U.S. v. Nunley

• Decision Date: 19 April 1989
• Docket Number: No. 88-2169,88-2169
• Citation: 873 F.2d 182
• Parties: UNITED STATES of America, Appellee, v. Helen Faye NUNLEY, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 182

873 F.2d 182

UNITED STATES of America, Appellee, v. Helen Faye NUNLEY, Appellant.

No. 88-2169.

United States Court of Appeals Eighth Circuit.

Submitted Jan. 10, 1989.

Decided April 19, 1989.

Joseph V. Neill, St. Louis, Mo., for appellant.

Daniel E. Meuleman, Asst. U.S. Atty., St. Louis, Mo., for appellee.

Before LAY, Chief Judge, and ARNOLD and BOWMAN, Circuit Judges.

ARNOLD, Circuit Judge.

The District Court ¹ found Helen Faye Nunley guilty of violating 21 U.S.C. Sec. 841(a)(1) for possessing 83.3 grams of cocaine with intent to distribute, and sentenced her to twenty-one months imprisonment, followed by a three-year term of supervised release. Nunley appeals on three grounds: (1) the Court should have granted her motions to suppress evidence and statements because the drug enforcement agents lacked a reasonable, articulable suspicion to justify approaching and questioning her; (2) the Court erred in holding the Sentencing Guidelines constitutional; and (3) the Court should have adjusted Nunley's base offense level downward to account for her minimal role and her acceptance of responsibility, under Guidelines Secs. 3B1.2 and 3E1.1. We affirm.

I.

On January 21, 1988, members of the Drug Enforcement Administration (DEA) Task Force assigned to St. Louis Lambert International Airport received information from a DEA agent at the Dallas/Fort Worth Airport regarding an individual who had departed from that airport on American Airlines Flight 344, and was suspected of carrying narcotics. DEA agent Timothy Brunholtz, who had seventeen years of experience investigating narcotics traffic, took the call from Dallas/Fort Worth, and relayed to other members of the St. Louis Task Force the following: a woman carrying only a large brown purse had purchased a one-way ticket for Flight 344 with cash shortly prior to departure, and had checked no luggage.

Task Force members Robert Thompson and Hiram Blois, stationed to watch the passengers arriving on Flight 344, noticed Nunley, one of the last passengers to disembark, carrying a large brown purse. They observed Nunley walk very slowly toward the terminal, stopping several times and doubling back in the direction from which she had come, all the while looking about nervously. She passed by the women's rest room, then retraced her steps and entered it. After leaving the rest room, Nunley stood and stared for a few minutes down the concourse at the gate where she had arrived.

As she resumed walking toward the main terminal, Thompson approached her and identified himself as a police officer with the Task Force. Detective Blois remained about five or six feet behind them. Thompson asked if Nunley would agree to speak with him, and she did. He then asked to see her airline ticket, which she handed to him. When Thompson next asked for identification, Nunley provided her driver's license, but asked why he was questioning her. Thompson replied that, as a member of the narcotics unit, he was attempting to stop the flow of drugs through Lambert Field. Thompson testified that Nunley's "hands began to shake and her voice had a quiver to it." Tr. 15, Pretrial Hearing. Nunley dropped her license as Thompson handed it back to her. Thompson then asked if he could look inside her purse, to which she replied "yes," unzipping it for him. As he looked inside, Thompson observed a plastic bag containing a white, chunky powder he believed to be cocaine. He then arrested Nunley and, rejoined by Detectives Blois and Donna Roussin, the group walked to the DEA office at the airport.

En route, Blois advised Nunley of her constitutional rights, and then read her the Miranda warnings again once they reached the office. Nunley responded the first time by saying that she understood her rights. After the second reading, Nunley announced that the purse did not belong to her, she could not remember how she obtained it, she used it only to carry her license, and she did not know how the cocaine got inside it. Thompson performed a field test, confirming the presence of cocaine. After Nunley heard that test result and was again told that she was under arrest, she stated that the purse was hers, she knew about the cocaine, and she was carrying it for her brother, who intended to distribute it. In a later interview with a probation officer, Nunley recanted the statement about her brother, saying instead that she had been delivering the cocaine to someone she had never before seen who was supposed to meet her at the airport.

