U.S. v. Morin

• Decision Date: 15 January 1982
• Docket Number: No. 81-1055,81-1055
• Citation: 665 F.2d 765
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Rolando Gonzalez MORIN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 765

665 F.2d 765

UNITED STATES of America, Plaintiff-Appellee, v. Rolando Gonzalez MORIN, Defendant-Appellant.

No. 81-1055.

United States Court of Appeals Fifth Circuit.

Jan. 15, 1982.

Frank T. Ivy, Mark Cohen, Austin, Tex., for defendant-appellant.

LeRoy M. Jahn, Archie Carl Pierce, Asst. U. S. Attys., San Antonio, Tex., for plaintiff-appellee.

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

Before GEE, GARZA and REAVLEY, Circuit Judges.

GARZA, Circuit Judge:

Defendant was indicted for possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). He sought exclusion of the cocaine, by means of a pre-trial motion to suppress. This motion was denied by the court below. Thereafter, defendant waived jury trial and was tried and convicted on stipulated facts. This appeal followed.

Suspicion first fell on defendant, Rolando Gonzalez Morin, at Miami International Airport when he purchased a one-way ticket to Dallas/Ft. Worth seven minutes prior to the noon departure time. The Braniff ticket agent with whom Morin dealt contacted a Miami police officer, Thomas Dazevedo, because of various suspicious circumstances which he noted. Specifically, the defendant exhibited a very nervous demeanor, purchased his ticket very close to the flight departure time, and paid for it with cash. These characteristics are elements of a composite drug courier profile which is utilized by narcotic agents in identifying drug carriers. ¹ Consequently, the officer initiated an investigation based on the ticket agent's observations. He discovered that Morin had made reservations for the Miami-Dallas flight at 10 p.m. the previous evening and had left a call-back number at the Marriott Hotel. Dazevedo then spoke with the desk clerk at the Marriott and learned that defendant had checked in the hotel, paid with a one hundred dollar bill and left without retrieving his twenty-four dollars change. This additional information served to confirm the officer's suspicion about Morin, since these factors also figure in the drug courier profile.

In an effort to confirm his suspicions, Dazevedo had Morin's name entered into the Narcotics and Dangerous Drugs Information System (NADDIS) computer. The computer search indicated that defendant had previous narcotics convictions and was suspected of smuggling drugs from Colombia. At this point, the officer phoned law enforcement authorities in Dallas and alerted them to his investigation. He then proceeded to the Marriott Hotel and examined the room which defendant had occupied the previous evening. He found a traffic ticket made out to Rudy Moreno and an airline ticket for an Austin-Miami flight in the name of R. Carlos. This indication of probable use of an alias was further confirmation of Dazevedo's suspicions. Next, he once again telephoned Dallas law enforcement authorities, including Sergeant Gary Vineyard of the Texas Department of Public Safety, and revealed his findings, as well as his deduction that defendant was a drug courier on his way to Austin. ²

When defendant deplaned at the Dallas/Ft. Worth airport, he was immediately placed under surveillance by law enforcement authorities. Eventually, he proceeded with his luggage to a ticket counter in order to purchase a ticket to Austin. At this time, Sgt. Gary Vineyard approached Morin, identified himself as a police officer on the narcotics detail, and asked to speak with him. After defendant finished his transaction, he spoke with Vineyard. In response to the officer's questioning about his itinerary, Morin stated that he had been in Miami visiting friends for a couple of days. ³ He responded negatively to the officer's inquiry about whether he was carrying narcotics. Morin did agree to a search of his carry-on bag but would not consent to a search of his checked bag. A drug detection dog was called in to sniff this bag. The dog did show some interest in the bag, but since he did not attack it, there was no clear indication that drugs were inside. ⁴ Having failed to establish the probable cause necessary to take defendant into custody, Vineyard allowed Morin to board the plane to Austin. Morin was the last passenger to board the plane. Vineyard did alert Austin law enforcement authorities to defendant's imminent arrival and description, however, as well as his suspected criminal activity. This information was related to narcotics officer James Wolsch. He and Officer Robert Nesteroff went to Austin Municipal Airport to meet defendant's flight.

