U.S. v. Simmons, 89-3864

• Citation: 918 F.2d 476
• Decision Date: 19 November 1990
• Docket Number: No. 89-3864,89-3864
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert SIMMONS, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 476

918 F.2d 476

UNITED STATES of America, Plaintiff-Appellee, v. Robert SIMMONS, Defendant-Appellant.

No. 89-3864.

United States Court of Appeals Fifth Circuit.

Nov. 19, 1990.

Ferdinand J. Kleppner, Law Offices of Ferdinand J. Kleppner, Metairie, La., for defendant-appellant.

Steven J. Irwin, Robert J. Boitmann, Asst. U.S. Attys., John P. Volz, U.S. Atty., New Orleans, La., for plaintiff-appellee.

Appeal From the United States District Court for the Eastern District of Louisiana.

Before CLARK, Chief Judge, THORNBERRY, and HIGGINBOTHAM, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Robert Simmons and his co-defendant, Brent Roser, were each convicted of possession of cocaine with intent to distribute, and of conspiring to distribute cocaine. Drugs were discovered on the two men during warrantless searches conducted following an airport stop. Simmons appeals the district court's refusal to suppress this evidence, 724 F.Supp. 426 (E.D.La.1989); he also claims that the government's evidence was insufficient to support his conspiracy conviction.

Because we conclude that Simmons was not unlawfully detained, and that the searching officer was armed with probable cause at the time of the search, we affirm Simmons's conviction for possession with intent to distribute. We also conclude that the government's proof of conspiracy was sufficient to support the guilty verdict; therefore, we affirm Simmons's conspiracy conviction as well.

I.

On October 22, 1987, Simmons and Roser arrived at New Orleans International Airport on a flight originating in Los Angeles, California. Plainclothes narcotics officers with the Jefferson Parish Sheriff's Office, who were conducting a surveillance of the incoming flight, observed the two men as they disembarked the plane. The officers had no prior knowledge of Simmons and Roser, nor did they have any particular reason to be concerned with this flight, other than the fact that Los Angeles is considered a "source city" for narcotics traffic into New Orleans.

According to the arresting officers, Agents Gerald Simone and Glen Davis, their attention was drawn to the defendants because Roser was noticeably intoxicated as he exited the plane and proceeded up the concourse; and Simmons, appearing extremely nervous, was assisting him. At the top of the concourse, Agents Simone and Davis together approached the defendants, identified themselves as police officers, and asked the defendants if they could speak with them. The defendants apparently consented, and the four men stepped to one side of the concourse to avoid impeding the flow of travelers. Agent Simone then began questioning Roser, and Agent Davis likewise questioned Simmons. Roser told Simone that he was traveling from Los Angeles and that he had come to New Orleans in order to paint a house. However, when asked whose house he was planning to paint, Roser stated that he did not know.

At this point, the officers for the first time identified themselves as narcotics agents and sought permission from Roser to search his carry-on luggage. Roser consented. The officers found no contraband in Roser's luggage. However, they promptly noticed that Roser, without being asked to do so, had placed his hands above his head against the wall, with his feet widely spread apart. Understanding from this that Roser consented to being searched, Simone conducted a body search, finding a large plastic bag containing cocaine concealed in the inside pocket of Roser's sports jacket.

Seeing that Simone had discovered drugs in Roser's possession, Simmons became visibly apprehensive; he backed against the wall, zipped up his ski jacket, and crossed his arms tightly across his chest. Agent Davis, who had been standing beside Simmons, witnessed this reaction. Without Simmons's consent, Davis then patted down the outer garments of Simmons's clothing, detecting a bulge in Simmons's jacket. In a more extensive search Davis found that Simmons was carrying an identical package of cocaine in an inside pocket of his jacket.

Both defendants were then arrested and informed of their rights. They were charged with possession of cocaine with intent to distribute, 21 U.S.C. Sec. 841(a)(2), and with conspiracy to distribute cocaine, 21 U.S.C. Sec. 846. The district court denied defendants' motion to suppress. Defense counsel's motions for acquittal, at the close of the government's case-in-chief, and at the close of all evidence, were also denied. Simmons was sentenced to a term of thirty months imprisonment, plus three years active supervised release.

