U.S. v. Lewis, 76-2125

Citation556 F.2d 385
Decision Date06 June 1977
Docket NumberNo. 76-2125,76-2125
PartiesUNITED STATES of America, Plaintiff-Appellee, v. William Van LEWIS, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

Elliott S. Hall, Hall & Andary, S. Allen Early, Jr., Detroit, Mich., for defendant-appellant.

Philip M. Van Dam, U.S. Atty., Robert D. Sharp, Pamela Thompson, Detroit, Mich., for plaintiff-appellee.

Before WEICK, PECK and ENGEL, Circuit Judges.

PECK, Circuit Judge.

Defendant-appellant William Van Lewis was found guilty by a jury of having knowingly and unlawfully possessed the Schedule I controlled substance heroin in violation of 21 U.S.C. § 841(a)(1). 1 Appellant was sentenced to serve a term of 18 months in prison. Appellant now appeals his conviction on the ground that the district court erred when it denied his pretrial motions to suppress the evidence of heroin seized by agents of the Drug Enforcement Administration (DEA) in the course of a search at the Detroit Metropolitan Airport and then admitted the heroin into evidence at trial. 2 We affirm the appellant's conviction.

The facts of the case were developed in pretrial evidentiary hearings on motions to suppress evidence and at trial. On the morning of July 8, 1975, Mrs. Susan LeBlanc, a ticket agent for American Airlines at the Detroit Metropolitan Airport, informed DEA Special Agent Paul Markonni that a suspicious person by the name of "J. Hall" had just purchased a first class ticket on a flight to Los Angeles, California, with currency of small denominations. Mrs. LeBlanc gave Agent Markonni a description of "J. Hall" and said that "J. Hall" had initially requested a one way ticket to Los Angeles but then stated that he wanted a round trip ticket because if everything went all right he would be coming back later that evening. Mrs. LeBlanc added that "J. Hall" had checked a small suitcase that appeared to be empty except for one small item which slid around inside the suitcase.

"J. Hall" appeared suspicious to Mrs. LeBlanc because he fit a "drug courier profile" that DEA agents have used at the Detroit Metropolitan Airport to indicate persons likely to be carrying drugs. The characteristics listed on the profile 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. See United States v. McCaleb (,Page), 552 F.2d 717 (6th Cir. 1977).

Agent Markonni sought to check the reservation made by "J. Hall." Markonni found that it had been made earlier that week by telephone and that a telephone number had been provided as a contact. Markonni checked the telephone number and found it to be listed to William Van Lewis (the appellant), 7248 Rutland, Apt. 305, Detroit. The agent went to the apartment and identified himself to the apartment manager, who spontaneously suggested that the agent must be there to inquire about William Van Lewis in Apt. 305. Markonni asked why he thought so, and the manager said that the Detroit Police Department had the apartment under surveillance for alleged narcotics traffic. The description of William Van Lewis given by the apartment manager matched that of "J. Hall" given by Mrs. LeBlanc, the American Airlines ticket agent. The apartment manager also informed Markonni that he believed that appellant lived somewhere other than in the apartment, and he provided Markonni with a description of appellant's car and the license plate number.

Agent Markonni discovered that the license plate number was registered to appellant at 18463 Edinborough, Detroit. A check was then made with the Detroit Police Department, which informed Markonni that appellant had been arrested in February, 1973, for possession of heroin, and that he had previously been convicted for attempted unlawful use of an automobile and for uttering and publishing. The description of appellant in Detroit police files matched that of "J. Hall."

Markonni left word with American Airlines to alert him when "Hall" was scheduled to return. At 4:00 a. m., on July 9, 1975, Markonni was informed by an American Airlines employee that "Hall" was returning on a flight from Los Angeles early that morning.

Agent Markonni and DEA Special Agent Thomas Dykstra went to the airport. There they saw appellant deplane and go to the baggage claim area. Appellant was wearing the same blue denim leisure suit that he had worn to California the day before. Because all the passengers but appellant received their luggage, appellant had to go to the American Airlines baggage office to claim his suitcase. While he waited for his suitcase, Agent Markonni and Agent Dykstra kept watching appellant, and according to the agents, he appeared nervous.

As soon as appellant received his suitcase and began to leave the airport terminal, the two DEA agents, believing that they had probable cause to arrest, approached appellant, informed him that they believed he was in possession of narcotics, and requested him to accompany them to a small office in the airport terminal. In the office, appellant identified himself as William Van Lewis. Appellant was given Miranda warnings. When asked if his suitcase was locked, appellant, without verbal response, either set the combination of the suitcase so that it could be opened or simply handed the already unlocked suitcase to Agent Markonni. The suitcase was then opened by Agent Markonni. Only a shaving kit and one piece of clothing were found inside the suitcase. The DEA agents opened the shaving kit and found the heroin.

The district court agreed with the United States that there was probable cause to arrest appellant when he claimed his baggage at the airport and that the search of appellant's suitcase was valid as a search incident to an arrest. 3 The district court considered the DEA use of the "drug courier profile" and determined that the fact that a person possessed characteristics fitting the profile did not, without more indicia of criminal activity, provide DEA agents with probable cause to arrest. Nevertheless, the district court held that in appellant's case, the combination of the fact that appellant fit the DEA "drug courier profile" with additional information indicating that appellant was involved in narcotics traffic supplied the probable cause necessary to arrest legally the appellant.

On appeal, appellant contends that there was not probable cause to arrest him and that the evidence of heroin should therefore have been suppressed. Appellant especially attacks the use by the district court of the "drug courier profile" as an improper element to be considered in a determination of probable cause. The issue is thus whether there was probable cause to arrest appellant at the time he was escorted to the airport office, which would have made a warrantless search incident to a valid arrest permissible. United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1962); United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950); Manning v. Jarnigan, 501 F.2d 408 (6th Cir. 1974).

The Supreme Court in Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964), stated that the constitutionality of an arrest 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." 379 U.S. at 91, 85 S.Ct. at 225. The determination as to whether there was probable cause to arrest 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). That judgment is guided by "the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." Brinegar v. United States, supra, 338 U.S. at 175, 69 S.Ct. at 1310. The rule of probable cause thus rests upon a common sense approach that accommodates the need for effective law enforcement and the need to insulate law-abiding citizens from official capriciousness. Beck v. Ohio, supra, 379 U.S. at 91, 85 S.Ct. 223; Brinegar v. United States, supra, 338 U.S. at 176, 69 S.Ct. 1302. See United States v. Hunter (and Allen), 550 F.2d 1066 (6th Cir. 1977); United States v. Prince, 548 F.2d 164 (1977); United States v. Upthegrove et al., 504 F.2d 682 (6th Cir. 1974).

In appellant's case, the fact that appellant fit the "drug courier profile" is not a relevant factor in determining whether there was probable cause to arrest. In United States v. McCaleb (,Page), supra, 552 F.2d at 720, we stated that we agreed with the district court judge that the "drug courier profile," by itself, could not provide the probable cause necessary to justify legally the arrest of an individual. We also stated that in the context of McCaleb, the "drug courier profile" could not even provide the founded suspicion to justify an investigative stop under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Even assuming that an adequate profile could be drawn, under the rule laid down by the district court, in making his probable cause determination, the officer would still be faced with the extremely difficult problem of determining whether a person fit the profile and the even more formidable responsibility of deciding whether there was sufficient additional information.

Such a probable cause inquiry would be inappropriate for two reasons. First, the profile is too amorphous to be integrated into a legal standard. When appellant was arrested, "this...

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