U.S. v. Poitier, 86-1616

Citation818 F.2d 679
Decision Date30 July 1987
Docket NumberNo. 86-1616,86-1616
PartiesUNITED STATES of America, Appellant, v. Tunya Reginera POITIER, Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

Robert J. Govar, Asst. U.S. Atty., Little Rock, Ark., for appellant.

Howard Sohn, Miami, Fla., for appellee.

Before BOWMAN and MAGILL, Circuit Judges, and HARPER, Senior District Judge. *

MAGILL, Circuit Judge.

In this case we examine whether the district court correctly ordered suppression of evidence obtained through a search at an airport. We conclude that the district court erred in suppressing the evidence, and accordingly we reverse.

I. FACTS.

At about 11:30 a.m. on December 19, 1985, Special Agent Paul Markonni of the Drug Enforcement Administration (DEA) was at Gate A-20 of the Atlanta Airport in Atlanta, Georgia, watching the arrival of Delta Airlines Flight No. 817 from Miami, Florida. He saw the appellee, Tunya Reginera Poitier, leave the plane, approach a Delta agent, and request information as to her connecting flight to Little Rock, Arkansas. Following the Delta agent's direction, Poitier headed for Gate A-7. Markonni noted that Poitier was "very well dressed" and carrying a coat over her arm, but he noticed nothing unusual or suspicious about her.

A few seconds later, however, Markonni saw a man later identified as Larry Gene Harvey walk past and quickly follow Poitier, tracking her route, down the concourse toward Gate A-7. Another DEA agent told Markonni that Harvey had also left Flight No. 817. Harvey was casually dressed, wearing blue jeans and a black leather jacket with a distinctive fish scale design on the back. Harvey caught up to Poitier and they walked side by side, maintaining about five feet between them, yet they appeared to be speaking to each other. Markonni suspected that they might be trying to conceal the fact that they were traveling together. He had in the past seen drug couriers do this to avoid the possibility of both being arrested should an arrest take place.

Markonni followed Harvey and Poitier to Gate A-7, saw them get together, give their tickets to the Delta agent, and get on Delta Flight No. 705 to Little Rock, Arkansas. Markonni then retrieved the two tickets from the Delta agent, and saw that the names on the tickets were Tunya Poitier and Al Harvey and that the tickets were sequentially numbered, were both purchased for cash, and had an identical travel schedule, Miami to Atlanta and Atlanta to Little Rock. Markonni got a copy of the passenger name record for Poitier and Harvey, reconfirmed that they had identical itineraries, and also noted that they had used the same telephone number in Miami as a reference number, but that they had made their reservations separately and were seated in separate sections of the plane for both legs of the flight. He also found that their separate reservations had been made within the same minute. Markonni then called the Miami telephone number listed on the reservation records, and the woman answering told him that she knew Poitier, but not Al Harvey, and that Poitier would be returning the following day. Markonni then telephoned Special Agent Gary Worden of the DEA office in Little Rock, Arkansas, and told him all the information he had gained as to Poitier and Harvey and gave physical descriptions of the two.

Based on this information, DEA agents in Little Rock decided to establish a surveillance team at the Little Rock airport to watch Flight No. 705 from Atlanta. During a debriefing session before the plane landed, the team was told to let Harvey and Poitier go on their way if they did not want to cooperate with the officers or answer questions. After 4:00 p.m. that afternoon, the surveillance team saw two people matching the descriptions of Harvey and Poitier leaving Flight No. 705. Harvey left the plane before Poitier and walked at first approximately 15 to 20 feet ahead of her, but she eventually caught up with him and they spoke, although walking about four feet apart. Little Rock narcotics detective David Hudson and DEA Special Agent Edward DiScenza then approached Poitier from both sides and DiScenza produced DEA credentials, while another five or six federal and local agents stopped Harvey in the same area. DiScenza told Poitier that he wanted to ask her some questions, she agreed, and he suggested that they move out of the main concourse towards the lesser-populated waiting area of Gate 1 of the terminal. DiScenza asked Poitier her name and for identification, which she provided. He asked her where she was from, and she replied that she was from Miami, Florida. When asked what she was doing in Little Rock, Poitier stated that she was there to party for a few days with her boyfriend. She identified Harvey as her boyfriend and said she had known him for about six months.

