U.S. v. Hardin

• Decision Date: 22 July 1983
• Docket Number: No. 81-1967,81-1967
• Citation: 710 F.2d 1231
• Parties: 13 Fed. R. Evid. Serv. 890 UNITED STATES of America, Plaintiff-Appellee, v. Robert D. HARDIN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1231

710 F.2d 1231

13 Fed. R. Evid. Serv. 890

UNITED STATES of America, Plaintiff-Appellee, v. Robert D. HARDIN, Defendant-Appellant.

No. 81-1967.

United States Court of Appeals Seventh Circuit.

Argued Jan. 6, 1983.

Decided June 23, 1983.

Rehearing Denied July 22, 1983.

Kenneth N. Flaxman, Chicago, Ill., for defendant-appellant.

Maureen DeMaio, Asst. U.S. Atty., Dan K. Webb, U.S. Atty., Chicago, Ill., for plaintiff-appellee.

Before CUMMINGS, Chief Judge, POSNER, Circuit Judge, and NEAHER, Senior District Judge. ^*

NEAHER, Senior District Judge.

Defendant-appellant Robert D. Hardin and his co-defendant, James F. Parker, were charged in a one-count indictment with possessing, with intent to distribute, approximately 344.31 grams of a cocaine mixture in violation of 21 U.S.C. Sec. 841(a)(1). Prior to trial, both defendants filed motions to suppress certain statements and physical evidence on the grounds that the evidence had been obtained through, or derived from, an unlawful search and seizure conducted by Drug Enforcement Administration ("DEA") agents. Pursuant to 28 U.S.C. Sec. 636(b)(1)(B), both motions were referred by the district court to a United States magistrate for an evidentiary hearing. The district court, after reviewing the findings and recommendations of the magistrate as well as the transcript of the hearing, ruled that all the evidence had been seized pursuant to a valid consensual search, and denied the motions. Following a three-day jury trial, both defendants were found guilty as charged. Only Hardin appeals the judgment of the district court.

I.

Hardin's initial contentions on appeal challenge the district court's denial of his motion to suppress an airplane ticket and travel materials which contained information linking him to the cocaine. Specifically, he claims that the court abused its discretion under 28 U.S.C. Sec. 636(b)(1)(B) by refusing to afford him a de novo hearing on the disputed issues of fact that arose during the evidentiary hearing before the magistrate. In addition, he contends that the district court erred in ruling that the search in question was within the parameters of his consent. Since both claims are factual in nature, a somewhat detailed recitation of the evidence is necessary for their resolution.

The relatively uncontested testimony adduced at the suppression hearing revealed that on June 10, 1980, agents of the Florida Department of Law Enforcement informed the Chicago office of the DEA that two suspected drug couriers would be arriving from Fort Myers, Florida, on Eastern Airlines flight 230 carrying a brown attache case and a plaid suitcase. Acting on this information, members of the DEA and the Chicago Police Department were stationed in and around Eastern Airlines Gate D-3 to look for and monitor the conduct of the suspects. At approximately 10:30 A.M., the agents observed Parker and Hardin as they exited the plane; both men matched the physical descriptions provided by the Florida authorities and Parker was carrying a brown attache case. The agents followed Parker and Hardin as they walked alternately together and apart towards the main terminal. When they reached the end of concourse D, Parker transferred the attache case to Hardin and, after entering a washroom, both men proceeded together down the escalator to the Eastern Airlines baggage claim area.

In a pattern similar to their behavior on the upper level concourse, defendants met, conversed, separated, met again, talked and separated. Finally, Hardin walked towards the United Airlines baggage area, leaving Parker at the Eastern Airlines baggage carousel. While Hardin observed from a distance, Parker approached the carousel, examined a plaid suitcase and picked it up. Both men then proceeded towards the exits.

At that point, DEA Special Agent Anderson and Chicago Police Officer Burzinski approached Hardin, identified themselves, and asked if they could have a word with him. Parker, meanwhile, exited the terminal and walked towards the United Airlines exit doors. When he observed Hardin talking with Anderson and Burzinski, he forced his way through the people coming out of the electrically-controlled exit doors and stood in the alcove between the inner and outer doors, apparently observing this "strange" turn of events. After 20-25 seconds, he again left the terminal and walked towards the taxi stand where he was intercepted by DEA Special Agents Valentine, Hillebrand, O'Brien, Fulkerson and Whittington.

