U.S. v. Large

• Citation: 729 F.2d 636
• Decision Date: 22 March 1984
• Docket Number: No. 83-1490,83-1490
• Parties: 15 Fed. R. Evid. Serv. 531 UNITED STATES of America, Appellee, v. Dennis Duane LARGE, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 636

729 F.2d 636

15 Fed. R. Evid. Serv. 531

UNITED STATES of America, Appellee, v. Dennis Duane LARGE, Appellant.

No. 83-1490.

United States Court of Appeals,

Eighth Circuit.

Submitted Nov. 14, 1983.

Decided March 22, 1984.

James M. Rosenbaum, U.S. Atty., Donald M. Lewis, Asst. U.S. Atty., D. Minn., Minneapolis Minn., Gwen Werner, Legal Intern, for appellee.

Law Offices of Redlich & Moldof, P.A. by Hilliard Moldof, Fort Lauderdale, Fla., for appellant, Dennis Large.

Before HEANEY, Circuit Judge, HENLEY, Senior Circuit Judge, and McMILLIAN, Circuit Judge.

McMILLIAN, Circuit Judge.

Dennis Duane Large appeals from a final judgment entered in the District Court ¹ for the District of Minnesota upon a jury verdict finding him guilty of possession of cocaine with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1). The district court sentenced appellant to two years imprisonment and a special parole term of four years. For reversal appellant argues that the district court erred in (1) denying his motion to suppress physical evidence, (2) denying his motion for disclosure of the current address of the government's confidential informant and (3) admitting into evidence the $18,500 in cash seized from appellant's suitcase and permitting the government during closing argument to refer to the cash as evidence of a prior drug transaction. For the reasons discussed below, we affirm the judgment of the district court.

Facts

On September 20, 1982, at about 3:00 p.m., special agent Ted Love of the Drug Enforcement Administration (DEA), assigned to Minneapolis, received this information from a confidential informant: a white male known as Dennis Large, approximately 5'11" and 260 pounds, with dark brown hair and full beard, was enroute to Minneapolis from Florida that day and would be transporting several ounces of cocaine. Agent Love relayed this tip to special agent James Lewis. Although the source of the following information is unclear from the record, the DEA agents also knew that the courier was travelling by commercial airline and the specific flight. The DEA agents also knew that one of the cities on the courier's itinerary was Chicago; a law enforcement officer in Chicago had given the DEA agents a description of the courier's clothing and confirmed the courier's presence on the flight.

Agents Love and Jerry Kramer waited for the flight by the appropriate gate at the Minneapolis-St. Paul airport. The flight arrived at about 5:00 p.m. The DEA agents identified appellant as the passenger who matched the description given by the confidential informant. According to the DEA agents, appellant also attracted their attention because he wore casual clothing, appeared nervous, walked faster than the other passengers, repeatedly turned his head from side to side as if watching for someone, and stared at special agents Lewis and Thomas Olby as he passed them. Agents Lewis and Olby were positioned in the airport terminal building near the end of the concourse. The DEA agents continued to watch appellant as he proceeded to the baggage claim area. According to the DEA agents appellant appeared unusually nervous in the baggage claim area: his legs were shaking and he kept glancing around the area and again stared at agents Lewis and Olby. Appellant picked up his suitcase and walked out of the airport terminal building. Agent Olby had observed that appellant's suitcase had an Eastern Airlines baggage tag and an identification tag which read in part "D. Large, Ft. Lauderdale."

Agents Lewis and Olby approached appellant just outside the airport terminal building, identified themselves as DEA agents, displayed their credentials, and asked appellant if they could talk to him briefly. ² Agents Love and Kramer waited several yards away. According to the DEA agents, they did not block appellant's path or surround him or physically touch him. Agent Lewis testified that he told appellant that he was not under arrest and was free to go. In response to the agents' questions, appellant told them that he had in fact travelled from Florida via Detroit and Chicago and produced his airline ticket and identification. Agent Lewis testified that he returned appellant's ticket and identification after briefly examining them, noting that the airline ticket was for one-way transportation and had been paid for in cash.

