U.S. v. Fifty-Three Thousand Eighty-Two Dollars in U.S. Currency, $53,082.00

• Decision Date: 23 March 1993
• Docket Number: EIGHTY-TWO,FIFTY-THREE,No. 91-2335,91-2335
• Citation: 985 F.2d 245
• Parties: UNITED STATES of America, Plaintiff-Appellant, v.THOUSANDDOLLARS IN UNITED STATES CURRENCY, $53,082.00, Defendant-Appellee, Gregory Brunson; Willie W. Dixon, Claimants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 245

985 F.2d 245

UNITED STATES of America, Plaintiff-Appellant, v. FIFTY-THREE THOUSAND EIGHTY-TWO DOLLARS IN UNITED STATES CURRENCY, $53,082.00, Defendant-Appellee Gregory Brunson; Willie W. Dixon, Claimants-Appellees.

No. 91-2335.

United States Court of Appeals Sixth Circuit.

Argued and Submitted Sept. 25, 1992.

Decided Jan. 7, 1993.

Rehearing and Rehearing En Banc

Denied March 23, 1993.

Kathleen Moro Nesi, Asst. U.S. Atty. (argued and briefed), Detroit, MI, for plaintiff-appellant.

Charles H. Brown (briefed), Detroit, MI, for appellees.

Before: BOGGS and SUHRHEINRICH, Circuit Judges; and WELLFORD, Senior Circuit Judge.

SUHRHEINRICH, Circuit Judge.

Plaintiff United States of America appeals from the grant of summary judgment for claimants Gregory Brunson and Willie W. Dixon in this civil forfeiture action brought under 21 U.S.C. § 881(a)(6). Finding no error, we AFFIRM.

I.

On June 6, 1988, two DEA task force agents approached claimants as they sat in a departure area at Detroit Metropolitan Airport. The agents approached claimants initially because of the following observations: Brunson was shaking nervously; claimants were waiting in a departure area of a plane headed for Dallas, Texas, a known source city for narcotics; claimants carried only small gym bags for luggage; and claimants had isolated themselves from the crowd.

After the agents identified themselves as law-enforcement agents, claimants agreed to answer their questions. Upon request, claimants produced airplane tickets which had been purchased that same day with cash and had no baggage claim receipts. The tickets were for a flight to Dallas that afternoon and a return flight to Detroit the next day.

Claimants allowed the agents to search their duffel bags. While the agents looked through the bags, claimants revealed that together they were carrying $45,000 in their socks. ¹ Brunson did not want to reveal the money in a public area, but agreed to reveal it in the DEA office at the airport. At this point, both agents advised claimants that they were not under arrest. Claimants still possessed their identification, tickets, and belongings.

Once in the office, claimants removed the money from their socks, and placed it on the table. At this point, agent Denton told claimants that the money would be subjected to a dog sniff. The dog reacted positively for drugs. The agents then seized the currency.

On February 8, 1989, the United States filed a complaint for forfeiture of the money in the United States District Court for the Eastern District of Michigan. On March 18, 1991, the government filed a motion for summary judgment and on May 17, 1991, claimants filed a cross-motion for summary judgment. The district court granted claimants' motion for summary judgment, finding that claimants' currency was seized in violation of the Fourth Amendment and that the government did not have probable cause to support the forfeiture.

On appeal, plaintiff argues that claimants consented to the seizure or, in the alternative, that the encounter was a Terry stop supported by reasonable articulable suspicion.

II.

We review the grant of a motion for summary judgment de novo, viewing the facts in the light most favorable to the non-moving party. United States v. $67,220 in United States Currency, 957 F.2d 280, 284 (6th Cir.1992). Claimants presented nothing to contradict the government's version of what transpired; therefore, no genuine issues of material fact exist. Our only task is to decide whether claimants are entitled to judgment as a matter of law.

III.

Airport stops and searches occur frequently and agents often rely on the "drug courier profile" ² to justify stopping and investigating people for possible drug activity. While we recognize the governmental interest in stopping the drug traffic in our airports, see United States v. Place, 462 U.S. 696, 704, 103 S.Ct. 2637, 2643, 77 L.Ed.2d 110 (1983), we also recognize the need for careful protection of Fourth Amendment freedoms from overly-intrusive law enforcement activity. See United States v. Saperstein, 723 F.2d 1221, 1224 (6th Cir.1983); United States v. Sanders, 719 F.2d 882, 883 (6th Cir.1983). Fourth Amendment inquiries are fact-specific and each case must be evaluated on its own facts. See Sanders, 719 F.2d at 883.

