U.S. v. Grant

• Decision Date: 03 December 1990
• Docket Number: Nos. 90-1397,90-1398,s. 90-1397
• Citation: 920 F.2d 376
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Harold Evan GRANT, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 376

920 F.2d 376

UNITED STATES of America, Plaintiff-Appellant, v. Harold Evan GRANT, Defendant-Appellee.

Nos. 90-1397, 90-1398.

United States Court of Appeals Sixth Circuit.

Argued July 27, 1990.

Decided Dec. 3, 1990.

Rehearing Denied in No. 90-1397

Feb. 13, 1991.

Robert Cares, Detroit, Mich., for plaintiff-appellant.

Kenneth R. Sasse, Detroit, Mich., for defendant-appellee.

Before KEITH and GUY, Circuit Judges, and CELEBREZZE, Senior Circuit Judge.

KEITH, Circuit Judge.

Defendant Harold Evan Grant ("Grant") is charged with possession with intent to distribute over one kilogram of phencyclidine ("PCP"), in violation of 21 U.S.C. Sec. 841(a)(1). The United States (the "Government") appeals from the district court's March 21, 1990 order suppressing evidence, ¹ pursuant to 18 U.S.C. Sec. 3731; and its March 8, 1990 order releasing Grant on bail, pursuant to 18 U.S.C. Sec. 3145. For the reasons stated below, we AFFIRM.

I.

A.

Based on the January 18, 1990 suppression hearing testimony of Border Patrol Agent Donald Buechner ("Agent Buechner"); Border Patrol Agent Jeffery Coudure ("Agent Coudure") (collectively "the agents"); Roger LaGrone, a supervisor for Northwest Airlines at LaGuardia Airport in New York City ("LaGrone"); Albert Sornberger, an officer with the New York Port Authority stationed at LaGuardia Airport ("Officer Sornberger"); and Larry Cornish, a Deputy Wayne County Sheriff ("Deputy Cornish"), the district court made the following findings of fact:

Border Patrol agents regularly check early morning flights arriving at Detroit Metropolitan Airport from the Southwest for drug traffickers and for illegal aliens, because those flights are not checked in their cities of origin. The agents check both passengers who deplane and those in transit. According to their testimony, the agents regularly question everyone who remains seated on such a flight, regardless of whether or not there is an articulable reasonable suspicion that the person is an illegal alien.

On November 19, at approximately 6:00 AM, there were two Border patrol agents [Agent Buechner and Agent Coudure] present at the Detroit Metropolitan Airport to check Northwest Airlines flight 338, a domestic flight that originated in Los Angeles and was scheduled to proceed on from Detroit to New York City. Flight 338 arrived at approximately 6 AM and was scheduled to depart at approximately 7 AM. The arriving passengers deplaned before the Border Patrol agents reached the gate.

When the agents arrived at the gate at approximately 6:30 AM, they boarded the plane and walked through it once without questioning anyone. They then left the plane to question two passengers suspected of being illegal aliens who had already deplaned and were waiting in the gate area. After determining that the two passengers were illegal aliens, the agents re-boarded the aircraft to begin the process of questioning all persons who they thought might be aliens. The questioning process went as follows: the agents identified themselves as Border Patrol agents; they asked the passengers where they came from and their destination; and then they asked each passenger to produce immigration documents. The agents described themselves as dressed in Levi's jeans. They gave no reason why they were not in uniform despite the fact that they were conducting an activity traditionally conducted by uniformed Border Patrol agents.

At the beginning of their sweep through the plane, the agents observed Grant asleep at the back of the plane. They decided to begin the sweep by questioning Grant because of his [dreadlocks] hairstyle, ² which indicated that he might be of Jamaican origin. According to Buechner, they approached him first "just to be on the safe side." One of the agents tapped Grant on the shoulder and identified himself as a Border patrol agent. He asked Grant where he was coming from. He responded, "Los Angeles." The agent asked where Grant was born. He responded, "Belize." The agent asked Grant how long he had been in the United States. He responded, "Six years." The agent asked Grant for his immigration documents, or "green card." He responded that it was in his carry-on bag. He then retrieved his carry-on bag and produced the card. The agent saw nothing suspicious in the card other than that it might be a forgery, because the agent said he occasionally encountered forged green cards. Nothing on the face of the document presented to the agent suggested that it was a forgery.

