U.S. v. Avery

• Decision Date: 03 November 1997
• Docket Number: No. 95-5232,95-5232
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Cortez AVERY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 343

137 F.3d 343

UNITED STATES of America, Plaintiff-Appellee, v. Cortez AVERY, Defendant-Appellant.

No. 95-5232.

United States Court of Appeals, Sixth Circuit.

Argued Oct. 5, 1995.

Decided Nov. 3, 1997.

Harry P. Hellings, Jr. (argued & briefed), Hellings & Pisacano, Covington, KY, for Defendant-Appellant.

Frederick A. Stine, V, Asst. U.S. Attorney (argued and briefed), Laura K. Voorhees, Asst. U.S. Attorney, Covington, KY, for Plaintiff-Appellee.

Before: KEITH, JONES, and BOGGS, Circuit Judges.

NATHANIEL R. JONES, J., delivered the opinion of the court, in which KEITH, J., joined. BOGGS, J. (p. 358), delivered a separate concurring opinion.

AMENDED OPINION

NATHANIEL R. JONES, Circuit Judge.

The Defendant entered a conditional plea of guilty in the district court to the charge of possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1). Pursuant to Federal Rule of Criminal Procedure 11(a)(2), he appeals the district court's denial of his motion to suppress, arguing that cocaine recovered from his carry-on bag should be excluded because (1) airport officers targeted, pursued and interviewed him solely due to his race, in violation of the Equal Protection Clause of the Fourteenth Amendment, and (2) the airport officers seized his bag without reasonable suspicion and thereafter unreasonably detained it, in violation of the Fourth Amendment. We find that although the officers' detention of the Defendant's bag did not violate the Fourth Amendment, and that while the Defendant may have enjoyed Fourteenth Amendment protection, it was not implicated in this case. We therefore affirm.

I.

On December 16, 1993, agents John Bauerle, Carl Parker and Tim Shaffner of the Cincinnati/Northern Kentucky Airport Narcotics Interdiction Unit were working in Delta Concourse B, monitoring a flight from Los Angeles. Because their observations did not provoke concern, they proceeded toward Concourse A. As they alighted the escalator and walked through the tunnel in the direction of Concourse A, Officer Parker turned to look for another officer who had been with them earlier in the day. At that point, he noticed Defendant Cortez Avery walking hurriedly and stated to his fellow officers, "wait a minute, guys, let this guy get by us." J.A. at 128. Avery, a young African-American male, was wearing sweat pants and a short-sleeve sweatshirt and was carrying a gym-type, carry-on bag. According to Officer Bauerle, Avery appeared very focused and looked straight ahead. Officer Parker stated, "[Avery] looked like a man on a mission." Id. The officers decided to follow Avery.

Avery stopped at Gate A-16, went to an empty row of seats facing the windows, and sat in the seat that was closest to the podium and jetway door. Avery appeared anxious to get on the airplane. He tendered his boarding pass to the agent at the podium before a boarding announcement was made and eventually was the first passenger to board the plane. Considering Avery's actions peculiar up to that point, Officer Parker retrieved Avery's boarding pass after Avery boarded and asked the gate agent for ticketing information. She indicated that Avery used a one-way ticket purchased with cash thirty-five minutes prior to departure from San Juan, Puerto Rico, connecting in Orlando and Cincinnati with the final destination of Washington, D.C. ¹ The ticket was issued in the name of Antoine Jones.

Armed with this data, Officer Bauerle believed he had "reasonable suspicion" and decided to speak with Avery. J.A. at 132. Two officers, Bauerle and Shaffner, boarded the plane and located Avery in a window seat near the rear of the aircraft. The aisle seat was occupied. From the aisle behind Avery, Officer Bauerle identified himself as a police officer, displayed his badge, and asked Avery if he could speak to him. Avery agreed, and the two stepped into the galley at Bauerle's request. Agent Shaffner stood at the rear of the galley, behind Officer Bauerle, careful not to block Avery's passageway back to his seat or off the plane. At this point, however, the boarding process was not yet completed, and passengers may have impeded Avery's exit from the plane.

