U.S. v. Saperstein, 81-1670

• Decision Date: 08 December 1983
• Docket Number: No. 81-1670,81-1670
• Citation: 723 F.2d 1221
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Steven E. SAPERSTEIN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1221

723 F.2d 1221

UNITED STATES of America, Plaintiff-Appellee, v. Steven E. SAPERSTEIN, Defendant-Appellant.

No. 81-1670.

United States Court of Appeals,

Sixth Circuit.

Argued May 5, 1982.

Decided Dec. 8, 1983.

Daniel J. Blank (argued), Birmingham, Mich., for defendant-appellant.

Leonard R. Gilman, U.S. Atty., Susan Daltuva, Asst. U.S. Atty. (argued), Detroit, Mich., for plaintiff-appellee.

Before KEITH, MERRITT and JONES, Circuit Judges.

NATHANIEL R. JONES, Circuit Judge.

Defendant-appellant, Steven E. Saperstein, was stopped at the Detroit Metropolitan Airport by Drug Enforcement Agency (DEA) personnel who ultimately conducted a search of his suitcase and discovered marijuana. Saperstein appeals from his subsequent conviction for possession with intent to distribute marijuana in violation of 21 U.S.C. Sec. 841(a)(1). ¹ His contention on appeal is that the district court erred in denying his motion to suppress the evidence seized during the airport search. The appellant objects to the initial seizure of his person and the subsequent seizure of his luggage, claiming that both were in violation of the Fourth Amendment. In light of the most recent Supreme Court pronouncements on the scope of permissible airport searches, Florida v. Royer, 460 U.S. ----, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) and United States v. Place, --- U.S. ----, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983), we agree. We, thus, vacate the conviction and sentence entered by the district court and remand for further proceedings not inconsistent with this opinion.

I.

Shortly after noon on March 25, 1981, Special Agent Demnik, assigned to the Detroit Metropolitan Airport interdiction unit, received a telephone call from an American Airlines ticket agent. The ticket agent informed Demnik that an individual by the name of S. Sh aperstein had checked in for flight 328 to New York's LaGuardia Airport, had checked a large suitcase which appeared to be empty, and had scheduled his return on American Airlines flight 215 at approximately 9:00 p.m. that evening. The individual was described as a white male, approximately 28 years of age, with short black hair and a full beard. He was purportedly wearing a gray sports coat and sunglasses when purchasing his ticket.

Based on this information, Demnik conducted surveillance of the individual described and watched him board the flight to New York. Agent Demnik then interviewed the ticket agent. She stated that the reservation had been made at two o'clock on the previous day and had been paid for in cash. Demnik and another agent decided to monitor incoming flight 215, returning to Detroit from New York. The appellant was observed exiting the plane and was followed to the baggage claims area. The appellant retrieved a large gray-black suitcase. Judging from the manner in which the suitcase was lifted, the agents believed that the suitcase was not empty but, rather, "had weight to it." However, the agents had no description of the suitcase checked through to New York and, thus, had no way of knowing whether the bag appellant claimed in Detroit was the same one the ticket agent had believed was empty.

Agent Demnik followed the appellant outside the airline terminal to the curb. The appellant stood at curbside for twenty to thirty seconds, as if he were waiting to be picked up. Demnik approached the appellant, identified himself as a federal narcotics officer, and asked if the appellant would mind answering a few questions. The agent was dressed in casual clothes, with no weapon drawn. He stood facing the appellant with his back to the pickup lane. The appellant agreed to answer some questions.

Although he was confused as to the order of his statements and questions, Demnik testified that he informed the appellant that he was involved in the surveillance of drug couriers and that he specifically had information concerning the appellant's possible involvement in drug transportation. Demnik asked if the appellant had just arrived from New York and he stated that he had. Demnik then asked to see the airline ticket and some identification. The appellant handed the ticket and a driver's license bearing the name Steven Edward Saperstein to Demnik. The appellant pointed out the discrepancy between the name on the ticket, Saperstein, and that on the license, Sh aperstein, indicating that the airline ticket agent had apparently misspelled his name. The agent testified that he attached no significance to this point.

