U.S. v. Ballard

• Decision Date: 26 May 1978
• Docket Number: No. 77-5572,77-5572
• Citation: 573 F.2d 913
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Charles Steven BALLARD, a/k/a James Bishop, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 913

573 F.2d 913

UNITED STATES of America, Plaintiff-Appellee, v. Charles Steven BALLARD, a/k/a James Bishop, Defendant-Appellant.

No. 77-5572.

United States Court of Appeals Fifth Circuit.

May 26, 1978.

Jack Peebles (Court-appointed), New Orleans, La., for defendant-appellant.

John P. Volz, U. S. Atty., Mary W. Cazalas, Albert J. Winters, Jr., Irving J. Warshauer, Asst. U. S. Attys., New Orleans, La., for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before MORGAN and GEE, Circuit Judges, and KING, ^* District Judge.

LEWIS R. MORGAN, Circuit Judge:

Charles Steven Ballard appeals from a conviction pursuant to 18 U.S.C.A. § 841(a)(1) (1976), for possession of heroin with intent to distribute. The sole issue on appeal is whether the evidence seized during a search of defendant's baggage should have been suppressed. We agree with the defendant that the evidence was improperly admitted at trial; therefore, we reverse.

Defendant was arrested following an investigatory stop and subsequent search at the New Orleans airport. The following sequence of events led up to his arrest. On April 4, 1977, an anonymous tip was received by the drug unit of the New Orleans Police Department. The substance of this tip was that a black male, surnamed "Tullos," five feet nine inches tall, weighing 140 pounds, with a thin face and torso, would be arriving that evening at the New Orleans airport on a flight from Los Angeles. In response to this information, Special Agent John D. Donald, of the Drug Enforcement Administration, began observing passengers arriving on flights from Los Angeles. In addition to the physical attributes mentioned in the tip, agent Donald looked for characteristics listed on the "airport drug courier profile," a compilation of factors considered by the DEA to be indicative of drug activity. Included among those characteristics listed are: (a) unusual nervousness; (b) no luggage or very limited luggage; (c) possession of an unusually large amount of cash, especially when in bills of small denominations; (d) unusual itinerary, taking circuitous routes from cities known to be source cities for narcotics, such as flying to New Orleans from Los Angeles by way of St. Louis; (e) arriving from a known narcotics source city; (f) paying for an airline ticket in currency of small denominations; (g) purchasing a one-way ticket; (h) use of an alias; (i) use of a false telephone number on an airline reservation; (j) placing a telephone call immediately upon arrival at the airport; and (k) travel by a known narcotics trafficker.

Observing flights arriving at 8:05 p. m., 9:02 p. m., and 10:20 p. m., Agent Donald detected no one fitting either the tip or the profile. Finally, at 3:39 a. m. on April 5, 1977, Delta flight number 196 arrived from Dallas. Defendant, a black male, six feet tall and weighing approximately 170 pounds was a passenger on flight 196. Agent Donald observed the defendant leave the plane and walk hurriedly down the concourse carrying a thin plastic suit bag. According to the agent, defendant appeared to be very nervous, looking back over his shoulder at least once. Defendant sought directions from an airport employee, who pointed toward an escalator leading to both the baggage area and taxi stand. After descending the escalator, defendant turned and began heading for the taxis, instead of continuing to the baggage area. At this point he was stopped by Agent Donald who identified himself as a drug agent. They were immediately joined by another police officer who had been assisting the surveillance. Defendant, in response to an inquiry by Agent Donald, was unable to produce any identification other than his airplane ticket, which was in the name of James Bishop. Defendant was asked to accompany the two officers to a police office, 100 feet away. Once at the office, defendant agreed to allow a search. The resulting search of his person and his luggage revealed the heroin. Defendant was then formally arrested and apprised of his constitutional rights.

Defendant contends that the investigatory stop was illegal and that the evidence obtained during the search was tainted by that initial illegality and therefore should have been suppressed under the "fruit of the poisonous tree" doctrine. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). The government offers several justifications for the stop and search, any one of which, if sustained, would provide sufficient grounds for affirming the conviction.

The government first argues that there was probable cause to stop Ballard. They assert that the tip was corroborated by Agent Donald's observations and further reinforced by the presence of several characteristics listed on the drug courier profile. This position is totally without merit. The only similarity between the individual described in the tip and Ballard is that they are both black males. The name and physical appearance are obviously dissimilar, and the agents, at the time of the stop, had no knowledge of Ballard's city of departure, because flight 196 carried passengers from San Francisco, Las Vegas, and Dallas in addition to Los Angeles. In short, the tip was in no way corroborated by the agent's observations.

Nor can it be said that the elements of the courier profile, considered alone or in conjunction with the tip, were sufficient to provide probable cause. It is argued that defendant fit four characteristics: he was nervous, he was traveling from a known narcotics source city, he was carrying limited luggage, and he was walking rapidly. Of these four we can immediately discount two. Although defendant had in fact boarded the plane in Los Angeles, the officers did not possess that knowledge...