709 F.2d 653 (11th Cir. 1983), 82-5531, United States v. Waksal

Docket Nº:82-5531.
Citation:709 F.2d 653
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Harlan WAKSAL, Defendant-Appellant.
Case Date:July 11, 1983
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

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709 F.2d 653 (11th Cir. 1983)

UNITED STATES of America, Plaintiff-Appellee,


Harlan WAKSAL, Defendant-Appellant.

No. 82-5531.

United States Court of Appeals, Eleventh Circuit

July 11, 1983

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Donald L. Ferguson, Miami, Fla., Morris M. Goldings, Boston, Mass., for defendant-appellant.

Stanley Marcus, U.S. Atty., Bruce A. Zimet, Asst. U.S. Atty., Miami, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before VANCE and HENDERSON, Circuit Judges, and TUTTLE, Senior Circuit Judge.

TUTTLE, Senior Circuit Judge:

This case involves another permutation of the extensively litigated question of the propriety of airport stops and searches flowing from the "drug courier profile." Appellant Harlan Waksal appeals his conviction for possession of cocaine with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1). Appellant challenges the district court's denial of his motion to suppress cocaine discovered during an airport search allegedly conducted in violation of the Fourth Amendment, 539 F.Supp. 834. We agree that the nature of appellant's contact with the police should have invoked the protections of the Fourth Amendment and that, because the search resulted from an illegal seizure without a valid consent, the suppression motion therefore should have been granted.


At approximately 9:00 p.m. on February 14, 1981, Broward County, Florida, Deputy Sheriffs Ralph Capone and James Carl observed appellant Harlan Waksal enter the Delta Airlines ticket area of the Ft. Lauderdale International Airport. 1 Appellant, with a companion, approached the ticket lines. The sheriffs' attention apparently was directed toward appellant because he appeared nervous, he was carrying only a shoulder bag and an attache case, and he looked around the terminal area, making eye contact several times with Capone. The officers' suspicions were heightened when appellant did not check any baggage and paid for his ticket in cash, both profile characteristics of the "drug courier." 2

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The sheriffs stopped appellant and his companion as they exited the ticket area. The agents, who were non-uniformed, identified themselves by voice and by showing their badges and identification cards. It is undisputed that the agents did not touch appellant, nor did they display firearms. The sheriffs asked appellant for identification and his ticket, whereupon appellant produced an Ohio driver's license and a one-way ticket to Boston; upon request for clarification, appellant explained he was a doctor traveling back to where he practiced in Boston.

Officer Capone then explained that he and Officer Carl were narcotics agents seeking public cooperation in combatting the drug problem in South Florida and requested to inspect appellant's luggage. Appellant repeated that he was a doctor traveling to Boston and that he did not understand the problem, Capone replied that there was no problem, but that he still desired to examine Waksal's carry-on baggage. Waksal then said something akin to, "Go ahead and look," whereupon the officers asked if appellant would accompany them to a small room near the baggage area. Appellant said, "Okay."

At this point, Capone returned the airline ticket to appellant. 3 Appellant's companion, who was not involved in the drug scheme and apparently was unaware of it, left the airport. Appellant and the two officers went to a nearby room used by the airline to store "sky kennels." The officers searched appellant's baggage and found three bags of a white powdery substance. The appellant was arrested and searched, whereupon the officers discovered two additional bags of the substance stashed in his underwear and a small amount in the pocket of his sport coat. The officers found a total of approximately 1 kilogram of cocaine.

