U.S. v. $84,000 U.S. Currency
| Decision Date | 12 September 1983 |
| Docket Number | No. 82-1602,82-1602 |
| Citation | 717 F.2d 1090 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. $84,000 U.S. CURRENCY, Defendant, v. Donald HOLMES and Max Reyes, Claimants-Appellants. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Robert B. Creager, Barry, Anderson, Creager & Wittstruck, Lincoln, Neb., for intervenor.
Edward J. Moran, Asst. U.S. Atty., Dan K. Webb--U.S. Atty., Chicago, Ill., for plaintiff-appellee.
Before CUDAHY and COFFEY, Circuit Judges, and SWYGERT, Senior Circuit Judge.
The government, as plaintiff, filed this civil action for the forfeiture of $84,000 in U.S. currency seized from the claimants pursuant to 21 U.S.C. Sec. 881(a)(6). Donald Holmes and Max Reyes, as claimants, answered the government's forfeiture claim contesting the legality of the seizure of the currency and the applicability of the forfeiture statute. The district court held that 21 U.S.C. Sec. 881(a)(6) was applicable and that the currency had not been illegally seized. We affirm.
On the evening of September 10, 1981, Drug Enforcement Administration ("DEA") Agent Michael Streicher and Chicago Police Officer Rosemary Burzinski were assigned to Chicago's O'Hare International Airport to monitor the arrival of passengers on flights from certain "source cities" in an effort to control the flow of illegal drugs. 1 The law enforcement officers were awaiting the arrival of United Airlines Flight 149 from Fort Lauderdale, Florida, a DEA designated source city, to observe the passengers as they left the aircraft. At approximately 8:45 p.m., Flight 149 parked at United Airlines Gate F-7, and the passengers deplaned and walked into the concourse. Two members of the first group to emerge from the gate were the claimants, Donald Holmes and Max Reyes.
Holmes and Reyes milled around the gate area after deplaning, glancing about as if looking for someone or something. The officers' attention was attracted to the two young men because of their anxious manner, suspicious conduct, casual dress and the fact that Holmes was fair-skinned and displayed no tan; all factors fitting the DEA "drug courier profile" 2 utilized by officers to alert them to possible drug traffickers.
Following their survey of the gate area, Holmes and Reyes entered the concourse and proceeded to a television monitor screen displaying the arrival and departure times of United Airlines flights. After viewing the screen for what seemed to Officer Burzinski to be an inordinately long period of time, Holmes and Reyes continued down the concourse corridor followed by Agent Streicher and Officer Burzinski. The appellants walked slowly down the corridor toward the junction of Concourses E and F, glancing back over their shoulders several times as if trying to determine whether they were being followed. Holmes and Reyes entered a cocktail lounge located at the juncture and purchased two drinks. Agent Streicher and Officer Burzinski then observed the claimants leave the lounge and take their drinks to the check-in area at Gate E-2. The officers at this time positioned themselves opposite the gate to continue their observation.
Holmes and Reyes stood in line at Gate E-2 and checked in for a 9:35 p.m. flight to Omaha, Nebraska. After reserving their seats, the claimants walked away from the Prior to Reyes' return to the check-in counter, the claimants were asked by Agent Streicher and Officer Burzinski during the initial encounter if they would voluntarily consent to a search of their luggage. After being advised of their right to refuse, the claimants agreed to let the officers search their baggage. Officer Burzinski then copied down Holmes' claim ticket number and a description of Reyes' luggage and left the corridor to contact United Airlines personnel about locating the claimants' luggage. After originally giving his consent and while Burzinski was arranging for the search of the luggage, Reyes voiced some hesitation about consenting to a search of his luggage. To allay Reyes' fears, Agent Streicher informed the claimants "that [the officers] were not interested in small quantities of marijuana or pills or coke, and that if ... all they had in their luggage was a small quantity, that [the officers] would just check that, and if there was some [the officers] would take it and discard it and they could be on their way." In response to Agent Streicher's comments, the claimants stated that their bags contained small quantities of marijuana and cocaine and that they would allow the officers to open the luggage.
gate and were approached by Agent Streicher and Officer Burzinski. The law enforcement officers promptly identified themselves and asked Holmes and Reyes for identification. The claimants produced first-class tickets and driver's licenses issued in their appropriate names. Officer Burzinski asked Holmes and Reyes if they were traveling with luggage and they replied they were. The officers noticed, however, that Reyes' ticket portfolio contained no baggage claim stub and they questioned him about the discrepancy. Reyes' ticket was returned to him and he proceeded to the check-in counter to inquire about the issuance of a baggage claim check. During this conversation between the officers and the claimants, Reyes' voice quivered, and both he and Holmes appeared to the officers to be nervous throughout the encounter.
