United States v. Waksal, 81-6092-Cr-NCR.

Citation539 F. Supp. 834
Decision Date19 February 1982
Docket NumberNo. 81-6092-Cr-NCR.,81-6092-Cr-NCR.
PartiesUNITED STATES of America v. Harlan WAKSAL.
CourtUnited States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida

Bruce Zimet, Asst. U. S. Atty., Miami, Fla., for plaintiff.

Donald L. Ferguson, Miami, Fla., for defendant.

ROETTGER, District Judge.

Defendant physician filed this motion to suppress the evidence of two-plus pounds of cocaine, one pound seized from his double set of underwear and the rest from his luggage as well as defendant's statements at the time of his arrest. The motion was heard by the district court.1

The case is startlingly similar to United States v. Smith, 649 F.2d 305 (5th Cir., 1981). Only the names are different and some of the places. There are a couple of extra wrinkles in the instant case which will be discussed in detail later on.

FINDINGS OF FACT

The court makes the following findings of fact: defendant is a physician currently engaged in the third year of his internal medicine residency program in Boston. In the last year Waksal met someone named Robert Johnson in a cocktail lounge in Boston and talked with him several times; defendant admitted to being "fascinated by his desperado type of thing". Johnson had told Waksal that Waksal's being a doctor would be a help in avoiding suspicion while carrying cocaine.

Subsequent to his arrest and Miranda warnings, defendant told the officers he had been lying by the pool at his family's condominium in Hallandale, Florida and an unknown person asked him to take cocaine to Boston. He insisted to the officers that was the way it happened although the officers expressed doubt that anyone would trust him with that quantity of drugs.

Waksal met a yacht broker named Hayes to discuss Waksal's interest in chartering a yacht in the future; they departed for Fort Lauderdale airport in order that Waksal could fly on to Boston. As reflected in the Smith opinion, and this court takes judicial notice of it: "The Miami-Fort Lauderdale area is known to D.E.A. agents as the most significant source of cocaine in the United States." 649 F.2d at 307.

Deputy Sheriffs Capone and Carl were working on the airport-narcotics detail at the Fort Lauderdale Airport on February 14, 1981, when defendant arrived with Hayes. Officer Capone noticed defendant come into the Delta Air Lines' terminal and stand by an unattended ticket counter. Defendant then looked directly at Capone and Capone observed defendant to be nervous at times. Defendant was carrying a briefcase and a carry-on bag with a shoulder strap. Defendant got in the ticket line and Capone moved to a position about fifteen feet behind defendant. Capone observed defendant to be "constantly scanning the terminal and still to appear somewhat nervous." Capone could see the airline ticket was purchased with cash and defendant did not check any luggage through.

Officers Capone and Carl stepped up to the defendant and his companion, Hayes, as they were leaving the Delta ticket area and identified themselves; they asked defendant if he had any identification and to show them his ticket. Defendant complied and showed them a driver's license from Ohio. Waksal identified himself as a physician in Boston. The doctor's age and his rather youthful appearance apparently caused the officers some difficulty in accepting that defendant was a physician.

Nevertheless, the officers explained they were narcotics agents who worked at the airport, gave an explanation about the drug problem in South Florida, and asked for defendant's cooperation with respect to his carry-on luggage. No weapons, handguns, handcuffs, or similar paraphernalia had been displayed or were displayed. Defendant explained that he was a doctor travelling to Boston and did not understand what the problem was. The officer stated there was no problem but he still wanted to go ahead and inspect the luggage. Defendant replied something to the effect of: "Yes you can."2

Carl was with defendant the entire time; defendant was never with Capone out of Carl's presence. When Officer Capone asked Dr. Waksal at the point of stop whether he would mind if the officer did an inspection of the carry-on luggage, Dr. Waksal responded "Go ahead and look." When asked if he would accompany them into the small room, off the baggage area, the defendant replied: "Okay" and the officers asked him if he would carry his own bags.

