U.S. v. Goodwin

• Decision Date: 24 May 2006
• Docket Number: No. 05-1809.,05-1809.
• Citation: 449 F.3d 766
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Dennis S. GOODWIN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

449 F.3d 766

UNITED STATES of America, Plaintiff-Appellee, v. Dennis S. GOODWIN, Defendant-Appellant.

No. 05-1809.

United States Court of Appeals, Seventh Circuit.

Argued January 17, 2006.

Decided May 24, 2006.

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 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 true that the police officer to whom the defendant had handed his identification and ticket was still holding these items when the defendant's fishy "lost key" story carried the suspicion that had been aroused by his fitting the drug profile over the line that separates bare suspicion from reasonable suspicion. But the interval was too brief to amount to a seizure of the defendant (compare United States v. Lambert, 46 F.3d 1064, 1068 (10th Cir.1995)) and anyway it is not a seizure to prevent a person from moving who doesn't want to move. This was well explained in Florida v. Bostick, 501 U.S. 429, 435-36, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991): "When police attempt to question a person who is walking down the street or through an airport lobby, it makes sense to inquire whether a reasonable person would feel free to continue walking. But when the person is seated on a bus and has no desire to leave, the degree to which a reasonable person would feel that he or she could leave is not an accurate measure of the coercive effect of the encounter. Here, for example, the mere fact that Bostick did not feel free to leave the bus does not mean that the police seized him. Bostick was a passenger on a bus that was scheduled to depart. He would not have felt free to leave the bus even if the police had not been present. Bostick's movements were `confined' in a sense, but this was the natural result of his decision to take the bus; it says nothing about whether or not the police conduct at issue was coercive." See also United States v. Childs, 277 F.3d 947, 951 (7th Cir.2002) (en banc).

The combination of fitting the drug profile and giving a suspicious answer to the question about looking inside his luggage created a reasonable suspicion that the defendant's luggage contained contraband. United States v. Sterling, 909 F.2d 1078, 1083-84 (7th Cir.1990); United States v. Bayless, 201 F.3d 116, 132-34 (2d Cir.2000). The police also "stopped" the defendant: By telling him to accompany them to their office to get a receipt for the luggage while holding on to his ticket and identification they forced him out of the train and, given the proximity of its departure, marooned him in Chicago for 24 hours. If the "stop" of the luggage was lawful, doubtless so was the stop of him, as there was no reason to think him an unwitting courier of contraband; his conduct was all against that inference. But even if stopping him was unlawful and might therefore support a damages suit, it had no consequences for the criminal proceeding against him. For once the police had the luggage and submitted it to a dog sniff, they had what they needed. If the luggage was lawfully seized and retained for the time it took to do the sniff, there was no basis for excluding it as evidence of a drug crime.

Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), authorized the common police practice of stopping a person who is behaving in a suspicious manner to question him briefly and, if the officers are worried that he may be armed, patting him down. So: "stop and frisk." All that is required is that the officers' suspicion be "reasonable." To "stop" a piece of luggage and interrogate it with a dog's nose fits the principle though not the facts of Terry, and was held to be a proper application of the underlying principle in United States v. Place, 462 U.S. 696, 703-06, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983). That principle is that the less protracted and intrusive a search or seizure is, the less suspicion the police need in order to be allowed to conduct it. United States v. Burton, 441 F.3d 509, 511 (7th Cir.2006). "It does not follow that because an officer may lawfully arrest a person only when he is apprised of facts sufficient to warrant a belief that the person has committed or is committing a crime, the officer is equally unjustified, absent that kind of evidence, in making any intrusions short of an arrest." Terry v. Ohio, supra, 392 U.S. at 27, 88 S.Ct. 1868. When the officers in the present case removed the defendant's luggage from the train they "stopped" the luggage from going to Denver, but they had a reasonable suspicion that the luggage contained contraband and that is all that is required for a Terry stop or its luggage equivalent. Yet we cannot end our analysis here. We shall have to explore further the principle that underlies the Terry and Place decisions.

To begin with, the amount of permissible intrusion is a function not only of the likelihood of turning up contraband or evidence of crime but also of the gravity of the crime being investigated. In City of Indianapolis v. Edmond, 531 U.S. 32, 44, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000), the Supreme Court remarked that "the Fourth Amendment would almost...