Officer Capone then left to arrange transportation for appellant to the police station, at which point appellant engaged Officer Carl in conversation. Apparently appellant asked what would have been done had he not consented to the search or had he refused to stop and speak with the officers. Officer Carl claims not to have responded to this question until appellant repeated it in the police station. Officer Carl then answered that the sheriffs could have called ahead to the Drug Enforcement Administration ("DEA") in Boston, or could have used a narcotics-detecting dog to sniff the bags in order to establish probable cause to obtain a search warrant. 4

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Appellant was charged with the violation of 21 U.S.C. Sec. 841(a)(1). On November 13, 1981, the district court denied appellant's motion to suppress the cocaine seized during the airport search, but granted his suppression motion as to any statements made after his arrest but before appellant received Miranda warnings. Appellant consented to a non-jury trial on stipulated facts. On April 27, 1982, Waksal was found guilty and sentenced to nine years incarceration to be followed by a five year special parole term.

The district court found that Waksal was not "seized," within the meaning of the Fourth Amendment, during his encounter with the police in the airport ticket area. The court further found that appellant voluntarily accompanied the sheriffs to the back room and consented to the search of his baggage; therefore, the court found traditional Fourth Amendment concerns posed by a warrantless search and seizure were never invoked. The United States urges on appeal that appellant's contact with the officers, due to its voluntary nature, falls wholly without the concerns of the Fourth Amendment. Appellant, on the contrary, claims that the encounter at the airport resulted in an illegal detention under the Fourth Amendment and an impermissible search.

The district court reached its conclusions on appellant's suppression motion without the benefit of this Court's en banc opinion in United States v. Berry, 670 F.2d 583 (5th Cir.1982) (Unit B, en banc). Berry analyzed the propriety of airport stops and searches conducted under authority of the drug courier profile in light of the "fractured" guidance from the Supreme Court on this issue. In setting forth rules for this Circuit, Berry harmonized the disparate conclusions reached by different panels of this Court. It is well settled that the Fourth Amendment aspects of Berry are fully retroactive and thus applicable to the instant action, which involves a conviction "not final at the time the [Berry ] decision was rendered." United States v. Robinson, 690 F.2d 869, 873 (11th Cir.1982).

We must determine whether appellant's encounter with the police violated the strictures of the Fourth Amendment that, "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated...." This task is simplified by the government's concession that Officers Capone and Carl did not possess the requisite "reasonable suspicion" to justify a "seizure" under the Fourth Amendment. We limit our consideration to whether appellant's encounter with the officers constituted a Fourth Amendment "seizure," either in the nature of a stop or an arrest. 5 If we determine that a seizure occurred, we must face the question of whether appellant's consent to the subsequent search vitiated any illegalities stemming from the improper police conduct.

2. General Fourth Amendment Jurisprudence

Recently, courts have identified three distinct tiers of police-citizen encounters, each triggering a different analysis of the balance which should be struck between the government's need to search and the invasion of privacy interests which such a search entails. See Camara v. Municipal Court, 387 U.S. 523, 534-37, 87 S.Ct. 1727, 1733-35, 18 L.Ed.2d 930 (1967). Delaware v. Prouse, 440 U.S. 648, 654, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660 (1979). The first tier involves contact devoid of detention and coercion, and thus the protections of the Fourth Amendment are not brought into play. The second level of police-citizen encounters involves brief "stops" which must be supported by reasonable, specific, and articulable suspicion. See Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1879, 20

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L.Ed.2d 889 (1968). 6 The Court emphasized that the requirement of some objective justification for an encounter is necessary only when a citizen's liberty has been restrained:

Obviously, not all personal intercourse between policemen and citizens involves "seizures" of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a "seizure" has occurred.

Terry, 392 U.S. at 19 n. 16, 88 S.Ct. at 1878 n. 16. 7

The third type of police-citizen encounter involves a full-scale arrest. The traditional and more familiar detention involved in an arrest must be justified by a finding of probable cause. 8

These precise categories of Fourth Amendment protections begin to shade into one another, almost imperceptibly, when applied to airport searches in general and the facts of this case in particular. The fundamental test for the analysis of airport stops was forwarded by Justice Stewart in his concurrence in United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). Justice Stewart suggested that a person is seized only if, in view of all the circumstances, a reasonable person believes that he or she is not free to leave. As long as a person to whom questions are put remains free to disregard the...

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