State v. Ossey

• Decision Date: 16 January 1984
• Docket Number: No. 83-KK-1318,83-KK-1318
• Citation: 446 So.2d 280
• Parties: STATE of Louisiana v. Frederick A. OSSEY.
• Court: Louisiana Supreme Court

Page 280

446 So.2d 280

STATE of Louisiana v. Frederick A. OSSEY.

No. 83-KK-1318.

Supreme Court of Louisiana.

Jan. 16, 1984.

Rehearing Denied Feb. 9, 1984.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John Mamoulides, Dist. Atty., William C. Credo, III, William Hall, Asst. Dist. Attys., for plaintiff-respondent.

Richard Thompson, New Orleans, Joseph J. Tosh, Gretna, for defendant-relator.

MARCUS, Justice.

Frederick A. Ossey was charged by bill of information with possession with intent to distribute Pentazocine (Talwin) in violation of La.R.S. 40:967(A). Prior to trial, defendant filed a motion to suppress physical evidence. After a hearing, the trial judge denied the motion to suppress. The court of appeal denied defendant's application for writs. Upon defendant's application to this court, we granted a writ and ordered the case remanded to the court of appeal for briefing, argument and opinion in light of Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983), and United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). ¹ On remand, the court of appeal again denied defendant's application for writs, finding that the trial judge correctly denied the motion to suppress. ² Upon defendant's application, we granted certiorari to review the correctness of that ruling. ³

Defendant contends the trial judge erred in denying his motion to suppress drugs seized pursuant to a warrantless search of his luggage at New Orleans International Airport. He argues that he was being detained illegally and that he did not consent to the search; therefore, the evidence obtained as a result of this illegal search is inadmissible.

Evidence adduced at the suppression hearing reveals that defendant arrived at New Orleans International Airport on January 17, 1983 aboard Delta Airlines Flight # 1164 from Los Angeles, California. Upon deplaning, he aroused the attention of Agents Whitehead and Hurley of the Jefferson Parish Sheriff's Office. These officers were plain clothes narcotics agents who had been assigned to the airport for the past five years and two years, respectively. Their main function was to detect and apprehend drug couriers primarily by the use of a set of characteristics normally displayed by these persons, called the "drug courier profile." According to Agents Whitehead and Hurley, they became suspicious of defendant soon after he deplaned because his actions were consistent with two elements of the drug courier profile: he arrived from Los Angeles, a source city for the transportation of drugs into New Orleans; and, defendant slowly walked down the concourse, occasionally stopping to look over his shoulder. Agent Hurley described defendant's actions as follows: "when he got off the aircraft he appeared to act in what I would consider a nervous manner. He was looking around, he was hesitant ... to walk down the concourse towards the baggage area.... [He was l]ooking around, checking to see if someone was looking for him or he was being observed by anybody." The agents then placed defendant under surveillance and followed him down the concourse. Agent Whitehead testified that defendant stopped several times to look over his shoulder and that, upon reaching the escalator, he looked around again before proceeding downstairs to the baggage claim area.

Defendant retrieved one small blue leather bag from the baggage claim conveyer belt. Agent Whitehead testified that a relatively small amount of luggage for a long distance trip is another characteristic of the drug courier profile. Therefore, according to Agent Whitehead, once he saw the size of the bag claimed by defendant, "it just strengthened my convictions that he was possibly transporting narcotics."

While Agent Whitehead was observing defendant inside the baggage claim area, Agent Hurley waited just outside of the exit doors. As defendant left the building carrying the small blue bag, Agent Hurley approached him, displayed his police identification and asked defendant if he would speak to him. According to Agent Hurley, defendant responded by saying, "Sure." He was asked for identification and a plane ticket. Defendant produced a current California driver's license in the name of Frederick A. Ossey and a Delta Airlines ticket in the name of James Gibbens. Agent Whitehead arrived, displayed his police identification, and looked at the license and ticket. He noticed the different names and that the ticket was a one-way ticket purchased with cash. Agent Whitehead testified that traveling under an alias and purchasing a one-way ticket with cash are two more characteristics of the drug courier profile.

