United States v. Moya

• Decision Date: 07 May 1981
• Docket Number: No. 80 CR 341.,80 CR 341.
• Citation: 561 F. Supp. 1
• Parties: UNITED STATES of America v. Cesar MOYA.
• Court: U.S. District Court — Northern District of Illinois

561 F. Supp. 1

UNITED STATES of America v. Cesar MOYA.

No. 80 CR 341.

United States District Court, N.D. Illinois, E.D.

May 7, 1981.

Melvyn Kessler, Miami, Fla., for defendant.

Richard N. Cox, Asst. U.S. Atty., Springfield, Ill., for the U.S.

MEMORANDUM OPINION AND ORDER

DECKER, District Judge.

Defendant Cesar Moya has been charged in a one-count indictment with possession of cocaine with intent to distribute. This constitutes a crime in violation of the provisions of 21 U.S.C. § 841(a)(1). Currently pending is Moya's motion to suppress certain evidence. Since the sole contested questions of fact relate to the motion to suppress, defendant has chosen to waive his right to a jury trial in the event the motion is denied. On the basis of this waiver, the court heard evidence in this case on December 1, 1980. Having carefully reviewed the record and the briefs of the parties, the court hereby enters the following findings of fact and conclusions of law.

On March 20, 1980, Moya was observed deplaning from Delta Airlines Flight 142. Flight 142 was arriving at Chicago's O'Hare Airport from Miami, Florida. The flight was observed by agent Kenneth Labik, of the Drug Enforcement Administration, and officer Thomas Kinsella, of the Chicago Police Department. Labik and Kinsella were observing Flight 142 because they had been informed by their agencies that Miami was a source city for much of the illegal drug traffic into Chicago. There was no direct evidence introduced at trial to substantiate this belief.¹

After deplaning, Moya walked across the concourse from the arrival gate and surveyed the crowd. He then walked down the concourse towards the main terminal, looking backwards, over his shoulder periodically. During this time Labik and Kinsella were following Moya in order to keep him under observation. Before reaching the main terminal, Moya entered a men's room, followed by Labik. Moya checked all of the enclosed stalls and, discovering that they were all full, left the men's room. Upon reaching the main terminal, Moya again entered a men's room, this time followed by Kinsella. Moya found an open stall, entered it, closed the door, stood there for several minutes, and then left. Moya did not use the toilet. On leaving the men's room, Moya went downstairs to the arrival area of the terminal and entered a cab line. He did not go to the baggage claim area, and his sole piece of luggage was a shoulder bag, which he had carried off of the airplane.

As he was standing in the cab line, Moya was approached by Labik and Kinsella, who promptly identified themselves and asked Moya if they could speak with him. Moya said that they could. Labik and Kinsella testified that at this point they asked Moya for some identification, and that Moya denied that he had any. Moya testified that he was not asked for identification at this point. In any event, Moya was asked if he would agree to move back inside the terminal building in order to avoid the night chill and the pedestrian traffic. Again, Moya agreed. Once inside the building's foyer the questioning resumed. Moya was asked his name, which he gave as Cesar Moya, and he was asked for his airline ticket. He produced the ticket which was a one-way fare on Delta Flight 142 in the name of Cesar Moya. After examining the ticket Labik asked Moya for further identification. Moya responded by asking what this was all about. Labik ignored the inquiry, asking again for identification. Moya testified that at about this point he asked to leave, but that Labik and Kinsella would not let him go. Labik denied this. Kinsella did not testify on the point. After his question about the purpose of the interrogation was ignored, Moya reached into a side pocket of his shoulder bag and produced his driver's license. The driver's license was in Moya's name and had his picture on it. In reaching into the pocket, however, Moya gave Labik a view of a corner of a clear plastic bag. Labik asked Moya to produce the bag. Moya denied that he had a plastic bag. Labik told Moya that, "If he wouldn't remove it the bag, I would." Moya removed the bag, which proved to contain several other clear bags, some small bottles, and some small spoons. Moya told Labik and Kinsella that he used the contents of the bag to carry jewelry. Persuasive evidence adduced at the trial, however, indicates that the contents of the bag consisted of drug paraphernalia. At this point Labik and Kinsella asked Moya's permission to search the bag, telling him that he had a right to refuse. Moya refused. Labik and Kinsella then detained the bag in order to attempt to obtain a search warrant, and Moya left. Shortly thereafter, a trained police dog picked out Moya's bag from among a group of six others. On the basis of this showing, a search warrant was obtained. The validity of the warrant is not disputed. A search of the bag revealed that Moya had been carrying 501.77 grams of 35% cocaine. This quantity of cocaine has a street value of between $40,000 and $50,000. This is more cocaine than one person would normally hold for his personal use.²

