U.S. v. Hill, 79-5264

Decision Date24 September 1980
Docket NumberNo. 79-5264,79-5264
Citation626 F.2d 429
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Howard HILL, Defendant-Appellant.
CourtU.S. Court of Appeals — Fifth Circuit

Jeffrey S. Weiner (argued), Alan S. Ross, Jeffrey S. Weiner, Weiner, Robbins, Tunkey & Ross, P. A., Miami, Fla., (on the brief), for defendant-appellant.

William S. Sutton, Asst. U. S. Atty., Janis M. Caplan, Sp. Asst. U. S. Atty., Atlanta, Ga., for plaintiff-appellee.

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

Before TUTTLE, GOLDBERG and RANDALL, Circuit Judges.

RANDALL, Circuit Judge:

Appellant Howard Hill was convicted in a non-jury trial for possession of phencyclidine (PCP) with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). Prior to trial, Hill moved to suppress the PCP on the basis that it had been seized from him in violation of his fourth amendment rights by DEA Agent Paul Markonni at the Atlanta Hartsfield International Airport on January 9, 1979. After a hearing on the motion to suppress, the magistrate recommended denial of the motion. The district court adopted the magistrate's report with minor modifications and denied the motion to suppress. Hill then waived jury trial and was tried and found guilty on stipulated facts. The issue on appeal is whether the district court erred in denying the motion to suppress.

Facts and Proceedings Below

The story of Howard Hill's conviction begins with an anonymous telephone tip received at approximately 8:22 p. m. on January 6, 1979 by a telecommunicator for the Greensboro, North Carolina police department. The unknown caller stated that a half-million dollars drug deal was "going down" at the Greensboro Airport, and described one of the persons involved in the deal as being a black man wearing a green coat with white fur trim. The information was relayed to Detective Baulding of the Greensboro Narcotics Division. He called the Greensboro Airport and relayed the tip to a sheriff's deputy, requesting the deputy to check the airport for anyone fitting that description.

About five minutes later, Baulding was advised that a person fitting that description had been observed in the lobby of the airport talking with another black man. Baulding was told that the man who fit the description was about 6'1 and 175 pounds, with black hair, a mustache and a short-cropped full beard. This person was observed leaving the airport on an Eastern Airlines flight to Atlanta. The other black man, who was described as being in his twenties, 5'6 to 5'8 , clean shaven, with a medium complexion and an Afro, and wearing light pants and a dark jacket, was observed leaving the airport in a car with North Carolina license plates.

A license check indicated that the car was registered to a Howard Hill in Greensboro. Knowing that Howard Hill had twice been charged with drug violations and, based on his personal knowledge of Hill, Baulding suspected that the man in the green coat flying to Atlanta was Hill.

Baulding called an Atlanta airport police sergeant, relayed the information and told him that the suspect was en route to Atlanta on a flight bound for Los Angeles. The sergeant relayed this information to Agent Markonni of the DEA. No one was available to intercept the flight, so Markonni called Eastern Airlines and spoke with a supervisor. Markonni asked that a gate agent meet the flight to verify the suspect's presence on board and to ascertain his destination. Soon thereafter Markonni was told by the gate agent that a person matching the suspect's description had deplaned, asked for directions to Eastern's next outbound flight to Los Angeles, and was directed to the departure gate for a non-stop flight from Atlanta to Los Angeles. Markonni later learned from Eastern Airlines personnel that the suspect was traveling under the name of Williams. Markonni was unable to contact the Los Angeles airport police.

For the next two days, Markonni looked for a man matching the suspect's description and checked passenger lists of incoming flights from Los Angeles for a passenger by the name of Williams. At about 5:30 a. m. on January 9, Markonni noticed a passenger wearing a green coat with white fur trim and matching the suspect's description disembark from a Los Angeles-Atlanta flight. While the passenger was obtaining flight information from a Delta Airlines gate agent, Markonni learned from his airline ticket that a passenger who was traveling under the name of "Mike Williams" had checked one piece of luggage, and was on a continuing flight to the Raleigh-Durham area. The airline computer showed that Williams bought his ticket at the Los Angeles airport thirty-one minutes prior to the scheduled departure.

