State v. Taylor
| Decision Date | 11 October 1995 |
| Docket Number | No. CA,CA |
| Citation | 106 Ohio App.3d 741,667 N.E.2d 60 |
| Parties | The STATE of Ohio, Appellee, v. TAYLOR, Appellant. 14874. |
| Court | Ohio Court of Appeals |
Mathias H. Heck, Jr., Montgomery County Prosecuting Attorney, and Arvin S. Miller, Assistant Prosecuting Attorney, Dayton, for appellee.
David E. Kuns, Dayton, for appellant.
Charles Edward Taylor appeals from the trial court's decision to overrule his motion to suppress cocaine found in his carry-on luggage. This case arises from an investigation at the Dayton International Airport, on July 13, 1994, of passengers on an incoming flight from Los Angeles. On that day, Detective Bollinger, a Dayton police officer, was working narcotics duty at the Dayton International Airport. Bollinger had five years' experience in this position and was specially trained in airport drug interdiction.
That morning, Detective Bollinger performed a routine check of the flight manifests looking for signs of possible drug trafficking. Detective Bollinger was looking for individuals who met the drug courier profile. The drug courier profile is a list developed by federal agents that describes the characteristics generally associated with narcotics traffickers.
Some of the characteristics include (1) a particular manner of dress; (2) nervousness; (3) a particular form of payment for the purchases made; (4) how and when the purchases are made; (5) the purchase of a one-way ticket; and (6) the purchase of two tickets. State v. Bryant (May 30, 1991), Cuyahoga App. No. 58621, unreported, 1991 WL 95067. (The purchase of two tickets can be a sign of drug trafficking because the use of a decoy is commonly used to divert attention from the person carrying narcotics.) Another important consideration in the drug courier profile is the city the individual is flying in from. The Drug Enforcement Agency believes that most drugs enter the Midwest from four source cities: Los Angeles, New York, Miami, and San Diego. Therefore, drug enforcement agents pay particular attention to passengers who arrive from those cities.
In his review of the flight manifests, Detective Bollinger noticed a suspicious reservation on flight 611, a flight notorious for drug trafficking. The flight was incoming from Los Angeles, a major drug source city, to Cleveland, another major drug source city, with a transfer in Dayton. The single reservation was made for two passengers, Connors and Williams. The appellant, Charles Edward Taylor, was flying under the assumed name Connors.
The two individuals were originally supposed to fly from Los Angeles to Cleveland on the previous day, July 12, 1994. However, the manifest showed that the individuals did not make that flight. Instead, six minutes after that plane took off, those individuals made a second reservation for July 13, 1994. The reservation was for a one-way ticket with the individuals seated at either end of the plane, even though the plane was only half full and they could have been seated together.
Since many of these actions are characteristic of those carrying narcotics, Bollinger determined that he wanted to investigate these individuals further. Bollinger was working with Detectives Rockwell and Lubonovic that day. Rockwell and Lubonovic waited at the gate where the individuals were scheduled to transfer flights to Cleveland. After identifying Williams when he checked in for his flight, Lubonovic approached him to ask him a few questions.
Bollinger waited to investigate the other passenger, Taylor. Bollinger noticed that Taylor exited the plane much later than Williams, walked separately from him, and acted like he did not know him. Taylor checked into his flight and then intently watched from afar Williams being questioned by Detective Lubonovic. While Bollinger observed Taylor, he noticed that he was poorly dressed and had an unkempt appearance.
Bollinger testified that he approached Taylor in the passenger area from the side, so as not to block Taylor's path. Bollinger displayed his badge, identified himself as a Dayton police officer, and asked if he could speak to Taylor. Bollinger testified that he did this in a discreet manner and with a soft voice so as to lessen the intrusiveness of the encounter.
Taylor agreed to talk to him and Bollinger asked him if he could see his airline ticket. Taylor complied and then Bollinger asked him if he was flying alone or with someone. Taylor stated that he was flying alone. Bollinger asked Taylor if he was going to Cleveland for business or pleasure. Taylor replied that he was going to Cleveland to pick up a friend.
Then, Bollinger asked if Taylor had any form of identification with him. At this point, Taylor indicated that he was not Connors, the person named on the ticket. Bollinger then asked him why the ticket was in another person's name. Taylor answered that, originally, someone else was supposed to fly with him and that was why that ticket was bought.