Officer Burzinski returned to the group after arranging with United Airlines personnel for the segregation of Holmes' and Reyes' luggage. Shortly thereafter, the officers were informed that the luggage had been placed in a basement area below Gate E-2. Officer Burzinski, Agent Streicher, Holmes and Reyes descended a flight of stairs and entered a small, dark non-public area. The claimants identified the luggage located in the secluded area as theirs but prior to searching the baggage Agent Streicher noticed bulges in Reyes' pants legs at the tops of his boots. Agent Streicher stated that for his safety he "patted down" Reyes and felt a hard object which he was unable to identify by touch. Streicher then directed Reyes to remove his boots and bundles of money spilled out of his pants legs and his boots. Streicher placed the money in Reyes' suitcase and proceeded to search Holmes who also had large quantities of money in his boots and inside his waistband and pants legs.
A search of Reyes' and Holmes' suitcases uncovered small quantities of marijuana and cocaine. The claimants were placed under arrest, informed of their Miranda rights and taken, along with their suitcases, to the DEA office at O'Hare. 3 Holmes and Reyes were processed and the money in their possession was counted in their presence. In the case of Reyes, $30,000 of the money found on his person was confiscated by the officers and $25 was returned to him. The officers seized $54,000 of the money discovered in Holmes' suitcase and on his person and returned $91 to him. A DEA supervisor, Joseph Salvemini, arrived and interviewed the claimants. After the claimants completed and signed written statements regarding the seized currency they were released and conveyed by Streicher and Burzinski to a nearby hotel to await the next flight to Omaha the following morning. 4
On March 17, 1981, the United States filed its complaint for civil forfeiture of the $84,000 seized under 21 U.S.C. Sec. 881 5 and Holmes and Reyes filed their claims thereafter. The claimants denied that the monies were used or were intended to be used for illegal purposes and alleged that their constitutional rights had been violated during the seizure of the funds. A trial was held in the district court and a judgment was entered ordering the appellants' previously confiscated $84,000 forfeited to the United States. It is from the court's order of forfeiture that the claimants appeal.
Issue 1: Did the district court err in determining that the $84,000 involved herein was not seized in violation of Holmes' and Reyes' constitutional rights?
Issue 2: If the circumstances of the seizure did not give rise to a constitutional violation, did the district court commit error in determining that the monies taken from Holmes and Reyes were properly forfeited to the United States?
The claimants contend that the evidence introduced by the government in support of the forfeiture was illegally obtained in violation of their constitutional rights for the following reasons:
(A) The initial encounter between the law enforcement officers and Holmes and Reyes constituted an unlawful arrest and detention in violation of their Fourth Amendment rights against unreasonable seizures;
(B) The money uncovered during the "pat down" searches of their persons was illegally obtained in violation of their Fourth Amendment rights against unreasonable searches; and
(C) The statements signed by the claimants while in custody were improperly procured and involuntarily given and the admission of the statements violated their Fifth Amendment rights against self-incrimination.
The government concedes the applicability of the exclusionary rule to forfeiture proceedings but contends the district judge properly concluded that the government demonstrated that no violation of the claimants' constitutional rights occurred. United States v. Eighty-Eight Thousand, Five Hundred Dollars, 671 F.2d 293, 297 n. 6 (8th Cir.1982). In order to review the propriety of the district court's determination of the legality of the actions of the law enforcement officers, we will address each of the claimants' alleged constitutional violations separately.
First of all, Holmes and Reyes maintain that the initial contact by the government agents was an unlawful seizure rendering all evidence obtained thereafter (including the funds seized and the statements obtained while the claimants were under arrest) inadmissible as "fruit of the poisonous tree." Wong Sun v. United States, 371 U.S. 471, 488,...
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