Jones v. US Drug Enforcement Admin.

• Decision Date: 21 April 1993
• Docket Number: No. 3:91-0520.,3:91-0520.
• Citation: 819 F. Supp. 698
• Parties: Willie L. JONES, Plaintiff, v. UNITED STATES DRUG ENFORCEMENT ADMINISTRATION, Claude Byrum, Stephen A. Wood, and one additional unknown officer, Defendants.
• Court: U.S. District Court — Middle District of Tennessee

819 F. Supp. 698

Willie L. JONES, Plaintiff, v. UNITED STATES DRUG ENFORCEMENT ADMINISTRATION, Claude Byrum, Stephen A. Wood, and one additional unknown officer, Defendants.

No. 3:91-0520.

United States District Court, M.D. Tennessee, Nashville Division.

April 21, 1993.

COPYRIGHT MATERIAL OMITTED

E.E. (Bo) Edwards, III, Edwards & Simmons, Nashville, TN, for plaintiff.

Michael L. Roden, Office of U.S. Atty., Nashville, TN, for defendants.

WISEMAN, District Judge.

I

On February 27, 1991, three police officers seized $9000.00 in United States currency from Willie L. Jones at the Nashville International Airport. The currency was subsequently the subject of summary forfeiture proceedings by the Drug Enforcement Administration (DEA) of the United States Department of Justice. In this action, Mr. Jones seeks the return of his currency and declaratory relief against the officers — Claude Byrum and Stephen Wood of the Metropolitan Nashville Police Department and Taran Perry of the Metropolitan Airport Authority — and the DEA. The case was tried to the Court on September 17-23, 1992, after the Court orally denied both parties' Motions for Summary Judgment.

This Memorandum constitutes the Court's Findings of Fact and Conclusions of Law. For the reasons described below, the Court concludes that the Government failed to carry its burden of establishing probable cause for the forfeiture, and orders the Government to restore $9,000.00 to Mr. Jones. The Court grants Mr. Jones a declaratory judgment that officers of the Drug Interdiction Unit (DIU) seized his currency in violation of his Fourth Amendment rights, but denies his request for injunctive relief against the DIU.

II

Findings of Fact

The Airport Seizure

1. In the afternoon of February 27, 1991, Willie Jones came to the American Airlines ticket counter where a ticket agent, Mary Lou Wadley, was working. He told Ms. Wadley his name, and that he had reservations on a flight to Houston. He did not ask to check any luggage, and carried one small overnight bag. Ms. Wadley verified his identity with his driver's license and a credit card, and told him that the ticket would cost $267.00; Mr. Jones handed her the payment in cash. Ms. Wadley had become concerned by now, because she felt that Mr. Jones appeared to be nervous, and looked behind himself often. The airport was in a heightened state of security because of Operation Desert Storm, and Ms. Wadley decided to discuss her concerns about Mr. Jones with her supervisor. She told Mr. Jones that she was unsure how to handle a cash payment, and stepped into a back room where her supervisor told her that no action was necessary because Mr. Jones had a return ticket. On her return, Mr. Jones, in an attempt to alleviate any problems posed by his cash payment, offered to write a check instead. Ms. Wadley told him that everything was in order, issued him the ticket, and instructed him that the plane would depart from gate C-8. At some point, Ms. Wadley informed the lead ticket agent of her concerns. See Record at 5-15 (testimony of Mary Lou Wadley); id. at 210-212, 290-292 (testimony of Willie Jones).

2. Although the testimony at trial regarding Mr. Jones's appearance at the ticket counter was contradictory, the Court finds that he did behave nervously. Ms. Wadley says that he appeared nervous, and that this motivated her to speak with her supervisors. Mr. Jones denies that he was behaving in a nervous manner. Ms. Wadley specifically testified, however, that the cash payment and the short stay in Houston did not concern her, and there was no evidence of other factors which would explain why she alerted her supervisors about Mr. Jones. The Court credits her testimony, therefore, and concludes that Mr. Jones appeared to be nervous at the ticket counter.

The lead agent to whom Mary Lou Wadley had spoken at the American Airlines counter placed a call to the Drug Interdiction Unit office, located in the parking garage at the Nashville Airport. Sergeant Claude Byrum answered the phone, and the lead agent told him of Mr. Jones's nervousness. She also gave Sergeant Byrum Mr. Jones's name, flight information, a description of his physical characteristics and clothing, and she told Sergeant Byrum that Mr. Jones had paid cash for his ticket. Sergeant Byrum left the office to locate Mr. Jones. See Record at 17-18, 20, 74-77 (testimony of Sergeant Claude Byrum).

