831 F.2d 1413 (9th Cir. 1987), 85-1021, United States v. Sokolow

Docket Nº:85-1021.
Citation:831 F.2d 1413
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Andrew SOKOLOW, Defendant-Appellant.
Case Date:January 28, 1987
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1413

831 F.2d 1413 (9th Cir. 1987)

UNITED STATES of America, Plaintiff-Appellee,

v.

Andrew SOKOLOW, Defendant-Appellant.

No. 85-1021.

United States Court of Appeals, Ninth Circuit

January 28, 1987

Remanded for Additional Findings, July 31, 1986. Argued and Submitted July 12, 1985.

Remanded for Additional Findings, July 31, 1986.

Resubmitted Oct. 31, 1986.

Amended March 10, 1987.

Second Amended Opinion Filed Nov. 4, 1987.

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[Copyrighted Material Omitted]

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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.

SECOND AMENDED OPINION

FERGUSON, Circuit Judge:

On appeal from his conviction for possessing cocaine with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1), Andrew Sokolow challenges the district court's ruling denying his motion to suppress evidence obtained during the retention of himself and his luggage at the Honolulu airport. The evidence he moved to suppress included 1,000 grams of cocaine. Exercising appellate jurisdiction under 28 U.S.C. Sec. 1291, we initially reversed his conviction on the ground that agents of the Drug Enforcement Agency had violated the Fourth Amendment in detaining Sokolow and searching his luggage. 808 F.2d 1366 (9th Cir.1987). On petition for rehearing, the government draws our attention to additional evidence that it believes should change our original conclusion that the Fourth Amendment had been violated. We disagree, and thus deny the government's petition for rehearing, vacate our previous disposition, and file this amended opinion.

I.

On Sunday, July 22, 1984, Sokolow purchased two roundtrip tickets to Miami at the United Airlines counter at Honolulu Airport. Sokolow paid for the $2100 tickets in cash with approximately half of a large wad of $20 bills he was carrying, 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 Avenue, Honolulu, Hawaii. What Agent McCarthy apparently did not know at this time was that both Herman and Sokolow lived at this address. On July 24, Agent McCarthy learned that Sokolow and Janet Norian were scheduled to return to Honolulu the following day on a flight with a layover in Los Angeles. On July 25, agents at the Los Angeles airport reported that during his layover Sokolow "appeared to be very nervous and was looking all around the waiting area" 1 and that Sokolow and Norian had boarded the flight to Honolulu. Sokolow was wearing a black jumpsuit and a large amount of gold jewelry.

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 curbside waiting for a taxi when, at approximately 6:41 p.m., 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

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were then taken to a DEA office in the airport.

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 under Fed.R.Crim.P. 11(a)(2), 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 court granted Sokolow bail pending appeal.

II.

A.

Resolution of the Fourth Amendment issues presented by this appeal requires a close analysis of the DEA agents' actions in detaining Sokolow and detaining and searching his luggage. We begin with the initial contact between the agents and Sokolow at curbside. 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, 103 S.Ct. 1319, 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." Id. at 497, 103 S.Ct. at 1324. 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 who approached and spoke to a suspect in a consensual manner. On remand, the district court accepted Sokolow's contention that the agents grabbed him 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.

We review de novo the question whether a seizure occurred. 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.): United States v. Patino, 649 F.2d 724, 728 (9th Cir.1981) (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 occurred.

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B.

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, 2754, 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). We conclude that no reasonable and articulable suspicion existed at the time the agents grabbed Sokolow by the arm and sat him down.

The agents knew the following facts matching their "drug courier profile" when they first approached Sokolow: 4 (1) that Sokolow had just returned from a three-day trip to Miami, a well-known source city for drugs; (2) that Sokolow had paid for his tickets out of a large wad of $20 bills; (3) that neither Sokolow nor Norian checked any luggage; (4) that during Sokolow's layover in Los Angeles he "appeared to be very nervous and was looking all around the waiting area"; 5 (5) that Sokolow dressed in a black jumpsuit and wore a lot of gold jewelry; and (6) that Sokolow had his voice on an answering machine at a phone subscribed to by Karl Herman but was ticketed under the name Andrew Kray. The agents did not know at the time of seizure that the defendant's true name was Sokolow. With these facts in mind, we begin our analysis.

III.

In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1967), the Supreme Court announced that brief stop and frisk detentions fell within the Fourth Amendment's protection against unreasonable searches and seizures. Since Terry, the courts have been left to explore "the limitations which the Fourth Amendment places upon a protective seizure and search for weapons" and to examine the broader limits of Terry as applied to situations beyond a police officer's need for self-protection. The increasing breadth of Terry issues 6

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