U.S. v. Sokolow, 85-1021

• Decision Date: 10 March 1987
• Docket Number: No. 85-1021,85-1021
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Andrew SOKOLOW, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1366

808 F.2d 1366

UNITED STATES of America, Plaintiff-Appellee, v. Andrew SOKOLOW, Defendant-Appellant.

No. 85-1021.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 12, 1985.

Remanded for Additional Findings July 31, 1986.

Resubmitted Oct. 31, 1986.

Decided Jan. 28, 1987.

As Amended March 10, 1987.

Robert P. Goldberg, Honolulu, Hawaii, for defendant-appellant.

Michael A. Santoki, Honolulu, Hawaii, for plaintiff-appellee.

Appeal from the United States District Court for the District of Hawaii.

Before FERGUSON, NORRIS and WIGGINS, Circuit Judges.

NORRIS, Circuit Judge:

Andrew Sokolow appeals his conviction for possessing cocaine with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1). Sokolow entered a conditional guilty plea under Fed.R.Crim.P. 11(a)(2), thereby reserving the right to appeal the district court's denial of his motion to suppress certain evidence allegedly obtained in violation of the Fourth Amendment. The Fourth Amendment challenges are based on Sokolow's detention at the Honolulu airport and the search of his carry-on luggage subsequent to a dog alert for narcotics. We have jurisdiction under 28 U.S.C. Sec. 1291, reverse the district court's denial of the motion to suppress, and remand.

FACTS

On Sunday, July 22, 1984, Sokolow purchased two round trip tickets to Miami at the United Airlines counter at Honolulu Airport. Sokolow paid for the $2100 tickets out of a large wad of $20 bills, purchasing them under the names of Andrew Kray and Janet Norian. The ticket agent notified drug task force agent John McCarthy of the purchase. Agent McCarthy called the telephone number given to the ticket agent by Sokolow. The call was answered by a recorded message on an answering machine. Upon listening to a tape of this message, the ticket agent identified the voice as that of Sokolow. Agent McCarthy determined that the number was subscribed to by Karl Herman at 348-A Royal Hawaiian Ave., Honolulu, Hawaii. What Agent McCarthy apparently did not know Traveling with carry-on luggage only, Sokolow and Norian arrived at Honolulu airport and proceeded directly to the street to hail a taxi. They were at the curbside waiting for a taxi when several Drug Enforcement Administration (DEA) agents approached them. As found by the district court, the agents grabbed Sokolow by the arm, pulled him onto the walkway, and sat him down. Agent Kempshall then asked Sokolow for his airline ticket and identification. Sokolow responded that he was not carrying any identification and did not have his airline ticket. Sokolow further stated that, although his name was Sokolow, he was using his mother's maiden name of Kray, and that he had not made the reservations himself. Sokolow, Norian, and their luggage were then taken to a DEA office in the airport.

at that time was that both Herman and Sokolow lived at this address. On July 24, Agent McCarthy learned that Sokolow was scheduled to return to Honolulu the following day with a female companion, Janet Norian. On July 25, agents at the Los Angeles airport confirmed that Sokolow and Norian were aboard the flight to Honolulu. Sokolow was wearing a black jumpsuit and a large amount of gold jewelry.

In the DEA office, the luggage was turned over to a Customs Service dog handler for examination by a narcotics detector dog. The narcotics detection dog alerted to a brown shoulder bag. Based on this information, the agents placed Sokolow under arrest and proceeded to secure a warrant to search the shoulder bag. Although the search uncovered no drugs, it did uncover certain papers that prompted the agents to have the narcotics detection dog reexamine the remaining three pieces of luggage. This time the dog alerted to a medium sized carry-on bag. Ultimately, another narcotics detection dog confirmed this alert. The agents searched the medium-sized bag pursuant to a warrant and found 1,000 grams of cocaine.

Sokolow was indicted for possession with intent to distribute cocaine in violation of 21 U.S.C. Sec. 841(a)(1). The district court denied his motion to suppress all statements and evidence secured pursuant to his seizure, his arrest, and the search of his luggage. Sokolow entered a conditional guilty plea thereby preserving his right to challenge the district judge's ruling on his Fourth Amendment claims. Concluding that reversal was a possibility because the case was a "close one," the district judge granted Sokolow bail pending appeal.