Markonni approached the man (who was later identified as Howard Hill) in the gate waiting area. He sat down next to Hill, identified himself, and asked Hill if they could talk for a few minutes. Hill agreed. Hill told Markonni that he was Mike Williams but that he had no identification other than his airline ticket, which he showed to Markonni. The ticket bore the name of Mike Williams.

Markonni told Hill that he was looking for narcotics coming through the airport and said, "I'm going to ask you for your cooperation in allowing yourself to be very quickly searched for drugs or narcotics." Hill immediately responded, "Not without a search warrant." Markonni again requested Hill's consent to a search and Hill again refused. Markonni then pointed to the Delta office directly across the rotunda of the airport, and said "Well, I'm going to ask you if you'll come with me over to that office where there is a telephone." Without saying anything, Hill got up and began to walk with Markonni towards the office. Markonni never told Hill that he could not leave or that he was under arrest, nor did he advise Hill that he was free to leave if he desired. On the way to the Delta office, Hill placed his hand inside his coat pocket, and Markonni asked him to remove it. Hill immediately began running down the concourse. He was subdued by three Delta agents, and Markonni handcuffed him, took him to the Delta office and searched him. A green pouch containing the PCP was found strapped to Hill's waist. Hill was formally placed under arrest.

The magistrate treated the initial contact between Markonni and Hill as a Terry 1 stop requiring a reasonable suspicion of criminal activity. First, on the basis of the anonymous tip and the facts known to Markonni at the time of the initial contact, which matched elements of the "drug courier profile" 2 (1) that the suspect arrived from Los Angeles, a major drug distribution center; (2) that the reservation for the flight was made approximately 30 minutes before the scheduled departure time, and the ticket was purchased at the Los Angeles ticket desk; (3) that the suspect was thought to have traveled to Los Angeles two days earlier, signifying a trip of short duration; (4) that the suspect's flights were scheduled at off-peak hours; and (5) that the suspect had a continuing flight to Raleigh-Durham, indicating a trip of unusual itinerary, since he was suspected of leaving from the Greensboro Airport the magistrate concluded that a reasonable suspicion of criminal activity existed at the moment of the initial contact. Second, relying on United States v. Oates, 560 F.2d 45 (2d Cir. 1977), the magistrate characterized the request for Hill to accompany Markonni to the Delta office as a valid "continuation of the investigation." Finally, the magistrate concluded that Hill's suspicious behavior in putting his hand in his coat pocket and fleeing from the scene gave Markonni probable cause to search Hill. Therefore, the magistrate recommended that the motion to suppress be denied.

The district court adopted the magistrate's findings and recommendation. However, in response to Hill's objections to the magistrate's fact findings, the district court clarified a portion of the magistrate's opinion. 3 With respect to the magistrate's statement that Markonni and Hill "proceeded to walk across the rotunda lobby," Hill argued that the record did not indicate that he agreed to or actually did walk with Markonni. In response to this objection, the district court stated that "(a) review of the record indicates that (Hill) and Agent Markonni did begin to walk across the lobby together. There is no testimony indicating that (Hill) had consented to go with Agent Markonni, and the magistrate does not indicate that there was." Record on Appeal, Vol. 1, at 107. Thus, the district court specifically found that Hill did not voluntarily consent to accompany Markonni to the Delta office.

Issues On Appeal

On appeal, Hill argues that the district court erred in denying the motion to suppress because (1) no reasonable suspicion existed at the time Markonni approached Hill and began questioning him; 4 (2) Markonni's request for Hill to accompany him to the Delta office constituted an arrest requiring probable cause, which did not exist at the time of the request; and (3) no probable cause existed at the time of the search. The Government disputes Hill's contentions and, in addition, argues that the magistrate and district court erroneously concluded that the initial encounter was a Terry stop requiring reasonable suspicion. Citing United States v. Elmore, 595 F.2d 1036 (5th Cir. 1979), the Government contends that the initial encounter between Markonni and Hill was merely a "police-citizen contact" falling outside the scope of the fourth amendment.

Thus, we are faced with five issues in this case: (1) whether the initial encounter between Markonni and Hill constituted a "seizure" within the meaning of the fourth amendment; (2) if the initial encounter was a "seizure", whether a reasonable suspicion existed at the time of the seizure; (3) whether an arrest requiring probable cause occurred when Markonni requested Hill to accompany him to the Delta...

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