U.S. v. Patino

• Decision Date: 29 June 1981
• Docket Number: No. 79-1710,79-1710
• Citation: 649 F.2d 724
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Dora Correa PATINO, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 724

649 F.2d 724

UNITED STATES of America, Plaintiff-Appellant, v. Dora Correa PATINO, Defendant-Appellee.

No. 79-1710.

United States Court of Appeals Ninth Circuit.

Argued April 17, 1980.

Submitted Aug. 22, 1980.

Decided June 29, 1981.

William M. Goodman, San Francisco, Cal., for defendant-appellee.

Joseph M. Burton, Asst. U. S. Atty., San Francisco, Cal., for the United States.

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

Before HUG, SCHROEDER and PREGERSON, Circuit Judges.

HUG, Circuit Judge:

The essential issue in this case is whether the initial contact by the police with Dora Patino in the Miami airport constituted a seizure invoking the protection of the fourth amendment. The Government appeals from an order suppressing evidence which the court found was derived from a "seizure" of the person of Dora Patino without reasonable suspicion that she was engaged in unlawful activity. The principal evidence in question is a quantity of cocaine discovered in her suitcase. On appeal the Government contends that Patino's encounter with the police was voluntary and did not constitute a fourth amendment seizure; the Government does not contend that reasonable suspicion justified the encounter. A secondary issue is whether, assuming an unlawful seizure, the discovery of the cocaine was the result of independent investigative efforts untainted by the seizure.

Dora Patino was indicted for possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1). Patino filed a motion to suppress evidence alleging that the seven pounds of cocaine retrieved from her suitcase by narcotics agents was obtained in violation of her fourth amendment rights. In her motion to suppress, Patino argued that she was seized unlawfully when she was stopped and questioned by narcotics investigators at the Miami airport without reasonable suspicion of unlawful activity, and that the evidence in question was tainted because it had been obtained as a result of information derived from the illegal stop. After an evidentiary hearing, the district court granted the motion to suppress. We affirm the district court findings that Patino was seized within the meaning of the fourth amendment and that the evidence was tainted. ¹

I. Facts

John Facchiano, an investigator with the Drug Enforcement Agency (DEA), observed Patino enter the Miami airport and drag a suitcase to the National Airlines ticket counter. Facchiano stated that Patino drew his attention primarily because she appeared "nervous" and was "looking around, in a scanning fashion, at the airport, as if to be looking for someone, or to see if somebody was looking for her." Facchiano observed that Patino purchased her ticket with cash, two one hundred dollar bills and a third bill of unknown denomination. Facchiano observed further that Patino continued to watch her suitcase after it was placed on the conveyor belt. Based on these observations, Facchiano decided to speak with Patino and attempt to obtain her consent to search the suitcase.

Facchiano summoned his partner, Charles McGee, and told him to monitor Patino as she walked around the airport. Facchiano then located Patino's suitcase in the baggage area, and noted that the name "Gloria Restrepo" appeared on the identification label. Facchiano asked the baggage supervisor to hold the suitcase until the last baggage cart departed for the flight about twenty minutes later. Facchiano told the baggage supervisor that he intended to talk with Patino and to obtain her consent to search the suitcase.

Facchiano returned to the terminal and rejoined his partner. Facchiano and McGee located Patino, approached her, announced that they were police officers, and displayed police identification. Patino stopped walking in response to the officers' statement and display of identification. At this point, Facchiano asked Patino "if she would mind speaking with (him) for a moment." Patino responded, "Yes, it would be okay." Facchiano then asked her if she would mind showing him her ticket and some identification. She was informed early in the conversation that she fit the profile characteristics of a female drug courier. In going through her wallet for identification, she was nervous and shaking. She produced an alien registration "green card" that bore the name "Dora Patino." Her nervousness increased when Facchiano asked again to see her airline ticket. Patino hesitated and then complied, and Facchiano observed that her ticket bore the name "Gloria Restrepo," which was the name on the suitcase. Having examined appellee's green card and plane ticket, Facchiano was aware that Patino was travelling under another name. Patino explained the discrepancy in the names by stating that her cousin had made the reservation for her.

