449 F.3d 766 (7th Cir. 2006), 05-1809, United States v. Goodwin

Docket Nº:05-1809.
Citation:449 F.3d 766
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Dennis S. GOODWIN, Defendant-Appellant.
Case Date:May 24, 2006
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 766

449 F.3d 766 (7th Cir. 2006)

UNITED STATES of America, Plaintiff-Appellee,

v.

Dennis S. GOODWIN, Defendant-Appellant.

No. 05-1809.

United States Court of Appeals, Seventh Circuit.

May 24, 2006

Argued January 17, 2006

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division, No. 04 CR 270—John F. Grady, Judge.

Page 767

Christopher P. Hotaling (argued), Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

Kent R. Carlson (argued), Chicago, IL, for Defendant-Appellant.

Before Cudahy, Posner, and Wood, Circuit Judges.

Posner, Circuit Judge.

The defendant pleaded guilty to possession of the illegal drug Ecstasy with intent to distribute it and was sentenced to 60 months in prison. He reserved the right to appeal the denial of his motion to suppress the drugs seized from him in the course of what the parties inexactly describe as a " Terry stop."

He had reserved a one-way train ticket from Chicago to Denver the day before, and bought the ticket with cash only an hour before, the train's scheduled departure from Union Station. This pattern—last-minute cash purchase of a one- way ticket—is deemed by enforcers of the drug laws to be the profile of a drug courier, United States v. Johnson, 910 F.2d 1506, 1507 (7th Cir. 1990), though not to establish probable cause or even reasonable suspicion to believe that someone who fits the profile is a drug courier. The profile is used merely as a basis for deciding whom to investigate further.

Three members of a drug task force assigned to Union Station, having learned from the passenger manifest that the defendant fitted the profile, decided to try to interview him. They boarded the train at 2:30 p.m., five minutes before it was scheduled to depart, and found the defendant sitting in his sleeping compartment. Standing in the corridor they asked him whether he was willing to answer some questions, and he said yes. One of the officers asked him for his ticket and identification, and the defendant handed the documents to him. The officer asked him whether he was carrying weapons, narcotics, or large amounts of money, and he answered No. The officer noticed that the defendant had two pieces of luggage with him, and asked him whether he'd let him look inside the bags. The defendant refused. The officer asked him whether there was any money in the luggage. The defendant said there was and the officer again asked whether he could look inside, to which the reply was that the bags were locked and the defendant had lost the key. The officer offered to open the bags without damaging them but the defendant refused. A couple of minutes had passed since the officers had first approached him. The officer who had been questioning him was still holding the defendant's ticket and ID.

The officers' suspicions, founded initially on the defendant's fitting the profile of a drug courier, were heightened by the improbable story of the lost key—had the defendant indeed lost the key and had nothing incriminating in his bags, he would have welcomed the offer to open them without damaging them. The officers decided to seize the bags. They didn't arrest the defendant—indeed they assured him he wasn't under arrest—but they did ask him to accompany them to the police office so that they could give him a receipt for his luggage, and he agreed. (He didn't

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ask them why they couldn't give him a receipt on the spot.) While they were walking to the office, the train left. There is only one train daily from Chicago to Denver.

When they arrived at the police office, the officers told the defendant that they were going to summon a dog to sniff the luggage and if the dog "alerted" they would then get a warrant to search the luggage. At this point, knowing the jig was up, the defendant gave the officers the key. They opened the luggage and in one of the bags found a large amount of money and some Ecstasy. They arrested the defendant and put the money and the drugs back in the bag and closed it. The dog arrived (it's unclear when he had been sent for or how long it had taken him to arrive) and went wild when he smelled the bag. The purpose of the dog test, after the police knew what the bag contained, was to set the stage for an "inevitable discovery" argument in the event a judge found that the defendant's consent to the search of the bag had not been voluntary. Segura v. United States, 468 U.S. 796, 813-14, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984); Nix v. Williams, 467 U.S. 431, 444, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984); United States v. Blackwell, 416 F.3d 631, 633 (7th Cir. 2005). We shall not have to reach the issue of consent.

The government argues and the district judge agreed that the initial questioning of the defendant was not a "seizure" within the meaning of the Fourth Amendment, and that is undoubtedly correct. Seizure of a person implies restricting his freedom of movement. That didn't happen until the officers and the defendant left the sleeping compartment. Until then he was where he wanted to be. It was as if he'd been walking down the street and the police had fallen in step with him and asked him questions without causing him to alter his pace or his path. Such encounters are not pleasant, but they are not seizures until they impede the individual's freedom of motion.

It is...

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