U.S. v. Elmore

• Decision Date: 22 May 1979
• Docket Number: No. 78-5304,78-5304
• Citation: 595 F.2d 1036
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Alex ELMORE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1036

595 F.2d 1036

UNITED STATES of America, Plaintiff-Appellee, v. Alex ELMORE, Defendant-Appellant.

No. 78-5304.

United States Court of Appeals Fifth Circuit.

May 22, 1979.

P. Bruce Kirwan, Federal Public Defender, Janet F. Perlman, Asst. Federal Public Defender, Atlanta, Ga., for defendant-appellant.

William L. Harper, U. S. Atty., C. Michael Abbott, Asst. U. S. Atty., Atlanta, Ga., for plaintiff-appellee.

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

Before BROWN, Chief Judge, COLEMAN, and TJOFLAT, Circuit Judges.

COLEMAN, Circuit Judge.

Convicted after a jury trial of unlawfully possessing a controlled substance, heroin hydrochloride, with intent to distribute in violation of 21 U.S.C. § 841(a)(1), Alex Elmore now argues on appeal that the trial court committed reversible error in denying his motion to suppress. For reasons discussed below, we conclude that the drugs seized from Elmore were not the fruits of an unlawful stop and therefore the District Court properly denied Elmore's suppression motion.

On Saturday, October 8, 1977, Paul J. Markonni and Gerald D. Chapman, special agents of the Drug Enforcement Administration (DEA), were conducting a routine narcotics surveillance at Hartsfield International Airport in Atlanta, Georgia. Both agents had many years experience in the enforcement of federal drug laws.

The agents were positioned between Gates 61 and 63 on Concourse F. ¹ Concourse F is the connection between Gates 53-72 and the main terminal area. Gates 67-72 are in a rotunda at the end of Concourse F.

At approximately 5 o'clock p. m., Elmore deplaned at Gate 68 (in the rotunda) from a flight which had originated in Detroit. However, the DEA agents did not see Elmore when he got off the plane. Agents Markonni and Chapman first saw him as he left the rotunda and headed toward the main terminal. He was not carrying any baggage, but the baggage claim level was on a lower floor, with access by stairs or escalator, emanating from the main terminal area.

Elmore was seen walking into and then out of the Gate 66 area. No flights were due to arrive at that gate at that time. He then walked over to a window on the opposite side of the hallway, overlooking a parking area for planes. After looking out of this window he walked through the Gate 65 area. A flight had arrived at Gate 65 a "little bit earlier" and "had just about emptied" of passengers. The agents could not see into these gate areas.

Elmore resumed walking down the concourse in the agents' direction. According to Agent Chapman's testimony, "He looked back several times." Elmore stopped a couple of feet from the agents to examine an electronic flight monitor located in the concourse as well as to examine his ticket. We here observe that there is nothing unusual about a person verifying his flight number when looking for it on a monitor screen. At this point the DEA agents noticed that Elmore did not have any baggage claim receipts attached to his ticket.

Elmore then went to a Delta counter, where he received information concerning a flight from Atlanta to Birmingham. Birmingham is regarded by the DEA as being a heroin "use" city. Agent Chapman, standing in line behind Elmore at the counter, learned that Elmore had flown into Atlanta from Detroit, which is known by the DEA to be a large heroin distribution center.

From the Delta information center, Elmore entered the main terminal and once there proceeded to the Callaway Country Store and then to a card shop. He walked in and out of both stores without making a purchase or stopping for a more specific look at any of the merchandise. In the Callaway Country Store, according to Agent Chapman, Elmore once again "looked around sort of behind him."

Finally, Elmore began walking towards Gate 51, from which the Birmingham flight would depart. Before reaching the gate Elmore was observed to have "looked back several times." In fact, Agent Chapman testified that several times Elmore had observed the two DEA agents following him.

Once at Gate 51, Elmore checked in, received his boarding pass, and then took a seat. At this point, the DEA agents decided to question him because "his moves were sort of strange." Agent Chapman identified himself as a federal narcotics agent and asked to see Elmore's ticket. Elmore handed Agent Chapman a one-way ticket from Detroit to Birmingham. This ticket was made out to "E. Gray". Agent Chapman said, "Mr. Gray?" Elmore responded affirmatively.

