U.S. v. Elsoffer

• Decision Date: 01 April 1982
• Docket Number: No. 80-7236,80-7236
• Citation: 671 F.2d 1294
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John Jay ELSOFFER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1294

671 F.2d 1294

UNITED STATES of America, Plaintiff-Appellee, v. John Jay ELSOFFER, Defendant-Appellant.

No. 80-7236.

United States Court of Appeals Eleventh Circuit.

April 1, 1982.

Bruce E. Pashley, Atlanta, Ga., for defendant-appellant.

Richard W. Hendrix, Julie E. Carnes, Asst. U. S. Atty., Atlanta, Ga., for plaintiff-appellee.

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

Before MORGAN, JOHNSON and HENDERSON, Circuit Judges.

JOHNSON, Circuit Judge:

In this case we consider whether, on the facts at issue, the stop and subsequent search of appellant John Jay Elsoffer by Drug Enforcement Agency (DEA) agents violated Elsoffer's Fourth Amendment rights.

I.

A verdict of guilty having been rendered and there being substantial evidence of guilt, we present the facts in this case in the light most favorable to the government. See United States v. Glasser, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942).

Two DEA agents while on duty at the Atlanta airport saw appellant Elsoffer exit a flight from West Palm Beach, Florida. Elsoffer was dressed in faded dungarees and had long hair and a full beard. As Elsoffer left the arrival gate, one agent, Terry Mathewson, saw a bulge shaped like a good-sized softbound book on the front of appellant's trousers from waistline to crotch. Mathewson saw the bulge again while observing Elsoffer as the latter walked about the airport concourse. Going to an airline ticket counter, the agent learned that Elsoffer had paid in cash for a one-way ticket from West Palm Beach to New York via Atlanta.

Joined by the other agent, Mathewson walked up to Elsoffer, who was using a vending machine, identified himself and his comrade as police officers, and asked to talk. After studying the agents' credentials, Elsoffer agreed. On request, Elsoffer handed Mathewson his ticket. The agent asked if appellant's name was "Elosser," the name on the ticket. Elsoffer said yes. Retaining the ticket, Mathewson asked for more identification. Elsoffer produced a driver's license with his name correctly spelled. Keeping both the ticket and the driver's license, ¹ Mathewson began asking Elsoffer questions about his home and itinerary. Elsoffer stated, somewhat evasively that he lived in New York but had spent the past three weeks in Florida visiting a friend. Mathewson thought that the length of the stay was odd because Elsoffer appeared to be carrying little luggage. Elsoffer became extremely nervous, upset, and angry during the conversation. He was sniffling and had a runny nose, possible evidence of a cocaine user. He began questioning the agents' identity but then acknowledged that he knew they were DEA agents although they had identified themselves only as police officers-a fact Mathewson thought curious because few people unfamiliar with the drug trade have heard of the DEA. ² Mathewson confirmed that the agents worked for the DEA, said they were looking for illegal drugs, and asked whether Elsoffer was carrying drugs on his person or in his luggage. Elsoffer replied that he was not. Mathewson asked for consent to a search. Elsoffer balked but, on being told that the agents sought his voluntary cooperation, consented. After the three had obtained Elsoffer's luggage, an agent then suggested that they go to a nearby lounge. Elsoffer again balked, then agreed.

Elsoffer opened his suitcase in the lounge. As one agent searched the suitcase, noticing that it contained only two or three changes of clothes, the other asked Elsoffer to consent to a patdown search. Elsoffer became upset, shouted that he did not want the search to continue, tried to close the suitcase on an agent's hand, and again questioned the agents' identity. The agents calmed Elsoffer and offered to take him to an Atlanta police office near the airport to prove they actually were police officers. Elsoffer agreed to go to the office, making clear that he would not leave the airport to go down dark alleys. The agents handcuffed Elsoffer at some point while in the lounge. ³

The agents took Elsoffer to the police office. DEA agent Paul Markonni arrived, was told of the events that had transpired, and asked Elsoffer to accompany him to an inner office. Elsoffer walked into the office, keeping his hands in front of the bulge as he did so. The agents twice asked for, and were twice refused, consent for a search. Markonni twice asked Elsoffer to stand and, on Elsoffer's refusal, ordered him to do so. Elsoffer put his hands in front of the bulge and tried to roll himself into a ball. The two agents forcibly stretched Elsoffer out while Markonni searched him and found that the bulge was caused by a packet containing white powder that proved to be cocaine. Elsoffer was formally arrested.

