U.S. v. Ilazi, 83-1991

• Decision Date: 26 March 1984
• Docket Number: No. 83-1991,83-1991
• Citation: 730 F.2d 1120
• Parties: UNITED STATES of America, Appellant, v. Abdula ILAZI, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1120

730 F.2d 1120

UNITED STATES of America, Appellant, v. Abdula ILAZI, Appellee.

No. 83-1991.

United States Court of Appeals,

Eighth Circuit.

Submitted Dec. 15, 1983.

Decided March 26, 1984.

Douglas W. Thomson and Robert J. Sorensen, Thomson & Hawkins, St. Paul, Minn., for appellant.

James M. Rosenbaum, U.S. Atty., Joseph T. Walbran, Asst. U.S. Atty., D. Minn., Minneapolis, Minn., for appellee.

Before LAY, Chief Judge, BRIGHT, Circuit Judge and HANSON ^*, Senior District Judge.

BRIGHT, Circuit Judge.

Abdula Ilazi, charged with possession with intent to distribute cocaine in violation of 21 U.S.C. Sec. 841(a)(1) ¹, moved to suppress the introduction of 223 grams of cocaine on the ground that it had been obtained from him in violation of his fourth amendment rights. The district court ² denied the motion, 563 F.Supp. 730, and convicted Ilazi following a trial on stipulated facts. Ilazi appeals, contending that the district court erred in denying his motion to suppress. We affirm.

On appeal, Ilazi argues that government agents initially stopped and detained him without a reasonable and articulable suspicion that he was engaged in criminal activity. He also contends that by stopping him a second time government agents exceeded the bounds of an investigatory stop, rendering their second encounter with him an arrest without probable cause. Finally, Ilazi argues that a government agent attempted to search him without his consent and without a warrant under circumstances that did not justify a warrantless search. In each instance, according to Ilazi, the agents' actions tainted the evidence subsequently seized, requiring its suppression.

I. Background.

On January 31, 1983, Abdula Ilazi and Islam Pinjoli arrived at the Minneapolis-St. Paul International Airport on a flight from West Palm Beach, Florida. Minnesota Bureau of Criminal Apprehension (BCA) Special Agent Thomas Olby and Airport Police Department Officer Marilyn Mortensen, who were conducting routine surveillance to intercept drug traffickers, watched as the passengers deplaned. Neither Ilazi nor Pinjoli, among the last passengers to leave the plane, carried any luggage. With glassy eyes, Ilazi and Pinjoli slowly walked off the plane, staggering from left to right, sniffing and inhaling deeply after placing their fingers next to their noses.

As Ilazi and Pinjoli left the gate area, they stared directly at Agent Olby and Officer Mortensen. The two men checked a nearby flight monitor and then, after glancing over their shoulders at the agents, they started down the concourse. Ilazi walked with some difficulty, continually stomping both his feet. Again glancing over their shoulders at the agents, Ilazi and Pinjoli entered a men's restroom. Officer Olby joined them in the restroom and, although he was very close to Pinjoli, smelled no alcohol. Officer Mortensen seized this opportunity to contact Drug Enforcement Administration Special Agents, James Lewis and Jerry Kramer, who were also on airport duty, and advise them of the situation.

After leaving the restroom, Ilazi and Pinjoli proceeded down the concourse to the (Charles A.) Lindberg Bar. Before entering the bar, the men again stared directly at the agents. Ilazi and Pinjoli entered the bar and sat down. Ilazi seated at the table, continued to stomp his left boot.

A. First Encounter with Pinjoli.

When Pinjoli left the bar, approximately five minutes later, Agent Olby and Officer Mortensen approached him. They identified themselves as police officers, displayed their badges, and asked to speak to him, explaining that he was not under arrest and was free to go. Agent Olby asked to see Pinjoli's ticket. The ticket, issued in the name of Sam Antone and purchased with cash, authorized a round trip from Anchorage, Alaska to West Palm Beach, Florida, departing Anchorage on January 30, 1983 with an open return. Agent Olby also learned that Pinjoli was an alien from Yugoslavia, without identification, passport, or immigration papers. Pinjoli explained that he had lost his papers in a swimming pool in Florida, but that Ilazi, who was from Yugoslavia also, had an immigration registration card. When asked, Pinjoli refused to tell the agents how long he had been in Florida.

Agent Olby asked Pinjoli to return to the bar and get Ilazi so that Olby could speak to him. Agent Olby and Officer Mortensen accompanied Pinjoli to the bar, but, at Pinjoli's request, waited outside while he went in to get Ilazi. As he entered the bar, Pinjoli glanced over his shoulder to see if the agents were watching him, and then grabbed his right ankle and patted it while looking at Ilazi. Ilazi, acknowledging Pinjoli's signal, leaned over in his chair and did something to his lower leg or foot.

