U.S. v. $25,000 U.S. Currency

• Decision Date: 08 August 1988
• Docket Number: No. 85-5854,85-5854
• Citation: 853 F.2d 1501
• Parties: UNITED STATES of America, Plaintiff-Counterdefendant/Appellant, v. $25,000 U.S. CURRENCY, Defendant, and Tomasino Gino Cirimele, Claimant/Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1501

853 F.2d 1501

UNITED STATES of America, Plaintiff-Counterdefendant/Appellant, v. $25,000 U.S. CURRENCY, Defendant and Tomasino Gino Cirimele, Claimant/Appellee.

No. 85-5854.

United States Court of Appeals Ninth Circuit.

Argued and Submitted July 10, 1987.

Decided April 28, 1988.

Amended June 21, 1988.

Second Amended Aug. 8, 1988.

Ian Fan, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-counterdefendant/appellant.

Michael N. Berke, Sherman Oaks, Cal., for claimant/appellee.

Appeal from the United States District Court for the Central District of California.

Before NELSON, HALL and THOMPSON, Circuit Judges.

CYNTHIA HOLCOMB HALL, Circuit Judge:

The United States filed a civil forfeiture action pursuant to 21 U.S.C. Sec. 881(a)(6) against money seized from Tomasino Cirimele ("Cirimele") following his arrest at Los Angeles International Airport. Cirimele moved to suppress the evidence obtained from him at the airport. The district court granted Cirimele's motion, stating that the agents did not have a reasonable and articulable suspicion of criminal activity so as to justify Cirimele's detention. Cirimele thereafter moved for summary judgment against the government in the forfeiture action. The district court granted the motion, finding that the government had failed to establish probable cause to forfeit. We find that the district court erred in granting Cirimele's motion to suppress and his motion for summary judgment. The district court's ruling is reversed and this case is remanded to the district court for further proceedings.

I

On November 10, 1982, a Drug Enforcement Agent ("D.E.A.") from Atlanta relayed information to D.E.A. Joseph Leszczynski, in Los Angeles, that narcotics couriers were using an Eastern Airlines flight from Los Angeles to Miami to transport the profits of narcotics transactions. The information given to the agent was that the couriers were generally unaccompanied males who traveled without checked baggage, and stayed in Miami a brief time before returning to Los Angeles.

On November 16, 1982, Agent Leszczynski and Detectives Farrant and Haldi of the

Los Angeles Police Department observed Cirimele leaving a car that had pulled up to the curb outside the Eastern Airlines terminal. Cirimele carried only a blue nylon gym bag. The car immediately sped away from the curb and Cirimele did not exchange any good-byes with the occupant. Cirimele then walked to the Eastern Airlines ticket line, purchased a ticket, and took a seat on the left end of a nearby bench. Beside him at the end of the bench was a pillar, and along the back of the bench was a glass wall. As he sat on the bench, Cirimele guarded his bag carefully between his legs and appeared anxious.

Agent Leszczynski and the two detectives approached Cirimele and identified themselves. Cirimele was seated as the officers approached. After Farrant identified himself, Cirimele stood up and turned to face Farrant who had approached from the right. At this point the pillar at the end of the bench was three or four feet behind Cirimele. Farrant stood about two feet in front of Cirimele; he faced the pillar behind Cirimele. Agent Leszczynski stood behind and to one side of Farrant, four or five feet from Cirimele. Haldi also stood behind Farrant. Detective Farrant asked if he could speak with Cirimele for a few minutes. Cirimele said "Yes." Detective Farrant then asked Cirimele if he would mind showing him some identification. Cirimele produced identification in the form of an alien identification registration card issued in the name of Tomasino Cirimele. Farrant then asked Cirimele if he would mind showing him his airline ticket. Cirimele produced an airline ticket issued to a D. Chili. Farrant inquired why the names were different on the ticket and the registration card. Cirimele mumbled something unintelligible.

Detective Farrant told Cirimele that he was conducting a narcotics investigation and asked Cirimele if he was transporting narcotics. Cirimele said, "No." Farrant requested permission to search Cirimele's bag and Cirimele said that Farrant could do so. A search of the bag produced two airline tickets dated November 12, 1982, for travel from Fort Lauderdale, Florida, to Los Angeles, California. The tickets were issued to a Tony Roma and a D. Tomasino. The detective also found objects from hotels in Southern California. Farrant showed Cirimele the two used airline tickets issued under different names and asked him, "What are these?" Cirimele replied that he and a friend flew out from Florida; one ticket belonged to Cirimele and one belonged to his friend.

