U.S. v. Bailey

• Decision Date: 19 November 1982
• Docket Number: No. 81-7610,81-7610
• Citation: 691 F.2d 1009
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Carl BAILEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1009

691 F.2d 1009

UNITED STATES of America, Plaintiff-Appellee, v. Carl BAILEY, Defendant-Appellant.

No. 81-7610.

United States Court of Appeals Eleventh Circuit.

Nov. 19, 1982.

As Amended on Denial of Rehearing and Rehearing

En Banc Jan. 10, 1983.

Mary S. Donovan, Federal Defender Program, Inc., Atlanta, Ga., for defendant-appellant.

Jake Arbes, Asst. U.S. Atty., Atlanta, Ga., for plaintiff-appellee.

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

Before GODBOLD, Chief Judge, and ANDERSON, Circuit Judges, and HOFFMAN ^*, District Judge.

R. LANIER ANDERSON, III, Circuit Judge:

This case is another in a long series of cases involving Drug Enforcement Administration ("DEA") agents and their police-citizen encounters at Atlanta's Hartsfield International Airport. Although we assume arguendo that the agents illegally arrested the defendant Carl Bailey, we hold that the cocaine and heroin found on Bailey's person were lawfully seized, and we therefore affirm Bailey's convictions.

I. FACTS

Shortly after 5:00 A.M. on September 22, 1977, DEA Agent Michael Dorsett, while on duty at the Atlanta Airport, observed a black man, subsequently identified as the defendant Carl Bailey, disembark from a Delta Airlines flight from Los Angeles to Dallas to Atlanta. The DEA considers Los Angeles and Dallas to be source cities for the distribution of heroin and the Atlanta Airport to be frequently utilized by drug couriers. Bailey, who was carrying a blue tote shoulder bag, walked rapidly past several Delta ticket agents toward a bank of public telephones and began to place a telephone call. Agent Dorsett followed Bailey to the telephones, but after Bailey observed Agent Dorsett, Bailey returned to the main corridor of this wing of the terminal. At this point, Agent Dorsett noticed that Bailey conversed with another black male, subsequently identified as Larry Walker, who was carrying a hanging clothes bag. Bailey and Walker began walking toward the Delta checkout point, but as they proceeded down the corridor they would drift apart by as much as ten or fifteen feet, come back together to exchange a few words, and then drift apart again. This conduct led Agent Dorsett to conclude that Bailey and Walker were attempting to conceal that they knew each other.

Bailey and Walker also were walking at an extremely slow pace, which, in Agent Dorsett's opinion, was a counter-surveillance technique intended to discover whether they were being followed. To avoid being uncovered, Agent Dorsett walked past Bailey and Walker, but he continued to monitor their activities. Bailey and Walker proceeded down an escalator toward the Delta baggage claim area. At this point, Agent Dorsett went to the local Atlanta police precinct and reported his observations to his supervisor, DEA Agent Paul Markonni.

When Agents Markonni and Dorsett arrived at the baggage claim area, they observed Walker standing next to a baggage conveyor belt and Bailey standing some twenty feet away near a telephone. Bailey and Walker left the baggage claim area without claiming any luggage and continued to maintain their distance. Bailey and Walker walked outside to the area for limousine and bus service and after a short while sat down on opposite ends of a large bench. This too was considered by the agents to be an attempt by Bailey and Walker to disguise that they knew each other.

The DEA agents surmised that Bailey and Walker knew that the agents were following them, and the agents decided to approach Bailey and Walker "to put their drug courier profile into effect." Record on Appeal, vol. I, at 165. Markonni and Dorsett identified themselves as federal narcotics agents and Agent Dorsett displayed his credentials. The agents asked Bailey and Walker for identification. Walker replied that he had no identification with him and Bailey produced a valid Georgia driver's license in the name of "Douglas Ray Holloway," which he gave to Agent Markonni. The agents noticed that Bailey appeared very nervous and that his hands were shaking when he produced the driver's license. Agent Markonni then asked to examine their airline tickets. Bailey looked at Walker and said that Walker had Bailey's ticket. Agent Markonni inquired whether Bailey and Walker were traveling together and Bailey falsely replied that the two had just met in Dallas. Walker produced the airline tickets which were in a single folder and sequentially numbered, indicating that the tickets had been purchased together, and handed the tickets to Markonni. One of the airline tickets was in the name of "Douglas Ray Holloway." The agents inquired why Walker was carrying Bailey's ticket if the two had just met in Dallas, but never received a satisfactory answer.

