U.S. v. Bowles, 79-5088

• Decision Date: 02 September 1980
• Docket Number: No. 79-5088,79-5088
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Sherman Major BOWLES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 526

625 F.2d 526

UNITED STATES of America, Plaintiff-Appellee, v. Sherman Major BOWLES, Defendant-Appellant.

No. 79-5088.

United States Court of Appeals, Fifth Circuit.

Sept. 2, 1980.

Ron Minkin, Los Angeles, Cal., for defendant-appellant.

Robert A. Boas, Asst. U. S. Atty., Atlanta, Ga., for plaintiff-appellee.

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

Before GODBOLD, RONEY and FRANK M. JOHNSON, Jr., Circuit Judges.

FRANK M. JOHNSON, Jr., Circuit Judge:

Sherman Major Bowles appeals his conviction in the United States District Court for the Northern District of Georgia of two counts of possessing a controlled substance with intent to distribute in violation of 21 U.S.C. § 841(a)(1). Bowles' prosecution arose out of an encounter between Bowles and three law enforcement officials at Atlanta's Hartsfield International Airport on May 2, 1978. As a result of that encounter, the officers discovered that at the time Bowles carried heroin and cocaine on his person. In due course Bowles was tried before the court, convicted, and sentenced. ¹

Bowles' entire defense, on appeal as well as below, hinges on the contention that the contraband seized from him was inadmissible as evidence against him because it was obtained in violation of his constitutional rights. After conducting a suppression hearing on the question, the United States Magistrate found the evidence properly admissible. The district court held a de novo hearing and affirmed the magistrate's determination. We, too, conclude that the evidence was admissible and, accordingly, affirm.

I.

In order to reduce the flow of narcotics into and through Atlanta, the Drug Enforcement Administration (DEA) has established an enforcement program at Hartsfield Airport. The program includes what are termed "on-site" investigations at the airport and of the people who use it.

On May 2, 1978, at approximately 7:15 p. m., DEA Special Agent Michael Dorsett, Detective B. A. Glover of the Atlanta Police Department, and United States Customs Officer Larry Brown, while conducting such "on-site" surveillance, observed passengers deplane from a non-stop flight that had just arrived from Los Angeles. The officers first noticed appellant as he followed a short distance behind two other black men who had also been on the plane. Initially the three did not appear to be together and were no cause of interest. However, Agent Dorsett's curiosity was piqued when all three proceeded down the concourse, Bowles still trailing slightly, and joined a line of passengers waiting to check in at the gate for a plane leaving for Chattanooga, Tennessee. At that point Dorsett determined to investigate further. He waited in line at the gate behind the three men and, after they had checked in and walked away from the gate in the same direction they had been traveling, Dorsett asked the gate attendant for some information concerning their tickets. Dorsett learned that the two men were traveling on tickets in the names of Charles and Tommy Watson (their tickets were in the same folder) and appellant's ticket was in the name of M. Bowles.

After talking with the agent at the gate, Dorsett hurried down the corridor to catch up with Glover and Brown. As the officers waited in the concourse, the "Watsons" and Bowles, walking a discreet distance behind, entered the men's restroom. A few minutes later the three emerged.

The seeming unawareness of the "Watsons" to Bowles' presence as all three continued on identical courses in close proximity initially aroused Dorsett's interest. As the three came out of the restroom, however, they appeared for the first time to be together. They walked "very, very slowly," "practically shoulder-to-shoulder" down the corridor. Moreover, the three men acknowledged the presence of the plain-clothed officers. Agent Dorsett testified that:

All three of the men began to look directly at myself. They walked within a few feet of where I was sitting on the edge of the concourse there and glared at me, stared at me. They walked down to where the concourse made a turn to the right and at that point all three of them turned and looked back over their shoulders directly at me.

Officers Dorsett, Glover, and Brown reached the turn only thirty to forty feet behind the "Watsons" and Bowles. As the officers rounded the corner they were "confronted" just a few feet ahead by the "Watsons." The two men had turned facing the officers and stood abreast in the center of the concourse, blocking the path. According to Dorsett, the two were "standing there staring at me quite hostilely." Bowles, however, had left his companions and continued down the concourse. In sharp contrast to the speed at which the three had been walking, Bowles had quickened his pace considerably to "just short of a run."

