U.S. v. Espinosa-Guerra

• Citation: 805 F.2d 1502
• Decision Date: 16 December 1986
• Docket Number: D,ESPINOSA-GUERR,No. 86-8057,86-8057
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Jesusefendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1502

805 F.2d 1502

UNITED STATES of America, Plaintiff-Appellant, v. Jesus ESPINOSA-GUERRA, Defendant-Appellee.

No. 86-8057.

United States Court of Appeals, Eleventh Circuit.

Dec. 16, 1986.

Julie E. Carnes, Asst. U.S. Atty., Atlanta, Ga., for plaintiff-appellant.

Stephanie Kearns, Federal Public Defender, Atlanta, Ga., for defendant-appellee.

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

Before KRAVITCH and CLARK, Circuit Judges, and HENDERSON, Senior Circuit Judge.

CORRECTED OPINION

KRAVITCH, Circuit Judge:

The United States appeals from the district court's order suppressing cocaine ¹ discovered in a search of a small bag which defendant/appellee Jesus Espinosa-Guerra was carrying while awaiting a flight at the Atlanta airport. The district court concluded that the evidence must be suppressed because appellee had been seized without reasonable suspicion or, alternatively, arrested without probable cause. We reverse.

We find the district court's factual determinations, with the exceptions noted, ² are supported by the record. Because the progression of events leading to the search is critical to the resolution of this case, we discuss the facts in some detail. ³

In the early evening hours of July 16, 1985, appellee arrived at the Atlanta airport on a non-stop Delta flight from Miami. Paul Markonni, a highly experienced special agent with the Drug Enforcement Administration (DEA), ⁴ observed appellee deplane and approach a Delta ticket agent. Appellee held his ticket up to the agent and said "Detroit?". Agent Markonni observed: that appellee's ticket was issued in the name of Carlos Valdez; that there were no claim checks for baggage attached to the ticket jacket; that appellee was unshaven and appeared as though he had been in the same clothes for an extended period of time; and that appellee was carrying a small tote bag. The ticket agent told appellee "Gate 28" and pointed in the direction of the gate where the flight to Detroit was to depart some time later.

As appellee proceeded to Gate 28, Agent Markonni went to the Delta ticket counter to investigate. Markonni retrieved appellee's ticket reservation record and discovered that appellee had purchased the ticket approximately two hours prior to the flight's departure from Miami and that a south Florida telephone number was listed as his home call back number. Markonni telephoned the number and asked for Carlos Valdez. The voice at the other end denied any knowledge of anyone by that name.

Agent Markonni then went to Gate 28 to attempt to interview appellee. Dressed in casual civilian clothes, displaying no weapons, and speaking in a normal tone of voice, Markonni presented his credentials and identified himself to appellee as a law enforcement officer. Markonni asked appellee if he could speak with him for a few minutes. Appellee said yes. When Agent Markonni then asked to see appellee's airline ticket, appellee appeared not to understand and did not produce the ticket. Agent Markonni repeated the word "ticket," at which point appellee handed his ticket to Markonni. In examining appellee's ticket, Agent Markonni confirmed his earlier reading of the ticket and noted that the ticket had been purchased with cash and that no baggage claim checks were attached.

Agent Markonni then attempted to obtain information regarding appellee's identity. First, he asked appellee "what is your name?". Appellee did not respond. Markonni pointed to the name Carlos Valdez on the ticket and then pointed to appellee. Appellee responded, "Yes, Carlos Valdez." Markonni returned the ticket to appellee and asked him for identification or a passport. Appellee said "no." The agent pulled out his wallet, pointed to it, and then pointed at appellee. Appellee responded "nada." Markonni asked appellee if he spoke any English. Appellee said "no."

After these attempts to communicate with appellee had failed, Agent Markonni said "Momento, por favor," ⁵ and made a motion with his hand to suggest that appellee should follow him. Markonni wanted to telephone a Spanish speaking immigration officer at the airport who could speak with appellee to ask Markonni's questions. Appellee walked down the hall at Agent Markonni's side. ⁶ After Markonni discovered that he had no change to use the pay telephone fifteen or twenty feet down the hall, Markonni and appellee walked to the Delta Airlines office ⁷ located sixty-five or seventy feet down the hall from the point where the walk began. ⁸

Upon entering the Delta office, ⁹ Agent Markonni telephoned the United States Immigration and Naturalization Service (INS) office at the Atlanta airport. ¹⁰ Markonni spoke to Inspector Buskey, whom Markonni knew was fluent in Spanish. Markonni asked Inspector Buskey to speak with appellee in Spanish. Markonni requested that Buskey inform appellee of Agent Markonni's identity, ask the questions Markonni would normally ask, ¹¹ and inquire if Markonni could search appellee's person and his tote bag. Agent Markonni then handed the telephone receiver to appellee.

