U.S. v. Gonzales, 87-1157

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Citation842 F.2d 748
Docket NumberNo. 87-1157,87-1157
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Natalia GONZALES, Defendant-Appellant.
Decision Date01 April 1988

Gary Kleinschmidt, George R. Trimber, Fort Worth, Tex., for defendant-appellant.

Marvin Collins, U.S. Atty., Ft. Worth, Tex., Sidney Powell, Frederick M. Schattman, Asst. U.S. Attys., Dallas, Tex., for plaintiff-appellee.

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

Before VAN GRAAFEILAND, * JOHNSON, and JOLLY, Circuit Judges.

JOHNSON, Circuit Judge:

Defendant Natalia Gonzales entered a conditional plea of guilty to the charge of knowingly and intentionally possessing cocaine with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1). In doing so, Gonzales reserved her right to appeal the district court's denial of her motion to suppress evidence obtained from her following an investigatory stop by Drug Enforcement Agency (DEA) officers at the Dallas/Ft. Worth Airport. Because the record demonstrates that the DEA officers possessed sufficient reasonable suspicion to briefly detain Gonzales and the record further reflects that Gonzales' consent to the search of her bag was freely and voluntarily given, we affirm.

I. Facts and Procedural History

At approximately 9:15 a.m. on August 22, 1986, three DEA agents observed defendant Natalia Gonzales disembark from a non-stop flight from Miami, Florida. Carrying only a gym bag, Gonzales proceeded to walk slowly to a restroom located approximately fifty yards from Gate 20, the gate at which Gonzales had exited. As she was walking to the restroom, Gonzales looked around the terminal as if she expected to meet someone. Gonzales left the restroom after a few minutes and walked slowly past Gate 20 to a set of telephones, whereupon she made a call lasting approximately ten minutes. Thereafter, Gonzales walked to another set of telephones which was located in a gate area across from the restroom and remained in that area for two or three minutes. Because of their vantage point, the DEA officers were unable to observe whether or not Gonzales used a telephone in that area. Gonzales next entered a gift shop, remaining only for a short time and not purchasing any items.

After leaving the gift shop, Gonzales exited the "secured" area of the terminal into the baggage claim area. Gonzales then walked directly through the baggage claim area, down an escalator leading into a parking area, and immediately returned to the baggage area by traveling back up the adjoining escalator. Moving over to another set of phones in the baggage area, Gonzales made a call lasting approximately thirty minutes. Gonzales next walked back to the escalator which she had previously used and then back to the group of phones. At no time during her movements did Gonzales attempt to claim any baggage in the baggage area.

After observing Gonzales' movements and finding them suspicious, two of the three DEA officers approached Gonzales. By the time the officers approached Gonzales, approximately forty-five minutes had elapsed since Gonzales disembarked from the plane. One of the DEA officers, Officer Glenn, displayed his identification and told Gonzales he was with the DEA. During this exchange, the other DEA officer who had approached Gonzales stood directly behind Glenn. Glenn stood approximately 6'1" tall and weighed 280 pounds. The other officer was of comparable height but weighed 175 pounds. Gonzales stood approximately 5'4". When the two officers approached her, Gonzales was the only person in the baggage area and was standing near a corner and a bank of telephones.

After identifying himself, Glenn asked Gonzales whether he could speak with her for a minute. Glenn noticed that Gonzales appeared nervous, that her voice was cracking, and that her hands were trembling. Gonzales agreed to speak with Glenn and thereafter, Glenn requested to see Gonzales' airline ticket. Gonzales handed Glenn her ticket which was in the name of "Mrs. Garza." When Glenn asked Gonzales for some identification, Gonzales replied that she had lost her identification. Glenn then asked Gonzales how long she was going to stay in the Dallas/Ft. Worth area. Gonzales responded that she would remain in the area for several days. At this juncture, Glenn noticed that Gonzales' statement as to her length of stay in the area was inconsistent with Gonzales' ticket which indicated that she was scheduled on a return flight to Miami that same afternoon.

