U.S. v. McCaleb

• Decision Date: 11 April 1977
• Docket Number: Nos. 76-2060,76-2061,s. 76-2060
• Citation: 552 F.2d 717
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert Ross McCALEB and Brenda Page, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 717

552 F.2d 717

UNITED STATES of America, Plaintiff-Appellee, v. Robert Ross McCALEB and Brenda Page, Defendants-Appellants.

Nos. 76-2060, 76-2061.

United States Court of Appeals, Sixth Circuit.

Argued Dec. 15, 1976.

Decided April 11, 1977.

Martin S. Baum, Detroit, Mich. (Court appointed-CJA), for defendant-appellant in No. 76-2060.

Renee S. Siegan, F. Randall Karfonta, Detroit, Mich., for defendant-appellant in No. 76-2061.

Philip Van Dam, U. S. Atty., Christopher A. Andreoff, Detroit, Mich., for plaintiff-appellee.

Before WEICK, PECK and ENGEL, Circuit Judges.

PECK, Circuit Judge.

These defendants appeal their convictions for possession of a controlled substance with intent to distribute in violation of 21 U.S.C. § 841(a)(1). McCaleb was first found guilty by a judge sitting without a jury. Page was convicted after a jury trial. Prior to the trials, the district judge conducted an evidentiary hearing on the defendants' motions to suppress the evidence and a separate evidentiary hearing in order to develop more fully the facts underlying the Drug Enforcement Administration's (DEA) efforts to curtail narcotics traffic at the Detroit Metropolitan Airport, since these efforts were highly relevant to defendants' motions to suppress.

The facts disclosed at those hearings and the subsequent trials are as follows: On October 28, 1975, DEA agents observed two men and one woman, later identified as appellant McCaleb, one Larry Burnell White (his motion for directed verdict of acquittal was granted at trial), and appellant Page, arriving at the Detroit Airport on an American Airlines non-stop flight from Los Angeles. Page was carrying a shoulder bag, the others carried no luggage. The DEA agents testified that they recalled seeing Page and one of the men board the plane for Los Angeles the evening before, wearing the same clothes. The agents followed the three to the baggage claim area, observing that the trio did not converse and that Page and McCaleb appeared nervous, while White did not. McCaleb claimed one bag. As the three proceeded to the parking lot, they were stopped by the agents, who identified themselves and asked them their names and for some identification. All three detainees produced driver's licenses corresponding to the names given, McCaleb, White and Page. Agents then observed McCaleb's bag was tagged with the name D. Robertson and asked to see their flight coupons. McCaleb produced three tickets which showed the names Mr. and Mrs. Robertson and Mr. Johnson. Upon questioning by one of the agents, Page said she was not married and had been in Los Angeles for one week.

The three persons were then escorted to a small office in the airport by three DEA agents and were advised of their Miranda rights. McCaleb admitted that the suitcase was his and Agent Markonni told McCaleb he wanted to search the bag with McCaleb's consent, and that if McCaleb refused consent, the three would be detained while he (Markonni) secured a search warrant. McCaleb hesitated, then asked Page for the key, which he took and unlocked the suitcase. Agent Markonni then opened the suitcase and seized what looked like and later proved to be heroin and three flight coupons in the names of Mr. and Mrs. F. Washington and J. Smith for the evening flight to Los Angeles the preceding day. After this search and seizure, Page, McCaleb and White were advised that they were under arrest.

At the conclusion of the evidentiary hearings, the district judge determined that: (1) the DEA's use of a so-called "drug courier profile" does not, without "more indicia of criminal activity" constitute probable cause to arrest; (2) the fact that appellants met certain aspects of the "courier profile" gave rise to a "founded suspicion" and a valid investigative stop under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); and (3) appellants gave a valid, voluntary consent to search. ¹

The "drug courier profile" is a rather loosely formulated list of characteristics used by Detroit DEA agents to indicate "suspicious" persons. These characteristics include: (1) the use of small denomination currency for ticket purchases; (2) travel to and from major drug import centers, especially for short periods of time; (3) the absence of luggage or use of empty suitcases; (4) nervousness, and; (5) use of an alias. DEA agents testified that the presence of a number of these characteristics suggests that the person observed may be carrying contraband drugs. During the time period of the instant arrests, this profile was not written down, nor was it made clear to agents exactly how many or what combination of the characteristics needed to be present in order to justify an investigative stop or an arrest.

In this case, DEA agents observed three persons, two of whom were nervous, returning on a non-stop flight from Los Angeles after a short trip, and having only one suitcase among them. The government contended in the district court that these profile characteristics gave the DEA agents probable cause to arrest appellants or at least "reasonable suspicion" sufficient to justify a Terry stop. Police officers have probable cause to make an arrest when "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 (a person) has 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); United States v. Prince, 548 F.2d 164 (6th Cir. 1977). We agree with the conclusion of the district judge that the "drug courier profile," by itself, provides no probable cause to arrest an individual. In addition, while a set of facts may arise in which the existence of certain profile characteristics constitutes reasonable suspicion, the circumstances of this case do not provide "specific and articuable facts which, taken together with rational inferences from those facts, reasonably warrant(ed)" the intrusion of an investigatory stop. Terry v. Ohio, supra, 392 U.S. at 21, 88 S.Ct. at 1880; United States v. Cupps, 503 F.2d 277, 281 (6th Cir. 1974). "Founded suspicion requires some reasonable ground for singling out the person stopped as one who was involved or is about to be involved in criminal activity." United States v. Carrizoza-Gaxiola, 523 F.2d 239, 241 (9th Cir. 1975). The activities of the appellants in this case observed by DEA agents, were consistent with innocent behaviour.

Even if we were to find the initial stop of appellants to have been justified, the following detention of appellants clearly went beyond the scope of Terry, which justifies only a very limited detention "reasonably related in scope to the justification for (its) initiation." U. S. v. Brignoni-Ponce,422 U.S. 873, 881, 95 S.Ct. 2574, 2580, 45 L.Ed.2d 607 (1975) citing Terry,supra, 392 U.S. at 29, 88 S.Ct. 1868; and see United States v. Hunter and Allen, 550 F.2d 1066 (6th Cir. 1977). Appellants were not free to leave at any point after the initial stop by the agents. As this court stated in Manning v. Jarnigan, 501 F.2d 408 (6th Cir. 1974), "(t)he difference between an...