U.S. v. Hunter

• Decision Date: 04 March 1977
• Docket Number: No. 76-1631,76-1631
• Citation: 550 F.2d 1066
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Sheryl HUNTER and Ezell Allen, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1066

550 F.2d 1066

UNITED STATES of America, Plaintiff-Appellant, v. Sheryl HUNTER and Ezell Allen, Defendants-Appellees.

No. 76-1631.

United States Court of Appeals Sixth Circuit.

Argued Oct. 15, 1976.

Decided March 4, 1977.

Philip M. Van Dam, U. S. Atty., Loren G. Keenan, John Conley, Detroit, Mich., for plaintiff-appellant.

Lonnie Smith, Detroit, Mich., for Hunter.

Charles D. Lusby, Detroit, Mich., for Allen.

Before PECK and ENGEL, Circuit Judges, and MILLER, Associate Judge. ^*

PECK, Circuit Judge.

Defendants were indicted for possession of the controlled substance heroin with intent to distribute in violation of 21 U.S.C. § 841(a)(1). ¹ Upon a motion made by the defendants, the district court suppressed as evidence the heroin seized in the course of a search conducted at the Detroit Metropolitan Airport by agents of the Drug Enforcement Administration. The district court suppressed the evidence as to defendant Hunter because the federal agent did not have probable cause for her warrantless arrest. Thus the subsequent warrantless search of defendant Hunter, which produced the heroin, was in violation of her Fourth Amendment right to be free from unreasonable search and seizure. The district court suppressed the evidence as to defendant Allen because the Court found that defendant Allen had automatic standing under Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), as one charged with constructive possession of the heroin, to contest the illegal search of and seizure of evidence from co-defendant Hunter. The United States appeals.

We hold that the district court correctly determined that there was not probable cause to arrest defendant Hunter, and thus we affirm the district court order to suppress the heroin evidence as to her. We also hold, however, that the district court erred in granting standing to defendant Allen on the authority of Jones, supra, to contest the illegal search of defendant Hunter, and we reverse the district court order suppressing the heroin evidence as to defendant Allen.

I

The case arose out of a continuing surveillance of the Detroit Metropolitan Airport by the federal Drug Enforcement Administration (DEA) in co-operation with local authorities. On July 28, 1975, a Detroit Metropolitan Airport security officer was interviewed by Wayne County, Michigan, Sheriff's Department Investigator Willie L. Heath and DEA Special Agent Thomas Dykstra. The airport security officer told the two agents that two male passengers had passed her security checkpoint carrying a briefcase filled with currency. The contents of the briefcase had been discovered when the security officer opened the briefcase after the security x-ray machine had shown the case to contain an unidentified large mass. The airport security officer also said that the two passengers were taking a flight to Los Angeles.

This information was relayed to DEA Special Agent Paul Markonni. He checked on the two passengers and discovered that they were travelling under the name "C. Williams" and "E. Allen." The phone number left with the airline was listed to a Rozert Jackson, who was on file at the Detroit office of the DEA as "James Clark." The "Clark" file contained information on men who matched the descriptions of the two men who had taken the flight to Los Angeles.

Markonni then contacted the Los Angeles Regional Office of the DEA. He requested that the Los Angeles office maintain surveillance of the two men. A few days later, the Los Angeles office reported back to Markonni that the requested surveillance of the two men had been conducted. The surveillance showed that the two men were driven from the Los Angeles airport to the home of a "documented" narcotics trafficker and then to the home of a large scale narcotics dealer. After receiving this information, Markonni contacted the Detroit Police Department. He learned that a "C. Williams" had been previously arrested twice for violations of Michigan State Narcotics Law. Plans were made to meet the two men on their return to Detroit.