After directing Detective Glover to check on Bowles, Dorsett approached the "Watsons." He presented his identification and told them that he was a federal agent conducting a narcotics investigation. Dorsett noticed almost immediately a marked change in the demeanor of the two men. The became cooperative when Dorsett asked for identification. The hostility apparently was replaced with nervousness for Dorsett testified that when they produced identification their hands were shaking. Driver's licenses indicated that their names were Charles Lamar Watson and Ithornial Maffet. Dorsett recognized Maffet's name as "a major heroin dealer in the Chattanooga, Tennessee area." Agent Dorsett then requested their airline tickets and asked why Maffet's ticket was in the wrong name. Watson replied that he and Maffet were half brothers and that their father had purchased the tickets. In response to a question by Agent Dorsett, Maffet and Watson said that they were not carrying narcotics. Agent Dorsett then asked them:

if they would consent to a search of their person(s) and they said they would. I advised them that they were not under any obligation. They did not have to (consent to) the search. They stated that they would just like to get it over with.

Watson and Maffet agreed to go with Dorsett to the DEA office for the search. Officers Dorsett and Brown then proceeded down the concourse with Maffet and Watson to where Bowles and Detective Glover were standing.

Detective Glover testified that, after Agent Dorsett instructed him to approach Bowles, Glover walked at a fast rate to catch up with the suspect. Glover passed Bowles, who was still walking rapidly, and turned toward him, standing in his line of travel. Glover "had (his) identification out and . . . asked him if (Glover) could talk with him for a moment." Glover identified himself as part of a federal task force and informed Bowles that he was conducting a narcotics investigation. Glover requested Bowles' airline ticket which Bowles produced with shaking hands. The ticket, as noted above, was in the name of M. Bowles. Glover then asked Bowles for some form of identification and Bowles gave him a Tennessee identification card with the name Sherman Major Bowles, a name Glover recognized as being "narcotics-related" in the Atlanta area. After further questioning by Detective Glover, Bowles indicated that he was not carrying any narcotics and that he would consent to a search. After a short pause, however, Bowles said " 'I'd rather not do it (the search) here in the concourse.' (Glover) explained to him that (the DEA) had an office on the lower level there in the terminal building if he'd rather go down there, which he said he had (sic) rather go down there."

At this point Watson and Maffet approached, accompanied by the two officers. Dorsett asked Watson and Maffet whether they knew Bowles and they said that they did not; Glover asked Bowles whether he knew Maffet and Watson and Bowles indicated that he did not. The group then proceeded down the concourse to the DEA office.

After they had entered the DEA office, Agent Dorsett addressed Watson, Maffet, and Bowles. Reading from "a little card," Dorsett advised them that they were not under arrest, that they were under no obligation to consent to the search, and that they could refuse the search if they so desired." Dorsett asked all three "individually" if they understood and all three answered yes. Maffet and Watson both consented and were given pat down searches that yielded no contraband. Agent Dorsett then approached Bowles who remained seated in a chair. Addressing Bowles specifically, Dorsett asked Bowles if he would consent to a search and again informed Bowles that he had a right to refuse consent. Agent Dorsett testified that:

(Bowles) just sat there and I asked if he understood. He stood up. He did not say anything. Once again I asked him. I said, "Do you understand? I'm asking for your consent (to) search." I said, "Will you consent to it? You do not have to." At that point in time he just sort of raised his hands out and just sort of nodded his head, like, "Yeah, um" sort of grunted. Like: Go ahead. Held his hands out . . . .

Bowles had a jumble of papers in the pocket of his leisure suit and Dorsett removed them. In the pocket was also a small, partially-consumed block of manite, an Italian laxative that Dorsett knew from his experience as a narcotics agent was used as a "cutting agent" (dilutant) for both heroin and cocaine. Dorsett continued to pat down Bowles and felt an unnatural bulge just below Bowles' belt in the groin area. At Dorsett's direction Bowles lowered his pants and underwear and a package four inches square and wrapped in masking tape fell to the floor. The officers then opened the package and discovered smaller packages of powder wrapped in clear plastic. Bowles was then placed under arrest and handcuffed. The packages proved to contain 61.7 grams of heroin and 8.2 grams of cocaine.

II.

A. In analyzing the admissibility of the narcotics obtained from Bowles, our first task is to characterize the initial encounter between...