U.S. v. Pope

• Citation: 561 F.2d 663
• Decision Date: 02 September 1977
• Docket Number: No. 77-5105,77-5105
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Nathaniel POPE, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 663

561 F.2d 663

UNITED STATES of America, Plaintiff-Appellee, v. Nathaniel POPE, Defendant-Appellant.

No. 77-5105.

United States Court of Appeals, Sixth Circuit.

Argued June 9, 1977.

Decided Sept. 2, 1977.

Donald N. Krosin, Cleveland, Ohio, for defendant-appellant.

Frederick M. Coleman, U. S. Atty., Cleveland, Ohio, Robert S. Stone, Shaker Heights, Ohio, for plaintiff-appellee.

Before PHILLIPS, Chief Circuit Judge, and CELEBREZZE and PECK, Circuit Judges.

CELEBREZZE, Circuit Judge.

Appellant stands convicted by a jury on two counts of possessing a controlled substance, heroin and methadone, with the intent to distribute in violation of 21 U.S.C. § 841(a)(1) (1970). ¹ Appellant was arrested by agents of the Drug Enforcement Administration (DEA) at Hopkins International Airport in Cleveland, Ohio, while in possession of approximately 330.24 grams of heroin and approximately 475 mililiters of methadone. Appellant raises a number of issues on appeal, the most significant of which are the District Court's refusal to suppress the seized evidence, failure to consolidate the separate counts of the indictment, and failure to instruct the jury on an essential element of an offense under 21 U.S.C. § 841(a)(1). Although the first two contentions are without merit, we conclude that the failure to instruct the jury on the "intent to distribute" element of § 841(a)(1) requires reversal.

On August 19, 1976, Special Agents William P. Johnson and Frank J. Magoch, Jr., of the DEA were assigned to the Cleveland airport to monitor incoming and outgoing flights to cities known to be drug distribution centers. Agent Johnson observed Appellant among passengers disembarking from a Los Angeles flight. One month earlier, on July 21, Appellant and a companion had aroused Agent Johnson's suspicions as they boarded a flight to Los Angeles. On that occasion, Agent Johnson observed the two men purchase one-way tickets to Los Angeles using cash taken from large rolls of bills which each was carrying. Appellant had a brown briefcase and his companion carried a brown paper sack from which he removed money to pay his fare. Agent Johnson learned from the ramp agent that the airline tickets were issued in the names of N. Pope and C. Saunders. Agent Johnson made inquiry and obtained a photograph of Saunders, Appellant's companion. DEA agents maintained surveillance on incoming Los Angeles flights for the next two days but they did not see either of the two men return.

After Agent Johnson noticed Appellant disembark on August 19, he and Agent Magoch followed Appellant down the airport concourse. The evidence shows that the Appellant appeared nervous and looked about several times, glancing at either Agent Johnson or Agent Magoch who were following him. The agents separated, with Agent Magoch continuing to keep Appellant under surveillance while Agent Johnson preceded them outside the terminal and on to the street. Agent Johnson identified himself to a uniformed police officer who was on duty outside the terminal and requested assistance. After Appellant left the terminal, Agent Johnson approached him and displayed his credentials. Immediately, Appellant bolted past the agent and policeman and ran into a nearby construction site. Agent Johnson gave chase shouting after Appellant that he was a federal agent. As Agent Johnson drew closer, Appellant either swung or threw his briefcase at the pursuing agent who then drew his service revolver. Appellant ran toward a storm sewer and, within view of both agents, withdrew a white bag from his coat, dropped down to the sewer grating, and stuffed the bag into the sewer. He was taken into custody and Agent Magoch retrieved a white airsickness bag from the sewer. Inside the airsickness bag were two plastic bags filled with a brown substance which proved to be heroin. Appellant was placed under arrest. The agents opened the briefcase and found that it contained a soft drink bottle filled with a pink liquid which proved to be methadone, a mortar and pestle, an electric blender and a jar of lactose. Appellant had $528 in cash in his pants pockets. Two one-way airline ticket stubs, Los Angeles to Cleveland, in the names of M. Johnson and J. Johnson, bearing a travel date of August 19, 1976, were in Appellant's coat pocket. In the briefcase, Agent Johnson found two additional ticket stubs, Los Angeles to Cleveland, in the names of A. Jones and E. Jones dated July 24, 1976. ²

Defense counsel moved to suppress the seized evidence and the motion was overruled. At trial, DEA chemist John Meyers testified that he had analyzed the evidence and found that the brown substance was 330.24 grams of heroin at 23% purity with manitol as dilutant; the surfaces of the mortar and pestle were coated with heroin and manitol; powder in the blender proved positive for heroin; and the pink substance in the bottle was 475 mililiters of liquid containing methadone.

