U.S. v. Berd, 79-5688

• Decision Date: 22 January 1981
• Docket Number: No. 79-5688,79-5688
• Citation: 634 F.2d 979
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Howard BERD and Robert Lee Dismuke, Defendants-Appellants. . Unit B
• Court: U.S. Court of Appeals — Fifth Circuit

Page 979

634 F.2d 979

UNITED STATES of America, Plaintiff-Appellee, v. Howard BERD and Robert Lee Dismuke, Defendants-Appellants.

No. 79-5688.

United States Court of Appeals, Fifth Circuit.

Unit B

Jan. 22, 1981.

Rehearing Denied March 11, 1981.

Douglas N. Peters, Decatur, Ga., for Berd.

Ray C. Norvell, Decatur, Ga., for Dismuke.

Charles S. Saphos, Asst. U. S. Atty., Atlanta, Ga., for plaintiff-appellee.

Appeals from the United States District Court for the Northern District of Georgia.

Before MORGAN, ANDERSON and THOMAS A. CLARK, Circuit Judges.

LEWIS R. MORGAN, Circuit Judge.

Appellants Howard Berd and Robert Lee Dismuke were jointly tried and convicted of possessing cocaine hydrochloride with intent to distribute it and of aiding and abetting each other in the commission of that offense, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Prior to the trial appellants sought unsuccessfully to suppress the introduction of the cocaine on the ground that it had been obtained by Drug Enforcement Administration (DEA) agents in violation of appellants' Fourth Amendment rights. The principal issue on appeal is whether the district court erred in denying appellants' motion to suppress. Finding no error requiring reversal in this case, we affirm appellants' convictions.

I.

This case presents yet another chapter in the life of DEA Special Agent Paul Markonni. ¹ At approximately 5:30 a. m. on June 22, 1979, Agent Markonni and Detective C. B. Denton of the Fulton County Sheriff's Department were on duty at Atlanta Hartsfield International Airport. While routinely observing passengers deplane from Delta Airline Flight 182, non-stop from Miami, Florida, the agents' attention was drawn to appellants Berd and Dismuke. The agents observed the appellants initially walk past the gate agent, then turn and approach the agent. Upon inquiry by Dismuke, the agent directed appellants to Gate 71-A as the departure gate for a continuing flight to Memphis, Tennessee. After receiving this information, appellants began to walk up the concourse. The agents noticed that Dismuke was carrying a brown plaid suit jacket and a brown briefcase and that Berd was carrying a brown leather and cloth totebag.

After appellants left the gate area of the incoming flight, Agent Markonni called the ticket agent at Gate 71-A and requested that he note the names under which appellants were traveling and whether there were any baggage claim checks attached to appellants' ticket envelopes. The ticket agent subsequently informed Markonni that appellants were traveling as "Robert Dismore" and "H. Bird," and that no baggage claim checks were attached to either ticket envelope. Upon receiving these names, Markonni obtained from Delta Airlines the reservation history of passengers Dismore and Bird. Markonni learned that reservations for a party of two had been made for these passengers at 12:10 a. m. on June 22 for a departure at 3:45 a. m. that same day from Miami to Atlanta, and continuing to Memphis. The reservation history also revealed that Miami telephone number 305-756-1072 had been given to Delta as a local call-back number. Agent Markonni, in an attempt to verify appellants' identities, dialed this number and received a recorded answer stating that 756-1072 had been changed to 681-0470. Markonni then called 305-681-0470 and spoke with a party who denied knowing either a Mr. Dismore or a Mr. Bird.

On the basis of this limited information Agent Markonni decided to approach appellants. He and Detective Denton walked to Gate 71-A where they observed appellants among a crowd of passengers awaiting the flight to Memphis. Appellants were seated side by side in chairs separated by a small table. Lying on the table were the jacket and briefcase which Markonni had previously seen Dismuke carrying. ² Approaching the appellants alone, Agent Markonni leaned forward and, speaking only to Dismuke, identified himself as a federal officer and displayed his credentials. Markonni asked Dismuke if he might speak with him, and Dismuke agreed. When Markonni suggested that they step to a less crowded area in the concourse, Dismuke again indicated his consent. As Dismuke arose and started walking toward the concourse, Agent Markonni noticed that appellant had picked up only his jacket and was leaving behind the briefcase. When Markonni asked if Dismuke meant to leave his briefcase the appellant stated that the briefcase was not his. Markonni then asked if Dismuke wanted to tell the "other gentleman" where he was going. Dismuke responded that he did not know Berd.

