U.S. v. Frost

• Decision Date: 22 July 1993
• Docket Number: No. 92-3579,92-3579
• Citation: 999 F.2d 737
• Parties: UNITED STATES of America v. David Loren FROST, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 737

999 F.2d 737

62 USLW 2130

UNITED STATES of America v. David Loren FROST, Appellant.

No. 92-3579.

United States Court of Appeals Third Circuit.

Argued May 20, 1993.

Decided July 22, 1993.

Thomas W. Corbett, Jr., U.S. Atty., Paul J. Brysh (Argued), Asst. U.S. Atty., Gina M. Caldone, Pittsburgh, PA, for appellee.

Stanton D. Levenson (Argued), Pittsburgh, PA, for appellant.

Before: STAPLETON and ALITO, Circuit Judges and POLLAK, District Judge ^*.

OPINION OF THE COURT

STAPLETON, Circuit Judge:

After the denial of his motion to have the evidence against him suppressed, appellant Frost pleaded guilty to one count of possession with intent to distribute cocaine in excess of five kilograms, and was sentenced to 120 months in a federal prison. The sole issue before us is whether the District Court erred in denying Frost's motion to suppress. We find no error and will affirm the judgment of the District Court.

I.

On April 21, 1992, Allegheny County Police Detectives Edward Adams and Anthony Olearchick were assigned to a narcotics interdiction detail at the Greater Pittsburgh International Airport. At about 5:00 p.m., Detective Adams observed Appellant Frost disembark from a USAir flight from Ft. Lauderdale, Florida. Frost carried no luggage, and Adams noticed that Frost had bulges in the pockets of his jeans. Adams would later testify that he knew Ft. Lauderdale to be a source city for drugs and that he was aware that police officers and detectives had previously made many airport arrests of persons carrying drugs from Ft. Lauderdale.

Adams watched Frost enter a rest room and exit about 15 seconds later. Adams would testify that the practice of entering a rest room, and then exiting seconds later, is a common counter-surveillance technique. As Frost exited the rest room he looked around suspiciously as though trying to determine whether he was being followed. Frost was also pulling down his tee-shirt in what appeared to be an attempt to conceal something on his person. As Adams followed Frost along the public corridor, he observed the outline of what appeared to be cigarette rolling papers, which are used in rolling marijuana cigarettes, in Frost's back pocket. Adams phoned Detective Olearchick and met him near a snack bar area. Both Adams and Olearchick observed Frost as he again entered a rest room and exited moments later.

At this time, at about 5:20 p.m., Adams and Olearchick approached Frost, identified themselves as police officers, and asked "Is it okay if we talk with you for a few minutes?" Frost agreed to speak with them, and a conversation ensued. At the time of the conversation, the two detectives were standing side by side with their backs to a service hallway, and Frost stood facing them with his back to the main corridor. Neither detective attempted to touch Frost, and neither detective's gun was visible.

Frost related that he was coming from Ft. Lauderdale and was on his way to Lansing, Michigan. He produced his ticket folder upon request, and the detectives noticed that there was a baggage claim check attached to the ticket folder. Detective Adams recorded the information on the baggage claim check, and then returned the ticket folder to Frost. The detectives asked who paid for the ticket and Frost stated that his uncle had paid the fare. Shortly thereafter Frost stated that he had bought the ticket himself. Later, Frost said again that his uncle had bought the ticket.

As the conversation continued, Frost appeared to grow increasingly nervous. He was shifting from foot to foot and began wringing his hands. Frost related that he was in Florida to visit his uncle and, upon request, produced identification. The detectives inspected and then returned the identification.

Detective Adams then stated that he and Detective Olearchick were narcotics officers. Detective Adams stated that he had observed the large bulges in Frost's pockets. Adams asked Frost "if it would be okay with him, if he could show us what was in his pockets." Adams stated that Frost was under no obligation to comply. Frost voluntarily reached into his pockets and produced a large roll of cash from each pocket. The cash totalled $3,035, and was mostly in ten and twenty dollar bills. Frost also produced a sky pager, which is commonly used in drug trafficking. As Frost retrieved the pager from his pocket, he turned it off, which has the effect of erasing the telephone numbers recorded on the pager.

