561 F.2d 663 (6th Cir. 1977), 77-5105, United States v. Pope

Docket Nº:77-5105.
Citation:561 F.2d 663
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Nathaniel POPE, Defendant-Appellant.
Case Date:September 02, 1977
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 663

561 F.2d 663 (6th Cir. 1977)

UNITED STATES of America, Plaintiff-Appellee,

v.

Nathaniel POPE, Defendant-Appellant.

No. 77-5105.

United States Court of Appeals, Sixth Circuit

September 2, 1977

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[Copyrighted Material Omitted]

Argued June 9, 1977.

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Donald N. Krosin, Cleveland, Ohio, for defendant-appellant.

Frederick M. Coleman, U. S. Atty., Cleveland, Ohio, Robert S. Stone, Shaker Heights, Ohio, for plaintiff-appellee.

Before PHILLIPS, Chief Circuit Judge, and CELEBREZZE and PECK, Circuit Judges.

CELEBREZZE, Circuit Judge.

Appellant stands convicted by a jury on two counts of possessing a controlled substance, heroin and methadone, with the intent to distribute in violation of 21 U.S.C. § 841(a)(1) (1970). 1 Appellant was arrested by agents of the Drug Enforcement Administration (DEA) at Hopkins International Airport in Cleveland, Ohio, while in possession of approximately 330.24 grams of heroin and approximately 475 mililiters of methadone. Appellant raises a number of issues on appeal, the most significant of which are the District Court's refusal to suppress the seized evidence, failure to consolidate the separate counts of the indictment, and failure to instruct the jury on an essential element of an offense under 21 U.S.C. § 841(a)(1). Although the first two contentions are without merit, we conclude that the failure to instruct the jury on the "intent to distribute" element of § 841(a)(1) requires reversal.

On August 19, 1976, Special Agents William P. Johnson and Frank J. Magoch, Jr., of the DEA were assigned to the Cleveland airport to monitor incoming and outgoing flights to cities known to be drug distribution centers. Agent Johnson observed Appellant among passengers disembarking from a Los Angeles flight. One month earlier, on July 21, Appellant and a companion had aroused Agent Johnson's suspicions as they boarded a flight to Los Angeles. On that occasion, Agent Johnson observed the two men purchase one-way tickets to

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Los Angeles using cash taken from large rolls of bills which each was carrying. Appellant had a brown briefcase and his companion carried a brown paper sack from which he removed money to pay his fare. Agent Johnson learned from the ramp agent that the airline tickets were issued in the names of N. Pope and C. Saunders. Agent Johnson made inquiry and obtained a photograph of Saunders, Appellant's companion. DEA agents maintained surveillance on incoming Los Angeles flights for the next two days but they did not see either of the two men return.

After Agent Johnson noticed Appellant disembark on August 19, he and Agent Magoch followed Appellant down the airport concourse. The evidence shows that the Appellant appeared nervous and looked about several times, glancing at either Agent Johnson or Agent Magoch who were following him. The agents separated, with Agent Magoch continuing to keep Appellant under surveillance while Agent Johnson preceded them outside the terminal and on to the street. Agent Johnson identified himself to a uniformed police officer who was on duty outside the terminal and requested assistance. After Appellant left the terminal, Agent Johnson approached him and displayed his credentials. Immediately, Appellant bolted past the agent and policeman and ran into a nearby construction site. Agent Johnson gave chase shouting after Appellant that he was a federal agent. As Agent Johnson drew closer, Appellant either swung or threw his briefcase at the pursuing agent who then drew his service revolver. Appellant ran toward a storm sewer and, within view of both agents, withdrew a white bag from his coat, dropped down to the sewer grating, and stuffed the bag into the sewer. He was taken into custody and Agent Magoch retrieved a white airsickness bag from the sewer. Inside the airsickness bag were two plastic bags filled with a brown substance which proved to be heroin. Appellant was placed under arrest. The agents opened the briefcase and found that it contained a soft drink bottle filled with a pink liquid which proved to be methadone, a mortar and pestle, an electric blender and a jar of lactose. Appellant had $528 in cash in his pants pockets. Two one-way airline ticket stubs, Los Angeles to Cleveland, in the names of M. Johnson and J. Johnson, bearing a travel date of August 19, 1976, were in Appellant's coat pocket. In the briefcase, Agent Johnson found two additional ticket stubs, Los Angeles to Cleveland, in the names of A. Jones and E. Jones dated July 24, 1976. 2

Defense counsel moved to suppress the seized evidence and the motion was overruled. At trial, DEA chemist John Meyers testified that he had analyzed the evidence and found that the brown substance was 330.24 grams of heroin at 23% purity with manitol as dilutant; the surfaces of the mortar and pestle were coated with heroin and manitol; powder in the blender proved positive for heroin; and the pink substance in the bottle was 475 mililiters of liquid containing methadone.

Recently, this Court has reviewed a number of cases involving warrantless searches of airline passengers by DEA agents. See, e. g., United States v. Lewis, 556 F.2d 385 (6th Cir. 1977); United States v. Gill, 555 F.2d 597 (6th Cir. 1977); United States v. Craemer, 555 F.2d 594 (6th Cir. 1977). A majority of these cases have concerned the DEA's use of a "drug courier profile", which is a loosely formulated list of characteristics believed to be common to persons using airports for narcotics traffic. Compare, United States v. McCaleb, 552 F.2d 717, 719-20 (6th Cir. 1977), and United States v. Craemer, supra at 595. 3 Although

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not admitted in the Government's brief, it is obvious that the agents in this case were acting pursuant to a drug courier profile in singling out Appellant for surveillance. Accordingly, analysis of the search and seizure in this case properly begins with a discussion of the growing body of case law in this Circuit on the DEA's use of drug courier profiles to spot possible narcotics traffickers.

As we stated in United States v. McCaleb, 552 F.2d at 720, satisfaction of a drug courier profile, in itself, does not establish probable cause. See also United States v. Craemer, supra at 596. The agents must be able to point to additional articulable facts which indicate that the suspect is engaged in criminal activity. United States v. Hunter, 550 F.2d 1066, 1069-70 (6th Cir. 1977). Although meeting the profile does not establish probable cause, facts known to the agents which correspond to characteristics in the profile may be considered along with information obtained from other sources in determining that the agents did have probable cause to believe that an offense is being or has been committed. United States v. Gill, supra at 599. Compare, United States v. Prince, 548 F.2d 164 (6th Cir. 1977), and United States v. Craemer, supra at 597.

Even if the facts known to the agents do not amount to probable cause, the agents may be permitted to make a limited investigative stop of suspicious individuals under the "stop and frisk" doctrine announced in Terry...

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