U.S. v. Dodier

• Decision Date: 23 September 1980
• Docket Number: No. 79-5059,79-5059
• Parties: UNITED STATES of America, Appellant, v. Andre J. P. DODIER, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 232

630 F.2d 232

UNITED STATES of America, Appellant, v. Andre J. P. DODIER, Appellee.

No. 79-5059.

United States Court of Appeals Fourth Circuit.

Argued June 5, 1980.

Decided Sept. 23, 1980.

Robert F. McDermott, Jr., Asst. U. S. Atty., Alexandria, Va. (William B. Cummings, U. S. Atty., Alexandria, Va., Carolyn W. Brickley, Third Year Law Student on brief), for appellant.

Daniel M. Preminger, Philadelphia, Pa., on brief, for appellee.

Before PHILLIPS and SPROUSE, Circuit Judges, and KIDD ^*, District Judge.

SPROUSE, Circuit Judge:

The defendant, Andre J. P. Dodier, was indicted for unlawfully importing cocaine (21 U.S.C. §§ 952(a), 960), possessing cocaine with intent to distribute (21 U.S.C. § 841(a)(1)), and for violating a section of the Travel Act (18 U.S.C. § 1952(a)(3)). Two hearings were held on defendant's pre-trial motion to suppress, and the district court suppressed testimonial evidence of two oral confessions as being involuntarily made. The government appeals pursuant to 18 U.S.C. § 3731, certifying that the suppressed evidence constitutes substantial proof of the charges against the defendant. We reverse and remand.

United States Customs officials at the Dulles International Airport discovered approximately seven pounds of cocaine concealed behind a ceiling panel in the rear-port lavatory on a Braniff aircraft during a routine search of the aircraft. The aircraft had arrived at the Virginia airport following an international flight originating in Lima, Peru.

A special agent for the Drug Enforcement Administration (DEA) and a customs agent were assigned to surveil the continuation flight from Dulles Airport to the John F. Kennedy Airport in New York. Dodier and a female acquaintance were on that flight and re-boarded the plane when it resumed its scheduled flight to J.F.K. The only information then available to the agents was a list of the names of the passengers and the fact that seven pounds of cocaine were concealed in one of the lavatories.

Dodier and his female companion called attention to themselves immediately. As the flight commenced, they nervously watched the persons approaching the three restrooms in the rear of the plane. Dodier went twice to the lavatory containing the concealed cocaine. Once he waited to use that lavatory when the other two were clearly vacant and available for use. While this was happening, Dodier's female companion knelt in her seat facing the lavatories in the rear of the plane. Dodier and his companion became the prime suspects.

One of the agents exited the plane upon landing at J.F.K. Airport and consulted with local customs agents. As the passengers disembarked, this agent, unaware that the cocaine had not been removed from the aircraft, pointed out to waiting customs officials seven persons who had used the lavatory containing the cocaine or who had been in contact with Dodier on the flight so that the narcotics might have been transferred to them. These persons, including Dodier, were stopped by an unidentified agent who requested them to take a seat in the lounge area. Dodier was approached by a special DEA agent who identified himself and requested Dodier's name and passport. These were furnished and were in proper order. Dodier was then directed to a seating area some ten to twelve feet away from the other passengers so they could speak with more privacy. The agent advised him of his Miranda rights and informed him that he was investigating an attempt to smuggle cocaine into the United States. He said Dodier was suspected and asked from whom the cocaine was obtained and to whom it was to be delivered. Dodier, without more, confessed involvement in the cocaine smuggling but asserted that his female companion was in no way involved. This occurred at approximately twelve noon, a few minutes after the plane had landed.

Dodier was then arrested and taken to a DEA office located within the airport. Miranda warnings were given again and Dodier signed a Miranda waiver of rights form. He again admitted his involvement to the same DEA agent to whom he had previously confessed. Shortly thereafter he asserted his right to remain silent, refused to sign a written confession, and the interview was terminated. Later that same afternoon, after fingerprinting and administrative processing, Dodier was taken to a United States magistrate.

Dodier denied at the second suppression hearing that he had used the lavatory containing the cocaine-saying he had used a different one. He denied staring at persons using the aircraft's lavatories or in any way acting in a suspicious or unusual manner. His female companion did not testify. He said a special agent at the J.F.K. Airport approached him, searched his hand luggage, took him bodily aside, and told him that an informant had advised of his involvement in the smuggling attempt. According to Dodier, he was told "they" had a warrant for his arrest, was shown a piece of paper with his name typed on it, and was warned if he refused to confess his female companion would be thrown in jail and probably raped there. He explained this was the reason he invented the quick confession. He said he thought he had no choice in signing the waiver form, believing his signature made no difference. The special agent who conducted the questioning emphatically denied all the allegations of misconduct attributed to him.

Dodier contends that the initial investigatory stop was not lawful, that the law enforcement authorities exceeded their power by detaining and questioning him, and that his statement was the result of an illegal arrest under Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), and Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975). The government argues that the district court's finding that the confession was involuntary is clearly erroneous.

The investigative stop of Dodier was constitutionally permissible. It is well established that a police officer under appropriate circumstances may "approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest." Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968). The minimal intrusion on privacy rights by an investigative stop is permissible if "the police officer (can) point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Id. at 21, 88 S.Ct. at 1880. This Circuit has recognized and applied these principles in numerous cases. See, e. g., United States v. Constantine, 567 F.2d 266 (4th Cir. 1977), cert. denied, 435 U.S. 926, 98 S.Ct. 1492, 55 L.Ed.2d 520 (1978); United States v. Bull, 565 F.2d 869 (4th Cir. 1977), cert. denied, 435 U.S. 946, 98 S.Ct. 1531, 55 L.Ed.2d 545 (1978).

Dodier was a passenger on a flight originating from Lima, Peru, which carried seven pounds of hidden cocaine. Thus the agents knew someone was committing a serious narcotics offense. The trial court resolved factual issues concerning Dodier's conduct against him. The conduct of Dodier and his companion during the flight provided the basis for a reasonable suspicion of his involvement.

The stop was conducted in a reasonable manner and was of a very brief duration. The defendant was not frisked and, in fact, the agent took steps to ensure other passengers would not be aware of his being questioned concerning a criminal matter. The modest intrusion on the privacy rights of the defendant was more than outweighed by the substantial public interest in the detection and elimination of drug smuggling. Moreover, the interviewing agent, before questioning, expressly informed the defendant of his Miranda rights, which he indicated he understood. Having ruled the initial stop constitutionally proper, we also conclude defendant's confession afforded the agents probable cause to make the arrest. Defendant's oral statements were...