Inspector Buskey identified himself and questioned appellee in Spanish. In response to Buskey's questions, appellee said that his name was Valdez, that he was a Mariel Cuban, and that he had no identification of any kind. Inspector Buskey knew that federal immigration law makes it a criminal offense for Mariel Cubans not to have certain parole documents on their person at all times. ¹² Buskey asked appellee if he objected to Agent Markonni searching his luggage. Appellee responded that he did object and would not consent to such a search. Appellee then handed the telephone receiver back to Markonni.

After relating the details of what appellee had said, Inspector Buskey instructed Agent Markonni to detain appellee and bring him to the Immigration office. Markonni told appellee to sit, and then telephoned for a City of Atlanta uniformed police officer to transport appellee in a police vehicle to the Immigration office. ¹³

When appellee, Agent Markonni, and the Atlanta officer arrived at the Immigration office, Inspector Buskey identified himself and again inquired as to appellee's status in the United States. Appellee maintained that he was a Mariel Cuban, but said that he had left his documentation in his car in Detroit. At that point, Buskey searched appellee's personal effects for identification and evidence of alien registration. Inside appellee's tote bag, Inspector Buskey found clothing and a hard object wrapped in a towel. ¹⁴ Inside the towel, Buskey discovered a package wrapped completely with masking tape.

Buskey turned the package over to Agent Markonni, who testified that, without opening the package, he noticed that the substance inside had the odor and consistency of cocaine. Markonni cut a small slit in the package ¹⁵ and confirmed his suspicion. Markonni then placed appellee under arrest for possession of cocaine with intent to distribute. 21 U.S.C. Sec. 841.

The district court referred appellee's motion to suppress to a United States magistrate. After a hearing, the magistrate filed a report and recommendation that the motion to suppress be denied. Appellee timely objected to the magistrate's report and recommendation. The district court rejected the magistrate's recommendation and ordered the evidence suppressed.

I.

The preliminary issue that must be decided is what level of fourth amendment protection, if any, was implicated by Agent Markonni's conduct. It is now well established that not all police-citizen encounters are within the protective scope of the fourth amendment. Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) (plurality opinion); United States v. Alvarez-Sanchez, 774 F.2d 1036 (11th Cir.1985); United States v. Brown, 731 F.2d 1491, modified, 743 F.2d 1505 (11th Cir.1984).

In United States v. Berry, 670 F.2d 583 (5th Cir. Unit B 1982) (en banc), ¹⁶ we identified three tiers of police-citizen encounters with respect to the fourth amendment: (1) police-citizen communications involving no coercion or detention; (2) brief "seizures;" and (3) full scale arrests. Id. at 591. The first category of consensual encounters does not implicate fourth amendment scrutiny. Id. The second category involves reasonably brief encounters in which a reasonable person would have believed that he or she was not free to leave. Immigration and Naturalization Service v. Delgado, 466 U.S. 210, 104 S.Ct. 1758, 1762, 80 L.Ed.2d 247 (1984). In order to justify such a fourth amendment "seizure," the government must show a reasonable, articulable suspicion that the person has committed or is about to commit a crime. Florida v. Rodriguez, 469 U.S. 1, 105 S.Ct. 308, 310, 83 L.Ed.2d 165 (1984). Finally, when the totality of circumstances indicate that an encounter has become too intrusive to be classified as a brief seizure, the encounter is an arrest and probable cause is required. Florida v. Royer, 460 U.S. 491, 499-500, 103 S.Ct. 1319, 1325-26, 75 L.Ed.2d 229 (1983) (plurality opinion).

The district court focused upon the portion of the encounter where Agent Markonni: signalled appellee to follow him; walked down the hall to the Delta office with appellee; and brought appellee into the office where Markonni used the telephone. The court correctly determined that Markonni's initial stop of appellee up to the point when Markonni gestured for appellee to follow him, did not implicate the fourth amendment. A police officer may approach an individual in a public place, identify himself as a law enforcement officer, and, in a non-coercive manner, ask the individual a few questions, without converting the encounter into a seizure. Florida v. Rodriguez, 469 U.S. 1, 105 S.Ct. 308, 310, 83 L.Ed.2d 165 (1984); Royer, 460 U.S. at 497, 103 S.Ct. at 1324. The district court concluded, however, that at the time Markonni gestured for appellee to follow him, appellee did not reasonably...