The District Court denied Nunley's motions to suppress the physical evidence seized from her at the airport and the statements she made subsequent to the seizure, and to declare the Sentencing Guidelines unconstitutional. Nunley waived her rights to trial by jury and to present live testimony and cross-examine witnesses. She agreed to have her case decided by the Court on the basis of a five-page stipulation of facts, while preserving for appeal her challenges to the constitutionality of the search and seizure and the Sentencing Guidelines. The Court found Nunley guilty as charged. It sentenced her to the minimum time provided by the Guidelines for offense level sixteen, twenty-one months incarceration with three years of supervised release. The Court also waived the possible five thousand dollar fine because of Nunley's lack of money, and allowed her to remain free on bond pending this appeal. It decided against reducing Nunley's offense level, as requested, under Guidelines Secs. 3B1.2 and 3E1.1.

II.

The District Court properly denied Nunley's motions to suppress the evidence and statements obtained as a result of her encounter with the DEA agents. The conduct of the agents did not exceed the limited restraint permitted by Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

As a threshold matter, we agree with the District Court that the encounter amounted to an investigative stop, which must satisfy the Terry standard. The initial approach in a public airport by DEA agent Thompson, and his request to speak with Nunley and see her ticket and identification, did not require "some level of objective justification," Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 1323, 75 L.Ed.2d 229 (1983) (plurality), because they were elements of a consensual conversation between Nunley and Thompson. Id. at 501, 103 S.Ct. at 1326. But as the conversation proceeded, Thompson told Nunley that he was there to stop the flow of drugs through the airport, in response to her query about why he was questioning her. At that point, the "initially consensual encounter between a police officer and a citizen [was] ... transformed into a seizure or detention, ... [since,] 'in view of all the circumstances surrounding the incident, a reasonable person would have believed that [she] was not free to leave.' " United States v. Sadosky, 732 F.2d 1388, 1392 (8th Cir.), cert. denied, 469 U.S. 884, 105 S.Ct. 254, 83 L.Ed.2d 191 (1984) (quoting United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980)).

Like the detainee in Sadosky, Nunley could reasonably believe that the agent's statement indicated that this was more than routine questioning and that she was the particular focus of a narcotics investigation. See Sadosky, supra, 732 F.2d at 1392-93. We reached this conclusion in that case despite verbal assurance by the agent that Sadosky was free to go. Id. at 1393. The same conclusion is certainly warranted where, as here, no such assurance accompanied the agent's intimidating statement. ² There is no "litmus-paper test for distinguishing a consensual encounter from a seizure.... [e]ven in the discrete category of airport encounters," Royer, supra, 460 U.S. at 506, 103 S.Ct. at 1329. Notwithstanding that, we agree with the District Court that this case involved an investigative stop for which the state must show adequate justification.

We further agree that the state has met its burden. The information obtained by the St. Louis Airport DEA Task Force in advance of Nunley's arrival--that she had purchased a one-way ticket with cash just minutes before departure and was traveling without baggage--coupled with observations of her nervous state and erratic movement through the airport as if she was waiting to meet someone or seeking to evade the authorities, provided a sufficient basis to detain Nunley briefly. ³ The "factual observations [of the Task Force members,] ... viewed as a whole and in light of the familiarity these agents have with the practices of narcotics couriers," Sadosky, supra, 732 F.2d at 1393, created a reasonable, articulable suspicion that Nunley might be involved in criminal activity. The government rightly relies only on the agents' observations before the investigative stop began. It does not argue that Nunley's reactions after Thompson explained his mission (e.g., her shaking hands or quivering voice) helped establish a reasonable suspicion. ⁴ Nor does the government mechanically apply the "drug courier profile" to justify the stop. See Royer, supra, 460 U.S. at 526 n. 6, 103 S.Ct. at 1339 n. 6 (Rehnquist, J., dissenting). Thompson testified that consideration of the profile "might have been incidental to it, but it wasn't the core of the arrest." Tr. 22, Pretrial Hearing.

The intrusiveness of the encounter must be judged from the perspective of an innocent person similarly confronted. See United States v. Wylie, 569 F.2d 62, 68 (D.C.Cir.1977), cert. denied, 435 U.S. 944, 98 S.Ct. 1527, 55 L.Ed.2d 542 (1978). It is certainly possible that someone not connected in any way to narcotics traffic could purchase a one-way ticket with cash at the last moment, check no bags, and behave in the nervous and erratic manner that Nunley did upon arrival. However, as in Sadosky, "the circumstances here do not 'describe a very large category of presumably innocent travelers....' " Sadosky, supra, 732 F.2d at 1394 (distinguishing Reid v....