599 F.2d 494 (2nd Cir. 1979), 586, United States v. Price

Docket Nº:586, Docket 78-1386.
Citation:599 F.2d 494
Party Name:UNITED STATES of America, Appellee, v. Douglas T. PRICE, Appellant.
Case Date:May 18, 1979
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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599 F.2d 494 (2nd Cir. 1979)

UNITED STATES of America, Appellee,


Douglas T. PRICE, Appellant.

No. 586, Docket 78-1386.

United States Court of Appeals, Second Circuit

May 18, 1979

Argued Jan. 24, 1979.

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Ronald M. Kleinberg, New York City, for appellant.

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Diane F. Giacalone, Asst. U. S. Atty., Eastern District of New York, Brooklyn, N. Y. (Edward R. Korman, U. S. Atty., Mary McGowan Davis, Asst. U. S. Atty., Eastern District of New York, Brooklyn, N. Y., of counsel), for appellee.

Before LUMBARD, FEINBERG and MESKILL, Circuit Judges.

MESKILL, Circuit Judge:

Douglas Price appeals from a judgment entered in the United States District Court for the Eastern District of New York, Jack B. Weinstein, Judge, convicting him, after a plea of guilty, of one count of knowingly and intentionally possessing with intent to distribute approximately one gallon of phencyclidine hydrochloride, in violation of 21 U.S.C. § 841(a)(1). Price was sentenced to a term of two years' imprisonment and four years' special parole. Execution of the sentence was stayed pending disposition of this appeal.

Price's guilty plea was entered pursuant to a court-approved agreement between Price and the government preserving Price's right to appeal the court's denial of his motion to suppress certain evidence. 1 The denial of the suppression motion is challenged on two grounds. The first involves the intricate question of the propriety under the Fourth Amendment of a particular encounter, described below, between Price and federal agents acting without a warrant. The second involves the validity under the Fourth Amendment of a warrantless "consent" search conducted by the agents in the course of that encounter.

According to the government, the federal Drug Enforcement Administration has determined that large amounts of heroin are smuggled into this country from South America and then shipped to certain "source" cities for distribution. Acting on information indicating that couriers frequently purchase drugs in "source" cities and then transport them via domestic flights to "recipient" cities for local sale, the DEA has assigned teams of agents to monitor passengers on flights between certain key airports.

DEA Special Agent Gerard Whitmore is a member of a team assigned to La Guardia Airport, which is located in the Eastern District of New York. His testimony at the suppression hearing, fully credited by the district court, established the following. On May 25, 1977, Agent Whitmore was observing the passengers arriving on a particular American Airlines flight from Chicago, which has been identified by the DEA as a "source" city. Agent Whitmore's attention was first drawn to appellant Price when the agent noticed a delay in the line of passengers walking single file from the airplane into a corridor leading to a waiting area. The delay was caused by Price, who was standing still and who appeared to be scanning the faces of the other individuals in the area. Price was accompanied by a woman, later identified as Irma Bojorquez, and a small child later identified as the child of Price and Ms. Bojorquez. When asked by an airline employee to permit the other passengers to disembark, the three resumed walking, although more slowly than the other passengers. When he reached the baggage area, Price made a brief phone call and then proceeded to the carousel. Price and Bojorquez had each carried a shoulder bag off the plane. Price selected two additional pieces of luggage from the carousel, one of which had no identification on it. The shoulder bag which Price had carried off the plane also bore no identification. Whitmore testified at the hearing that while waiting for his luggage, Price appeared to be nervous and that he appeared to be scanning the faces of the people in the area.

After they picked up their baggage, Price and his companions left the terminal. Although

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it was raining, Price ignored the sheltered designated taxi stand outside the terminal, hurried into the street, and hailed a cab. According to Agent Whitmore, Price "threw" all the luggage in the trunk, except for the shoulder bag he had carried off the airplane. This last piece was placed gently on top of the other luggage. In Agent Whitmore's words, Price "cuddled" the shoulder bag as he placed it in the trunk.

