U.S. v. Allen, 79-1721

• Decision Date: 08 July 1980
• Docket Number: No. 79-1721,79-1721
• Citation: 644 F.2d 749
• Parties: UNITED STATES of America, Appellee, v. Dennis Nelson ALLEN, Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 749

644 F.2d 749

UNITED STATES of America, Appellee, v. Dennis Nelson ALLEN, Appellant.

No. 79-1721.

United States Court of Appeals, Ninth Circuit.

Argued April 10, 1980.

Submitted May 27, 1980.

Decided June 30, 1980.

As Corrected July 8, 1980.

Richard J. Troberman, Robert J. Wayne, Seattle, Wash., for appellant.

Stanley D. Tabor, Seattle, Wash., for appellee.

Appeal from the United States District Court for the Western District of Washington.

Before SKELTON, ^* Court of Claims Judge, and GOODWIN and FERGUSON, Circuit Judges.

GOODWIN, Circuit Judge.

Dennis N. Allen appeals his conviction under 21 U.S.C. §§ 841(a)(1) and 841(b) (1)(A) for possession of LSD with intent to distribute. The only important question is whether the district court correctly denied a motion to suppress drugs found in a briefcase Allen was carrying.

On July 5, 1979, Drug Enforcement Agent Jerry Snyder, stationed in Seattle, received a telephone call from a Western Airlines salesperson who told him that a person fitting the DEA's "airport drug courier profile" had just purchased a roundtrip ticket to San Francisco. ¹ That person, who turned out to be Allen, conformed to the profile in several respects: (a) his destination was San Francisco, a "drug source city;" (b) he purchased his ticket in cash with bills of small denominations; (c) he appeared nervous when buying the ticket; (d) he was to have a short layover in San Francisco before returning to Seattle; and (e) he was carrying little luggage.

The DEA did not attempt to put Allen under surveillance in San Francisco. Instead, Agent Snyder decided to stop and question Allen upon his return to Seattle later the same day. When Allen deplaned, Agent Snyder and a colleague, Agent Green, approached him and asked him to identify himself. Allen produced proper identification and asked the agents to explain their actions. Agent Green told Allen that he had reason to believe that Allen was carrying drugs from San Francisco to Seattle. Allen seemed startled by this statement and immediately began to tremble and perspire. The agents then asked Allen to accompany them to the Port of Seattle police station, located on the second floor of the air terminal. Allen, who was not informed that he could refuse this request, agreed to go along.

When Allen arrived at the police station, the DEA agents asked if he would agree to a body search. Allen consented, was searched, and nothing was found. The agents next asked if they could search a leather briefcase which Allen was carrying. Allen refused, and Agent Snyder told him that he "was going to seize the attache case and . . . give him a receipt for it." Snyder then seized the case.

After the seizure, Allen stayed at the police station, talking with agents until he received a receipt for his briefcase. During this conversation, he made damaging admissions concerning the contents of the case. Agent Snyder later cited these admissions as supporting probable cause in the application for a warrant to search the briefcase. That application was granted several days after the seizure. A large quantity of LSD was found in the case.

Allen moved to suppress the LSD as the product of an illegal stop, arrest, and seizure. After the district court denied this motion, the trial on stipulated facts resulted in conviction.

In this appeal, Allen contends that the district court's refusal to suppress the LSD was improper for three reasons. First, the initial stop, based solely on Allen's conformity to the drug courier profile, was not supported by founded suspicion. Second, the agents placed Allen under arrest when they directed him to the police station for questioning, and this arrest was not based on probable cause. Finally, the agents lacked lawful authority to seize the briefcase.

We need not address Allen's first two contentions. We do not decide whether the agents' initial contact with Allen was a reasonable "Terry stop" based on founded suspicion ² or whether removal to the police station for custodial interrogation was not an arrest. ³ The seizure of the briefcase presents the critical issue.

The agent had no warrant to seize the briefcase. The district court found, however, that Agent Snyder had probable cause to seize the briefcase. We must determine whether, viewing the evidence in the light most favorable to the government, that finding was clearly erroneous. United States v. Post, 607 F.2d 847, 849 (9th Cir. 1979); United States v. Cortez, 595 F.2d 505, 507 (9th Cir. 1979).

The only information available to the DEA agents at the time they seized the briefcase was that Allen fit some of the characteristics of the drug courier profile, that he reacted nervously when told that the agents believed he was carrying drugs, and that no contraband had been discovered during the strip search. ⁴ These facts are not nearly so compelling as those in other decisions of this court which sustained airport stops, searches, or seizures. See, e. g., United States v. Post, supra, (suspect fit drug courier profile, had a record of involvement in drug smuggling, and behaved suspiciously while under surveillance during layover in "drug source city"); United States v. Chatman, 573 F.2d 565 (9th Cir. 1977) (suspect conformed to courier profile, traveled under an alias, and behaved suspiciously during layover); United States v. Homburg, 546 F.2d 1350 (9th Cir. 1976) (suspect attempted to conceal, and then removed, conspicuous bulge in clothing minutes after airport received a bomb threat).

Allen's conformity to some of the drug courier profile factors and his nervous behavior when stopped were insufficient to "warrant a prudent (person) in believing that petitioner had committed or was committing an offense." Beck v. Ohio, 379 U.S....