Elsoffer made a motion to suppress the evidence seized during the search. The magistrate's report suggesting that the motion be denied appears to find that Elsoffer was not seized during the initial stop, that on being handcuffed he was seized in a manner that was tantamount to an arrest, and that the search following the detention was legal because the agents had probable cause to arrest. The district court, adopting the magistrate's report and conclusion, denied the motion. Acting on the basis of the report, the district court, sitting without a jury, convicted Elsoffer of possession of cocaine with intent to distribute. ⁴ On appeal, this Court remanded, 644 F.2d 357, because of doubts concerning whether the district court had read the transcript of the magistrate's hearing before denying Elsoffer's motion to suppress. ⁵ The district court on remand stated that it had reviewed the transcript and denied the motion to suppress on the basis of the magistrate's report. Elsoffer's appeal, objecting to the denial of the motion to suppress, again is before this Court.

II.

The former Fifth Circuit recently has canvassed the legal standards governing airport stops. United States v. Berry, 670 F.2d 583 (5th Cir. 1982). This case gives us an opportunity to apply that decision. ⁶

As the Court noted in Berry, the Supreme Court has articulated three levels of police-citizen encounters: "communication between police and citizens involving no coercion or detention and therefore without the compass of the Fourth Amendment, brief 'seizures' that must be supported by reasonable suspicion, and full scale arrests that must be supported by probable cause." At 591. Our first inquiry must therefore be to determine the point in this case at which voluntary communication ended and Elsoffer was seized by the DEA agents.

The Court in Berry held that an initial stop of an individual at an airport is not a seizure. It adopted the proposal of Justice Stewart in his plurality opinion in United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980), who stated that a seizure occurs when, "in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." However, realizing that the very nature of an airport renders it easy to exert subtle coercion, the former Fifth Circuit noted that courts should scrutinize the record with care to ensure that the totality of the circumstances shows an utter absence of coercion and hence truly voluntary consent. In particular, the Court noted that retaining an individual's ticket for more than a minimal amount of time might well tip the balance in favor of holding that, in light of the totality of the circumstances surrounding an airport stop, a seizure has occurred. At 597. We believe that that last consideration is applicable in this case. Agent Mathewson retained Elsoffer's ticket while asking for his driver's license, then retained both documents while interrogating him. Given the circumstances surrounding an airport stop, Elsoffer hardly could have felt free to leave while Mathewson retained the ticket-especially since Elsoffer needed the ticket in order to continue his flight to New York. We hold that a seizure occurred when agent Mathewson retained the ticket while asking for further identification. We do not believe, however, that this seizure violated Elsoffer's Fourth Amendment rights, for we conclude that it was based on "specific and articulable facts which, taken together with rational inferences from those facts," constitute reasonable suspicion. Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968). The bulge of unusual size and shape that Mathewson observed on Elsoffer's body provided a sufficiently specific and articulable basis justifying the seizure. See United States v. Roundtree, 596 F.2d 672, 674 (5th Cir. 1979) (bulge on leg that suspect attempted to conceal gave rise to reasonable suspicion).

We focus next on the time at which the detention of Elsoffer expanded beyond the scope of a seizure and became tantamount to an arrest. The former Fifth Circuit stated in Berry that it was particularly concerned with ensuring that consent to accompany an agent to an office was voluntary; "only exceptionally clear evidence of consent should overcome a presumption that a person requested to accompany an agent to an office no longer would feel he was free to leave." At 598. The Court also held that requiring an individual to accompany an agent to an office was tantamount to an arrest. Examining the totality of the circumstances at the time he was taken to the lounge-which we believe to be analytically indistinguishable from an office-it is clear that Elsoffer would have felt free neither to refuse consent to a search nor to...