Elmore then was asked to provide additional identification. He volunteered that his brother-in-law, E. Gray, had purchased the ticket in advance in Birmingham. Elmore had picked the ticket up in Detroit without any identification. Elmore, visibly nervous, also handed Agent Chapman an Alabama driver's license with his correct name on it.

Agent Chapman then knew that "something was wrong." The ticket was not marked Prepaid and it was contrary to airline policy, Agent Chapman knew, to give out a prepaid ticket without first requiring identification.

Agent Markonni took Elmore's ticket to Delta to check out Elmore's story. Meanwhile, Agent Chapman, in response to Elmore's inquiry, once more explained that he was a federal narcotics agent and that he was engaged in routine narcotics surveillance. Elmore's "whole facial expression changed. He appeared to be extremely nervous at that point." Elmore then informed Agent Chapman that there was a case pending against him for a heroin sale for which he had been arrested about six weeks earlier.

Agent Markonni subsequently returned with a printed history of Elmore's ticket. The day before Elmore had flown to Detroit under the name E. Gray with a one-way ticket purchased with cash in Birmingham. He returned less than 16 hours later on a one-way ticket which was paid for and picked up in Detroit.

Agent Chapman then asked Elmore whether he was carrying narcotics to which Elmore responded in the negative. After being advised of his right to refuse, Elmore consented to be searched. Elmore began undressing in the gate area but at the suggestion of one of the agents, they retired to a private lounge. Heroin was found in Elmore's left sock. Agent Markonni then informed him that he was under arrest. Additional heroin was then found in the right sock. ² Agent Chapman then advised Elmore of his Miranda rights.

Probable cause was found at a preliminary hearing on October 14, 1977. A one-count indictment subsequently was returned charging Elmore with the violation for which he ultimately was convicted. On November 21, 1977, a hearing was held before a United States Magistrate on Elmore's motion to suppress. The magistrate concluded that Elmore was not "seized" within the meaning of the Fourth Amendment until Agent Markonni "removed the airline ticket from Elmore's immediate presence . . . ." Up until that moment, the magistrate observed, the agents did not use force to detain Elmore and there was no evidence "to suggest that Elmore's freedom of movement was impeded in any way." The magistrate further concluded that at the time of the seizure of Elmore, reasonable suspicion existed justifying such "stop" under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The subsequent search of Elmore, during the course of which the drugs in question were uncovered, was therefore found to be lawful. Accordingly, the magistrate recommended that the suppression motion should be denied. The District Court denied Elmore's motion for a hearing de novo and adopted the magistrate's recommendation.

Following a two-day jury trial Elmore was found guilty and sentenced to ten years in prison to be followed by a special mandatory parole of three years. This appeal followed.

II.

There can be no question that Elmore was seized within the meaning of the Fourth Amendment prior to the formal announcement of arrest. The dispositive question is, when did the seizure take place? At the point when the agents first approached Elmore, identified themselves as federal law enforcement officers, and requested permission to inspect Elmore's ticket there did not exist the requisite quantum of suspicion. Elmore's activities up to that point may have matched several of the "Drug Courier Profile" characteristics ³ but it has been held the Profile is an insufficient basis, Without more, on which to bottom a lawful investigative stop. See United States v. Mendenhall, 6 Cir. 1979, 596 F.2d 706 (1979) (en banc) (probable cause); United States v. Rico, 2 Cir. 1979, 594 F.2d 320-324 (1979); United States v. Ballard, 5 Cir. 1978, 573 F.2d 913, 916. See also United States v. Klein, 5 Cir. 1979, 592 F.2d 909, at 911-912 & n. 3, and cases cited therein.

We shall assume Arguendo that if the initial contact between the agents and Elmore was also the moment at which Elmore was seized, then the drugs subsequently seized would be regarded as fruits of an unlawful stop, which would require that they be suppressed. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

On the other hand, if the finding that the seizure did not occur until Agent Markonni removed Elmore's ticket from Elmore's immediate vicinity is correct, then the seizure and all that followed was lawful.

Leaving the Profile to one side, at the time Elmore's airline ticket was taken from his presence the agents had determined that Elmore had arrived from an identified "source city". He was not carrying any baggage and no baggage claim checks were attached to his ticket. He was travelling under an assumed name. He exhibited an unusual degree of nervousness. He had provided false responses to the first three questions asked. He first claimed the name " E. Gray" even though that was not his real name. When asked for identification, he realized that the alias would be discovered and attempted to blunt this discovery by offering an explanation, which Agent Chapman knew to be false, of the...