Accompanied by two other DEA agents who had joined him in the waiting area, Agent Whitmore followed Price's taxi in a government vehicle. During the ride Agent Whitmore could see Ms. Bojorquez and, occasionally, the child through the rear window of the taxi, but he could not see Price, who appeared to be "slouched down in his seat." The taxi stopped on 106th Street in Manhattan and the driver unloaded the trunk, placing the bags on the sidewalk. Price emerged from the taxi after looking through the rear window. Once again he scanned the street in all directions. Price and Ms. Bojorquez picked up the luggage and headed, with the child, toward the nearest building.

Agents Whitmore and Sears approached Price just as he reached the entrance of the building. Agent Sears asked Price if he had just come from La Guardia Airport. Price, who appeared startled, replied that he had. Agent Whitmore identified himself and Sears as federal officers, told Price not to be startled and explained that they wanted to ask some questions and check that all the luggage was his. Price replied that the shoulder bag was not his, that it had no identification on it and that he did not know how he had gotten it. Price quickly took the bag off his shoulder and placed it on the ground. According to Agent Whitmore, this was the same shoulder bag Price had been carrying when he got off the plane.

Agent Whitmore then told Price that he would like to search the bag but that he could not do so without either a search warrant or Price's permission. He specifically informed Price that he had the right not to grant permission. Price again disavowed ownership of the bag, telling Whitmore, "do what you want with it." When the agents opened the bag they immediately detected the odor of either chloroform or ether. Under some clothing they found several bottles exuding the same strong odor. Believing that the bottles contained heroin in an organic solvent, the agents arrested Price and seized the bottles.

Price did not testify at the suppression hearing but Ms. Bojorquez did. Her testimony contradicted that of Agent Whitmore in several respects. She denied that she and Price had delayed the line of passengers leaving the plane. She also stated that when the agents first approached Price, after he had emerged from the taxi, they had told him three times, "this isn't your bag, you must have picked up the wrong bag" and that only then had Price agreed that the bag was not his and that the agents could do what they wanted with it. In addition, Ms. Bojorquez claimed that before obtaining Price's consent, one of the agents had claimed that he could get a warrant but that it would be easier to search immediately rather than take Ms. Bojorquez and the baby to the station house.

Judge Weinstein believed the testimony of the government witness and upheld the search as justified either (1) as validly consented to by Price, or (2) as incident to, although technically preceding, a lawful arrest based on probable cause.

On appeal, Price offers two theories to support suppression of the crucial evidence. First, he claims that the agents had no reasonable grounds for approaching and questioning him. He therefore urges that the evidence uncovered during the course of that encounter must be suppressed as the fruit of an unconstitutional seizure of his person. Second, Price claims that he did not voluntarily consent to the search of his shoulder bag and that the agents lacked both a warrant and probable cause for the search. Price therefore urges that the evidence in question must be suppressed as the fruit of an unconstitutional search.

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I. The Initial Encounter

The analytical approach employed by the Supreme Court in the recent decision of Delaware v. Prouse, --- U.S. ----, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979), is especially relevant to our consideration of Price's argument that the agents acted unlawfully when they approached him on the sidewalk and began to ask him questions.

The essential purpose of the proscriptions in the Fourth Amendment is to impose a standard of "reasonableness" upon the exercise of discretion by government officials, including law-enforcement agents, in order " 'to safeguard the privacy and security of individuals against arbitrary inva(s)ion . . . .' " Thus, the permissibility of a particular law-enforcement practice is judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests. Implemented in this manner, the reasonableness standard usually requires, at a minimum, that the facts upon which an intrusion is based be capable of measurement against "an objective standard," whether this be probable cause or a less stringent test.

--- U.S. at ----, 99 S.Ct. at 1396 (footnotes and citations omitted). Here, we are not presented with the question whether there was probable cause to arrest Price initially. Rather, we must determine whether it was lawful for the agents to stop Price and make certain limited inquiries. Accordingly, our starting point must be Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the first Supreme Court case to analyze in Fourth Amendment terms police-citizen encounters that fall short of full arrest.

Terry made it clear that although all police seizures of citizens, even those short of arrest, are governed by the Fourth Amendment, not all personal encounters between police officers and citizens are "seizures" under the Fourth Amendment. 2 "Only when the officer, by means of physical force...

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