After leading Dismuke to a point in the concourse where Detective Denton had been waiting, Agent Markonni asked if he could see Dismuke's airline ticket. Dismuke handed his ticket to Markonni, who verified that the ticket was issued to "Robert Dismore" and had no baggage claim checks attached. In response to Markonni's questions, appellant stated that his name was "Dismore" but indicated that he had no personal identification with him.

During this encounter Agent Markonni asked Dismuke a second time if the briefcase was his, and appellant again disclaimed ownership. Dismuke also again stated that he did not know and was not travelling with appellant Berd. However, when asked why his passenger reservation history showed a party of two travelling as "Dismore" and "Bird," the appellant, who appeared shaken, hesitated and then stated that he and Berd were acquainted but were not really travelling together.

At this point Agent Markonni indicated that he would be "right back" and, leaving Dismuke in the presence of Detective Denton, walked over to where Berd was still sitting. Markonni identified himself as a federal officer and asked if he could speak with Berd, who agreed. In response to Markonni's question, Berd denied traveling with or even knowing Dismuke. He also denied owning the briefcase that was lying on the table next to him. Following this exchange, Markonni asked if Berd would agree to step into the concourse area. As he was leaving with Markonni, Berd picked up the totebag he had been carrying and left the briefcase on the table. Markonni, following Berd, then picked up the briefcase.

When Agent Markonni and Berd arrived where Dismuke and Detective Denton were standing, Markonni again asked appellants if either of them owned the briefcase. Both appellants disclaimed ownership. Markonni explained that he and Detective Denton were looking for narcotics passing through the airport and asked if they were carrying any drugs. When appellants stated that they were not, Markonni asked if they would consent to a quick search of their persons and property. Both appellants agreed to the search and, when given a choice of being searched in the concourse or in a nearby Delta office, accompanied the officers to the private office.

Once inside the office Agent Markonni advised appellants by reading from a card that (1) they had a right to consent or refuse to consent to a search, (2) that they had a right to consult an attorney before deciding, and (3) that any illegal objects found during the search would be used against them. Both appellants stated that they understood their rights and would agree to the search. A search of appellants and of Berd's totebag revealed no contraband. After appellants again denied owning the briefcase, Markonni opened the briefcase and found a quantity of cocaine within it. Appellants were then placed under arrest.

On the basis of these facts the magistrate recommended that appellants' motion to suppress be denied. Relying on United States v. Elmore, 595 F.2d 1036 (5th Cir. 1979), cert. denied, 447 U.S. 910, 100 S.Ct. 2998, 64 L.Ed.2d 861 (1980), the magistrate concluded that Markonni's initial approach of the appellants in the airport waiting area was not a Fourth Amendment stop or seizure since it did not involve force or excessive show of authority. The magistrate determined, however, that appellant Dismuke was seized at the point Markonni left him in the presence of Detective Denton, stating that he would be "right back," and that appellant Berd was seized when Markonni seized the briefcase after Berd indicated that it was not his. The magistrate further found that the seizures of Berd and Dismuke were not based on a reasonable suspicion of criminal activity and, therefore, were unlawful. Nevertheless, because both appellants had abandoned the briefcase before they had been seized, the magistrate concluded that the search of the briefcase was not the product of an unlawful seizure and did not violate any rights protected by the Fourth Amendment. Furthermore, the magistrate found that appellants had freely and voluntarily consented to the search of their persons and possessions, thus purging the taint of the unlawful seizures. The district court entered a brief order approving the magistrate's report and denying the motions to suppress. ³

II.

The Supreme Court has repeatedly observed that the Fourth Amendment proscription against unreasonable searches and seizures "applies to all seizures of the person, including seizures that involve only a brief detention short of traditional arrest." United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 2578, 45 L.Ed.2d 607 (1975). On the other hand, the Court has found it obvious that "not all personal intercourse between policemen and citizens involves 'seizures' of persons." Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 1878 n. 16, 20 L.Ed.2d 889 (1968). Although these principles are simply stated, the task of deciding where a given police-citizen encounter falls on the spectrum between seizure and non-seizure is often a difficult one. Our burden has been made easier by a recent spate of "drug courier profile" ⁴ cases in this circuit that have further refined the seizure-non-seizure analysis. We now proceed to a discussion of these cases as they apply to the facts before us.

A.

The threshold inquiry in ...