U.S. v. Aguiar, 86-5533
| Decision Date | 04 September 1987 |
| Docket Number | No. 86-5533,86-5533 |
| Parties | UNITED STATES of America, Appellee, v. Manuel AGUIAR, a/k/a Bruce Woods, Appellant. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Rodney S. Toth, Charlotte, N.C., on brief, for appellant.
Max O. Cogburn, Jr., Chief Asst. U.S. Atty. (Charles R. Brewer, U.S. Atty., Asheville, N.C., on brief), for appellee.
Before WIDENER, Circuit Judge, HAYNSWORTH, Senior Circuit Judge, and MAXWELL, United States District Judge for the Northern District of West Virginia, sitting by designation.
This is another case of an arrest in an airport of a drug courier in which the courier unsuccessfully sought suppression of cocaine and drug transaction records seized in the airport search.
After denial of his suppression motion, Augiar entered a plea of guilty to the count of the indictment charging him with possession with intent to distribute cocaine, after having reserved the right to appeal the denial of his suppression motion pursuant to Fed.R.Crim.P. 11(a)(2).
Upon arrival at the Charlotte, North Carolina airport of a Piedmont Airlines flight from Miami, two unidentified "concerned citizens" requested law enforcement officials to meet them at the information desk. SBI Agent J.A. Davis and Charlotte police officer Donald Harky responded. They were told by the two concerned citizens that two Hispanic men on the flight from Miami were suspected of using cocaine. The citizens reported that the two Hispanics, who claimed to be Cuban boat people, had been repeatedly rubbing their noses. They led the officers to a bar where Augiar and Aleman were seated at a circular booth with two pieces of luggage on the seat between them. Augiar was observed as he left the bar and went to a restroom. As Augiar was returning from the restroom to the bar, Harky noticed a large bulge on Augiar's left ankle and some white plastic showing beneath the cuff of his left trouser leg. Harky testified that he had observed other passengers' with bulges at the ankles and that on each occasion it turned out that the bulge was a packet of illegal drugs.
Harky was in casual civilian dress, but as Augiar approached, Harky produced his official identification and said "Excuse me, sir, may I talk with you?" After taking a backward step and a brief pause, Augiar responded "Sure, I'll talk with you." Upon request to see his plane ticket, Augiar produced one issued in the name of Bruce Woods. It was for a one-way flight from Miami, having been paid for in cash, and there were no baggage claim checks.
Harky asked Augiar if he had any identification. Augiar said that he did not. Augiar inquired what the problem was and was told that a narcotics investigation was being conducted. Augiar inquired about an arrest warrant. Harky said he had no arrest warrant but placed Augiar under arrest. Harky then reached down to Augiar's left ankle and removed a white plastic shower cap containing a white envelope. The envelope contained white powder, later determined to be cocaine.
Agent Davis then approached Aleman and told him of Augiar's arrest. He agreed to accompany the officers to the Narcotics Interdiction Office where he was found to have a small quantity of marijuana on his person. In the luggage of the two men there was another plane ticket in the name of Bruce Woods, a large plastic bag containing cocaine and business records of a number of drug transactions.
Augiar first contends that the initial encounter with Harky was not consensual but a Terry-stop for which there was no supportive reasonable suspicion. Augiar emphasizes the initial display of Harky's official identification, the fact that Augiar was not told he was free to...
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