U.S. v. Notorianni, 83-1948

• Citation: 729 F.2d 520
• Decision Date: 12 March 1984
• Docket Number: No. 83-1948,83-1948
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Marc NOTORIANNI, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 520

729 F.2d 520

UNITED STATES of America, Plaintiff-Appellee, v. Marc NOTORIANNI, Defendant-Appellant.

No. 83-1948.

United States Court of Appeals Seventh Circuit.

Argued Jan. 10, 1984.

Decided March 12, 1984.

Barry A. Spevack, Michael D. Monico, Chicago, Ill., for defendant-appellant.

Antonio J. Curiel, Asst. U.S. Atty., Dan K. Webb, U.S. Atty., Chicago, Ill., for plaintiff-appellee.

Before PELL, CUDAHY and POSNER, Circuit Judges.

POSNER, Circuit Judge.

The defendant, Marc Notorianni, appeals from his conviction (after a bench trial) for possession, with intent to distribute, cocaine. 21 U.S.C. Sec. 841(a)(1). He was sentenced to a year in prison, to be followed by a special parole term, and fined $5,000. The only issue on appeal is whether the search of his luggage at O'Hare Airport in Chicago violated the Fourth Amendment. Since the district judge believed the version of the events at O'Hare given by the officers who conducted the search, and Notorianni does not argue that their version is incredible, we are bound to accept it as true for purposes of this appeal.

Two experienced plainclothes officers of the Drug Enforcement Administration, Labik and Streicher, watched passengers disembarking at O'Hare from a flight from Fort Lauderdale, Florida, a source city for narcotics. Notorianni (a 25-year-old unemployed carpenter with a ninth-grade education) was one of the disembarking passengers. He caught Labik's attention by walking slowly up the concourse and looking back toward the gate. Accompanied by his girlfriend, Marsh, Notorianni talked briefly with the Donovans, who had arrived at O'Hare on the same flight. The couples walked to the baggage area separately--the Donovans followed by Streicher, Notorianni and Marsh by Labik. The officers were struck by the fact that when the two couples were standing at the baggage carousel waiting for their luggage they did not look at or speak to each other. After the Donovans claimed their luggage Streicher walked up to them, identified himself as a federal agent, and began talking to them. Labik saw Notorianni look in Donovan's direction, claim his last piece of luggage, and then (with Marsh) walk toward the exit. Labik stepped alongside them and without touching them or drawing his gun said in conversational tones that he was a federal agent, showed them his badge, and asked whether he could ask them some questions. Notorianni said yes, and the three moved to the side of the concourse to be out of the stream of traffic. Labik asked Notorianni for identification, and Notorianni gave him his airplane ticket. Labik asked to see his baggage claim stubs. Notorianni said that Donovan had them, and pointed in Donovan's direction. At this point Streicher and the Donovans appeared, and Labik asked Donovan whether he had Notorianni's baggage claim stubs, and Donovan said he did. Labik then stated that he was conducting a narcotics investigation, asked Notorianni whether he could search his luggage, and told him he had a right to refuse. Notorianni agreed to the search and began to open one of the suitcases, but before it was fully open Labik interrupted and said he would finish opening it. He did, and searched the suitcase, but found nothing. In the next suitcase, however, he found a bag of cocaine having a street value of about $10,000, and he then arrested Notorianni. Labik asked Miss Marsh and Mrs. Donovan whether he could search their bags, and they agreed, and he found narcotics in Mrs. Donovan's, and arrested her--and later her husband as well, when he tried to bribe the officers to let her go.

The government concedes that the officers' inspired hunch did not amount to probable cause to arrest Notorianni, that it was not till they found the cocaine in the second suitcase that they had probable cause to arrest him or even that lesser degree of suspicion that will justify the sort of brief detention ("Terry stop," after Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)) that, because it is a lesser restriction on freedom of movement than an arrest, is allowed on a lesser showing of cause. Notorianni, on his part, does not argue that his consent to the search of his luggage was coerced or involuntary, but that the search was invalid as the fruit of ("induced by," in his words) a detention that was unlawful because not supported by the required degree of suspicion. Thus the only issue he presents for review is "Whether the defendant was improperly detained when government agents arbitrarily and capriciously detained him and induced him to submit to a search." And he concedes that his conviction must be affirmed if he "was not seized within the meaning of the Fourth Amendment when agent Labik intercepted him and then induced him to consent to a search of his luggage." He does complain that when, having consented to a search of his luggage, he began to open the suitcase Labik interrupted him and told him that he, Labik, would conduct the search. But there is no evidence that Notorianni complained at the time. Having consented without conditions, he could not attach conditions later.

So we do not think the voluntariness of Notorianni's consent to the search of his luggage is an issue in this appeal. The only issue is whether Notorianni was detained when he gave his consent to the search. If he was, there was an unconstitutional seizure of his person, the consent he gave was vitiated, and the fruits of the search should have been suppressed. If he was not detained, his consent was effective, the search and the seizure of the cocaine were lawful, and his conviction must be affirmed. See United States v. Cordell, 723 F.2d 1283, 1284-85 (7th Cir.1983).

The applicable legal standard is no longer in doubt in this circuit. In United States v. Black, 675 F.2d 129, 134-35 (7th Cir.1982), a panel of this court, in an airport-surveillance case much like the present one, held that the practice of DEA agents in accosting and attempting to question suspected narcotics violators was not coercive per se and the accosted individual would not be deemed to have been seized within the meaning of the Fourth Amendment unless a reasonable person in his position would have believed that he was not free to ignore the agents and continue on his way. A year later, in a considered dictum joined in by eight members of the Supreme Court, Justice White wrote, in apparent confirmation of the holding in Black, that "law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions. Nor would the fact that the officer identifies himself as a police officer, without more, convert the encounter into a seizure requiring some level of objective justification." Florida v. Royer, --- U.S. ----, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229 (1983) (citations omitted). Fortified by this language, three recent decisions of this court have reaffirmed the holding in Black. See United States v. Morgan, 725 F.2d 56 at 58-59 (7th Cir.1984); United States v. Cordell, supra, 723 F.2d at 1285; United States v. $73,277, 710 F.2d 283, 288 (7th Cir.1983). And in one, the judge who had dissented in Black...