U.S. v. Berry

• Citation: 670 F.2d 583
• Decision Date: 19 March 1982
• Docket Number: 79-5472,Nos. 79-5471,s. 79-5471
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Dudley Lee BERRY, a/k/a David Sarver, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Jessica Linda Ann ZABISH, a/k/a Joanne Sarver, Defendant-Appellant. . Unit B *
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 583

670 F.2d 583

UNITED STATES of America, Plaintiff-Appellee, v. Dudley Lee BERRY, a/k/a David Sarver, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Jessica Linda Ann ZABISH, a/k/a Joanne Sarver, Defendant-Appellant.

Nos. 79-5471, 79-5472.

United States Court of Appeals, Fifth Circuit.

Unit B ^*

March 19, 1982.

Bruce E. Pashley, Merren & Pashley, Atlanta, Ga., for defendant-appellant.

William S. Sutton, Asst. U. S. Atty., Atlanta, Ga., for plaintiff-appellee.

Robert Altman, Atlanta, Ga., for amicus.

Appeals from the United States District Court for the Northern District of Georgia.

Before GODBOLD, Chief Judge, RONEY, TJOFLAT, HILL, FAY, VANCE, KRAVITCH, FRANK M. JOHNSON, Jr., HATCHETT, ANDERSON, and THOMAS A. CLARK, Circuit Judges. ^**

FRANK M. JOHNSON, Jr., Circuit Judge:

Recently we repeatedly have had to decide cases involving the legality of stops, interrogations, and searches of suspected drug smugglers by law enforcement officers at airports. The matters presented in these cases raise fundamental constitutional issues concerning the Fourth Amendment safeguards protecting individuals against unreasonable searches and seizures. Because of the uncertainty created by decisions of the Supreme Court and by our own holdings concerning the standards guiding such stops, we take this opportunity to consider en banc the appeals of Dudley Berry and Jessica Zabish. Appellants' primary issues on appeal concern their convictions below ¹ on charges stemming from the discovery of cocaine during an airport stop and search by Drug Enforcement Agency (DEA) agents.

I.

DEA agent Paul Markonni and detective C. B. Denton observed appellants as they were deplaning from a flight from Miami, Florida, to Atlanta, Georgia. ² As appellants entered the terminal, Markonni, without knowing why, was vaguely aware of having seen a photograph of Berry. Berry stared intently at the agents when leaving the airport gate and again in the baggage-claim area while walking back and forth several times in front of the agents. He, along with Zabish, also repeatedly looked nervously toward the agents while walking down the concourse toward the baggage-claim area and while waiting in the area.

Markonni first approached Berry outside the terminal as Berry was taking appellants' luggage toward a taxi stand to which Zabish had gone to wait. After the agent had identified himself, asked to talk to Berry, and inquired about Berry's identity and travel plans, Berry gave his name as David Sarver and stated that he was travelling alone. He nevertheless produced two tickets with the names of David and Joanne Sarver. When asked for further identification he showed Markonni a driver's license with the name Dudley Berry. Markonni recognized the name as that of a man for whom he had been told to watch. After Berry admitted that Zabish actually was travelling with him, Markonni motioned to her to join them; at the same time Denton walked over to Zabish, may have touched her elbow, pointed toward Markonni and Berry, and asked her to join them. Markonni identified himself to Zabish and asked for her name. She stated that her name was Joanne Sarver. When informed that Berry had admitted his true identity and asked whether she wanted to change her answer, Zabish made no reply but did appear extremely nervous. Markonni asked whether appellants were carrying drugs. Berry said they were not. Markonni then asked appellants to accompany him to a DEA office. Berry agreed. En route, when Berry asked whether defendants had violated any law, Markonni responded that appellants had violated a Georgia law by falsely identifying themselves to police officers. ³ He noted, however, that "there would be no problem" if a search revealed no drugs.

Inside the DEA office, Markonni asked for appellants' consent to a search, informing them that they could refuse consent and that they could contact an attorney. ⁴ Appellants acknowledged understanding their rights. They discussed between themselves whether to consent. When Zabish indicated that perhaps they should talk to an attorney, Markonni invited them to do so. Berry told Zabish that the decision was up to her and Zabish then agreed to a search, with Berry affirming the consent. Markonni discovered cocaine hidden in a film shield inside a shaving bag in Berry's luggage. During a search by a female officer, Zabish tried to swallow a container of cocaine. Appellants were arrested.