Detective Bollinger testified that during this conversation Taylor was visibly shaking, he appeared extremely nervous, and his voice was breaking. When Bollinger asked to see Taylor's driver's license, he noticed that Taylor's hands were shaking as he handed the license to him. After looking at Taylor's license, Bollinger asked Taylor how he planned to return to Los Angeles. Taylor responded that he was going to purchase a ticket. To determine how he was going to pay for his ticket, Bollinger asked him how much money he was carrying with him. Taylor responded that he had $65.
At that point, Bollinger advised Taylor that he worked for the narcotics bureau and asked him if he was carrying any narcotics. When Taylor answered no, Bollinger asked if he could take a look in his carry-on bag. Taylor consented to the search of his bag. Upon opening the bag, Detective Bollinger found a block of cocaine and advised Taylor that he was under arrest for trafficking cocaine.
On July 19, 1994, Taylor was indicted on one count of aggravated trafficking in cocaine for possessing three times the bulk amount of cocaine, but less than one hundred times that amount. Taylor entered a plea of not guilty to the indicted charge on July 22, 1994. On August 10, 1994, Taylor filed a motion to suppress the cocaine found in his carry-on bag. On September 28, 1994, the trial court filed a decision and entry overruling Taylor's motion to suppress. Taylor subsequently entered a plea of no contest. On October 28, 1994, Taylor was found guilty and sentenced to an indefinite term of three to fifteen years' imprisonment, with three years being actual incarceration. Taylor filed a timely notice of appeal on November 8, 1994.
In his sole assignment of error, Taylor asserts that:
"The trial court erred in overruling the defendant-appellant's motion to suppress evidence."
Taylor argues that he was seized when Bollinger asked to see his ticket and retained possession of it. At that point, Taylor maintains that Bollinger did not have enough reasonable suspicion to detain him. Consequently, he argues, his consent to search his bag was vitiated by the unlawful detention and the trial court erred in overruling his motion to suppress.
Taylor's assignment of error presents two issues for this court to review. First, was Taylor seized within the meaning of the Fourth Amendment? Second, if Taylor was seized, was the seizure justified by a reasonable suspicion that he was engaged in criminal activity? The analysis of these issues is important because, if Taylor was seized, Taylor's consent to the search would not be valid unless Bollinger had reasonable suspicion that Taylor was engaged in criminal activity.
The Fourth Amendment to the United States Constitution and Section 14, Article I of the Ohio Constitution guarantee "the right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." (Emphasis added.) It is well established that these guarantees are not implicated in every situation where the police have contact with an individual. California v. Hodari D. (1991), 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690; State v. Retherford (1994), 93 Ohio App.3d 586, 639 N.E.2d 498. The United States Supreme Court has created three categories of police-citizen contact to identify the situations where these guarantees are implicated. Florida v. Royer (1982), 460 U.S. 491, 501-507, 103 S.Ct. 1319, 1326-1329, 75 L.Ed.2d 229, 238-243.
The first type is a consensual encounter. Encounters are consensual where the police merely approach a person in a public place, engage the person in conversation, request information, and the person is free not to answer and walk away. United States v. Mendenhall (1980), 446 U.S. 544, 553, 100 S.Ct. 1870, 1876, 64 L.Ed.2d 497, 504-505. The request to examine one's identification does not make an encounter nonconsensual. Florida v. Rodriguez (1984), 469 U.S. 1, 4-6, 105 S.Ct. 308, 83 L.Ed.2d 165, 169-171; Immigration & Naturalization Serv. v. Delgado (1984), 466 U.S. 210, 221-222, 104 S.Ct. 1758, 1765-1766, 80 L.Ed.2d 247, 258-259. Nor does the request to search a person's belongings. Florida v. Bostick (1991), 501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389. The Fourth Amendment guarantees are not implicated in such an encounter unless the police officer has by either physical force or show of authority restrained the person's liberty so that a reasonable person would not feel free to decline the officer's requests or otherwise terminate the encounter. Mendenhall, supra, 446 U.S. at 554, 100 S.Ct. at 1877, 64 L.Ed.2d at 509; Terry v. Ohio (1968), 392 U.S. 1, 16, 19, 88 S.Ct. 1868, 1877, 1878, 20 L.Ed.2d 889, 903, 904. Once a person's liberty has been restrained, the encounter loses its consensual nature and falls into one of the next two Supreme Court categories.
A pertinent example of a consensual encounter is found in the case State...
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