DiScenza walked over to Harvey and asked him if he knew Poitier. Harvey said that he barely knew her and had just met her in Miami. The inconsistent information made DiScenza suspicious and he told Poitier that he suspected her of carrying drugs from Florida. He gave her oral Miranda warnings, and she told him that she understood them. Then Hudson asked her directly if she was carrying drugs and she answered that she was. When asked what type of drugs she was carrying, she answered cocaine. She was then placed under arrest and searched, and about one kilogram of cocaine was found. 1

II. DISTRICT COURT PROCEEDINGS.

After being indicted by a grand jury on charges of conspiracy to distribute cocaine and possession with intent to distribute cocaine, Poitier moved to suppress the cocaine seized from her at the airport, as well as statements she made when detained. The district court examined whether the detention was supported by a reasonable and articulable suspicion that she had committed or was currently committing a crime. The court stated that the initial contact by the officers with Poitier was intended to be a limited investigative stop, also known as a Terry -type stop, which requires reasonable suspicion by the officer. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). To validate such a stop, the officer must be able to point to specific and articulable facts, which taken together with rational inferences from these facts, reasonably warrant the intrusion. United States v. Borys, 766 F.2d 304, 308 (7th Cir.1985), cert. denied, --- U.S. ----, 106 S.Ct. 852, 88 L.Ed.2d 893 (1986).

The district court concluded that there was not sufficient reasonable suspicion that Poitier had committed or was about to commit a crime to justify the intrusion and seizure in this case. The court further found that when the officers showed their identification and gestured to Poitier to move to the waiting area, a reasonable person in Poitier's position would not have felt free to stop the questioning and leave. The court characterized the intended Terry -stop as a de facto arrest from its inception. The district court thus granted Poitier's motion to suppress.

III. DISCUSSION.

Our starting point is to determine the nature of the encounter between the agents and Poitier. More specifically, we must determine whether Poitier was seized, and if so, at what point; and, if Poitier was seized, was there objective justification sufficient to create reasonable suspicion that she was engaging in criminal activity.

As this court noted in United States v. Wallraff, 705 F.2d 980, 988 (8th Cir.1983), Supreme Court jurisprudence has placed police-citizen encounters into three tiers or categories: First, there are communications between officers and citizens that are consensual and involve no coercion or restraint of liberty. Such encounters are outside the scope of the Fourth Amendment. Second, there are the so-called Terry -type stops. These are brief, minimally intrusive seizures but which are considered significant enough to invoke Fourth Amendment safeguards and thus must be supported by a reasonable suspicion of criminal activity. Third, there are highly intrusive, full-scale arrests, which must be based on probable cause.

Reviewing the record, we are unable to agree with the district court that the agents' initial contact with Poitier fell into the category of an investigative, Terry -type stop. We accept the district court's findings of fact and cannot say that they are clearly erroneous. The only issue is the application of the law to those facts. The applicable standard of review in this area is subject to some confusion, namely, whether a trial court's conclusion as to Fourth Amendment custody is a question of fact or a conclusion of law. See United States v. Ceballos, 812 F.2d 42, 47 n. 1 (2d Cir.1987). This circuit, however, has settled upon the "clearly erroneous" standard in reviewing the district court's determinations, made in the context of a motion to suppress, as to the existence of circumstances justifying a warrantless arrest. Wallraff, 705 F.2d at 987.

We conclude, under this standard of review, that the district court misapplied the pertinent case law to the facts at issue. The district court found that "when the Little Rock officers displayed their identification and 'gestered' [sic] to defendant to move to a seated area located to the side of the concourse * * * a reasonable person in this posture would not have felt free to terminate the interrogation conducted by the officer and depart from the airport." Our review of the cases convinces us, however, that more is required to turn consensual questioning into a Terry -type investigative stop than the display of badges, the request for information, and the suggestion that the parties move to a nearby area out of the flow of traffic.

We are guided in this regard by the similar case of Florida v. Rodriguez, 469 U.S. 1, 3-4, 105 S.Ct. 308, 309-10, 83 L.Ed.2d 165 (1984). In Rodriguez a police officer stationed at the...

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