By this point, Detective Haldi had moved from his position behind Farrant to a position behind Cirimele. He stood between Cirimele and the pillar. Farrant noticed Haldi pointing toward Cirimele's outside jacket pocket. Haldi then stepped back away from Cirimele. Farrant observed rolls of money in the jacket pockets. Farrant testified that there "was so much money in there, the pocket was puffed out, both of the pockets." Farrant then inquired why the used tickets were not in Cirimele's name. Cirimele again mumbled something that Farrant could not understand. After this reply, Farrant asked Cirimele if he was carrying narcotics on his person. Cirimele said, "No, just money." Farrant asked Cirimele how much money he had and Cirimele responded, "$25,000."

Farrant then asked Cirimele if he would accompany him to his office to "check everything out." Cirimele stated that he did not mind going but he did not want to miss his flight. Farrant assured Cirimele that he would make his flight if there were no other problems.

The office, a twenty-five foot long house trailer between two of the airport terminals, was located about a hundred feet away from the area where the agents approached Cirimele. When they arrived at the office, Farrant ran a check to determine whether Cirimele was wanted; he was not. Agent Leszczynski asked Cirimele if he could search his wallet for additional identification. Cirimele allowed Leszczynski to do so. The search produced a small paper bundle of cocaine. Cirimele was placed under arrest. Leszczynski requested Cirimele to put everything he had on the table. Cirimele then pulled out $25,000 in U.S. currency from his jacket, socks, and pockets.

The government filed a civil forfeiture action pursuant to 21 U.S.C. Sec. 881 against the currency on April 7, 1983. On July 26, 1984, the district court granted Cirimele's motion to suppress the evidence obtained by the officers subsequent to the initial questioning. On March 12, 1985, the district court entered summary judgment in favor of Cirimele, concluding that the government had failed to establish probable cause to forfeit. The government appeals the district court's grant of the motion to suppress and the summary judgment entered in favor of Cirimele.

II

The basic issue before us is whether the district court correctly granted Cirimele's motion to suppress the evidence obtained during the encounter with the agents in the terminal, and from the search of the bag there, as well as the evidence obtained from the search in the D.E.A. office. The district court held that Cirimele was "seized" under the fourth amendment at the time of the initial encounter, and that the agents did not have a reasonable and articulable suspicion of criminal activity that justified Cirimele's detention at that point. Therefore, the court suppressed the evidence that was obtained during the detention.

We review de novo the district court's grant of Cirimele's motion to suppress, and we uphold its findings of fact unless they are clearly erroneous. United States v. Mitchell 812 F.2d 1250, 1253 (9th Cir.1987). The ultimate conclusion of the lawfulness of a seizure is a mixed question of law and fact that we review de novo. Id.

We must first determine whether Cirimele was seized within the meaning of the fourth amendment at the time of the initial encounter. If he were not seized at that time, we must determine whether he was seized at any later point, and whether, at that point, there was a fourth amendment violation. If there were a fourth amendment violation, the evidence obtained must be suppressed. See Weeks v. United States, 232 U.S. 383, 398, 34 S.Ct. 341, 346, 58 L.Ed. 652 (1914). ¹

It is well-established that not every police encounter is a seizure as defined by the fourth amendment. See, e.g., Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229 (1983) (plurality); United States v. Erwin, 803 F.2d 1505, 1508 (9th Cir.1986).

[L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, [or] by asking him if he is willing to answer some questions....

Royer, 460 U.S. at 497, 103 S.Ct. at 1324. An individual 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. United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980) (Stewart, J.). "Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a 'seizure' has occurred." Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 1879 n. 16, 20 L.Ed.2d 889 (1968).

Cirimele argues that he was seized when the officers approached him in the airport concourse and identified themselves, since he was "surrounded" by the officers and blocked by a concrete pillar. He states that a reasonable person in this situation would not have felt free to leave. However, the evidence in the record does not substantiate this claim. Agent Leszczynski was standing four to five feet away from Cirimele and Cirimele could have easily walked around the pillar and the officers. From where the officers were standing, neither the...