The central issue in this case is whether or not the seizure of Moya's bag was constitutionally permissible. If that seizure was permissible, then, as defendant admits, the ultimate search of the bag was proper, and the evidence obtained is admissible. If, however, the seizure was improper, then the evidence obtained from searching the bag is "fruit of the poisonous tree" and, as such, it must be suppressed. Wong Sun v. U.S., 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Agent Labik testified that he "had no intention or thought of getting a search warrant or seizing that bag" at the time he and Kinsella approached Moya at the cab line. Consequently, the propriety of this seizure turns on two questions: (1) Was Moya "seized" in violation of his Fourth Amendment rights during the period when he was being questioned by Labik and Kinsella. (2) Assuming that the questioning did not amount to an unconstitutional seizure, did anything that came to light during the course of the questioning, when taken in conjunction with Moya's previous behavior, justify seizure of the bag.

Seizure of Moya's person.

Moya argues that, if his interview with Labik and Kinsella amounted to a seizure, then it was an improper one. In this Moya is correct. In Reid v. Georgia, 448 U.S. 438, 100 S.Ct. 2752, 65 L.Ed.2d 890 (1980), the Supreme Court was considering an appeal from the State Supreme Court of Georgia. There, as here, the defendant had been interrogated at an airport by a DEA agent. The agent observed Reid deplaning from a Fort Lauderdale flight. He and another male passenger were carrying identical flight bags. Reid and this other passenger walked down the airport concourse separately, but at the end of the concourse they joined one another and left the building together. During their walk to the main terminal, Reid occasionally looked behind himself towards the second man. Neither man picked up any additional luggage. As they left the main terminal, Reid and the other man were approached by the DEA agent. Subsequent events resulted in seizure of one of the airline bags which turned out to contain cocaine. The court below had presumed that the questioning of Reid and his colleague by the DEA agent was a seizure. Consequently, the sole question before the Supreme Court was whether or not a seizure could be constitutionally justified on these facts. In a per curiam opinion from which only Justice Rehnquist dissented, the Court concluded that the DEA agent did not have sufficient grounds for seizing Reid and his partner.

The Court began its argument by emphasizing that,

"While ... in some circumstances a person may be detained briefly, without probable cause to arrest him, any curtailment of a person's liberty by the police must be supported at least by a reasonable and articulable suspicion that the person seized is engaged in criminal activity." Reid v. Georgia, 100 S.Ct. at 2753.

In Reid the only reasons given for the stop of the defendant were the fact that he had deplaned from a flight arriving from a principal place of origin for cocaine distribution, the fact that defendant arrived early in the morning when law enforcement activity is diminished, the fact that he and his companion apparently were attempting to conceal that they were traveling together, and the fact that defendant and his companion had no luggage other than their shoulder bags. These observations, taken together, were said to bring Reid into conformity with the so-called "`drug courier profile,' a somewhat informal compilation of characteristics believed to be typical of persons unlawfully carrying narcotics," id., and, therefore, to justify the stop. The Court, however, concluded:

"... that the agent could not as a matter of law, have reasonably suspected the petitioner of criminal activity on the basis of these observed circumstances. Of the evidence relied on, only the fact that the petitioner preceded another person and occasionally looked backward at him as they proceeded through the concourse relates to their particular conduct. The other circumstances describe a very large category of presumably innocent travellers, who would be subject to virtually random seizures were the Court to conclude that as little foundation as there was in this case could justify a seizure." Id., 100 S.Ct. at 2754.

Here the reasons given by Labik and Kinsella for suspecting Moya prior to the time they approached him at the cab line were no more substantial than the reasons rejected by the Court in Reid. At the time they approached him, Labik and Kinsella knew only that Moya had deplaned from a Miami flight,³ that he was carrying no luggage other than a shoulder bag, that he had repeatedly scanned the crowd and looked back over his shoulder, and that he had sought the privacy of a washroom stall for some reason other than a desire to relieve himself....