935 F.2d 484 (2nd Cir. 1991), 1168, United States v. Hooper

Docket Nº:1168, Docket 90-1584.
Citation:935 F.2d 484
Party Name:UNITED STATES of America, Appellant, v. Marcus HOOPER, Appellee.
Case Date:June 05, 1991
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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935 F.2d 484 (2nd Cir. 1991)

UNITED STATES of America, Appellant,

v.

Marcus HOOPER, Appellee.

No. 1168, Docket 90-1584.

United States Court of Appeals, Second Circuit

June 5, 1991

Argued April 17, 1991.

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[Copyrighted Material Omitted]

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Thomas S. Duszkiewicz, Asst. U.S. Atty., W.D.N.Y., Buffalo, N.Y. (Dennis C. Vacco, U.S. Atty., on the brief) for appellant U.S.

Mark J. Mahoney, Buffalo, N.Y. (Bermingham, Cook & Mahoney, Buffalo, N.Y., on the brief) for appellee Marcus Hooper.

Before TIMBERS, MESKILL and PRATT, Circuit Judges.

TIMBERS, Circuit Judge:

The United States appeals from an order entered September 19, 1990, in the Western District of New York, Richard J. Arcara, District Judge, granting the motion of appellee Marcus Hooper to suppress physical evidence seized from a suitcase.

On September 20, 1989, Marcus Hooper was named in a two count indictment. Count one charged him with possession of cocaine with intent to distribute it in violation of 21 U.S.C. Sec. 841(a)(1) (1988). Count two charged him with carrying a firearm in connection with a drug trafficking crime in violation of 18 U.S.C. Sec. 924(c)(1) (1988). The physical evidence supporting those charges was seized after an encounter between Hooper and members of a Drug Enforcement Administration (DEA) task force at the Greater Buffalo International Airport (the airport). After briefly questioning Hooper, the agents seized a suitcase that he was carrying pending application for a search warrant. Immediately thereafter the agents conducted an investigation that lasted less than 30 minutes. A search warrant was obtained approximately 23 hours after the seizure. A search of the suitcase revealed 281 grams of cocaine and an Uzi Mini Carbine with a 30 round magazine.

The district court granted Hooper's motion to suppress the physical evidence seized from the suitcase. The court held

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that the extended seizure of the suitcase violated Hooper's fourth amendment rights.

On appeal, the government contends that the district court erred since the initial seizure of the suitcase was supported by reasonable suspicion and, shortly thereafter, the agents developed probable cause to seize the suitcase pending application for a search warrant.

For the reasons that follow, we reverse the judgment of the district court and remand for proceedings consistent with this opinion.

I.

We shall summarize only those facts and prior proceedings believed necessary to an understanding of the issues raised on appeal.

Police Officer Thomas Gerace of the Niagara Frontier Transportation Authority (NFTA) and United States Border Patrol Agent Daniel Allman (collectively "the agents") are assigned to a DEA task force that enforces immigration, drug, and currency laws at the airport and at other Buffalo transportation centers. As part of their training, members of the task force are familiarized with certain characteristics that constitute a profile of persons that may be engaged in illicit narcotics activity. Their duties at the airport include scrutinizing passengers as they deplane to determine whether any fit this profile. On May 15, 1989, Gerace and Allman were on duty in plain clothes at the airport. Gerace was working a 3 p.m. to 11 p.m. shift that day.

At approximately 4:25 p.m., Gerace and Allman were watching passengers deplane from United Airlines' flight 948, which originated in Oakland, California, and terminated in Buffalo, making one stop in Chicago. The agents were interested in that flight since it originated in a "source city", i.e., a city from which narcotics are transported to Buffalo. Hooper was one of the last passengers to leave the plane. He was not carrying any luggage and appeared to be travelling alone. Gerace thought that Hooper looked familiar, but could not place his face.

As Hooper walked through a corridor that led to the concourse area, the agents observed him looking from side to side. He entered a glass enclosed video game room, but did not play any video games. Instead, he kept his eyes on the concourse area. Hooper stayed in the game room for approximately two minutes. Gerace and Allman decided that Hooper merited further attention.

When Hooper left the game room, he proceeded across the concourse area in the direction of the down escalator. Just prior to getting on the escalator, Hooper veered to his left and stopped at a bank of public telephones, where he stayed for approximately one minute. Hooper appeared to retrieve change from the telephone, indicating that he did not successfully complete a call. Hooper then proceeded to the down escalator.

