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

• Decision Date: 21 June 1988
• Docket Number: No. 85-5854,85-5854
• Citation: 845 F.2d 857
• 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 857

845 F.2d 857

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.

As Amended June 21, 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 Maldi of the Los Angeles Police Department observed Cirimele leaving a car that had pulled up to the curb outside the Eastern 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 ticket line, purchased a ticket, and took a seat at a nearby bench. As he sat on the bench, he guarded his bag carefully between his legs and appeared anxious.

Agent Leszczynski and the two detectives approached Cirimele and identified themselves. Detective Farrant positioned himself directly in front of Cirimele. Agent Leszczynski and Detective Maldi were situated a few feet behind Detective Farrant. Cirimele was seated on the right side of the bench directly next to a concrete pillar. 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. The airline ticket was issued to a D. Chili.

Detective Farrant informed Cirimele that he was conducting a narcotics investigation and that he wished to search Cirimele's bag. Cirimele allowed Farrant to 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 then asked Cirimele if he would accompany him to his office, which was located one hundred feet away, to "check everything out." Cirimele stated that he did not mind going but he did not want to miss his flight.

When they arrived at the office, 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 then pulled out $25,000 in U.S. currency from his 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 was not seized at that time, we must determine whether he was seized at any point during the encounter, and whether, at that point, there was a fourth amendment violation. Furthermore, we must determine whether the searches that occurred violated the fourth amendment. If there was 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, 1323, 75 L.Ed.2d 229 (1983); United States v. Erwin, 803 F.2d 1505, 1508 (9th Cir.1986). As the Supreme Court stated:

[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 1323. 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 pillar nor the officers prevented Cirimele from leaving the area. The officers showed no sign of force or aggression, and at no time did they raise their voices or show their firearms. Therefore, Cirimele was not seized at the point of the initial encounter in the airport concourse. See Erwin, 803 F.2d at 1508 (no seizure where stop occurred in public place and there was no show of force). Cf. United States v. Sokolow, 831 F.2d 1413, 1416 (9th Cir.1987) (defendant seized when agents grabbed him by the arm, pulled him onto the walkway, and sat him down at the curb).

Likewise, Cirimele was not seized when the detective asked him for his identification and airline ticket. Under Royer, asking for and examining Cirimele's ticket and his alien registration card were permissible. See Royer, 460 U.S. at 501, 103 S.Ct. at 1326 (requesting and examining airline ticket and driver's license were "no doubt permissible in themselves"). In United States v. Erwin, this court held that initial questioning and request for identification did not implicate fourth amendment rights under circumstances almost identical to those here. 803 F.2d at 1506-07, 1508 (a reasonable person would not have believed that he was not free to leave when approached in parking lot and asked for identification and ticket). ² Other circuits are in accord. See United States v. Poitier, 818 F.2d 679, 682 (8th Cir.1987) (asking for identification did not fall into the category of an investigatory stop), cert. denied, --- U.S. ----, 108 S.Ct. 700, 98 L.Ed.2d 651 (1988); United States v. Black, 675 F.2d 129, 136 (7th Cir.1982) (request for and examination of driver's license and airline ticket not a seizure), cert. denied, 460 U.S. 1068, 103 S.Ct. 1620, 75 L.Ed.2d 945 (1983); United States v. Jensen, 689 F.2d 1361, 1363-64 (11th Cir.1982) (officers' request for identification and inquiry whether defendant was carrying drugs did not...