Thereafter, Glenn informed Gonzales that he was "working narcotics" and requested permission to look in her gym bag. Gonzales gave Glenn her permission, whereupon Glenn opened the bag and found clear plastic bags of white powder. At this point, Gonzales was arrested and taken to a nearby office. After being informed of her Miranda rights, Gonzales was asked whether she was carrying any other drugs. Gonzales responded that she was and revealed approximately 1000 grams of cocaine contained in plastic bags on her person.

Gonzales was indicted on September 9, 1986, on a single count of possession of cocaine with intent to distribute. Thereafter, Gonzales filed two motions to suppress the evidence seized from her bag and from her person as a result of the stop by the two DEA officers at the airport. After a hearing, the district court entered an order denying Gonzales' motion to suppress. Gonzales subsequently entered a conditional plea of guilty, reserving her right to appeal the district court's ruling on her motion to suppress and received a suspended sentence of five years imprisonment and a $3,000 fine. Gonzales now appeals the district court's order.

II. Discussion
A. Validity of the Stop

Initially, Gonzales contends that, from its inception, her encounter with the DEA officers amounted to a "seizure" not supported by reasonable suspicion and therefore, constituted a violation of the fourth amendment. The government maintains that the relevant contact between Gonzales and the officers did not exceed "mere communication"; thus, the fourth amendment was not implicated. The government further asserts that even if the investigatory stop constituted a "seizure" within the context of the fourth amendment, the stop was constitutionally valid as the officers possessed the requisite reasonable suspicion to justify the stop.

The seminal opinion in this Circuit on the interplay of airport drug stops and the fourth amendment is United States v. Berry, 670 F.2d 583 (5th Cir.1982) (en banc). In Berry, this Court carved out three tiers 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.

Id. at 591. Recognizing the unique character of airport stops and weighing the intrusion of such stops on an individual's fourth amendment interest against the government interest, the Berry Court rejected the proposition that all airport stops are "seizures" implicating the fourth amendment. Rather, the Court concluded that "airport stops of individuals by police, if of extremely restricted scope and conducted in a completely non-coercive manner, do not invoke the Fourth Amendment." Id. at 594. However, while extolling citizen cooperation with police, the Court in Berry cautioned that the delicate balance of government and individual interests in airport stops weighs in favor of the individual if law enforcement officials do more than identify themselves and briefly inquire if an individual is willing to speak with police. Id. at 595. The more intrusive the communication between the police and a citizen, the more likely that encounter is a "seizure" which must be supported by reasonable suspicion.

In describing the narrow range of circumstances in which a permissible airport stop may occur, the Berry Court initially concluded that a statement that a person is a law enforcement officer is not alone so coercive as to render an encounter between a citizen and police a seizure. Id. See also Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229 (1983). By conducting an airport stop in an "appropriately deferential manner" and by ascertaining whether an individual is willing to talk to police, a law enforcement officer may effectively elicit information without simultaneously working a significant intrusion on an individual's liberty interest. Berry, 670 F.2d at 595. Such cooperative exchanges between citizens and police significantly aid law enforcement efforts in our society.

Thus, adopting Justice Stewart's definition of a "seizure" set forth in United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980), the Court in Berry concluded that an airport stop becomes so intrusive as to escalate into a seizure necessitating reasonable suspicion only if "in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." Id. at 595 (quoting Mendenhall, 446 U.S. at 554, 100 S.Ct. at 1877). While noting that the resolution of any fourth amendment challenge to an airport stop is necessarily a fact-intensive inquiry, the Berry Court did set forth several factors on which a court "should place great weight" in determining when, under the totality of the circumstances, enough coercion by police is present as would stimulate a belief in a reasonable person that he was not free to leave. Specifically, if law enforcement officials block an individual's path or otherwise intercept him to prevent his progress, this Court has declared such conduct by the police to be a factor of "great, and probably decisive, significance." Id. at 597. While much more subtle and difficult to discern, implicit constraints on an individual's freedom, such as retaining a...

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