U.S. v. Berryman, 82-1194

Citation717 F.2d 651
Decision Date06 May 1983
Docket NumberNo. 82-1194,82-1194
PartiesUNITED STATES, Appellee, v. Fred S. BERRYMAN, Defendant, Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)

Karnig Boyajian, Boston, Mass., for defendant, appellant.

John C. Doherty, Asst. U.S. Atty., Boston, Mass., with whom William F. Weld, U.S. Atty., Boston, Mass., was on brief, for appellee.

Before SWYGERT, * Senior Circuit Judge, BOWNES and BREYER, Circuit Judges.

SWYGERT, Senior Circuit Judge.

On September 8, 1981, the defendant in this case, Fred S. Berryman, was accosted by two Drug Enforcement Administration ("DEA") agents after his arrival at Logan International Airport in Boston from Fort Lauderdale, Florida. In the course of this encounter two pounds of cocaine were discovered inside a package within the defendant's suitcase. He was subsequently indicted on a charge of knowingly possessing with intent to distribute a controlled substance in violation of 21 U.S.C. Sec. 841(a)(1) (1976). Before trial the defendant moved to suppress evidence and statements produced as a result of the encounter, arguing that they had been obtained in violation of the fourth amendment to the United States Constitution. After an evidentiary hearing the district court denied the motion, and the defendant was convicted following a jury trial. This appeal, which challenges the denial of the motion to suppress, raises two issues: whether the encounter between the defendant and the DEA agents is governed by the fourth amendment's proscription of "unreasonable seizures" at all, and if so whether it was justified by reasonable suspicion. The district court did not reach the second issue because it found that no seizure had occurred. We reverse.

I

At the suppression hearing the two DEA agents and the defendant testified. The district court made some specific findings and generally credited the agents' testimony. Tr. 135, 137. The facts so found are as follows.

The defendant arrived at Logan Airport on Delta Airlines flight 326, which was scheduled to arrive at 8:14 P.M., but in fact arrived at about 8:30. Tr. 3-6, 23-24. The flight originated in Fort Lauderdale, which is known to be a "source city" for the illegal distribution of narcotics. Tr. 4-5. The agents observed Berryman, who was among neither the first nor the last to leave the plane, walk quickly toward the terminal and glance over his shoulder once. Tr. 6, 25, 135. The agents next observed the defendant in the baggage claim area, where he stood five to ten feet from the baggage carousel, occasionally looked around, and picked up one bag. Tr. 7. His manner suggested he might have been looking for someone who was to pick him up. Tr. 30. He later told the agents that his wife was to meet him. Tr. 45. When he walked to the sidewalk outside the terminal, looking around once more, the agents approached him for questioning. Tr. 7. Their approach was motivated only by what they had observed, not by a tip. Tr. 11-12.

Standing on either side of Berryman but not touching him, the agents identified themselves as DEA agents and asked whether he would answer some questions. Tr. 8-9, 21. When he agreed, they asked where he had arrived from, and he answered truthfully. Tr. 9. They next asked to see his airline ticket and some identification, and Berryman complied. The ticket was one-way and had been paid for in cash; the name on the ticket corresponded to that on the driver's license Berryman produced. Tr. 9. When asked why and how long he had been in Fort Lauderdale, Berryman said he had been there for three days on business concerning the purchase of land in Alaska. Tr. 9-10. The defendant asked what was the matter; the agents replied that the level of drug traffic between Fort Lauderdale and Boston was high. Tr. 10.

The agents then asked whether they could search Berryman's suitcase, and he consented. Agent Lemon testified that he informed the defendant that he could refuse to give them permission to search the suitcase. Tr. 11. The defendant's testimony was that at this point he inquired whether he had any choice in the matter and was informed, "not really." Tr. 103. The suitcase, which Berryman unlocked on the sidewalk, contained a giftwrapped package with a card, which Berryman said he was delivering for someone he had met in Florida and whose contents were unknown to him. Tr. 12-13. After feeling the package and opening the card with the defendant's permission, Lemon obtained permission to x-ray the package. Tr. 12-14. The defendant accompanied the agents to the security area. Tr. 15. Lemon testified that at this point Berryman was not free to leave. Tr. 48, 49. When the x-ray revealed no solid objects Lemon told Berryman that he suspected the package contained cocaine, and obtained permission to open it. Tr. 16. Berryman accompanied the agents to a Delta Airlines baggage claim office; he remained outside the office with Agent Fencer while Lemon entered the office and opened the package. Tr. 16-17. Fencer testified that he would have prevented Berryman from leaving at this point unless Lemon consented, because Lemon was in charge. Tr. 86-88. The package contained two bags of cocaine. Tr. 17-18. Lemon gave Berryman Miranda warnings but advised him that he was not then under arrest. Tr. 19. Berryman was taken to the DEA airport office, where the agents called the office of the United States Attorney, patted Berryman down, and checked his identification again. Tr. 20-21. Berryman left after being told that he might be arrested at a later time. Tr. 20-21.