Officer Bauerle asked Avery if he could see his ticket, but Avery stated that he had thrown it away. He asked Avery where he had come from, and Avery responded that he was travelling from Orlando. Bauerle then asked Avery if he had been anywhere prior to Orlando, and Avery stated that he had not. In response to Bauerle's questions concerning the purpose of his visit to Orlando, Avery replied that he had gone to visit friends and was on a mini-vacation by himself. Avery said that he lodged at a hotel but could not remember its name; Avery did not have any receipts for the hotel. He also stated that he did not rent a car while in Orlando. Bauerle then asked the Defendant his name, and he identified himself as Cortez Avery. In response to a request for identification, Avery explained that he had none, but gave his correct date of birth, social security number, and address. With regard to the disparity in names, Avery responded that the airline must have made a mistake when it issued the ticket in the name of Antoine Jones.

Noting the inconsistencies between Avery's statements and the information known to the officers, as well as odd circumstances, such as Avery's lack of identification, Bauerle informed Avery that he was looking for narcotics and asked if he could search Avery's bag. Avery declined the request. Avery, however, consented to a search of his person. Nothing was found. Thereafter, Bauerle informed Avery that he would seize the bag in an attempt to get a warrant, reasoning that due to all the information gathered, he had reasonable suspicion to detain it. J.A. at 137.

Officer Bauerle informed Avery that he was not under arrest and that he was free to leave. Bauerle then told Avery that he had two options: he could remain with the bag or, if Avery would provide an address, he could leave, and the bag would be mailed to him if Bauerle was unable to get a warrant or if there was nothing illegal in it. Avery chose to continue travelling to Washington, D.C., leaving his bag with the officers. The plane departed at approximately 2:35 p.m. and was scheduled to arrive at Washington National Airport at 3:47 p.m.

Upon exiting the aircraft, the officers directed the airport police department to contact Officer Evans, the drug-detecting canine handler. At the airport police station, the officers placed the bag along side several other bags on a table. About 2:55 p.m., twenty-five minutes after leaving the plane with Avery's bag, Officer Evans reported that the dog gave a positive indication of narcotics scent on the bag. The officers then prepared an affidavit for a federal search warrant. The bag was searched pursuant to the warrant, and cocaine was discovered. Thereafter, Cincinnati agents contacted D.C. authorities, and Avery was arrested and detained upon his arrival at Washington National Airport.

A complaint was filed charging Avery with possession with the intent to distribute approximately two kilograms of cocaine. The grand jury issued a one-count indictment on January 12, 1994. On March 1, 1994, Avery moved to suppress the evidence found in his bag, alleging the detectives had violated his right to equal protection guaranteed by the Fourteenth Amendment. Additionally, Avery argued that the detention of his bag was in violation of the Fourth Amendment protection against unreasonable seizure. The district court held an evidentiary hearing on May 11, 1994, after which briefs were submitted.

At the hearing, Officer Bauerle testified that officers are formally taught to look for certain characteristics when identifying people suspected of carrying narcotics. According to Bauerle, prime among those characteristics are: (1) one-way cash tickets purchased shortly before flight time; (2) persons leaving the airplane who do not ask for directions; (3) certain modes of dress; and (4) people who are walking hurriedly through the airport. J.A. at 140. Further, Bauerle testified that although he has never been formally taught to look at race as a characteristic, through informal "networks" with other airports, officers have at times looked for Black or Jamaican gangs using young White females as couriers. Task Force Officer Jim McKiernan also testified that characteristics can change from textbook definitions depending upon trends in the drug-trafficking business and that sometimes race and gender are discussed informally.

At the request of the government, Officer McKiernan and Lieutenant Gayle Blackburn provided statistical data gathered on reported encounters at the airport. This data was not compiled as a matter of course, but was derived from investigative reports. Although Blacks are a minority of the air-travelling public, the relevant data demonstrated that the drug interdiction unit stopped more Blacks than any other group. Notwithstanding, the data did not account for all investigations at the airport, only those the officers choose to report, which Lt. Blackburn "guesstimate[d]" was only 50 percent or less of the total number of persons with whom the task force had contact.

After the hearing and submission of briefs, on October 17, 1994, the magistrate judge issued his Report and Recommendation, recommending denial of Avery's motion. The district court adopted the magistrate judge's Report and Recommendation and issued an Order on November 8, 1994, denying Avery's motion to suppress. Avery entered a conditional plea of guilty on November 16, 1994, and on January 26, 1995, he was sentenced to forty-six months in prison. This appeal followed.

II.

On appeal, Avery contends that the district court erred in determining that the actions of the police did not violate the Fourteenth Amendment's Equal Protection Clause, and that the district court erred in finding the detention of his bag...