U.S. v. Sterling, 89-3428

• Citation: 909 F.2d 1078
• Decision Date: 10 August 1990
• Docket Number: No. 89-3428,89-3428
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Chavel STERLING, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 1078

909 F.2d 1078

UNITED STATES of America, Plaintiff-Appellee, v. Chavel STERLING, Defendant-Appellant.

No. 89-3428.

United States Court of Appeals, Seventh Circuit.

Argued May 17, 1990.

Decided Aug. 10, 1990.

Colleen D. Coughlin, Barry R. Elden, Asst. U.S. Atty., Office of U.S. Atty., Crim. Receiving, Appellate Div., Chicago, Ill., for plaintiff-appellee.

Steven B. Muslin, Chicago, Ill., for defendant-appellant.

Before CUMMINGS and KANNE, Circuit Judges, and SNEED, Senior Circuit Judge. ^*

SNEED, Senior Circuit Judge.

Chavel Sterling appeals her conviction for possession with intent to distribute 1,927 grams of a mixture containing cocaine. She argues that the district court erred by permitting evidence obtained by arresting officers from an illegal Terry stop, an unreasonable seizure of her luggage, and a non-consensual search of her purse and wallet. The district court rejected these contentions. We affirm.

I. FACTS AND PROCEEDINGS BELOW

A. The Encounter at the Airport.

On February 28, 1989, Richard Crowley, a Chicago policeman who had been assigned to the Drug Enforcement Administration (DEA) for five years, and Agent Douglas Hopkins, who had been with the DEA for six months, were monitoring flights from drug-source cities at Chicago Midway Airport as part of a general surveillance effort directed at apprehending drug couriers. The officers observed Chavel Sterling, one of the last persons to deplane from an incoming flight from Miami, as she entered the gate area and proceeded toward the terminal. The flight had arrived between 11:00 a.m. and 11:10 a.m. Although they had received no prior information indicating any wrongdoing on Sterling's part, the officers witnessed appellant looking over her shoulder several times as she proceeded through the concourse.

The agents decided to follow her discretely. They saw her stop at the women's washroom and hesitate there without entering it. Again she looked around. She then continued toward an airport security area where boarding passengers submit to a check. The agents witnessed appellant pause there, then look around before proceeding. When Sterling arrived at the baggage area, the agents observed her glance around again before walking to a window, where she looked out toward the sidewalk before sitting down.

After she had picked up her suitcase from the conveyor belt and returned to her seat, Officer Crowley and Agent Hopkins approached Sterling at approximately 11:40 a.m. They were dressed in plain clothes, their firearms hidden. According to their testimony, after identifying themselves and displaying their credentials, Agent Hopkins said to Sterling that they were "looking for someone out here, and I would like to ask you some questions, if I may." The officers testified that Agent Hopkins told Sterling that she was not under arrest, that she did not have to speak to the officers if she did not want to, and that she was free to leave. They also stated that they were standing to her side and not blocking her way.

Sterling gave her name to the agents and told them she had no identification on her person. When they asked her why she had been in Miami, she replied that she had gone to visit her cousin, Timmy Bernard. She did not, however, have his Miami address or telephone number. She explained that when she arrived in Miami, Bernard's sister, Kathy, met her at the airport and told her that Bernard was then driving to Chicago to see her. The agents testified that Sterling seemed uncertain whether Bernard's sister was also her cousin and that she was unsure of the name of the hotel in Miami, at which she claimed to have stayed for several days. The officers stated under oath that she consented to their request to examine her airplane ticket receipt, which she represented having bought at a travel agency. They believed this statement to be a lie: the ticket receipt was stamped as purchased for cash that morning at the Midway Airlines counter in Miami.

The agents then began to inquire about Sterling's suitcase. She acknowledged that it was hers and initially said that she had packed it herself. But upon being asked whether it contained narcotics, she said that a friend had packed it for her. She refused to reveal the name of the friend. The agents testified that Sterling then consented to a search of her suitcase, but she asked the officers to wait until after she had telephoned her friends and they were present. The agents also told her again that she was free to leave.

After this initial conversation, which lasted between five and ten minutes, the officers backed off a distance of thirty feet. Sterling then made a telephone call. Her suitcase appears to have remained near the agents at their request. The agents approached her again to ask whether she had made contact with her friends. They then moved approximately thirty feet away and continued to watch her. At approximately 12:30 p.m., an unidentified woman arrived who, after a brief conversation with Sterling, quickly left the airport. Sterling retook her seat by the window. Officer Crowley followed the unidentified woman out of the terminal and saw her being driven away. The agents then returned to Sterling and asked about the unidentified woman. Sterling told them that the woman had come to pick her up, but that she did not know why the woman left the airport.