II
A

In Terry v. Ohio, 392 U.S. 1, 19, 20, 25-27, 88 S.Ct. 1868, 1878, 1879, 1882-83, 20 L.Ed.2d 889 (1968), the Supreme Court rejected both the notion that the fourth amendment does not regulate police-citizen encounters falling short of arrests, and the notion that it prohibits encounters based on less than probable cause for arrest. Instead, the Court held that, although some police-citizen encounters do not implicate fourth amendment concerns at all, id. at 19 n. 16, 88 S.Ct. at 1879 n. 16, more intrusive encounters short of arrests must be justified by reasonable suspicion proportional to the degree of the intrusion, id. at 19, 20-22, 88 S.Ct. at 1878, 1879-80. That suspicion cannot be inchoate, but must be based on "specific and articulable facts ... together with rational inferences from those facts" in order to establish a basis for review of the police actions. Id. at 21, 88 S.Ct. at 1880; see also Reid v. Georgia, 448 U.S. 438, 440, 100 S.Ct. 2752, 2753, 65 L.Ed.2d 890 (1980) (per curiam); Brown v. Texas, 443 U.S. 47, 51, 99 S.Ct. 2637, 2640, 61 L.Ed.2d 357 (1979); Delaware v. Prouse, 440 U.S. 648, 661, 99 S.Ct. 1391, 1400, 59 L.Ed.2d 660 (1979); United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 2578, 45 L.Ed.2d 607 (1975); Adams v. Williams, 407 U.S. 143, 146-49, 92 S.Ct. 1921, 1923-24, 32 L.Ed.2d 612 (1972).

We note initially that no articulable suspicion existed in this case at the time the DEA agents first accosted Berryman, making their investigation proper only if the encounter was not the type regulated by the fourth amendment. The facts that prompted the investigation--that Berryman had arrived from Fort Lauderdale, that he walked quickly and looked over his shoulder once, and that he stood five or ten feet from the baggage carousel, looked around several times, and picked up one bag--are weaker than those the Court found insufficient in Reid v. Georgia, 448 U.S. at 441, 100 S.Ct. at 2754. In Reid the defendant had arrived from Fort Lauderdale, had arrived early in the morning, had picked up no luggage, and had glanced repeatedly over his shoulder and otherwise appeared to try to conceal the fact that he was traveling with a companion. The Court assigned the first three circumstances no weight because they "describe[d] a very large category of presumably innocent travelers, who would be subject to virtually random seizures were the Court to conclude that [so] little ... could justify a seizure." Id. It found that if the last circumstance was suspicious at all, the suspicion was too " 'inchoate and unparticularized' " to justify the investigation. Id., quoting Terry v. Ohio, 392 U.S. at 27, 88 S.Ct. at 1883. The circumstances in the present case are, if possible, even less suspicious. As in Reid, most are completely innocent: arrival from Fort Lauderdale, standing slightly away from the baggage carousel, and picking up one suitcase. Walking quickly and looking around (which the agents dubbed "scanning the area," although they admitted that the behavior they observed was like that of someone waiting for a ride) were equally innocuous, especially in light of the lateness of the flight. The sole remaining circumstance is that Berryman looked over his shoulder once on the way to the terminal. If this action is worthy of note at all, it is far slenderer a reed on which to base an investigation than the avoidance maneuvers the Court found insufficient in Reid. Nor do we find the combination of circumstances present here any more suspicious than the individual items.

The harder question is whether the encounter between the agents and Berryman raises any fourth amendment concerns. The district court, relying on this circuit's decision in United States v. West, 651 F.2d 71, 72-73 (1st Cir.), petition for cert. filed, 50 U.S.L.W. 3132 (U.S. Sept. 8, 1981) (No. 81-307), which endorsed the test for fourth amendment seizures proposed in one of the several opinions of the fragmented Court in United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980) (opinion of Stewart, J.) (a seizure occurs in circumstances in which a reasonable person would not feel free to leave), held that there was no seizure. It reasoned that

[the agents were] in plain clothes. Their weapons were concealed, although there may have been some inadvertent display. They were not displayed openly. There...

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