conduct an investigatory stop, an agent must have a reasonable suspicion of criminal activity. Id. at 308.
At the earliest, the encounter would have ripened into an investigatory stop when Mostek received, and failed to return, Yearwood's ticket and driver's license.
It was only at that point that Yearwood may reasonably have believed that he was not free to leave.
However, even if the agents had not had a reasonable suspicion of criminal activity when they first stopped Yearwood, they certainly had such a suspicion after perusing the ticket and license. Yearwood had tendered a ticket made out for David Harrison and had claimed that that was his name. Next, he had offered a driver's license with the name David Harrison Yearwood and claimed that that was his name. He then admitted that he went by both names. The use of an alias, combined with the information provided by Connors and corroborated upon Yearwood's arrival at O'Hare, created a reasonable suspicion that Yearwood might be involved in criminal activity. Accordingly, even if the encounter had ripened into an investigatory stop, it did not violate the Fourth Amendment, because the agents had a reasonable basis for such a stop. See Johnson, 910 F.2d at 1510 (court noted that where defendant was travelling from the source city of Los Angeles, had purchased a ticket with cash, picked up the ticket twenty minutes before departure, appeared nervous, trembled when police approached for questioning, travelled under an assumed name, lied about possessing photo identification, and had an incorrect call-back number on her ticket, the police had sufficient reasonable suspicion to justify a seizure).
C. The Existence of Reasonable Suspicion at the Outset of the Encounter
Finally, we find that even if the agents' initial stop of Yearwood was not consensual, but implicated the Fourth Amendment as an investigatory stop, Mostek and Scheuler had a reasonable basis for suspicion of criminal activity at the time they first approached Yearwood. Mostek and Scheuler had received information from a reliable source, which they believed derived from the DEA in Los Angeles. Although in fact the information did not originate with a DEA agent, Mostek and Scheuler reasonably believed it did. Moreover, with the exception that it was a ticket agent, rather than a DEA agent, who tried to search Yearwood's bag in Los Angeles, the information was accurate.
The information, in turn, was sufficient to create a reasonable suspicion of criminal activity. Yearwood 1) arrived from the source city of Los Angeles, 2) purchased a one-way ticket, 3) used cash, 4) bought his ticket shortly before the departure of his flight, 5) appeared nervous, 6) carried a new-looking bag, 7) refused to allow his bag to be searched, and 8) repeatedly scanned the crowd at O'Hare. See United States v. Jaramillo, 891 F.2d 620 (7th Cir. 1989) (court found that where defendants arrived from a source city, purchased their tickets in cash the same day of the flight, carried little luggage, scanned the airport in countersurveillance, took a suspicious path through the concourse, and tried to avoid detection by agents, there was reasonable suspicion to justify an investigatory stop). All of these facts were consistent with the transportation of narcotics and supported the suspicion that Yearwood might be a courier. Because Mostek and Scheuler had a reasonable suspicion that Yearwood might be transporting drugs, it was constitutionally permissible for them to conduct an investigatory stop of Yearwood, even though they chose to gain Yearwood's consent to a stop and search.
For the foregoing reasons, we adopt Magistrate Judge Rosemond's findings and overrule the defendant's objections. It is so ordered.
MARVIN E. ASPEN
United States District Judge