U.S. v. Alpert

• Decision Date: 21 April 1987
• Docket Number: No. 86-5534,86-5534
• Citation: 816 F.2d 958
• Parties: UNITED STATES of America, Appellee, v. Jeffrey Scott ALPERT, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 958

816 F.2d 958

UNITED STATES of America, Appellee, v. Jeffrey Scott ALPERT, Appellant.

No. 86-5534.

United States Court of Appeals, Fourth Circuit.

Argued Oct. 9, 1986.

Decided April 21, 1987.

Charles F. Atwood, III, on brief for appellant.

Max Cogburn, Jr. (Charles R. Brewer, U.S. Atty., Jerry W. Miller, Asst. U.S. Atty., on brief) for appellee.

Before WIDENER and PHILLIPS, Circuit Judges, and HAYNSWORTH, Senior Circuit Judge.

WIDENER, Circuit Judge:

Jeffrey Scott Alpert appeals from his conviction for possession of cocaine with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1). Alpert contends that the cocaine found in his briefcase should have been suppressed as evidence because the search of his briefcase was tainted by violation of the principles of the Terry line of cases. ¹ We disagree, and affirm the judgment of conviction.

At approximately 9:00 on the night of February 22, 1985, State Bureau of Investigation Officer J.A. Davis and Charlotte Police Officer Ronald Harkey were conducting surveillance of passengers deplaning from a flight from Miami, Florida, for the purpose of detecting illegal drug traffic. One of the first passengers to deplane, Kenneth Roberts (another defendant in this case), attracted the officers' attention with his loud and boisterous conduct. When Roberts came nearer to the officers, Harkey noticed that Roberts' pupils were dilated, despite the bright lighting in the airport. This, combined with Roberts' loud and boisterous behavior, led Harkey to suspect that Roberts was high on some type of stimulant.

Shortly thereafter, Officers Davis and Harkey saw Alpert and another man, Charles Nunn, deplane and join Roberts. Alpert also acted boisterously, and his pupils were dilated as well. The officers watched the three men for a short time, then spoke with the ticket agent, who informed them that Alpert had called her from Miami for her to make reservations from Miami to New York. Harkey and Davis watched the three while Roberts and Nunn went into a bar and Alpert waited outside with the luggage. After Nunn came out of the bar, the officers approached the men at the entrance to the airport bar, where Alpert and Nunn stood with the luggage. Harkey identified himself as a police officer and asked Alpert if he minded speaking with him. When Alpert agreed, Harkey asked to see Alpert's plane ticket. Alpert then produced three tickets, all in his name, for one-way flights from Miami to New York. The tickets had been paid for in cash, and none of them contained a baggage claim check. ² Officer Harkey returned the tickets to Alpert, told Alpert that he was investigating narcotics traffic, and asked for permission to search Alpert and his briefcase. Alpert declined to consent, falling backwards, and commenced to sweat heavily. Sweat was coming through his shirt and beaded on his forehead. Harkey then told Alpert that he was going to detain Alpert's luggage in order to subject it to a canine sniff, but informed Alpert that he was not under arrest and that he was free to leave.

Roberts came back about that time and asked if he and his friends could wait while the sniff was conducted. Harkey replied that they could. After conferring, however, the men decided to continue on their flight to New York, which was scheduled to leave in 25 to 30 minutes. Harkey testified that if they had chosen to wait he would have conducted the sniff test "right then." Since the three were not going to wait, there was no rush, he said. As the men walked away, officer Davis asked where the bag should be sent. The trio told him that they were not sure where they would be staying in New York. Officer Harkey finally stated that he would send it to J. Alpert in care of Piedmont Airlines in New York City if the dog did not alert to the bag. To this statement, Alpert made no response.

Since the officers had another flight under surveillance, Harkey locked the briefcase in the Narcotics Interdiction Office and returned to the concourse. ³ After completing the surveillance, Harkey took the bag to the dog at the Police Academy, which was located 10-15 minutes from the airport. Harkey hid the briefcase behind a drink machine in the Academy, brought the narcotics dog from the kennel outside, and released the dog at the entrance to the building, giving the dog the command to find drugs. The dog quickly found the bag and alerted to it. This was at 9:50 p.m., so approximately 50 minutes elapsed from the time Harkey seized Alpert's briefcase to the time when the narcotics dog alerted to the briefcase, at which point probable cause existed to hold the bag until a search warrant could be obtained. The warrant was obtained and the briefcase, when opened, was found to contain cocaine.

