The opinion of the court was delivered by: Blanche M. Manning, United States District Court Judge
On October 25, 2001, a federal grand jury returned a four count indictment against Defendants Larry Neal and James Oliver, alleging that they conspired to possess and did possess approximately $12,000 in counterfeit United States currency, in violation of 18 U.S.C. § 472, and conspired with each other to possess a controlled substance with intent to deliver, in violation of 21 U.S.C. § 846. The present matter comes before the court on Defendants' motions to quash their arrests and suppress evidence obtained as a result of the arrests [31-1 and 21-1].
On May 2, 2001, agents Glynn and Alznauer of the Drug Enforcement Agency's ("DEA") Chicago interdiction task force ("the Task Force"), were on patrol at Midway Airport in Chicago. The Task Force attempts to identify and intercept couriers of drags and narcotics-related currency at airports and bus and train stations. Agent Glyn has been with the DEA for 14 years, while agent Alznauer for four years. In all, they had performed hundreds of seizures based on interdictions.
The agents, who were dressed in plain clothes with guns and handcuffs hidden, were on patrol at Gate-B12, observing passengers boarding a plane leaving at 9:30 p.m. for Los Angeles. According to the agents, Los Angeles is a frequent location for couriers of drag-related currency. Around 9:00 p.m., after the plane had already begun boarding, the agents first noticed Defendants because they arrived late, after most of the passengers had already boarded the plane. The agents grew suspicious when they noticed that Defendants were walking together and conversing, but as they neared the gate, Defendants began to walk slowly and then separated and acted like they were no longer traveling together. Although Defendants separated, the agents noticed that they maintained eye contact with each other and were glancing furtively around the concourse.
According to the agents, based on their training and experience, persons arriving late and traveling separately are two common characteristics of drug and/or money couriers. After observing Defendant Oliver get in line at the check-in counter and then walk away from the gate, the agents decided to "conduct a consensual interview" with him. At this time, Defendant Neal was outside the agents' sight.
The agents then approached Oliver and agent Glynn produced his badge and identified them as police officers. Standing a couple of feet from Oliver, in a "very polite" tone, agent Glynn told Oliver that he "was not under arrest, [and] that he was free to leave and was not in any trouble" and that they would like to ask him some questions. Oliver stated that he understood and agreed to talk to the agents.
Shortly after the agents approached Oliver, Neal walked up to the three of them and asked "what was going on." Agent Glynn then produced his badge and explained that the agents were asking Oliver some questions and that Neal "was not under arrest and the he was free to leave." Agent Glynn also asked Neal if "he would answer some questions also." Neal responded that he did not mind answering the agents' questions.
After Defendants agreed to answer the agents' questions, agent Glynn asked to look at their tickets. Defendants voluntarily handed over their tickets. Agent Glynn quickly observed the tickets and then returned them. He then asked Defendants questions regarding their travel plans. Defendants did not know who had purchased their tickets or whether the tickets were purchased with cash. They stated that the purpose of their trip to Los Angeles was to "kick it" with their friends for a few days. However, Defendants stated that they did not have round-trip tickets.
Agent Glynn also asked if Defendants were carrying narcotics or large amounts of cash. After Defendants said they were not, agent Glynn asked them how much money they were carrying. They told him that they had about $200 each. Agent Glynn then asked if he could see the money. Defendants then reached in their pockets and showed the agents what appeared to be about $200. After looking at the money, without touching it, agent Glynn told Defendants that they could put the money back in their pockets.
Once Defendants had the money back in their pockets, Agent Glynn asked Neal if he "would grant [agent Glynn] permission to conduct a quick pat-down search of his person to make sure that he did not have any large amounts of cash or drugs on his person." After Neal gave permission, agent Glynn started the pat down with Neal's left boot. Immediately after touching his left boot, agent Glynn felt a "large bulge rectangular in shape." Based on his experience in doing interdictions, agent Glynn believed that this bulge was consistent with "the size and shape" of a large bundle of currency. The agent asked Neal what was in his boot and Neal stated that it was "nothing."
During the above questioning, pursuant to DEA interdiction procedures, the agents were standing with their backs to the wall with ample space between the agents and Defendants. Defendants appeared shaky and nervous and were continuously looking down towards the ground. Defendants never told the agents that they need to leave because they were going to miss their flight.
After detecting what he believed a large amount of currency, agent Glynn gave agent Alznauer a look indicating he had found contraband and asked Defendants if they would be "willing to accompany [the agents] to our office? It's in the airport. We'll go talk about this further." In response, Defendants agreed to go to their office. The agents and Defendants then walked five minutes to the DEA's airport office. Defendants were not handcuffed or restrained in any way. Agent Glynn walked next to Neal, while agent Alznauer and Oliver followed behind.
During the five minute walk to the DEA office, the agents and Defendants engaged in "general conversation." In response to agent Glynn's question of how much money he had, Neal stated that he had $10,000 or $11,000, and that it was not his money and he did not have a job or file income taxes. Similarly, Oliver told agent Alznauer that he was carrying $5,000. Additionally, at some point, ...