Agent Markonni then asked if Bailey and Walker would accompany the agents to the police precinct and consent to a search for narcotics. Both Bailey and Walker nervously replied in the affirmative to this request, and the four proceeded toward the nearest entrance to the terminal.

Almost immediately thereafter Bailey dropped his shoulder bag and fled across the airport with Markonni in hot pursuit. When Bailey climbed over a fence onto a service road, Markonni drew his service revolver and ordered Bailey to "stop or be shot." Bailey turned around, slowed, but did not stop and while still backing away from Markonni exclaimed, "I can't let you take me!" Markonni holstered his weapon and climbed over the fence in pursuit of Bailey. When Markonni reached Bailey, Bailey was attempting to climb over a gate. Markonni grabbed Bailey's leg, pulling Bailey down from the gate. Bailey came down swinging, striking Markonni in the head. A struggle ensued and Markonni sensed that Bailey was reaching for Markonni's gun; although the gun came out of its holster, Markonni was able to retain control over it and to reholster it. Markonni and Bailey exchanged blows with their fists, and eventually Markonni, with the aid of a passing Delta airline employee, managed to subdue and handcuff Bailey. A search of Bailey at this time revealed a large sum of cash and a package containing what was later determined to be cocaine; a subsequent search conducted by Markonni back at the police precinct found in one of Bailey's pants pockets a package containing a substance subsequently identified as heroin.

Bailey moved to suppress the cocaine and heroin as the products of an illegal arrest and search. The motion was referred to a U.S. Magistrate who recommended that Bailey's motion to suppress be denied and the district court adopted the report and recommendation of the magistrate. After a bench trial on stipulated facts, the district court convicted Bailey on count one of possession with intent to distribute 8.2 grams of heroin, in violation of 21 U.S.C.A. § 841(a)(1) (West 1981), and on count two of simple possession of 3.4 grams of cocaine, in violation of 21 U.S.C.A. § 844(a) (West 1981). The district court sentenced Bailey to 15 years imprisonment followed by three years of special parole on count one, and one year imprisonment on count two to run concurrently with the sentence imposed on count one. ¹

II. BAILEY'S FLIGHT AS PROVIDING PROBABLE CAUSE FOR A LAWFUL

SECOND ARREST: FRUIT OF THE POISONOUS TREE ANALYSIS

Assuming arguendo that the DEA agents illegally arrested Bailey, ² we turn to the question of whether the evidence Bailey seeks to suppress was obtained by exploitation of that illegal arrest-i.e., a "fruit of the poisonous tree." When evidence is seized during a search of the person after an illegal arrest, it will be suppressed as the tainted product of the unlawful police action, unless the prosecution carries its burden of showing that the taint has been purged. Brown v. Illinois, 422 U.S. 590, 600-604, 95 S.Ct. 2254, 2260-2262, 45 L.Ed.2d 416 (1975); United States v. Hill, 626 F.2d 429, 437 (5th Cir. 1980); United States v. Wynn, 544 F.2d 786, 791 (5th Cir. 1977). The relevant inquiry examines the extent of the causal connection between the lawless police conduct and the evidence in question; i.e., " 'whether, granting the establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.' " Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441 (1963) (quoting R. Maguire, Evidence of Guilt, 221 (1959)). Although we find, as a factual matter, a close causal nexus between the illegal arrest at the terminal and Bailey's flight from the agents, and therefore the subsequent searches of his person, we nonetheless are compelled to uphold the searches that led to the discovery of the illicit drugs.

As applied in a case such as this one, the fruits doctrine generally involves a pragmatic evaluation of the extent to which the illegal police conduct caused the defendant's response. A sufficient causal connection to justify exclusion of the evidence, however, is not established merely because "but for" the illegal police conduct the defendant would not have responded as he did. Dunaway v. New York, 442 U.S. 200, 217, 99 S.Ct. 2248, 2259, 60 L.Ed.2d 824 (1979); United States v. Fike, 449 F.2d 191, 193 (5th Cir. 1971). The government may defeat a motion to suppress by demonstrating a break in the causal chain. See United States v. Fike, 449 F.2d at 193. Three exceptions to the exclusionary rule of the fruits doctrine thus have been developed. First, intervening events or circumstances independent of the primary illegality may have so attenuated the causal connection as to dissipate the taint of the unlawful police action. E.g., United States v. Ceccolini, 435 U.S. 268, 279-80, 98 S.Ct. 1054, 1061-62, 55 L.Ed.2d 268 (1978); United States v. Berry, 670 F.2d at 604-05. Second, the government may use evidence that it has obtained in fact from a source independent...