The agent observed that Grant was shaking as he handed the green card over to him. While the agent was questioning Grant, he stood in the aisle of the aircraft next to him. Another agent stood one row away. A third law enforcement officer, Wayne County Deputy Sheriff Cornish, was positioned at the nose of the aircraft.

The agent looked for Grant's name on a passenger manifest for flight 338, obtained from Northwest Airlines, and could not find it. The agents sometimes make use of passenger manifests, if they are available. However, there is nothing in the record to suggest that the manifests accurately reflect the names of all the passengers on the aircraft. The agent then asked Grant where he was going. Grant said that he was going to John F. Kennedy Airport in New York, while the aircraft was actually headed to LaGuardia.

The agent then asked Grant for his ticket. He said that the ticket was in his checked luggage. This made the agent suspicious. However, the [district court] takes judicial notice of the fact that a ticket is not necessary to board a Northwest Airlines flight. At check-in, the airline agent removes the ticket from the passenger's ticket package, leaving the passenger with a copy. The airline agent places the original ticket in the passenger's boarding pass. The original is removed from the boarding pass when the passenger boards the plane.

After learning that Grant did not have his ticket, the agent asked Grant to look for it in his carry-on bag. Grant looked in the bag briefly and then stood up and walked forward to a location in the middle of the aircraft on the left side, taking his carry-on bag with him. The agent followed Grant and told him that he still needed to see his ticket. Grant said he would look for it. The agent left to question other passengers.

Working from the front of the aircraft, while the other agent worked from the rear, the two Border Patrol agents proceeded to remove 56 passengers from the flight. They then returned to Grant who again appeared to be asleep. They woke him again. At the inception of this second round of questioning, the agents asked Grant to leave the aircraft. He agreed to do so.

At this point, the aircraft was five to ten minutes away from its scheduled departure from Detroit. As the agent deplaned with Grant, he told the flight attendant that one passenger might or might not return to the aircraft. However, he did not ask that the aircraft be held until a determination was made. Nor did he tell Grant that he had a choice as to whether or not he wanted to deplane.

Grant was taken to an area where all of the other aliens who had been taken off the plane and arrested were sitting. He was placed in a row by himself. The agent then asked if they could go through his carry-on bag. He consented. In the course of that search, the agents discovered a small quantity of marijuana. Grant was then arrested for a state law offense, but he remained in the custody of the Border Patrol. The agent then conducted a full body search incident to the arrest.

During that search, the agent discovered a baggage claim ticket. Grant denied that it was his. The agent then contacted Northwest Airlines at LaGuardia and asked them to retrieve the bag. Grant was taken to the Detroit lock-up of the Border Patrol. At that time, Grant admitted that the luggage check belonged to him and said that he initially denied ownership because he was nervous and sleepy. Grant's acknowledgement of ownership occurred between 7:30 and 7:45 AM. The aircraft did not arrive in New York until 8:30 AM.

At LaGuardia, a Northwest supervisor immediately set out to retrieve the luggage. The bag was retrieved and found to be locked. It was placed in an x-ray machine by Northwest service manager LaGrone, who determined that it contained two gasoline-type metal cans. He refused to return the bag without ascertaining the contents of the cans. He contacted the New York Port Authority police who took the bag to United States Customs. Port Authority Police Officer Sornberger had contacted an assistant United States Attorney in Detroit who told him that he needed a search warrant to open the bag. She suggested having the bag sniffed by a drug-detection canine. When the dog did not alert to the presence of drugs, [Officer] Sornberger had no choice but to return the bag to Northwest. [Officer] Sornberger testified that, at that time, he had no reason to believe that the bag contained contraband.

[Officer] Sornberger and a customs agent returned the bag to Northwest, where LaGrone still refused to return it to Detroit until he had determined what was inside it. The bag was then opened by the officers in the presence of LaGrone. LaGrone testified that the bag was opened at his directive. [Officer] Sornberger confirmed this version of the events; however, he noted that neither he nor the customs agent had mentioned the discussion he had with the Assistant United States Attorney in Detroit about needing a search warrant before the bag could be opened.

When the cans were removed from the bag, they smelled of lacquer-thinner. Northwest personnel put them in a storage area controlled by Northwest and then returned the bag to Detroit without the cans. LaGrone testified further that if Grant had shown up with the baggage claim ticket, the cans would have been returned to him. Sometime later, other Port Authority officers returned and smelled the cans again and determined that they contained ether. The cans...