In Austin, Morin was the last passenger to deplane from his flight. According to Officer Wolsch's testimony, defendant appeared very nervous and was sweating profusely. He passed through the security area of the airport and went immediately to the restroom. Officer Wolsch first approached Morin at this point. As defendant stood before a urinal in the otherwise empty restroom, Wolsch stepped up to his right side, identified himself as a police officer and stated that he suspected defendant of carrying narcotics. He asked for identification, which Morin supplied and Wolsch kept. Defendant's airline ticket was also taken at this time. Wolsch was accompanied by three other plain-clothes policemen, one of whom was standing on the other side of defendant and two others who were approximately ten to fifteen feet away. Wolsch told defendant that the officers wished to question him and asked him to accompany them to the airport police office. Officer Wolsch next inquired twice whether Morin had any luggage other than the carry-on bag which was next to him. He made this inquiry despite the fact that he knew the answer based on information from the Dallas law enforcement authorities. Defendant denied having any other luggage. ⁵ He was then briefly frisked and taken to the airport police office, where he was subjected to a body search.

Officer Wolsch went immediately to the baggage claim area and claimed the only remaining piece of luggage. ⁶ He opened the bag and found three bags of cocaine in two boots. Wolsch returned to the police office with the bag. Defendant was formally arrested and apprised of his constitutional rights. Morin, by means of a pretrial motion, sought to suppress the evidence seized by the Austin police officers. The motion was denied by the court below after a full evidentiary hearing. Defendant was thereafter convicted in a non-jury trial of possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). This appeal followed.

Morin challenges the trial court's denial of his motion to suppress on a number of grounds. Basically, he contests the lower court's finding that he abandoned the luggage. He asserts that his verbal disclaimer of the luggage was tainted by an illegal arrest. The evidence found must be suppressed as "fruit of the poisonous tree". Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

This case is very different from the many airport stop cases with which this Court has been presented. Although certainly cognizant of the rule that "not all personal intercourse between policemen and citizens involves 'seizures' of persons", Terry v. Ohio, 392 U.S. 1, 19 n.16, 88 S.Ct. 1868, 1879 n.16, 20 L.Ed.2d 889 (1968), today we are forced to acknowledge the coercion inherent in successive stops of a suspect based on the same grounds for suspicion. ⁷ This Court has recognized three different levels of police-citizen contact. ⁸ As the Supreme Court stated in Terry, a police officer, like any other citizen, has the right to approach an individual and ask him questions. The citizen has a corresponding right to walk away. In order to stop one who does not voluntarily submit to questioning, an officer must possess specific articulable facts which provide the basis for a reasonable suspicion of criminal activity. The third level of police-citizen contact is the arrest which must be supported by probable cause.

The distinctive element in this case is the fact defendant was stopped twice in two different airports. It is clear that Dallas law enforcement authorities possessed the requisite information to justify an investigatory stop. Officer Dazevedo of Miami had related the results of his investigation to Dallas; this knowledge provided the basis for the stop. ⁹ Unfortunately the drug detection dog failed to provide them with probable cause to hold the defendant. Morin was allowed to proceed to his destination. When he arrived in Austin, however, he was stopped once again.

The details of this second stop are crucial to a determination of this case. Appellant Morin was literally caught with his pants down in an otherwise empty public bathroom. Four officers were involved in the stop; one on either side of defendant and two more ten to fifteen feet away. One of the officers, Officer Wolsch, told defendant that he was suspected of carrying narcotics and asked him to produce identification, which he did. Morin's airline ticket was also confiscated at this time. Officer Wolsch then informed defendant that the officers wished to question him at the airport security office. Finally, he inquired whether defendant had any other luggage.

The government contends that this police-citizen contact did not even rise to the level of a seizure. They stress that no weapons were displayed, the suspect was not touched, and a calm attitude was displayed by police when they interrogated defendant. Moreover, they assert that defendant was not intimidated by the questioning. The government notes that this Court has consistently found no seizure when agents employing a drug courier profile request an airline passenger to produce his ticket and identification, as long as the passenger's conduct is voluntary and not the result of coercion. U. S. v. Berd, 634 F.2d 979 (5th Cir. 1981); U. S. v. Pulvano, 629 F.2d 1151 (5th Cir. 1980); United States v. Elmore, 595 F.2d 1036 (5th Cir. 1979), cert....