U.S. v. Archer
| Citation | 840 F.2d 567 |
| Decision Date | 28 March 1988 |
| Docket Number | 87-1746 and 87-1754,Nos. 87-1389,s. 87-1389 |
| Parties | UNITED STATES of America, Appellee, v. Lloyd ARCHER, Appellant. UNITED STATES of America, Appellee, v. Beverly DRUMMOND, Appellant. UNITED STATES of America, Appellee, v. Marva TINGLING, Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (8th Circuit) |
Bruce W. Simon, Kansas City, Mo., for appellants.
Peter M. Ossorio, Asst. U.S. Atty., Kansas City, Mo., for appellee.
Before JOHN R. GIBSON, Circuit Judge, HENLEY, Senior Circuit Judge, and FAGG, Circuit Judge.
Lloyd Archer was charged in a one-count indictment with being an illegal alien in possession of a firearm in violation of 18 U.S.C. Sec. 922(g)(5). Marva Tingling and Beverly Drummond were charged in a two-count indictment with conspiracy to distribute and possession with intent to distribute cocaine, in violation of 21 U.S.C. Secs. 841(a)(1), 846. Archer moved to suppress evidence, specifically the pistol found in the trunk of the automobile he was driving, and Tingling and Drummond moved to suppress the cocaine found on their persons. Fourth amendment violations were asserted. Two judges of the district court denied the motions to suppress, 656 F.Supp. 635. 1 Preserving their right to appeal the district court's rulings, Archer pleaded guilty to the charge against him and Drummond and Tingling pleaded guilty to the possession charge. We heard the three cases on the same day. We uphold the denial of the motions to suppress and affirm the convictions.
We state the facts as found by the magistrate and adopted by the district court. Detective David Starbuck of the Kansas City Police Department was assigned to investigate narcotics trafficking at the Kansas City International Airport. He was instructed to watch for black females of Jamaican descent arriving from Miami, Florida on evening flights of Eastern Airlines. Informants had told Starbuck's superiors that persons fitting that profile were smuggling cocaine into the Kansas City Airport and that the preferred method of smuggling on this flight was to conceal cocaine on the courier's person.
On December 2, 1986, Starbuck arrived at the airport, accompanied by two other police officers. All three were armed but in plain clothes. At about 10:00 p.m., Starbuck observed a new white Mazda car parked near the entrance to the Eastern Airlines ticket counter. He watched two black men leave the car and check flight arrival times. A few minutes later he noticed that the car had moved directly outside the gate where Starbuck was positioned. Starbuck walked outside and, as he walked by the car, saw the two men slumped down in the front seats so that no one could see them without walking up and looking into the car. Starbuck went back inside the terminal.
One of the men in the Mazda, later identified as Carl Stroud, came inside the terminal and waited a few feet from Starbuck. Although Starbuck could not remember Stroud's name, he recognized him as someone he had had contact with in the past in connection with a drug investigation.
Flight # 222 from Miami arrived at 10:40 p.m., twenty-five minutes late. The first person off the airplane was Tingling, followed by some ten or twelve passengers, then Drummond. The women walked separately and gave no indication that they were traveling together. Starbuck testified that Drummond and Tingling were the only black persons among the arriving passengers.
The women left the terminal, passing by Stroud without acknowledging him. Stroud followed the women as they walked outside to the Mazda, where Archer was standing with the trunk door open. The women began putting their luggage into the trunk. Starbuck approached the car, identified himself as a police officer and asked Drummond if she would speak with him. The other two officers approached the car; it was their intention that no one should leave in the car at that time.