On August 4, 1975, Markonni learned that a "C. Williams" and a "J. Hill" (another name in the "James Clark" file) were scheduled to return. At the Detroit Metropolitan Airport early on the morning of August 5th, Markonni looked in vain for the two men, but he did see one of the two men for whom he was looking. The man was with a female companion. Markonni approached the couple as they were entering a taxicab and asked for identification. The two produced driver's licenses showing the man to be Ezell Allen and the woman to be Sheryl Lynn Hunter. Markonni then asked to see their airline tickets. Allen produced two coupons in the names of "C. Williams" and "J. Hill." Markonni asked the two to accompany him to the American Airlines Baggage Claim Office where he told them they were under arrest. A search of the defendants followed. About 280 grams of heroin were found sewn in defendant Hunter's girdle. No narcotics were found on defendant Allen.

II

The Supreme Court has laid down the standard for determining probable cause:

Whether (an) arrest (is) constitutionally valid depends upon whether, at the moment the arrest was made, the officers had probable cause to make it whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense.

Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964). See Carroll v. United States, 267 U.S. 132, 161, 45 S.Ct. 280, 288, 69 L.Ed. 543 (1925); United States v. Edwards, 474 F.2d 1206, 1208 (6th Cir. 1973), rev'd other grounds, 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974). The determination as to whether this standard is met is "an act of judgment formed in light of the particular situation and with account taken of all the circumstances." Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879 (1949); United States v. Edwards, supra, 474 F.2d at 1208. Guiding this act of judgment, according to Beck v. Ohio, supra, 379 U.S. at 91, 85 S.Ct. at 225, and Brinegar v. United States, supra, 338 U.S. at 176, 69 S.Ct. at 1311, is the recognition that:

(t)he rule of probable cause is a practical, nontechnical conception affording the best compromise that has been found for accommodating . . . often opposing interests. Requiring more would unduly hamper law enforcement. To allow less would be to leave law-abiding citizens at the mercy of the officers' whim or caprice.

The district court correctly found that there was not probable cause to arrest defendant Hunter and hence the search of her was in violation of her Fourth Amendment right to be free from unreasonable search and seizure. For purposes of determining probable cause, all that Agent Markonni knew or could validly infer was that defendant Hunter was in the company of defendant Allen at the Detroit Metropolitan Airport; that defendant Allen had flight coupons in the names of persons suspected of narcotics violations; and that defendant Hunter had used one of the flight coupons that defendant Allen produced for Markonni's inspection. It cannot be said that in light of these circumstances that Agent Markonni had sufficient facts to warrant a prudent man in believing that the defendant Hunter had committed or was committing an offense. Law enforcement would not have been unduly hampered to wait in order to obtain more facts before seeking to arrest her. To find probable cause in this situation would leave law-abiding citizens at the mercy of officers' capriciousness.

The Government contends that the district court erred in not holding that defendant Hunter was initially stopped for an investigative stop permissible under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). It is obvious, however, that Terry cannot justify Markonni's arrest and search of defendant Hunter.

Terry upheld the propriety in certain situations of an intermediate police response short of arrest in "street" confrontations with individuals. In Terry, a police officer patrolling a street observed three persons studying a store in a way that caused him to suspect that the three individuals were "casing" the store for a robbery attempt. He approached the men and made inquiries. Not satisfied by their response and fearing that the men might be armed, the officer grabbed one of the men and patted him down for weapons. The frisk indicated that the man was carrying a concealed weapon. The officer then ordered the three men inside the store and patted down the other two men, finding another weapon on one of them. The Supreme Court held that the police officer's actions did not violate the Constitution because such an investigatory stop and frisk for weapons did not require the probable cause needed for arrest but required only the suspicion that would warrant a man of reasonable caution in believing that criminal activity was being planned or was occurring.

In the present case even had Agent Markonni had the reasonable suspicion necessary to conduct an investigatory stop of defendant Hunter, what followed the initial stop was clearly beyond the purview of Terry. First, the present case involved an arrest, whereas Terry concerned only an investigative stop. When Markonni took defendant Hunter into the airport office, he placed her under arrest without probable cause. The Government argument that there was only a limited detention of the defendants ignores the facts. Terry became irrelevant once the arrest was made. Second, the present case involved a full search, whereas Terry was limited to a frisk for weapons. Markonni made a search that only a full arrest could possibly justify, detailed enough to discover heroin sewn in a girdle. In Terry, the police officer limited his search to a pat-down for weapons without even reaching...