Gerace and Allman followed Hooper down to the lower level of the airport. They located Hooper at the United baggage claim area. He retrieved a green hard shell bag that was wrapped in airline tape and headed for the exit. Before Hooper reached the exit, Gerace and Allman approached him. Gerace identified himself as a DEA agent, displayed his identification, and asked Hooper if they could speak with him. Hooper agreed to speak with the agents. He indicated his assent by saying either "yes" or "okay." At Gerace's suggestion, they moved to a less congested area so that they would not disrupt the pedestrian traffic exiting and entering the airport.

Gerace asked Hooper where he was coming from and requested that he produce his airline ticket. Hooper produced a one way ticket that had been paid for in cash that morning in Oakland. The ticket cost over $500 and was in the name of Kenny Fields. Hooper stated that his name was Kenny Fields and the name "Fields" appeared on the identification tag on the suitcase. When Gerace asked Hooper for identification, he stated that he was not carrying any identification. Allman asked Hooper for his place of residence and for his date

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of birth. Hooper responded that he lived in Buffalo. He began to stutter when trying to recall his birth date. Hooper, who was 19 at the time, initially told Allman that he was born in 1930 or 1931, but then produced a birth date that seemed to correspond to his appearance--of 19, rather than 58 or 59.

At this point, Gerace told Hooper that the agents were concerned with narcotics coming through the airport and asked Hooper if he could look in his suitcase. Hooper responded that he did not have a key. Gerace asked Hooper if he owned the bag. Hooper stated that he did not own the bag, but that some of his possessions were in it. In response to Allman's question as to whether he had come from California, Hooper stated that he had come from Chicago. When shown his ticket, which was purchased that morning in Oakland, he stated that he came from California.

Gerace asked Hooper if he was carrying any contraband. Hooper responded that he was not. Gerace questioned Hooper about the key to the suitcase. Hooper stated that "his people" had put "stuff" in the suitcase and that he did not have the key. Gerace asked Hooper who "his people" were. Hooper asked Gerace if he had to divulge that information and Gerace told him that he did not. Gerace questioned Hooper as to the whereabouts of the key. Hooper stated that one key was in Chicago and one key was in Buffalo. Hooper refused Gerace's request to run the suitcase through a magnetometer. He appeared nervous at the suggestion. At that point approximately five minutes had transpired from the time the agents initially approached Hooper.

Gerace thereupon informed Hooper that he intended to seize the suitcase and to attempt to obtain a search warrant. Gerace told Hooper that he could obtain a receipt if he accompanied the agents to the DEA office. Hooper picked up the suitcase and accompanied the agents to the DEA office, which was located in the airport. When they arrived at the office, Hooper provided the agents with an address where he was staying and a telephone number that they could call to verify his identity. The address he gave was 11 Southampton Street in Buffalo. The agents provided Hooper with a receipt that contained the phone number and address of the DEA office. The agents told Hooper that he was free to leave and that they would contact him or he could contact them concerning the return of the suitcase. Hooper left the office without the suitcase and headed for a taxi stand.

After Hooper's departure, Allman called the telephone number that Hooper had provided. The person who answered the phone could not identify Kenny Fields. Allman traced the address to which the telephone number was listed through a directory. He determined that the telephone number was registered to an address at 12 Ruhland Street. Next, Allman attempted to ascertain where Hooper had been dropped off when he left the airport. Allman learned that Hooper had not gone directly to the address that he had provided to the agents.

Gerace called the Buffalo Police Narcotics Unit and spoke to Detective Darnell Parker. Gerace described Hooper's physical appearance to Parker and informed Parker of the address Hooper had provided and the address to which the phone number he had provided was listed. Parker told Gerace that a person fitting Hooper's description was the subject of a recent Buffalo Police Information Bulletin (the bulletin). In addition, Parker told Gerace that the addresses were the subject of an ongoing investigation involving a group of individuals transporting narcotics and weapons from California. Moreover, the addresses also were consistent with information that was contained in the bulletin.

Accordingly, Gerace and Allman obtained a copy of the bulletin at the NFTA office, which was located next to the DEA office in the airport. Both agents had seen the bulletin previously. The bulletin contained mug shots of four men. The agents...

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