Starbuck told Drummond that he was a police officer investigating narcotics trafficking at the airport and asked Drummond about her identity, citizenship and the general nature of her travel. She handed Starbuck an Eastern Airlines one-way ticket for Flight # 222 from Miami to Kansas City, paid for in cash, in the name of "Betty Reid." Starbuck asked Drummond her name. She first answered "White" and then quickly said "Betty Reid" while pointing to the ticket. Drummond initially claimed to be an American, but when Starbuck mentioned her accent, she admitted she was a citizen of Jamaica. She was unable to produce a passport, visa or immigration papers, and could not say with certainty where such documents were. She claimed to be visiting a friend in Kansas City, and pointed to Archer, but could not identify him by name or state his address or telephone number; she could only say that she knew him as "P.Z." Starbuck asked Drummond for permission to search her luggage and purse. She consented and Starbuck suggested they move inside where it was warm. Once inside, Drummond signed a "consent to search" form with the name "Betty Ried," a spelling at variance with the name "Betty Reid" on the airline ticket she had shown earlier. The search turned up only personal effects but Starbuck noticed that the luggage had no identification tags. After telling her that he could check immigration records to see if she had a passport, Drummond gave the name "Beverly Allen" and then, after Starbuck said he could check that name, she told him her name was Beverly Allen Drummond. At that point she became silent, and Starbuck ended the questioning.
Starbuck then went outside to talk with Tingling while one of the other officers remained inside with Drummond. Tingling agreed to talk with Starbuck. She told him she was a Jamaican citizen, but had no identification, passport, visa or immigration papers. Like Drummond, she had a one-way ticket, paid for in cash, from Miami to Kansas City. The ticket was issued in the name of "Sandra Morris." When asked who her traveling companion was, she identified Drummond as Beverly, then quickly corrected herself and said her name was Betty Reid. A search of Tingling's luggage turned up no contraband, but again Starbuck noticed that the luggage contained no identification. After further questioning, Tingling told Starbuck her name was "Jacinth Miles." She explained that she lied about her name because she was in the country illegally on an expired visa.
While Tingling was repacking her suitcase, Stroud and Archer, who had been waiting outside in the car, came inside to get out of the cold. In response to questions by Starbuck, Archer produced a Florida driver's license. He stated he was a Jamaican citizen and had been in the United States since 1981. He claimed his passport and immigration papers were in Miami, but could not definitely answer why the documents were there. He showed Starbuck a piece of paper indicating that the Mazda had been purchased the day before by Hugh Anthony Gardner with a $7000 down payment. He said he was staying with Gardner and was using the car to pick up the two women on the instruction of someone he called John, whose true name he thought to be Mike Campbell. He stated he had just left a large house on the corner of Belfontaine and Perry, which Starbuck recognized from a prior investigation as one inhabited by Jamaican nationals involved with cocaine distribution.
After an unsuccessful attempt to interview Stroud, Starbuck asked Archer for permission to search the car. He told Archer that he need not consent. Archer consented but refused to sign a written consent form, then orally agreed again to permit the search. Starbuck found a nine-millimeter semiautomatic Glock handgun underneath the front seat. The gun was loaded with a clip of seventeen rounds, and was lying next to another clip of seventeen rounds. The gun was made mostly of plastic, which makes it difficult to detect in airport x-ray machines. Archer and Stroud were then arrested for carrying a concealed weapon. Subsequent questioning led the police to conclude that Archer was an illegal alien; this conclusion is not at issue in this appeal.
After arresting Archer and Stroud, Starbuck arrested Tingling and Drummond inside the building, telling them they were being arrested for giving false information to a police officer and that he planned to contact the Immigration and Naturalization Service. Following the arrests, Drummond and Tingling were taken to the police station. There, Starbuck asked a female officer to search the women before they entered the detention area. Packages of cocaine, totaling over one-half of a kilogram, were found concealed in the undergarments of both women.
On appeal, Archer contends that a seizure within the meaning of the fourth amendment occurred when Detective Starbuck initially confronted him outside the terminal building while he was helping put luggage in the car. He maintains that since the officers lacked probable cause to arrest him at that time, or even reasonable suspicion to detain him, the detention violated the fourth amendment, and therefore all evidence and statements subsequently elicited must be suppressed as products of the illegal seizure. Drummond and Tingling raise a similiar contention, namely that Starbuck lacked probable cause to arrest them and the cocaine seized from them should be suppressed as a product of the illegal arrest. Finally, Archer argues that he did not validly consent to the search of the car.
As this court noted in United States v. Wallraff, 705 F.2d 980, 988 (8th Cir.1983), Supreme Court cases have placed police-citizen encounters into three categories. First, there are communications between officers and citizens that are consensual and involve no coercion or restraint of liberty. Such encounters are outside the scope of the fourth amendment. Second, there are the so-called Terry -type investigative...
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