Demnik asked the appellant why he had gone to New York and the appellant indicated that he had been on a business trip. When asked why he would have such a large suitcase for a short business trip, the appellant did not reply. When asked whether the suitcase contained personal belongings or business papers, the appellant denied knowing what the suitcase contained.

About this time, agent Anderson joined Demnik at curbside. Both agents purportedly attempted to clarify certain "discrepancies". Specifically, the agents wanted to know why Saperstein had claimed the bag if he did not know what it contained. When the agents asked for permission to search the suitcase, the appellant told them that he had no idea what the combination to the lock was. By way of explanation, the appellant indicated that he had met an individual in New York who had asked the defendant to deliver the suitcase to the friend who was to pick him up at the Detroit airport. Noticing that the suitcase tag bore the name of "Larry Glazer", Demnik asked if Glazer was the individual to whom he was to deliver the suitcase, and the appellant said yes. Demnik also asked whether the appellant had checked any baggage when he left Detroit and, contrary to the ticket agent's claim, he said no.

At this point the appellant was asked to accompany the agents to their office in the terminal "to clarify some discrepancies." The appellant agreed to do so. The agents again asked for the appellant's ticket and license and continued questioning him about his travels. The agents pointed out that a baggage claim check for the Detroit-New York route was attached to his ticket and asked why it would be there if no bag had been checked. The appellant had no response. Agent Demnik again asked how the appellant had come to possess the suitcase and the appellant again stated that he had received it in New York and was asked to give it to Glazer upon arriving in Detroit. A second request to search the suitcase was denied.

Demnik then contacted the United States Attorney's office in Detroit and was advised to keep the suitcase and obtain a search warrant. The appellant was given a receipt and left the office. Forty-five minutes to an hour had elapsed from the time of the curbside encounter until the appellant left the office.

After the appellant left the office, Demnik tried to secure a narcotic-detecting dog from the Detroit police but the dog handler was unavailable. At 10:30 a.m. the next day, approximately thirteen and one-half hours after the seizure of the suitcase, law enforcement personnel conducted a canine "sniff search" and the appellant's suitcase was designated a "positive hit." A search warrant was then obtained and ten pounds of marijuana was discovered inside the luggage.

On May 21, 1981, a single-count indictment was filed, charging the appellant with possession with intent to distribute marijuana in violation of 21 U.S.C. Sec. 841(a)(1). Evidentiary hearings were held on June 15 and 16, 1981, to determine the constitutionality of the conduct of the DEA agents. The trial court then gave an oral opinion, denying the previously-filed motion to suppress the evidence seized during the search. On July 24, 1981, a trial was held before the court. The appellant was found guilty and sentenced to four months in jail with a three-year special parole term. This appeal followed. ²

II.

As the incidents of airport stops and searches increase with the expanded use of the so-called "drug courier profile," ³ the need to carefully define the permissible bounds of law enforcement activity in this context has become more pronounced. Until recently, the Supreme Court had supplied little guidance in the area, leaving the lower courts to grapple with the proper application of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), in light of United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980) and Reid v. Georgia, 448 U.S. 438, 100 S.Ct. 2752, 65 L.Ed.2d 890 (1980). ⁴ On March 23, 1983, the Supreme Court decided Florida v. Royer, supra, and on June 20, 1983 it handed down its decision in United States v. Place, supra. The first addressed the legality of seizures of the person based on the use of the drug courier profile and the latter discussed the seizure of luggage absent probable cause. The pair further clarifies the nature of the Fourth Amendment analysis required in the airport context and clearly provides the most pertinent guidance for a resolution of this appeal.

A. Seizure of the Person--Florida v. Royer

The appellant first contends that the evidence must be suppressed because it was obtained pursuant to an illegal seizure of his person within the meaning of the Fourth Amendment. The government contends, and the district court held, that at no time was the defendant seized. In the alternative, the district court ruled that even if there had been a seizure, the seizure was reasonable and, thus, permissible under the Fourth Amendment.

The first question then is whether or not Saperstein was ever seized at the Detroit airport. If not, our consideration of this appeal is at an end. In United States v. Mendenhall, supra, Justice Stewart, writing for the Court, took the position that a defendant had not been seized when federal agents approached her, requested her identification and airline ticket and posed a few questions regarding her travels. Justice Stewart reasoned that "nothing in the record suggests that the...