The version of the facts given by Simmons and Roser at trial differed substantially from the findings of the court. Both defendants claimed that they did not depart the aircraft together and that Simmons did not escort Roser up the concourse. They testified that they were approximately twenty-five to thirty feet apart when each was approached separately by a single officer who was later joined by three or four other officers. ¹ Both claimed that following their initial contact with the officers they felt constrained and unable to leave, but neither indicated that he felt threatened, coerced, or intimidated. Roser also testified that, in being questioned by Agent Simone, he explained that he came to New Orleans to paint his father's garage.

At trial the prosecution presented evidence indicating that Simmons and Roser were traveling together, that they were previously acquainted with one another, that they had recently discussed a trip to New Orleans, that they purchased their tickets for the flight on the same day (within one minute of each other) from the same location, and that they were assigned seats beside each other on the plane. Roser and Simmons acknowledged that they were acquainted but denied that they were traveling together or that they were even aware of each other's presence on the flight. ²

II.

Simmons's suppression argument had two resting points. First, Simmons insists that an unlawful seizure occurred the moment he was stopped; that the stop was intrusive of his liberty and privacy and that it could not possibly have been supported by reasonable suspicion as required by law. Second, Simmons contends that the involuntary search yielding the evidence was impermissibly conducted without a warrant or probable cause, contrary to the Fourth Amendment.

In denying Simmons's motion to suppress, the district court found that the initial encounter between the defendants and Agents Simone and Davis involved no coercion or detention and therefore was not a "seizure." The court concluded that Roser's conduct during the encounter evidenced his willing consent to both the search of his luggage and the body search that supplied the first tangible evidence of criminal conduct. According to the district court, Simmons's observed reaction to the discovery of drugs on Roser, combined with his visible apprehension as he exited the aircraft, was the basis for a reasonable suspicion that he, too, was engaged in criminal activity. Therefore, the officers were warranted in briefly detaining Simmons, and the pat-down search by Agent Davis was incident to a lawful detention. Finally, the court concluded that Davis, detecting what he might have thought was a weapon, was justified in removing the package of drugs Simmons had concealed in an inside pocket of his jacket. Alternatively, the court concluded that at the moment he felt the bulge in Simmons's jacket, Agent Davis had probable cause to believe Simmons was committing a crime.

In reviewing the district court's ruling on a motion to suppress based on testimony at a suppression hearing, we must accept the district court's factual findings unless they are clearly erroneous or are influenced by an incorrect view of the law. United States v. Muniz-Melchor, 894 F.2d 1430, 1433-34 (5th Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 1957, 109 L.Ed.2d 319 (1990). We must also view the evidence in the light most favorable to the party that prevailed below. United States v. Reed, 882 F.2d 147, 149 (5th Cir.1989); United States v. Langford, 838 F.2d 1351 (5th Cir.1988).

Review of stops, interrogations, and searches at airports of suspected drug smugglers is unfortunately familiar judicial fare. In United States v. Berry, 670 F.2d 583, 591 (5th Cir.1982) (en banc), we found that in this as in other contexts there are three tiers of police-citizen encounters:

[C]ommunication between police and citizens involving no coercion or detention and therefore without the compass of the Fourth Amendment, brief 'seizures' that must be supported by reasonable suspicion, and full-scale arrests that must be supported by probable cause.

The encounter between Simmons and his arresting officers at different times fell within each of these three categories.

Whether in the circumstances of a particular case the Fourth Amendment is invoked depends on the intrusiveness of the encounter as well as the strength of the government interest at stake. In Berry we held that not all airport stops need be classified as seizures; ³ a seizure has occurred only if " 'in view of all the circumstances surrounding the incident, a reasonable person would not have believed that he was free to leave.' " Id. at 595 (quoting United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980) (Stewart, J., concurring)).

[A]irport stops of individuals by police, if of extremely restricted scope and conducted in a completely non-coercive manner, do not invoke the Fourth Amendment. The interest of the government in terminating drug smuggling is, on the one hand, very substantial.... Considering on the other hand the intrusiveness on the individual, we believe that an airport stop need not necessarily be of so coercive a nature that communication with police cannot be voluntary.... In an airport stop ... it is possible for a law enforcement officer not to interfere with an...