At about 5:27 p.m., the detectives asked Frost to accompany them to the airport police station in order to investigate the matter further, and Frost agreed. Frost and Olearchick then proceeded the 1500 feet to the airport police station, while Adams went to retrieve Frost's suitcase. Adams arrived at the station with the suitcase at about 5:40 p.m. There was a padlock on the suitcase.

When Adams arrived, Frost and Olearchick were seated in the interview room. Frost identified the suitcase as his own, but claimed he did not know how a padlock had become attached to the suitcase. Adams asked Frost if he would consent to a search of the suitcase, and Frost refused. At approximately 5:55 p.m., Adams informed Frost that they would call in a drug-sniffing dog to inspect the suitcase and the money, and that they would attempt to secure a search warrant for the suitcase.

At approximately 6:00 p.m., the detectives attempted to bring in a drug-sniffing dog and its handler. Because no canine drug detection unit was on duty that day, one had to be summoned to the airport. At approximately this time, the detectives also verified Frost's identification and found that he had no outstanding arrest warrants. Detective Olearchick phoned the police department in the Emmett Charter Township, Michigan, and was informed by a police officer there that Frost was arrested in 1990 for possession of a "large amount of marijuana." Olearchick phoned the police office in downtown Pittsburgh which verified, by computer, that Frost had a 1990 felony arrest for possession of marijuana. Frost would later assert that the 1990 offense resulted in a conviction for a marijuana misdemeanor.

The detectives informed Frost that he was free to leave or remain while they attempted to get a search warrant. Frost told the detectives that there were no narcotics in the bag, threatened to file a law suit against them, and then stated that he wanted to catch the next flight to Lansing. The detectives gave Frost receipts for the suitcase, the cash and the pager, and instructed him on how to retrieve the items if the detectives failed to get a search warrant or if no drugs were found. Frost left the station at approximately 6:55 p.m. and subsequently boarded a flight to Lansing.

A few minutes after Frost's departure from the station, the dog and its handler arrived, and the dog sniff took place at approximately 7:00 p.m. The dog "alerted" to the cash, but not the suitcase. The detectives then drafted and signed an affidavit to be submitted in support of an application for a search warrant. The affidavit mentioned that the dog alerted to the cash, but did not mention that the dog was exposed to, and did not alert to, the suitcase. The affidavit also mentioned that Frost's felony arrest in 1990 was for a "large amount of marijuana." A district justice issued a search warrant at 7:55 p.m.

Upon obtaining the warrant, the detectives searched the suitcase and found ten one-kilogram packages of cocaine. Each package was sealed in a plastic bag, covered with tape, sealed in another plastic bag, wrapped in a layer of aluminum foil and a layer of duct tape, smeared with axle grease, and wrapped in yet another layer of plastic wrap and duct tape.

Frost was then removed from his flight to Lansing, which had yet to depart, and returned to the airport police station at 9:15 p.m. where he was advised of his Miranda rights. Frost signed a written waiver of his rights and gave a detailed statement admitting that he had been a cocaine courier for about one year, and that he had earned $150,000 to $180,000 profit.

Before the District Court, Frost moved to suppress the cocaine and his incriminating statements and offered three arguments in favor of suppression. Frost claimed that an unconstitutional seizure occurred at his first encounter with the detectives, that the detectives violated his privacy interest in his luggage by taking too long to submit the luggage to the dog sniff, and that the search warrant lacked probable cause because the affidavit omitted the fact that the dog had not alerted to the suitcase and also because the affidavit misrepresented the amount of marijuana that was involved in Frost's prior incident.

The District Court denied the motion to suppress. Frost then pleaded guilty to one count of possession with intent to distribute cocaine in excess of five kilograms, and was sentenced to 120 months imprisonment. Frost brought this appeal of the District Court's judgment to deny the motion to suppress, asserting the same three arguments he offered in initial support of the motion.

II.

A.

Frost's first argument is that he was unconstitutionally seized at the point he first encountered Detectives Adams and Olearchick. We disagree.

The Supreme Court has set forth an objective standard for determining whether a person has been "seized" for the purposes of the Fourth Amendment: "We conclude that a person has been 'seized' within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980). See also Florida v. Bostick, --- U.S. ----, ----, 111 S.Ct. 2382, 2387, 115 L.Ed.2d 389 (1991) ("When police attempt to question a person who is walking down the street or through an airport lobby, it makes sense to inquire whether a reasonable person would feel free to...