Defendant was asked by Agent Whitehead about the different names. After hesitating defendant responded that Gibbens was a cousin who had purchased the ticket for him. Agent Whitehead then advised defendant that they were conducting a narcotics investigation and that they believed that he was transporting narcotics. After informing defendant that he could refuse the request, Agent Whitehead asked him if he would allow them to search his luggage. Defendant responded by asking to see a search warrant. According to Agent Whitehead, he informed defendant that they did not have a search warrant, but if he would accompany them to their airport office, then he would prepare one. They proceeded upstairs to the agents' third floor office with Agent Hurley carrying defendant's bag.

Upon arriving at the office, Agent Hurley began to type out a request for a search warrant when defendant said that "he didn't have any drugs in the bag. You can go ahead and look." Agent Whitehead prepared a written consent form, read it to defendant and then gave it to him to sign. According to Agent Whitehead, defendant appeared to sign the form. It was not until after the search that the agents discovered that defendant did not in fact sign the consent form. Noticing that defendant's bag was locked, Agent Hurley located the key to the bag among the items that he had previously removed from defendant's pockets. According to Agent Hurley, the agents checked defendant's pockets for their own protection because they were concerned that he might have a weapon. The agents opened the bag, discovered 6500 sets of T's and Blues, and placed defendant under arrest.

Defendant's narrative is different in several respects from the events as described by the agents. He testified that he did not hesitantly or nervously walk down the concourse and that as he tried to leave the airport, two officers stopped him. After refusing to allow the officers to search his bag without a search warrant, they told him that they could get a warrant and then said, "Let's go." Once upstairs in the agents' office, Agent Hurley filled out a search warrant and Agent Whitehead prepared a consent to search form. Defendant refused to sign the consent form and denied that he pretended to do so. According to defendant, after he refused to consent to the search, Agent Hurley became exasperated and opened the bag anyway.

The trial judge accepted the testimony of the agents, finding that defendant's statements were "self-serving." According to the judge, the initial encounter was a permissible Terry -type investigatory stop. Further, the judge found that defendant was not "placed under arrest or otherwise detained" when asked to accompany the agents to their office; he went along "voluntarily, that is he appeared to cooperate in order to convince the officers of his innocence." Finally, the judge found that the consent to search was given "freely and voluntarily." Therefore, since defendant was not illegally detained when he consented to the search, the motion to suppress was denied.

The validity of an airport search on facts very similar to those in the instant case has been addressed recently by the U.S. Supreme Court in Florida v. Royer, supra, and United States v. Mendenhall, supra. In Mendenhall, two DEA agents observed Mendenhall at Detroit Metropolitan Airport. After observing Mendenhall's conduct, the agents determined that her behavior fit the drug courier profile in several respects: (1) Mendenhall arrived on a flight from Los Angeles, a source city for the transportation of drugs into Detroit; (2) she was the last person to leave the plane, appeared very nervous, and scanned the area; (3) she proceeded past the baggage area without claiming any luggage; and (4) she changed airlines for her flight out of Detroit. The agents approached Mendenhall, identified themselves as federal agents, and asked to see her identification and airline ticket. This revealed that Mendenhall was traveling under an alias. She became visibly more nervous when the agents identified themselves as federal narcotics agents.

After returning the ticket and driver's license, the agents asked her if she would accompany them to the airport DEA office for further questioning. She did so, although the record does not indicate a verbal response to the request. At the office the agents asked her if she would consent to a search. She responded, "Go ahead." A small package of heroin was found in the search.

The opinion initially focused on whether a seizure had occurred. It stated that a person is " 'seized' within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." The Court concluded that no seizure in fact occurred. Next, agreeing with the findings of fact of the trial judge, the Court found that Mendenhall accompanied the agents to the office voluntarily in a spirit of apparent cooperation and that she freely and voluntarily consented to the search. Since Mendenhall was not being illegally detained when she consented to the search, the resulting seizure of the drugs was permissible.

In Royer, unlike Mendenhall, the Court held that the drugs should have been...