At some point in the discussions with Parker, Agent Valentine noticed that the suitcase which Parker was carrying bore the name of "Peter Scott." Parker asserted that he knew of no one by that name and posited that he must have picked up the wrong luggage. Agent Valentine suggested that they return to the baggage area to look for Parker's luggage, and Parker agreed. After a short time, however, Parker abandoned the search for his bag and asked if he could leave the terminal. The agents told him that he could, but the suitcase would be detained. After Parker left the terminal, a United States Customs Service detection dog alerted the agents to the presence of narcotics in the suitcase.

While the events surrounding the seizure of the suitcase and the discovery of the cocaine were largely uncontested, the circumstances leading up to the uncovering of the incriminatory airplane ticket and travel documents found in Hardin's clothing were hotly disputed. According to the testimony of the DEA agents involved, Hardin, like Parker, chose to cooperate with the investigation. The DEA agents testified that when first approached, Hardin gave the agents his name, produced corroborative identification, and attempted to explain that he was traveling alone from Birmingham, Alabama. Agent Anderson testified that after Hardin was unsure whether his flight had been non-stop, and was unable to produce an airplane ticket, he asked Hardin if he would consent to a search of his attache case, and Hardin cooperated by opening the case for the agents. The search, however, failed to uncover the ticket or any evidence of a criminal nature.

At that point, Agent Whittington approached and, according to his testimony, asked Hardin whether the airplane ticket might be among papers protruding from Hardin's shirt pocket. Both Police Officer Burzinski and Agent Whittington testified that Hardin replied to this question by simply handing the papers to Agent Whittington. While the papers did not include the airplane ticket, they did contain travel information for a round-trip flight between Fort Myers, Florida and Chicago for an individual named "P. Scott," so Whittington asked Hardin who Mr. Scott was and Hardin replied that he did not know. Agent Whittington, however, recognized the name as corresponding to the one found on the suitcase Parker was carrying, and he asked Hardin whether he knew Parker, who by then was standing with other DEA agents at the Eastern Airlines baggage counter. Hardin claimed that he did not, but that he might have seen him in the washroom in the main terminal.

Agent Whittington then asked Hardin whether he would consent to a pat-down search for narcotics, and, according to Whittington's testimony, Hardin, with his arms raised, responded: "No go ahead. I'm clean." As Whittington conducted the pat-down, he encountered what he later described as hard paper in Hardin's back pocket, and, without removing it, he asked Hardin what the item was. In response, Hardin placed his right hand over Agent Whittington's left hand, and said, "Oh that must be my airline ticket." Hardin then brought the ticket out of his pocket and handed it to Agent Whittington, who noticed that the ticket, like the travel information and the suitcase containing the cocaine, bore the name of Peter Scott.

Hardin's version of the events, however, was quite different. He claimed that the agents ordered him to stop, refused to explain why he was being questioned, and when he attempted to leave, Officer Burzinski informed him that he was under arrest. He also testified that he never told the agents his travel itinerary and consistently refused to make a statement. Finally, he asserted that he never voluntarily consented to the pat-down search and never handed the agents the papers from his shirt pocket, or the ticket from his pants pocket. Rather, he contended that Agent Whittington pulled the papers out of his shirt pocket, and that either Whittington or Agent O'Brien yanked the airplane ticket from his pants pocket.

In resolving the conflicting versions of the circumstances surrounding the discovery of the airplane ticket and the travel document, the magistrate concluded that "the agents' testimony of the events at the stops of Hardin and Parker [were] more credible than those given by the defendants." Thus, based on the testimony of the DEA agents, the magistrate recommended to the district court that Hardin's motion to suppress be denied on the grounds that Hardin had knowingly and voluntarily consented to the search of his clothing. Prior to ruling, the district court requested and received specific findings of fact from the magistrate, and granted Hardin leave to file objections. After considering the magistrate's report and proposed findings as well as Hardin's objections, the district court concluded that the "findings and recommendations [were] supported by substantial evidence" and denied the motion.

II.

Hardin's contention that the district court abused its discretion under 28 U.S.C. Sec. 636(b)(1)(B) is premised on the court's adoption of the magistrate's credibility-based factual determinations without actually hearing the conflicting testimony. He claims that the factual dispute about whether he consented to the search of his clothing, in itself, required the court to exercise its discretion to rehear the testimony before ruling on the motion. Alternatively, he asserts that certain discrepancies in the...