The magistrate below found that the initial stop of appellants was not a seizure. A seizure did occur, according to the magistrate, when Markonni asked appellants to accompany him to the DEA office. The magistrate concluded that appellants had been arrested approximately when they arrived at the office after Markonni had informed them that they had violated Georgia law and after he had tipped the skycap depositing appellants' luggage in the office with the comment that the next tip was on appellants "if and when" they took the luggage out. Without delving into the legality of an arrest, the magistrate found that appellants freely and voluntarily had consented to a search.

The district court, rejecting a magistrate's findings, held that, as a matter of law, a seizure had occurred when the agents initially stopped appellants at the airport. The court, nevertheless, held that appellants' voluntary consent to a search had attenuated the taint of any illegal seizure and overruled a motion to suppress the evidence resulting from the search. Tried separately, both appellants were found guilty of possessing cocaine hydrochloride with intent to distribute, in violation of 21 U.S.C.A. § 841(a)(1) and 18 U.S.C.A. § 2. Zabish also was convicted of simple possession of cocaine hydrochloride, in violation of 21 U.S.C.A. § 844. ⁵

II.

Among our most cherished constitutional rights is the Fourth Amendment's guarantee that "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches, shall not be violated ...." The fundamental nature of this guarantee has long been noted:

No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.

Union Pac. R. Co. v. Botsford, 141 U.S. 250, 251, 11 S.Ct. 1000, 1001, 35 L.Ed. 734 (1891). Recognizing our duty zealously to protect individuals from abridgements of their rights to liberty and privacy, we approach Berry's and Zabish's contentions on appeal that the cocaine seized at the Atlanta airport should have been excluded because the stop and seizure by police violated their Fourth Amendment rights. We examine initially the law governing non-border stops at airports: whether or at what point a stop invokes Fourth Amendment safeguards and what factors might provide reasonable suspicion for a stop. We then proceed to apply that law to the facts of this case.

A.

Appellants claim that any interrogation police initiate at an airport must be held a seizure that we cannot sanction unless it is based on reasonable suspicion. Our examination of their contention must begin with the seminal ruling establishing the analytical approach for police stops, Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). An experienced police officer in that case approached men he suspected of preparing to rob a store, identified himself, and asked them for their names. On receiving only a mumbled response, the officer grabbed one of the men, spun him about, patted down his clothing, and found a gun in the man's coat. That stop, though brief and short of a full-scale arrest, was, the Court held, within the Fourth Amendment's ambit. The Court nevertheless declined to subject such a stop to the rigors of a justification based on probable cause. Rather, balancing the government interest involved against the nature of the intrusion on the individual, it found a showing of "reasonable suspicion" was sufficient. ⁶

In Terry itself the Court declined to decide whether the rationale of the decision would apply also to stops merely for investigatory purposes. 392 U.S. at 19 n.16, 88 S.Ct. at 1878 n.16. Subsequent cases have, however, so extended the doctrine. In Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972), the Court upheld a seizure of an individual on the basis of a reasonable suspicion derived from an informant's tip, noting that "(a) brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo temporarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time." Id. at 146, 92 S.Ct. at 1923. Similarly, in United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975), the Court upheld an investigatory seizure, stating that "when an officer's observations lead him reasonably to suspect that a particular vehicle may contain aliens who are illegally in the country, he may stop the car briefly and investigate the circumstances that provoke suspicion." Id. at 881, 95 S.Ct. at 2580.

Although the Supreme Court has extended the doctrine it articulated in Terry to investigative seizures, it has not necessarily concluded that all contact between citizens and police in the course of an investigation is subject to the Fourth Amendment's rigors. The Court has repeatedly stated that the Fourth Amendment neither does, nor should, inhibit voluntary interaction between police and citizens. "(I)t is no part of the policy underlying the Fourth ... Amendment( ) to discourage citizens from aiding to the utmost of their ability in the apprehension of criminals." Coolidge v. New Hampshire, 403 U.S. 443, 488, 91 S.Ct. 2022, 2049, 29 L.Ed.2d 564 (1971). In Terry the Court carefully noted that, "(o)bviously not all personal intercourse...