Facchiano then told her of the problems they had with contraband being taken through the Miami airport and asked Patino for her consent to search her cosmetic bag. She stated, "It's okay, you can look," and placed it on a counter and opened it. The bag contained only miscellaneous cosmetics and no contraband. Facchiano then asked Patino if he could search the suitcase she had checked. When she asked the reason for the officer's search request, he again told her he was looking for narcotics. For the first time during the questioning, Facchiano advised Patino that she did not have to consent to the search. When she refused to consent, Facchiano called McGee aside and told him to summon a narcotics-detecting dog to examine Patino's suitcase. Facchiano and McGee decided to use the dog because of Patino's evasive answers and extreme nervousness.

Facchiano then continued his questioning. At this point, Patino requested the assistance of a Spanish-speaking officer to clarify what was occurring. Facchiano advised Patino for the first time that she was not required to answer further questions. Patino said she wished to leave, and was allowed to depart for her flight. The interview lasted approximately ten minutes.

Facchiano and McGee returned to the baggage area and arranged a suitcase lineup for the dog to sniff. The dog showed only a remote interest in Patino's suitcase, and neither the narcotics officers nor the dog handler considered the response to be a narcotics alert. Since a second dog was not readily available to make an additional test, the suitcase was released to the San Francisco flight.

On the basis of what Facchiano had learned during his questioning of Patino, he returned to the National Airlines counter, obtained the reservation call-back number for the Restrepo ticket, phoned that number, and was told that no one named Restrepo lived there. Facchiano then called local and federal narcotics officers stationed at San Francisco International Airport and advised those officers of the information he had obtained during his investigation of Patino in Miami, including all the information and observations that were developed during his questioning of her.

Patino deplaned in San Francisco and was observed by narcotics officers as she immediately walked out of the airport and entered a taxi without stopping for the suitcase she had checked in Miami. Two detectives confronted her, identified themselves, and asked her to return to the sheriff's substation in the airline terminal. She was told that the officers suspected her of narcotics trafficking. Approximately fifteen minutes after the detectives apprehended Patino, an investigator located her suitcase in the baggage area and arranged another suitcase lineup. The dog reacted positively to Patino's suitcase, indicating the presence of narcotics. Agents took the suitcase to the substation where Patino was being held, and told her of the information that had been provided by Facchiano and of the suitcase lineup results. A DEA agent advised Patino of her constitutional rights. She was told that a search warrant would be obtained to search the suitcase if she did not consent to such a search. Patino eventually signed a consent form, and the suitcase was opened. Investigators discovered, inside the suitcase, three packages which contained approximately seven pounds of cocaine. Patino was placed under arrest at that time.

II. Seizure

The basic issue in this case is whether the initial action of the officers in stopping Patino and requesting her to produce her airline ticket and identification constituted a seizure within the meaning of the fourth amendment. The government contends that Patino consented to this encounter, and thus, no seizure occurred. The essential inquiry is whether the person stopped reasonably believed that he or she was not free to leave. United States v. Mendenhall, 446 U.S. 544, 554-555, 100 S.Ct. 1870, 1877-1878, 64 L.Ed.2d 497, 509-10 (1980); Terry v. Ohio, 392 U.S. 1, 19 n.16, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968); Cuevas-Ortega v. INS, 588 F.2d 1274, 1277 (9th Cir. 1979). We are not presented with a true question of consent, in the sense of an intentional waiver of a known right, for this would require knowledge on the part of the person that he or she was not required to stop or answer questions. This approach to fourth amendment rights was rejected in Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Rather the inquiry is whether the act of remaining and answering questions was voluntary. See 2 W. LaFave, Search and Seizure 614-16 (1978). This is largely a factual inquiry dependent upon the totality of the circumstances, and we will defer to the finding of the district court unless it is clearly erroneous.

The judge did not enter written findings or conclusions but expressed them on the record in open court following the initial suppression hearing and following a motion for reconsideration. At the initial hearing, the argument principally concerned the question of whether reasonable suspicion of unlawful activity existed to justify the stop....