The district court held that when the agents told claimants that the money would be subjected to a dog sniff, a seizure occurred. United States v. Fifty-Three Thousand Eighty-Two Dollars in United States Currency, $53,082.00, 773 F.Supp. 26, 30 (E.D.Mich.1991). The court also held that, under United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983), ³ the seizure was not reasonable because the seizure of the currency here was more intrusive than the seizure of luggage in Place, and the law enforcement interest was not great enough to justify a search based on less than probable cause. $53,082.00, 773 F.Supp. at 30-33. Finally, the court held that probable cause did not exist for the forfeiture. Id. at 33-34. We agree.

A.

A seizure is "some meaningful interference with an individual's possessory interests in that property." United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 1656, 80 L.Ed.2d 85 (1984). When the agents "told" claimants that the money would be tested with a narcotics detection dog, they meaningfully interfered with claimants' possessory interests in the cash.

Further, claimants did not consent to the seizure because they were not presented with any choice. Consent must be "in fact voluntarily given, and not the result of duress or coercion, express or implied." Schneckloth v. Bustamonte, 412 U.S. 218, 248, 93 S.Ct. 2041, 2058, 36 L.Ed.2d 854 (1973). See United States v. Cooke, 915 F.2d 250, 252 (6th Cir.1990) ("[C]onsent must be unequivocal and intelligently given, untainted by duress or coercion."). Telling claimants the money would be tested by a narcotics dog was a conclusive statement, not a request; therefore, consent could not be given.

B.

As there was no consent, the warrantless seizure must be justified under one of the narrow exceptions to the general requirement that seizures must be authorized by a warrant. See Place, 462 U.S. at 701, 103 S.Ct. at 2641. The government argues that the seizure was an investigative detention justified by reasonable articulable suspicion. We disagree.

1.

Under Place, "[w]hen the nature and extent of the detention are minimally intrusive of the individual's Fourth Amendment interests, the opposing law enforcement interests can support a seizure based on less than probable cause." Place, 462 U.S. at 703, 103 S.Ct. at 2642. Place does not give blanket authority to base all seizures on no more than reasonable articulable suspicions; rather, Place allows courts to evaluate individual circumstances and decide whether reasonable articulable suspicions are all that is required to justify the seizure at issue. See id. In this case, we cannot find that reasonable articulable suspicions are all that is required.

In Place, the defendant travelled from Miami to New York. Upon his arrival at New York's LaGuardia Airport, Drug Enforcement Administration (DEA) agents stopped the defendant based on their own observations of suspicious activity, as well as observations of Miami law enforcement officers who had relayed their suspicions to the New York officers. The defendant's luggage was taken from him and subjected to a dog sniff without his consent. Id. at 699, 103 S.Ct. at 2640. Although the Court held that the seizure of the luggage was not properly limited in terms of duration, the Court also held that a dog sniff of luggage could be justified on less than probable cause because of the rapidity of the procedure and the limited intrusion on any privacy interest in the luggage. Id. at 707-10, 103 S.Ct. at 2644-46.

The facts of Place present a substantially different type of privacy interest than is presently involved. In Place, government agents seized the defendant's luggage; whereas, in this case, the agents seized cash which claimants carried on their persons. Luggage is routinely subject to airport scrutiny unlike items carried on one's person. In this regard, we agree with the district court, which stated:

Obviously, the privacy interests in luggage are of a different order than the privacy interests in personal effects carried on the person. First, luggage is routinely x-rayed as part of airport security. Second, with respect to the luggage itself, as opposed to its contents, the person's possession of the luggage is open and public. One need only observe a person to determine whether he is in custody of luggage. Personal effects, however, are concealed on the possessor's person.

$53,082.00, 773 F.Supp. at 32. Thus, a greater expectation of privacy exists in items carried on one's person. Probable cause is required to justify the seizure of such items.

Probable cause "means [a] 'reasonable ground for belief of guilt, supported by less than prima facie proof but more than mere suspicion.' " $67,220, 957 F.2d at 284 (citations omitted). As discussed below, the facts held by the agents did not establish reasonable articulable suspicions; therefore, they surely do not show probable cause.

2.

Even if reasonable articulable suspicions could justify this seizure, these facts do not show such suspicions. Investigatory seizures must be supported by reasonable articulable suspicions which are based both on objective and particularized observations about the person seized. See Reid v. Georgia, 448 U.S. 438, 441, 100 S.Ct. 2752, 2754, 65 L.Ed.2d 890 (1980) (per curiam); United States v. Knox, 839 F.2d 285, 289 (6th Cir.1988), cert. denied, 490 U.S. 1019, 109 S.Ct. 1742, 104 L.Ed.2d 179 (1989). Drug profile characteristics can provide some objective basis for the government's suspicions, Knox, 839 F.2d at 289; however, courts have hesitated to rely too much on the drug courier profile because it...