The agents then repeated their request that she permit them to search her suitcase. When she refused, they told her that they had reasonable suspicion that the suitcase contained narcotics and, as a result, were entitled to detain the luggage for the purpose of permitting a narcotics detection dog to sniff it for drugs. ¹ They explained that should the dog react as though drugs were inside the suitcase, they would then get a warrant to search it. They also informed her that if the suitcase contained narcotics, they would seek a warrant for her arrest. If they found no drugs, they would have her suitcase returned to her.

According to the officers' testimony, the agents received Sterling's consent to search her purse. ² Inside, the officers The agents then paged Detective Thomas Kinsella, a handler of narcotics-trained dogs, who arrived at Midway Airport at about 2:30 p.m. with "Rex," the narcotics dog. Agent Hopkins and Officer Crowley had placed Sterling's suitcase in the DEA office at Midway. "Rex" reacted positively to the suitcase and the officers thereupon obtained a search warrant. Inside the suitcase the officers found approximately two kilograms of a mixture containing cocaine.

found the one-way airplane ticket receipt from Miami to Chicago, ³ a receipt for one night's stay at a Holiday Inn in Miami, and Sterling's wallet, which contained her driver's license. The officers then summoned a female agent who conducted a patdown search. They found no narcotics in her purse or on her person. They then gave her a receipt for the suitcase and made arrangements for the return of her luggage in the event the dog did not react upon sniffing it. At about 1:15 p.m., Sterling left the terminal, approximately two hours after she deplaned.

B. The Proceedings Below.

On March 23, 1989, a grand jury indicted Sterling for possession with intent to distribute cocaine. At an evidentiary hearing on June 13, 1989, Sterling moved to suppress all the evidence obtained by the officers. The motion was denied. On July 11, 1989, Sterling entered a guilty plea to the indictment, but reserved her right to appeal the district court's denial of her motion to suppress. Sterling was sentenced to a prison term of five years and a term of five years of supervised release. She filed a notice of appeal on November 2, 1989. Our jurisdiction over the appeal derives from 28 U.S.C. Sec. 1291 (1988).

II. DISCUSSION

Before us Sterling repeats the three contentions advanced at the suppression hearing. First, she argues that the initial questioning by the agents was tantamount to a prohibited "stop" within the meaning of Terry v. Ohio, 392 U.S. 1, 16, 88 S.Ct. 1868, 1877, 20 L.Ed.2d 889 (1968), because a reasonable person would have believed that she was not free to leave. See, e.g., Michigan v. Chesternut, 486 U.S. 567, 573, 108 S.Ct. 1975, 1979, 100 L.Ed.2d 565 (1988). Moreover, she maintains that the agents lacked the reasonable suspicion for detaining her sufficient to constitute a proper Terry stop. See United States v. Brignoni-Ponce, 422 U.S. 873, 880, 95 S.Ct. 2574, 2579, 45 L.Ed.2d 607 (1975).

Second, Sterling contends that the seizure of the luggage was also unsupported by reasonable suspicion. See United States v. Place, 462 U.S. 696, 708-10, 103 S.Ct. 2637, 2645-46, 77 L.Ed.2d 110 (1983) (applying Terry analysis to detention of luggage and holding that 90-minute period for holding luggage was unreasonable). Finally, appellant argues that the search of her purse and wallet also violated the Fourth Amendment because her consent was obtained only by a show of apparent police authority. Schneckloth v. Bustamonte, 412 U.S. 218, 233, 93 S.Ct. 2041, 2050, 36 L.Ed.2d 854 (1973). We shall address these arguments in turn, but none is persuasive.

A. Was the Agents' Encounter With Appellant in the Airport a Stop?

1. The Initial Encounter.

The first question is whether the initial questioning of Sterling constituted a stop that under Terry would require reasonable suspicion, United States v. Borys, 766 F.2d 304, 309 (7th Cir.1985), cert. denied, 474 U.S. 1082, 106 S.Ct. 852, 88 L.Ed.2d 893 (1986), or, alternatively, whether it was the type of consensual encounter that does not implicate the Fourth Amendment. See United States v. Boden, 854 F.2d 983, 991 (7th Cir.1988). The district court found that the questioning of Sterling was consensual, a finding we review for clear error. United States v. Talkington, 843 F.2d 1041, 1045 (7th Cir.1988); United States v. Santucci, 674 F.2d 624, 631 (7th Cir.1982), cert. denied, 459 U.S. 1109, 103 S.Ct. 737, 74 L.Ed.2d...