B. First Encounter with Ilazi.

When Pinjoli and Ilazi approached the agents, Agent Olby informed Ilazi that he was not under arrest but was free to go, and asked Ilazi for identification. Ilazi produced an Immigration and Naturalization Service (INS) form, indicating that he must leave the United States at his own expense on or before February 18, 1983. Agent Olby asked to see Ilazi's airline ticket. The ticket, issued under the name of John Ilazi and purchased with cash, authorized a round trip from Anchorage, Alaska to West Palm Beach, Florida, departing Anchorage on January 30, 1983 with an open return. Agent Olby asked Ilazi whether he had a driver's license. With trembling hands, Ilazi produced a driver's license, issued under the name of Abdula Ilazi. When asked, Ilazi denied carrying either narcotics or large amounts of U.S. currency, and informed Agent Olby that neither he nor Pinjoli had any luggage. Pinjoli explained that he had forgotten his luggage in Florida and that a friend would be returning it to Anchorage. The agents thanked Pinjoli and Ilazi for their cooperation and left. Following this discussion, Agent Olby and Officer Mortensen met with Agents Lewis and Kramer and explained to Lewis and Kramer the details of their conversation with Ilazi and Pinjoli.

C. Second Encounter with Ilazi.

Agents Lewis and Kramer went back past the Lindberg Bar and noticed that Ilazi and Pinjoli were preparing to leave the bar. The agents watched as the two men left the bar and proceeded down the concourse. Lewis and Kramer noticed that Ilazi walked like "a two-year-old child with a dirty diaper." At that point, Agents Lewis and Kramer approached Ilazi and Pinjoli, displayed their badges, identified themselves as federal agents, and asked to see the men's travel papers. Ilazi handed his airline ticket, INS form, and driver's license to Lewis. Pinjoli explained that his billfold and immigration papers had been stolen in Florida, and that he did not have an airline ticket because he was traveling with Ilazi. Pinjoli subsequently handed his ticket to Agent Kramer.

In addition to the information on these documents previously discovered by Agent Olby and Officer Mortensen, Lewis and Kramer noticed that Ilazi's driver's license indicated that he was born in Alaska and that the airline tickets had sequential numbers of issue. Agent Lewis asked if either man had any immigration documents. Both replied that they did not, although they admitted that they were Yugoslavian citizens. Neither man responded when Agent Lewis asked whether they knew they were required to carry these documents at all times. Agent Lewis returned the documents to Ilazi and asked if they had any luggage. Pinjoli replied that a friend was bringing it from Florida tomorrow.

At this point, the agents noticed a bulge on the inside of Ilazi's right boot. Agent Lewis asked the men what they had in their boots. Pinjoli pulled up his pant legs to display the tops of his boots and replied that he had nothing in his boots; Ilazi said nothing. Agent Lewis bent over to look at Ilazi's ankles. He noticed that Ilazi's right boot was unzipped and that there was a bulge in his sock. Agent Lewis reached toward this bulge. Ilazi jumped back as Agent Lewis touched his boot and Agent Lewis said, "Let's go." The agents took Ilazi and Pinjoli to the BCA's airport office, where they were told they were under arrest. Subsequent searches revealed two bags of cocaine hidden in Ilazi's boots and another bag of cocaine concealed in his underwear.

II. Discussion.

A. The First Seizure.

Supreme Court decisions identify, at least theoretically, three categories of police-citizen encounters: voluntary communication between law enforcement officers and citizens; brief, minimally intrusive, investigative stops; and highly intrusive, full-scale arrests. United States v. Wallraff, 705 F.2d 980, 988 (8th Cir.1983). Investigative stops and arrests are "seizures" within the meaning of the fourth amendment, and thus require some particularized and objective justification; voluntary communication does not. Id. An investigative stop by a law enforcement officer must be supported by a reasonable and articulable suspicion of criminal activity. Id. The district court concluded that Ilazi's initial stop by Agent Olby and Officer Mortensen was so supported. We agree.

To be reasonable, the suspicion must be more than an "inchoate and unparticularized suspicion or 'hunch.' " Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889 (1968). It must be based on specific and articulable facts, and the rational inferences to be drawn therefrom by those "trained and experienced in discerning in ostensibly innocuous behavior the indicia of narcotics trafficking." United States v. Forero-Rincon, 626 F.2d 218, 221-22 (2d Cir.1980). See also United States v. Wallraff, supra, 705 F.2d at 988.

Several recent Supreme Court decisions guide us in our application of these principles. In Florida v. Royer, --- U.S. ----, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983), a majority of the court agreed that two agents at the Miami International Airport had reasonable, articulable suspicion to justify a temporary detention when a...