Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.
No. 93 CR 868 -- Charles R. Norgle, Sr., Judge.
Before POSNER, Chief Judge, and MANION and ROVNER, Circuit Judges.
ARGUED SEPTEMBER 12, 1995
DECIDED DECEMBER 22, 1995
After the district court denied his motion to suppress, Brandon Odum entered a conditional plea of guilty to the charge that he had possessed with the intent to distribute approximately 5.8 kilograms of a substance containing cocaine in violation of 21 U.S.C. sec. 841(a)(1). He now appeals that conviction, arguing that the district court erred in refusing to suppress the cocaine found by law enforcement agents in a suitcase Odum had transported from Houston to Chicago. Because the district court considered improper facts in determining that the agents had reasonable suspicion to support their detention of the suitcase, we remand to enable the district court to reconsider that question without reference to the improper facts.
The facts relevant to the suppression issue are derived from Odum's affidavit, which was incorporated into his motion, from the complaint for search warrant prepared by DEA Narcotics Task Force Agent Martin Gainer, and from the testimony of Agent John Malloy, also of the Narcotics Task Force, at Odum's December 7, 1993 detention hearing.
On November 30, 1993, immediately before the departure of a Southwest Airlines flight from Houston to Chicago, Odum paid cash for a pre-reserved one-way ticket. Odum asked the ticket agent for cellophane tape to secure the locks on a yellow, hard-sided suitcase, which he then checked with the airline for the trip to Chicago. Because Odum had purchased his ticket and checked the suitcase so close to the flight's departure time, the suitcase was affixed with a late check-in tag. As Odum proceeded to his flight, the Southwest ticket agent reported her encounter with Odum to Officer Griff Maxwell, a Houston police officer assigned to the airport. Maxwell then called Agent Gainer in Chicago, relaying what he had learned from the ticket agent. Maxwell told Gainer that an African-American male of medium height had approached the Southwest ticket counter immediately before the departure of a Chicago flight and purchased a one-way ticket with cash. Maxwell explained that the man had asked the ticket agent for cellophane tape to secure the locks on a yellow, hard-sided suitcase, and that he had then checked the suitcase with the agent. Maxwell told Gainer that the man was carrying a black shoulder bag, that he was traveling under the name Brent Owens, and that his reservation for the flight had been made the previous evening.
Gainer then went with other agents to Chicago's Midway Airport to meet the Southwest flight, which was scheduled to arrive at 10:30 a.m. The agents positioned themselves directly across from the arrival gate and observed the passengers deplane. An African-American male with a black shoulder bag eventually emerged from the gate and proceeded down the concourse. Agent Gainer followed the man and observed him turn his head twice to look back over his shoulder, scanning the area behind him. As he made a right turn toward the baggage claim area, the man again looked back over his shoulder. The man entered the baggage claim area and waited for the arrival of the luggage from the Southwest flight. When he saw the yellow suitcase on the baggage carousel, the man approached it, looked around, and then lifted it from the carousel. Agent Gainer saw that the suitcase was large and that it had tape over the locks. At this point, the man made direct eye contact with Gainer and maintained it for a moment before looking away. The man then left the baggage claim area after showing his claim check to a security guard.
Agents Gainer and Malloy approached Odum, identified themselves as police officers, and asked to speak with him. Although both agents were dressed in civilian clothes, they displayed identification to confirm that they were police officers. Odum agreed to speak with the agents because, according to his affidavit, he initially wanted to cooperate by answering their questions. Gainer first inquired whether Odum had come into Chicago on the Southwest flight from Houston, and Odum stated that he had. Gainer then told Odum that he was not being accused of any crime and that he was not under arrest but that if Odum did not mind, Gainer wanted to ask him a few more questions. Odum told Gainer to "go ahead."
Gainer then asked to see Odum's airline ticket. Odum showed the agent a ticket that had been purchased with cash earlier that day. The ticket bore the name "Brent Owens." Gainer asked if Odum had any personal identification, and Odum responded that he did not. *fn1 In response to a series of questions, Gainer then learned that the yellow suitcase belonged to Odum, that Odum had packed part of the suitcase himself, that his sister had packed the other part, that Odum alone had packed the black shoulder bag, and that no third party had given Odum any packages to bring to Chicago.
At this point, Odum asked the reason for Gainer's questions, and the agent told Odum that he and Malloy were conducting a narcotics investigation at the airport in order to intercept controlled substances coming into and going out of Chicago. Odum began to shake upon hearing Gainer's response and then wiped his mouth with the back of his hand. According to Odum, he initially had been willing to answer the agents' questions, but as those questions became more personal, he became hesitant and nervous, and he wished to leave the encounter.
Gainer then asked Odum for permission to search the yellow suitcase. Odum inquired as to what would occur if he refused, and Gainer explained that the suitcase would be detained for a scent search by a trained narcotics detection dog. The agent told Odum that if the search resulted in a positive scent for narcotics, he would apply for a search warrant that would enable him to open the suitcase. If the scent search was negative, however, the suitcase would be mailed to Odum at any address he designated. Thus aware of the implications, Odum refused to consent to a search of the yellow suitcase. *fn2 Gainer then asked Odum to accompany the agents to their ...