672 F.2d 232 (1st Cir. 1982), 81-1293, United States v. Jodoin

Docket Nº:81-1293.
Citation:672 F.2d 232
Party Name:UNITED STATES of America, Appellee, v. Peter JODOIN, Defendant, Appellant.
Case Date:March 08, 1982
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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672 F.2d 232 (1st Cir. 1982)

UNITED STATES of America, Appellee,

v.

Peter JODOIN, Defendant, Appellant.

No. 81-1293.

United States Court of Appeals, First Circuit

March 8, 1982

Argued Nov. 6, 1981.

John C. McBride, Everett, Mass., with whom Michael F. Natola, Everett, Mass., was on brief, for appellant.

Charles T. Spurlock, Asst. U. S. Atty., Cambridge, Mass., with whom Edward F.

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Harrington, U. S. Atty., Boston, Mass., was on brief, for appellee.

Before COFFIN, Chief Judge, DAVIS, [*] Judge, and BREYER, Circuit Judge.

BREYER, Circuit Judge.

After jury trial in the Massachusetts federal district court, appellant Peter Jodoin was convicted of unlawfully possessing cocaine with intent to distribute it. 21 U.S.C. § 841(a)(1). 1 On this appeal he attacks the admissibility into evidence of cocaine seized from a suitcase he carried; he argues that his trial was held after the Speedy Trial Act's time limit had expired; and he asserts that certain jury instructions were improper. We reject these claims and affirm his conviction.

I

Appellant's "search and seizure" arguments are based upon the activities of Drug Enforcement Administration ("DEA") agents at Logan Airport in Boston. After Jodoin arrived in Boston from Florida, these agents talked to him, detained the suitcase he was carrying, and then (after obtaining a search warrant) opened and searched the suitcase, finding cocaine. The trial court held an evidentiary hearing upon Jodoin's motion to suppress this evidence. Its findings, well supported in the record, describe what occurred:

Late in the afternoon of August 7, 1980, two narcotics detail undercover agents, working for the Broward County, Florida Sheriffs' Department, saw Jodoin get out of a taxi at the Delta Air Lines terminal at Fort Lauderdale-Hollywood International Airport. He was carrying a large white suitcase and a small grey plastic bag. He kept turning his head to look at the agents while he moved hurriedly to the counter, checked his white suitcase and then ran towards the gate area where flight 326 to Boston was just leaving. He appeared nervous while in the terminal, continually turning his head to observe the agents even while he was running towards the gate. 2

This behavior aroused the agents' suspicions. Consequently, after Jodoin left, they asked the airline counter personnel for the history of appellant's ticket. They learned that it had been paid for in cash, was issued to "Paul Harper" and showed the appellant had arrived in Fort Lauderdale from Boston at 1:00 in the morning that same day. His return flight was open. The ticket purchaser had not given Delta Air Lines a telephone number at which he could be reached. The agents questioned the taxi driver and found that the appellant had picked up the taxi in front of the Howard Johnson's Hotel at Fort Lauderdale beach. They phoned the hotel and learned that no one registered under the name "Harper" had been staying there. On the basis of this information, the agents suspected that appellant was a drug courier, for his behavior matched several of the characteristics contained in the "drug courier profile" for the Fort Lauderdale airport. Cf. United States v. Mendenhall, 446 U.S. 544, 547 n.1, 100 S.Ct. 1870, 1873 n.1, 64 L.Ed.2d 497 (1980). They therefore telephoned the Boston office of the DEA and described these facts to agent Roger Marchand.

Marchand and two other DEA agents went to the Delta Air Lines terminal at Logan Airort to await the arrival of flight 326 from Fort Lauderdale. Appellant arrived at approximately 8:45 p. m. He walked to the baggage carrousel, waited for his luggage, picked up a white suitcase and began to leave the area. The DEA agents testified that throughout he looked nervous. While walking through the halls of the airport, he stopped on three occasions and

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"scanned the area, completely turning his head all the way around." In the baggage claim area "he was looking all about the area."

When Jodoin left the baggage claim area, the agents approached him. Marchand identified himself as a DEA agent and asked Jodoin whether he could speak to him for a minute. Jodoin answered, "sure." Marchand asked him for his name, identification and where he was traveling from. Jodoin said his name was "Peter Jodoin" (not Paul Harper). He said he was returning from Fort Lauderdale where he had stayed with friends for a few days (not 17 hours). He added that he had left his clothing in Florida (although he carried a suitcase). He told the agents he had no identification and that he had thrown his ticket away. When agent Marchand asked him whether the suitcase he was carrying was his, he replied, "I don't know." He then said it was not his. The agents stated that Mr. Jodoin was nervous and that "perspiration began to form above his upper lip."

After refusing to allow the agents to search the suitcase, Jodoin picked it up and went outside the terminal toward the cab stand. The agents followed him. Jodoin asked whether he was under arrest. Marchand replied that he was definitely not under arrest. But he asked Jodoin if he would continue the conversation at the airport DEA office. Again, Jodoin replied, "sure." Marchand added that there was a telephone available at the DEA office if Jodoin wished to call his attorney.

At the DEA office, the agents told Jodoin they wished to have a trained narcotics detecting dog sniff the suitcase. The dogs were not immediately available. Jodoin was free to leave. He waited about 20 minutes and then left. The agents kept the suitcase. The next day, August 8, a detector dog sniffed the suitcase but the dog did not signal the presence of narcotics. On August 11, the DEA obtained a warrant to search the suitcase-on the basis of the information set forth above, along with an agent's statement that an informant had told a different agent that appellant had associated with known drug dealers. The search of the suitcase revealed four clear plastic bags containing several pounds of cocaine. Jodoin was subsequently arrested.

Jodoin claims that the DEA agents acted unconstitutionally in stopping and questioning him at Logan Airport, in detaining his suitcase, and in obtaining a search warrant. We reject these claims for several reasons. For one thing, the Supreme Court has held that a person is "seized" in constitutional terms "(o)nly when the officer, by means of physical force or show of authority, has in some way restrained (his) liberty" so that he is not free "to walk away." Terry v. Ohio, 392 U.S. 1, 16, 19 n.16, 88 S.Ct. 1868, 1877, 1879 n.16, 20 L.Ed.2d 889 (1968). The trial court here expressly found that "the defendant's liberty was not restrained" and his counsel conceded at oral argument that "the facts would support ... a voluntary, intelligent and knowing decision on his part ... to accompany the drug enforcement agents back to the DEA office." The record adequately supports the trial court's finding. See United States v. Mendenhall, 446 U.S. at 557, 100 S.Ct. at 1878-79; United States v. West, 651 F.2d 71, 72-74 (1st Cir. 1981); United States v. Viegas, 639 F.2d 42, 44-45 (1st Cir. 1981).

For another thing, even if this brief investigatory stop amounted to some restriction on liberty, that stop was "justified by some objective manifestation" yielding "a particularized suspicion" about the involvement of the individual in illegal activity. United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 694-95, 66 L.Ed.2d 621 (1981); Reid v. Georgia, 448 U.S. 438, 440, 100 S.Ct. 2752, 2753, 65 L.Ed.2d 890 (1980). Jodoin's brief 17-hour stay in Fort Lauderdale, a source city for narcotics; the fact that his plane ticket was paid for in cash; that he gave no telephone number to Delta Air Lines; that he appeared nervous, looking about the Fort Lauderdale, as well as the Boston, airports; and that all these facts fit within a "drug courier profile"

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