Alpert's appeal raises two issues, one, whether at the time Alpert was stopped there existed a reasonable, articulable suspicion that he was carrying drugs, and, two, whether the delay in conducting the dog sniff was so great as to exceed the brevity requirement of an investigative stop, thereby rendering the intrusion a more serious one requiring probable cause.

In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Supreme Court upheld "the narrow authority of police officers who suspect criminal activity to make limited intrusions on an individual's personal security based on less than probable cause." Michigan v. Summers, 452 U.S. 692, 698, 101 S.Ct. 2587, 2592, 69 L.Ed.2d 340 (1981). A Terry-stop falls between a full-blown seizure requiring probable cause and a consensual encounter not implicating the Fourth Amendment, and is justified on less than probable cause because it is substantially less intrusive than a traditional arrest. The interests of crime prevention and detection and police officers' safety support the intrusion as reasonable, providing the police have a reasonable, articulable basis for suspecting criminal activity. Summers, at 697-699, 101 S.Ct. at 2591-2592.

In practical application, it is unclear what amount of police intrusion will cause a consensual encounter to ripen into an investigative stop requiring some objective level of justification. See, e.g., Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) (plurality). The Court has made clear, however, that a person is seized for Fourth Amendment purposes when, under the circumstances, a reasonable person would feel that he was not free to leave. INS v. Delgado, 466 U.S. 210, 215, 104 S.Ct. 1758, 1762, 80 L.Ed.2d 247 (1984); Florida v. Royer, 460 U.S. 491, 501-02, 103 S.Ct. 1319, 1326, 75 L.Ed.2d 229 (1983) (plurality opinion); plus, at 514, 103 S.Ct. at 1332, (Justice Blackmun dissenting).

Under the facts of this case, however, we have no need to ascertain at what particular moment Alpert was arrested, if indeed he ever was. Certainly, the encounter was a consensual one at the officers' first approach. And it is equally certain that the briefcase was seized when Officer Harkey told Alpert that he would detain Alpert's briefcase in order to subject it to the narcotics dog.

Small parts of the drug courier profile may not always, standing alone, provide the reasonable, articulable suspicion necessary to justify a Terry-stop. Reid v. Georgia, 448 U.S. 438, 440-42, 100 S.Ct. 2752, 2753-54, 65 L.Ed.2d 890 (1980) (per curiam). But in only slightly altered circumstances, with or without little else, they may: "[w]e agree with the State that when the officers discovered that Royer was traveling under an assumed name, this fact, and the facts already known to the officers--paying cash for a one-way ticket, the mode of checking the two bags, and Royer's appearance and conduct in general--were adequate grounds for detaining him and his luggage while they attempted to verify or dispel their suspicions in a manner that did not exceed the limits of an investigative detection." Royer, 460 U.S. at 502, 103 S.Ct. at 1326. Here, however, the unusual conduct and dilated pupils of Alpert and his companion ⁴ supplemented the drug courier characteristics observed by Officer Harkey and provided sufficient justification to stop Alpert and investigate further. All three tickets were paid for in cash; none of the tickets had baggage checks; none of the men had but little luggage, which they were carrying; all of the tickets were one way; all of the tickets were from Miami to New York, source and distribution cities for drugs; they all became very nervous when addressed, and Alpert fell back against the wall and broke out into a sweat that bled through his shirt and beaded on his forehead; one of the three deplaned among the first passengers, and the other two among the last; all of these are positive attributes of a drug courier in the drug courier profile. In addition, the eyes of Alpert and another were dilated, even in bright light, and Alpert was loud and boisterous. We are thus of opinion the officers here had as much or more evidence to rest upon as did the officers in Place in which the Court held that the initial holding of a bag for a dog sniff was permissible. Holding Alpert's bag for a drug sniff in this case was not a violation of the Fourth Amendment.

Alpert argues that, even if reasonable suspicion did exist to stop him, probable cause was nevertheless required to subject his bag to the sniffing dog. United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983), however, clearly holds that a canine sniff does not constitute a search within the meaning of the Fourth Amendment. "[W]hen an officer's observations lead him reasonably to believe that a traveler is carrying narcotics, the principles of Terry and its progeny would permit the officer to detain the luggage briefly to investigate the circumstances that aroused his suspicion...." 462 U.S. at 706, 103 S.Ct. at 2644. Therefore, the sniff of Alpert's bag was not unlawful.

Our conclusion that reasonable suspicion existed to subject Alpert's briefcase...