U.S. v. Cooke, 89-2261

• Citation: 915 F.2d 250
• Decision Date: 01 October 1990
• Docket Number: No. 89-2261,89-2261
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Vincent COOKE, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 250

915 F.2d 250

UNITED STATES of America, Plaintiff-Appellee, v. Vincent COOKE, Defendant-Appellant.

No. 89-2261.

United States Court of Appeals, Sixth Circuit.

Submitted Aug. 3, 1990.

Decided Oct. 1, 1990.

Yvonne V. Watford, Office of the U.S. Atty., Detroit, Mich., for plaintiff-appellee.

Cornelius Pitts, Detroit, Mich., for defendant-appellant.

Before MILBURN and GUY, Circuit Judges, and JORDAN, District Judge. ^*

RALPH B. GUY, Jr., Circuit Judge.

Defendant, Vincent Cooke, entered a conditional guilty plea to a one-count indictment charging possession with intent to distribute cocaine, 21 U.S.C. Sec. 841(a)(1). Prior to entering the plea, Vincent had filed a motion to suppress evidence, which was denied.

Upon a review of the record of the suppression hearing, we conclude that the district judge correctly denied the motion, and we affirm on the basis of Judge Zatkoff's written opinion.

I.

This is an airport search case. Cooke arrived in Detroit, Michigan, on an airplane that had flown non-stop from New York's LaGuardia Airport. Sgt. Jeriel Heard of the Wayne County Sheriff's Department, who is assigned to the airport drug task force, was monitoring this particular flight since New York is a source city of drugs coming into the Detroit area. Heard's attention was initially directed at Cooke because Heard observed that one of Cooke's two pieces of carry-on luggage had attached to it what appeared to be a new Greyhound bus luggage tag. Heard knew that drug couriers often used multiple forms of transportation when travelling to and from source cities. Cooke also appeared to be nervous and conducting counter-surveillance.

We do not dwell on the details of what Heard initially observed because we do not view this as a "profile" case, and we do not believe that Heard had the necessary reasonable suspicion to make a Terry stop. ¹ In any event, Heard followed Cooke, and when he saw that he was claiming no baggage, he radioed for another officer to assist in surveillance. Cooke left the terminal and then, appearing increasingly nervous, returned and made a quick telephone call. Upon the completion of the call, he hurriedly exited the terminal, at which point the two officers approached him, identified themselves, and asked if they could speak with him. Cooke agreed. The officers were dressed in plain clothes, and there was no show of weapons, use of force, or other coercive conduct.

Cooke further agreed, upon inquiry, to produce his airline ticket and identification, and the agents noticed his hands trembling as he did so. The ticket was one-way from New York to Detroit. Since Cooke had an Ohio driver's license, he was asked why he had come to Detroit, and he replied that he was going to Toledo, Ohio, to visit a friend. The documents were returned to Cooke after perusal.

Heard then explained that he was part of a group assigned to the airport to enforce the drug laws and asked if he could search Cooke's carry-on luggage. Cooke replied, "Yes. Go ahead and search." ² Since they were outside on the sidewalk at this time, Heard asked if Cooke would rather have the search there or inside the terminal, and Cooke indicated he would prefer to go inside. Cooke then picked up his luggage and accompanied the agents to a luggage conveyor belt just inside the terminal. Heard again asked Cooke if he could search the luggage, and again Cooke consented. The search revealed five kilograms of cocaine in Cooke's carry-on bag.

II.

In one of our very recent airport search cases, we make the following observation:

From the plethora of airport search cases now reported, it is clear that there are three distinct types of contact that occur between police officers and the travelling public. The first is contact initiated by a police officer without any articulable reason whatsoever. This contact and its consequences are referenced in Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229 (1983), as follows:

[L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions. See Dunaway v. New York, supra, [442 U.S. 200] at 210, n. 12 [99 S.Ct. 2248, at 2255, n. 12, 60 L.Ed.2d 824 (1979) ]; Terry v. Ohio, 392 U.S. at 31, 32-33, 88 S.Ct. at 1885, 1885-86 (Harlan, J., concurring); id., at 34, 88 S.Ct. at 1886 (WHITE, J. concurring). Nor would the fact that the officer identifies himself as a police officer, without more, convert the encounter into a seizure requiring some level of objective justification. United States v. Mendenhall, 446 U.S. 544, 555, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980) (opinion of Stewart, J.).

See also United States v. Collis, 699 F.2d 832, 834-35 (6th Cir.), cert. denied, 462 U.S. 1119, 103 S.Ct. 3088, 77 L.Ed.2d 1349 (1983).

The second type of contact is that predicated upon "reasonable suspicion"--the classic Terry stop. The temporary detention of a person meeting the drug courier profile would be an example of this type of police-citizen contact which, although constituting a seizure, would not offend the ...