3. Sergeant Byrum met two other officers of the Drug Interdiction Unit, Officers Taran Perry and Steve Wood of the Metropolitan Nashville Airport Authority, inside the airport terminal between the ticket counters and Concourse C. Sergeant Byrum related to his fellow officers the information he had received, and the men spotted Mr. Jones departing the security checkpoint and beginning to walk down the concourse. Officer Wood remained behind at the checkpoint to speak with the checkpoint employees, while Sergeant Byrum and Officer Perry followed Mr. Jones. See Record at 18-21, 77-79 (testimony of Sergeant Byrum).

4. Passing through the checkpoint had been uneventful for Mr. Jones. The magnetometer did not go off as he walked through it, and he permitted the attendant to open and inspect his carry-on bag. Later, Mr. Jones recalled seeing Officer Woods at the checkpoint. Officer Woods asked the attendant who had inspected the overnight bag what it contained, and she told him that it contained personal items, some clothing, and a paper with numbers written on it. See Record at 213, 294-95 (testimony of Mr. Jones); id. at 471-73 (testimony of Officer Wood).¹

5. Sergeant Byrum testified that as he and Officer Perry followed Mr. Jones down the concourse, he observed a bulge on Mr. Jones's left side, and that this observation raised concerns in his mind that Mr. Jones was carrying a weapon which had eluded detection by the magnetometer, or that he was "body-packing" drugs or currency. He mentioned to Officer Perry that Mr. Jones's jacket appeared to be "pooched out," and Officer Perry testified that he also observed a bulge on Mr. Jones's left side. The Plaintiff rebutted this testimony by an in-court demonstration. Sergeant Byrum was unable to detect the pouch (filled with tissue paper) on Mr. Jones's person even with a very close inspection.

The demonstration challenged Sergeant Byrum's and Officer Perry's testimony, and the Court finds that the officers in fact did not observe a bulge on Mr. Jones until sometime later. It is hard to believe that Sergeant Byrum could see a bulge from the money pouch on Mr. Jones as he walked down the concourse away from Sergeant Byrum and was 40-50 feet ahead of him, when Sergeant Byrum couldn't see the bulge from the money pouch in the courtroom when he was within 5 feet of Mr. Jones. As for Mr. Jones's "pooched out" jacket, the Court finds that this effect was probably just the natural posture of a person who is carrying an overnight bag in one hand, with nothing in the other to act as a counterweight. The empty hand tends to hang away from the body slightly (as shown in Plaintiff's Exhibits 8A-G).

See Record at 21-22, 25-26, 28-29, 83-88, R127-28 (testimony of Sergeant Byrum); id. at 291-93 (testimony of Mr. Jones); id. at 419-24, 435-36 (testimony of Officer Perry); compare Plaintiff's Exhibit 25 (the black nylon money pouch with tissue paper) to Defendants' Exhibits 16 and 17 (photographs showing the currency which the money pouch contained).

6. Mr. Jones continued down the concourse toward gate C-8, and then entered the men's restroom. Sergeant Byrum, believing that he recognized Mr. Jones as a man named "Little" who had been a suspect in a case involving drugs, followed Mr. Jones into the bathroom. Upon closer observation, Sergeant Byrum realized that he had been mistaken. Mr. Jones left the restroom and walked down to gate C-8. See Record at 21-23, 79 (testimony of Sergeant Byrum); id. at 213, 295-96 (testimony of Mr. Jones).

7. At the gate, Mr. Jones sat with his back to the windows which faced the airport ramp. The police officers sat facing him across the concourse in the passenger area for gate C-6, and observed him. The officers each testified that Mr. Jones sat straight in his seat and looked around the departure lounge nervously as they watched him. At some point, the officers testified, Mr. Jones spotted them watching him, and he focussed his attention on them. Mr. Jones denied acting in this fashion, and stated that he sat slightly twisted in his chair in order to observe the movements of airplanes and tractors on the ramp outside the window. He recalled being particularly interested in the airlines' use of Koboda tractors, because such tractors are used in landscaping.

Although the Court credits the officers' testimony, their observation of Mr. Jones's nervousness lacks significant probative weight. The testimony, which was credible on both sides, is easily reconciled. The officers' observations are not entirely inconsistent with the appearance from across an airport concourse of a man who is behaving as Mr. Jones claimed to have behaved. It is also a reasonable inference that a person sitting alone in an airport departure lounge would find the fixed attention of three strangers to be curious. Nervousness, particularly at the time in question, is also not a distinguishing characteristic. People who travel by air infrequently are often nervous about their trip and the dangers, real or imaginary, which air travel poses to them. In addition, the testimony of Mary Lou Wadley, and indeed, that of the officers themselves, established that people at the airport were anxious about travel during the period of the Desert Storm war. The Court concludes that although the officers may have observed what they took to be "hawking," this observation is of relatively low probative value. See Record at 23-26, 80-83 (testimony of Sergeant Byrum); id. at 213-28, 296 (testimony of Mr. Jones); id. at 418-419 (testimony of Officer Perry);...