An officer asked defendant to follow him and handed the one-way airline ticket back to defendant. At that point Mr. Hayes inquired about what was going on and received a reply from Officer Carl that they were just conducting an investigation; Hayes then chose to depart. They proceeded to a small room just off the Delta baggage area.3

Defendant carried his luggage back to the small room and the briefcase and carry-on bag were placed on the table. Defendant at no time had expressed any disapproval of searching the luggage. Agent Carl went through the carry-on bag and found three clear plastic bags containing a white powdery substance, and showed them to Officer Capone. Upon discovery of the cocaine, defendant exclaimed "How did that get there?" Then Capone placed defendant under arrest and handcuffed him. He patted defendant down for weapons and felt a large bulge in the crotch area of Dr. Waksal. Capone then pulled defendant's trousers down and found Dr. Waksal was wearing two pairs of underwear with a clear plastic zip-lock type envelope with a white powdery substance in it attached to the first pair of underwear and another clear envelope with a white powdery substance in the second pair of underwear. Defendant then stated "Do you realize what you've done to me and to my career?" Capone replied to defendant: "Well, we didn't place this cocaine on your body."

Capone left the room to go call for a unit to transport the defendant to a sub-station at the airport. Up to that point defendant never stated he didn't want the officers to search his bag or his person and they had not discussed the legal alternatives to a voluntary consent to the search.

After Capone had gone to call for transportation Dr. Waksal asked Officer Carl what the officers would have done if he hadn't consented to the search or even stopped to talk with them. Carl replied: "We have alternatives," but it went no further.

At the airport's narcotic sub-station of the sheriff's office the Miranda warnings were read by Officer Capone and again defendant asked what the officers would have done if he had not submitted or consented to the search or stopped to talk with them. Defendant wanted to know what their alternatives had been. They replied that they could have called ahead to his destination or gotten a narcotics-detecting dog to sniff the bag and in the event of a positive reaction to try to obtain a search warrant.

A further search was conducted at the station and three grams of cocaine were found in defendant's jacket.

THE INITIAL POLICE CONTACT

As pointed out in Smith, the law in this circuit is clear "that the police may approach a citizen in an airport, identify himself, request identification, and briefly question the individual without bringing into play the proscriptions of the Fourth Amendment so long as the individual is not detained against his will or otherwise coerced into cooperating." Id. at 308, citing United States v. Pulvano, 629 F.2d 1151 (5th Cir. 1980) and United States v. Elmore, 595 F.2d 1036 (5th Cir. 1979). Further, "as long as the cooperation is voluntary and not the product of police coercion, a seizure has not occurred." Ibid.

As in Smith, defendant was neither required nor otherwise compelled to produce his identification or answer his questions. Upon request, Dr. Waksal elected to provide the information. He could have as easily elected not to cooperate, and simply walked away. Officer Capone testified that he has worked the airport-narcotics detail for some time and has made approximately 110 cases from the drug courier profile. He testified that some of the profile cases haven't resulted in arrests and some persons have chosen to leave.

This court must conclude, under the principles of Smith, that Dr. Waksal was not seized within the meaning of the Fourth Amendment at the time of the initial contact with the police. This court also concludes that appellant agreed in the ticketing/departure area to continue the matter and was not seized within the meaning of the Fourth Amendment at the time he went with the officers to the small office off the baggage area.

THE SEARCH

The court's findings are set forth above but the question of the voluntariness of defendant requires some discussion of other matters.4

The court found defendant rather intelligent, as was expected. The court had some difficulty with some aspects of defendant's credibility. Defendant does not come across as "street-smart". Yet, he insisted from the witness stand repeatedly that he was not at all nervous at the airport while also maintaining he was carrying cocaine for the first time. Not only human experience but a number of years of presiding at numerous trials involving...

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  • State v. Martin
    • United States
    • Washington Supreme Court
    • June 7, 1984
    ...117 Ill.App.3d 270, 72 Ill.Dec. 672, 452 N.E.2d 1368 (1983); Brown v. State, 426 So.2d 76 (Fla.Dist.Ct.App.1983); United States v. Waksal, 539 F.Supp. 834 (S.D.Fla.1982); State v. Hurd, 86 N.J. 525, 432 A.2d 86 The majority begins its analysis by extending the Frye rule to the admissibility......
  • State v. Collins
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    ...witness to testify with regard to those matters which he was able to recall and relate prior to hypnosis include: United States v. Waksal, 539 F.Supp. 834, 838 (S.D.Fla.1982); Collins, 132 Ariz. 180, 209, 644 [464 A.2d 1039] P.2d 1266; Quintanar, 659 P.2d 710, 713 (Colo.App.); Merrifield v.......
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    • July 21, 1983
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