Recently, this Court has reviewed a number of cases involving warrantless searches of airline passengers by DEA agents. See, e. g., United States v. Lewis, 556 F.2d 385 (6th Cir. 1977); United States v. Gill, 555 F.2d 597 (6th Cir. 1977); United States v. Craemer, 555 F.2d 594 (6th Cir. 1977). A majority of these cases have concerned the DEA's use of a "drug courier profile", which is a loosely formulated list of characteristics believed to be common to persons using airports for narcotics traffic. Compare, United States v. McCaleb, 552 F.2d 717, 719-20 (6th Cir. 1977), and United States v. Craemer, supra at 595. ³ Although not admitted in the Government's brief, it is obvious that the agents in this case were acting pursuant to a drug courier profile in singling out Appellant for surveillance. Accordingly, analysis of the search and seizure in this case properly begins with a discussion of the growing body of case law in this Circuit on the DEA's use of drug courier profiles to spot possible narcotics traffickers.

As we stated in United States v. McCaleb, 552 F.2d at 720, satisfaction of a drug courier profile, in itself, does not establish probable cause. See also United States v. Craemer, supra at 596. The agents must be able to point to additional articulable facts which indicate that the suspect is engaged in criminal activity. United States v. Hunter, 550 F.2d 1066, 1069-70 (6th Cir. 1977). Although meeting the profile does not establish probable cause, facts known to the agents which correspond to characteristics in the profile may be considered along with information obtained from other sources in determining that the agents did have probable cause to believe that an offense is being or has been committed. United States v. Gill, supra at 599. Compare, United States v. Prince, 548 F.2d 164 (6th Cir. 1977), and United States v. Craemer, supra at 597.

Even if the facts known to the agents do not amount to probable cause, the agents may be permitted to make a limited investigative stop of suspicious individuals under the "stop and frisk" doctrine announced in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). In Terry the Supreme Court held that a law enforcement officer is entitled to stop an individual on the street to investigate suspicious behavior if the officer is " able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant (the) intrusion."392 U.S. at 21, 88 S.Ct. at 1880. The officer may not rely on "mere suspicion" or a "hunch" to justify the stop, but due consideration is afforded specific reasonable inferences the officer is entitled to draw in light of his law enforcement experience. Id. at 27, 88 S.Ct. 1868. Later cases have dubbed the lesser standard of knowledge required for a Terry stop "reasonable suspicion" and have gauged the reasonableness of particular investigative stops by striking "a balance between the public interest (behind the investigation) and the individual's right to personal security free from arbitrary interference from law officers." United States v. Brignoni Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 2579, 45 L.Ed.2d 607 (1975). Where the public interest served by the officer's investigation is great and the intrusion on individual privacy is small, investigative stops of limited duration and "reasonably related in scope to the justification for their initiation" have been upheld. United States v. Brignoni Ponce, 422 U.S. at 881, 95 S.Ct. at 2580, citing Terry v. Ohio, 392 U.S. at 29, 88 S.Ct. 1868.

A threshold question we must address is whether the facts before us define an investigative stop within the meaning of Terry. Agent Johnson had just approached Appellant and flashed his credentials when Appellant fled. Terry states that the Fourth Amendment becomes relevant to an encounter between police and citizen only upon a "seizure of the person". 392 U.S. at 16, 88 S.Ct. at 1877. In Terry the Supreme Court held that a "seizure of the person" occurs "whenever a police officer accosts an individual and restrains his freedom to walk away." Id. This does not require an actual physical seizure, so long as it is apparent from the circumstances that the individual was not free to ignore the officer and proceed on his way. See, e. g., Adams v. Williams, 407 U.S. 143, 148, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); Sibron v. New York, 392 U.S. 40, 63, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1962); Terry v. Ohio, 392 U.S. at 19 n. 16, 88 S.Ct. 1868. On the other hand, the Supreme Court noted in Terry that "not all personal intercourse between policemen and citizens involves 'seizures' of persons". 392 U.S. at 19 n. 16, 88 S.Ct. at 1879. Whether Terry considerations come into play in evaluating the officer's conduct depends on the totality of the circumstances surrounding the encounter.

Here, Agent Johnson was obviously intending to make a Terry stop when he approached Appellant to "talk" with him. This intention was thwarted, however, by Appellant's...