DISCUSSION

The disposition of this case turns on two key questions: ¹ (1) at what point did the agents seize Sokolow?; and (2) at the moment of seizure, did the agents have information supporting a reasonable and articulable suspicion that Sokolow was engaged in criminal activity? We conclude that Sokolow was seized when he was grabbed by the arm and sat down at the curbside. This was before any questioning began. We also conclude that at the time they seized Sokolow, the agents did not have a basis for a reasonable and articulable suspicion that Sokolow was engaged in criminal activity. As a consequence, the seizure violated the Fourth Amendment, and all the subsequent evidence uncovered must be suppressed.

Without making any specific findings of fact, the district court originally ruled that the initial contact between the agents and Sokolow at curbside did not rise to the level of a seizure, citing Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 1323, 75 L.Ed.2d 229 (1983) for the proposition that "[t]here is no Constitutional infringement when an officer merely approaches and speaks to an individual in a public place." However, this ruling has since been cast into considerable doubt by the district court's findings on remand, ² which belie the apparent assumption that this case involved nothing more than agents approaching and speaking to a suspect in a consensual manner. The district court accepted on remand defendant's contention that the agents grabbed Sokolow by the arm and moved him back to a seat before they asked him questions. Although the "federal agents do not remember the event in the same way," the district court found that the government had not met its burden of proof on the issue. Moreover, the district court also found on remand that "[a]t the initial curbside stop, Sokolow did reasonably believe he was not free to leave." (emphasis added). Unfortunately, the court was ambiguous about whether it was merely finding that Sokolow held this reasonable belief after being questioned and told his luggage would be detained or whether it was also finding that Sokolow had this reasonable belief before the questioning. If the latter, then there can be no doubt that Sokolow was seized before the curbside questioning began. See INS v. Delgado, 466 U.S. 210, 215, 104 S.Ct. 1758, 1762, 80 L.Ed.2d 247 (1984) (a person has been seized if under the circumstances a reasonable person would have believed he was not free to leave); United States v. Patino, 649 F.2d 724, 727-28 (9th Cir.1981) (same). But even absent a specific finding that Sokolow reasonably believed he was not free to leave at the moment he was physically grabbed, we hold that Sokolow was seized at that moment.

We review the district court's determination as to whether a seizure occurred de novo. See LaDuke v. Nelson, 762 F.2d 1318, 1327 (9th Cir.1985). Although we certainly have no quarrel with the proposition that police do not seize a person within the meaning of the Fourth Amendment by merely approaching him and asking him questions in public, we think it clear that the initial curbside contact in this case did not involve such a consensual encounter. Physically grabbing, moving, and seating a suspect to ask questions, even in public, clearly restrains that suspect's liberty in a nonvoluntary way. Indeed, the use of physical means to restrain a person's movement is the most obvious form of seizure. See e.g., Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 1879 n. 16, 20 L.Ed.2d 889 (1968); United States v. Mendenhall, 446 U.S. 544, 553-54, 100 S.Ct. 1870, 1876-77, 64 L.Ed.2d 497 (1980) (opinion of Stewart, J.); Patino, 649 F.2d at 728 (stating that physical restraint is the "most obvious" form of seizure). Thus we hold that Sokolow was seized at the point he was grabbed and seated, and before any questioning began.

Although not all seizures require probable cause, "any curtailment of a person's liberty by the police must be supported by at least a reasonable and articulable suspicion that the person seized is engaged in criminal activity." Reid v. Georgia, 448 U.S. 438, 440, 100 S.Ct. 2752, 2753, 65 L.Ed.2d 890 (1980) (per curiam). We review the district court's conclusion that a reasonable suspicion existed de novo. ³ United States v. Sutton, 794 F.2d 1415, 1425 (9th Cir.1986); United States v. Maybusher, 735 F.2d 366, 371 & n. 1 (9th Cir.1984), cert. denied, 469 U.S. 1110, 105 S.Ct. 790, 83 L.Ed.2d 783 (1985). Although the issue is a close one, we conclude that a reasonable and articulable suspicion did not exist at the time the agents grabbed Sokolow by the arm and sat him down. ⁴

The district court based its conclusion that the initial curbside stop was supported by a founded suspicion in part on the facts that Sokolow admitted he was not traveling under his real name and that he told the agents he did not have his ticket even though he had just gotten off the plane. We disagree. The initial seizure, which we hold occurred when the agents first grabbed Sokolow, must be based upon a reasonable and articulable suspicion that existed at that time. It cannot be based on information that is a fruit of the seizure itself. ⁵ See United States v. Erwin, 803 F.2d 1505, 1510 n. 2 (9th Cir.1986).

The agents knew only the following facts matching their "drug courier profile" when they first approached Sokolow: (1) that Sokolow had just returned from a three-day trip to Miami, a well-known source city for drugs; (2) that...