At this point agent Lewis told appellant that they were conducting a narcotics investigation. According to the agents appellant became increasingly nervous and was perspiring heavily. Agent Lewis asked appellant to consent to a search of his suitcase; appellant refused. Agent Lewis then informed appellant that he (Lewis) felt that there was reasonable suspicion to believe that appellant's suitcase contained drugs and seized the suitcase. Agent Lewis explained that the suitcase would be exposed to a trained drug detection dog and if the dog reacted positively, they would apply for a search warrant. Agent Lewis gave appellant a receipt for the suitcase and baggage claim check and asked appellant for an address or telephone number where he could be reached so the agents could return the bag. Appellant did not reply and then left the airport. Appellant was in fact picked up at the airport by the confidential informant.

The agents took the suitcase to the state law enforcement office at the airport and then called for a trained drug detection dog and handler from the local police department. The dog and its handler arrived approximately an hour later. The suitcase, which had been hidden among other suitcases and packages in the airport lost and found office, was immediately detected by the dog. The agents then applied for and obtained a federal search warrant for controlled substances, paraphernalia, money, records tending to establish constructive possession, and other similar items. The agents searched the suitcase and found eight ounces of cocaine (57% pure), $18,500 in cash (in wrappers from a bank in the Detroit metropolitan area), papers, and an airline ticket and ticket receipt. The agents arrested appellant later that night.

The district court found that the encounter between the agents and appellant was not an investigatory stop, but if it was an investigatory stop, it was supported by the requisite reasonable suspicion and was reasonable under the circumstances. United States v. Large, No. 3-82-Cr-115, slip op. at 3-4 (D.Minn. Dec. 15, 1982) (order). The district court also found that the agents had probable cause to seize appellant's suitcase at the airport. Id. at 5.

Suppression of the Evidence Found in the Suitcase

Appellant first argues that the district court erred in denying his motion to suppress evidence found in the search of appellant's suitcase. Appellant argues that the DEA agents did not possess a "reasonable and articulable suspicion that [he was] engaged in criminal activity," Reid v. Georgia, 448 U.S. 438, 440, 100 S.Ct. 2752, 2753, 65 L.Ed.2d 890 (1980), to support the investigatory stop. We disagree. As a preliminary matter, we hold that the stop in the present case was a "seizure" and therefore subject to the protection of the fourth amendment. In United States v. Wallraff, 705 F.2d 980, 983-89 & n. 3 (8th Cir.1983), this court characterized a similar airport stop (which involved DEA agents Lewis, Olby and Kramer) as a fourth amendment "seizure" and considered whether the investigatory stop was supported by reasonable suspicion.

We have carefully reviewed the record and hold that the district court's determination that the DEA agents had a reasonable suspicion to conduct an investigatory stop was not clearly erroneous. E.g., United States v. McGlynn, 671 F.2d 1140, 1143 (8th Cir.1982) (standard of review). Here, the agents had a tip from a confidential informant that a particular individual, identified by name and described in general physical characteristics, would be transporting cocaine from Florida to Minneapolis by commercial airlines on a specific day. From other law enforcement officers the agents received a clothing description and information that this individual was in fact on a particular commercial flight. This information was corroborated by the agents' observation of appellant's arrival and appearance at the airport. In addition, appellant's apparent nervousness and his pattern of behavior, although as consistent with innocence as with guilt in itself, suggested possible illegal activity to the DEA agents, who were trained and experienced in investigating drug trafficking and drug couriers. These factors, the tip from the confidential informant, the corroboration of the tip by the agents' observation and appellant's behavior at the airport, when considered as a whole and given the specialized training and experience of the agents, clearly provided the agents with a reasonable and articulable suspicion to make an investigatory stop. See United States v. Wallraff, 705 F.2d at 988-89. See also United States v. Berry, 670 F.2d 583, 598-01 (5th Cir.1982) (banc).

Appellant next argues that if there was reasonable suspicion to make an investigatory detention of his suitcase, the period of detention was too long, citing United States v. Place, --- U.S. ----, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983). In Place the Supreme Court applied the principles of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), to the detention of personal property and held that

when an officer's observations lead him [or her] reasonably to believe that a...