U.S. v. Collis, 82-1127

• Decision Date: 16 February 1983
• Docket Number: No. 82-1127,82-1127
• Citation: 699 F.2d 832
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Dennis Edward COLLIS, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 832

699 F.2d 832

UNITED STATES of America, Plaintiff-Appellant, v. Dennis Edward COLLIS, Defendant-Appellee.

No. 82-1127.

United States Court of Appeals,

Sixth Circuit.

Argued Oct. 20, 1982.

Decided Feb. 16, 1983.

Leonard R. Gilman, U.S. Atty., Keith J. Norman, Asst. U.S. Atty., Detroit, Mich Patty M. Stemler, Sidney Glazer, Appellate Section, Crim.Div., Washington, D.C., for plaintiff-appellant.

N.C. Deday Larene, Fink & Larene, Detroit, Mich., for defendant-appellee.

Before LIVELY and KRUPANSKY, Circuit Judges, and CECIL, Senior Circuit Judge. ^*

KRUPANSKY, Circuit Judge.

This is an appeal from an Order of the District Court for the Eastern District of Michigan, 528 F.Supp. 1023, suppressing 654.86 grams (gross weight) of cocaine relating to the criminal prosecution of Dennis Edward Collis (Collis) for possession with intent to distribute a controlled substance. 21 U.S.C. Sec. 841(a)(1). The matter is properly before this Court pursuant to 18 U.S.C. Sec. 3731. ¹

The factual findings of the lower court, entered following a two-day evidentiary hearing, reveal the following sequence of events. On June 4, 1981, Special Agents Thomas Anderson (Anderson) and Gregory Demmink (Demmink) of the Drug Enforcement Agency (DEA) were conducting surveillance at the Detroit Metropolitan Airport. The agents were monitoring flights arriving from Miami, Florida because of that city's reputation as a narcotics "source city."

In the course of their surveillance, the agents noticed Collis deplane from Delta Airlines Flight 1132 which had originated in Miami. Collis, carrying a shoulder bag, was one of the first passengers to disembark. He proceeded rapidly from the gate toward the baggage claim area.

Anderson followed Collis while Demmink remained at the gate to monitor the remaining passengers off-load. Anderson noted that Collis turned to look at him on several occasions as defendant proceeded through the airport concourse to the baggage claim area. As he arrived at the baggage claim area Collis nodded to an unidentified male who, shortly thereafter, departed from the terminal while Anderson left through another exit. Outside the terminal Anderson observed Collis walking on the sidewalk and the unidentified male standing beside a nearby parked car.

At this point Anderson elected to question the defendant. Anderson approached Collis from behind, lightly tapped him on the arm, displayed his credentials and orally identified himself as a DEA agent. Anderson requested permission to question Collis who willingly consented.

Upon further inquiry, Collis produced a Master Charge Card for identification and an airline ticket. Noting that baggage claim checks were attached to the ticket folio, Anderson asked Collis if he had checked any luggage. Collis acknowledged that he had, but explained that he had left the terminal before retrieving his luggage to determine if his brother had arrived to meet him. Anderson asked Collis if he knew the unidentified male standing by the parked vehicle. Collis denied knowing him. Anderson requested Collis to produce additional identification but defendant asserted that his driver's license was in his checked luggage. Anderson returned the Master Charge Card and ticket envelope to the defendant and asked if defendant would agree to accompany him to the baggage claim area. Collis readily complied. At the baggage claim area, Anderson and Collis were met by Demmink. Anderson related the transpired events to Demmink including reference to the unidentified male who had also returned to the baggage claim area.

As Anderson, Demmink and Collis were waiting for defendant's baggage, the unidentified man approached and identified himself as a friend of Collis. He thereupon removed the shoulder bag from Collis which was retrieved by Demmink and immediately returned to defendant.

After anxiously pacing back and forth near the baggage conveyor belt, Collis bolted through the terminal doors and, with Anderson and Demmink in pursuit, ran into an adjacent parking lot. The parking lot was enclosed by a cyclone fence which blocked Collis' escape. Before Anderson and Demmink could reach him, Collis heaved the shoulder bag over the fence and onto a concrete ramp. Thereafter, Collis was placed under arrest and the bag was recovered, searched and found to contain cocaine.

On defendant's motion, the district court suppressed the evidence recovered from the shoulder bag. The lower court concluded that Anderson "seized" Collis when Anderson displayed his credentials and requested permission to question him; that this seizure was not supported by reasonable suspicion; and that the subsequent discovery of the contraband was the fruit of the unlawful seizure. The government instituted this appeal.

The sole issue before this Court is whether Anderson's initial encounter with Collis constituted a "seizure" within the purview of the Fourth Amendment. The Court would observe initially that the lower court properly noted that the appropriate test for determining a "seizure" was enunciated by Justice Stewart in United States v. Mendenhall, 446 U.S. 544, 554-55, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980):

We conclude that a person has been "seized" within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled.

(citations and footnote omitted). See United States v. Tolbert, 692 F.2d 1041 (6th Cir.1982); United States v. Moore, 675 F.2d 802 (6th Cir.1982); United States v. Jefferson, 650 F.2d 854 (6th Cir.1981).

The Mendenhall test directs a district court addressing a "seizure" issue to consider, assess and underpin its decision on objective facts. ² The lower court, however, elected to frame its conclusions on its perception of the subjective illusory attitude of the average citizen confronted by an authority of the law:

[T]he Court is of the opinion that from the moment Anderson identified himself with a display of credentials and began to ask questions of Defendant outside of the terminal, a Terry [v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ] "stop" had been effected. Defendant could have ignored Anderson, or expressed his belief that he did not have to respond to questions. As Judge Pratt noted in [United States v.] Coleman [450 F.Supp. 433, 439 (E.D.Mich.1978], however, "such conduct ... would have been, at the very least, a breach of etiquette, an act of discourtesy and incivility which would not be expected of the ordinary, reasonable person innocent of crime."

The trial court, in effect, imposed a per se rule declaring every contact between a citizen and law enforcement officer a "seizure". Such a rule is without support. As Justice Stewart noted, it is not "enough to establish a seizure that the person asking the questions [is] a law enforcement official." United States v. Mendenhall, supra...