U.S. v. Porter, 82-5203

• Decision Date: 05 November 1984
• Docket Number: No. 82-5203,82-5203
• Citation: 738 F.2d 622
• Parties: UNITED STATES of America, Appellee, v. Penny PORTER, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 622

738 F.2d 622

UNITED STATES of America, Appellee, v. Penny PORTER, Appellant.

No. 82-5203.

United States Court of Appeals Fourth Circuit.

Argued Dec. 5, 1983.

Decided July 10, 1984.

Certiorari Denied Nov. 5, 1984.

See 105 S.Ct. 389.

E. Blair Brown, Alexandria, Va., for appellant.

William G. Otis, Asst. U.S. Atty., Alexandria, Va. (Elsie L. Munsell, U.S. Atty., Alexandria, Va., on brief), for appellee.

Before WINTER, Chief Judge, RUSSELL, WIDENER, HALL, PHILLIPS, MURNAGHAN, SPROUSE, ERVIN and CHAPMAN, Circuit Judges, sitting en banc.

WIDENER, Circuit Judge:

Penny Porter appeals her conviction for possession of cocaine with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1). Her only contention is that there was no probable cause for her arrest and that the warrantless search of her luggage was unlawful. We disagree, and affirm the judgment of conviction.

An anonymous informant, on a Saturday, February 20, 1982, telephoned the Federal Aviation Administration (FAA) police at Washington National Airport, and was referred to Detective John Dawley, a Washington, D.C., Metropolitan Police Department (MPD) detective assigned to the airport as a Special Deputy U.S. Marshall on the Drug Enforcement Administration (DEA) Task Force. Dawley had been a police detective for eleven years, had been assigned to the MPD narcotics squad, had had several weeks of narcotics-related training, and had testified more than sixty times as an expert in narcotics cases. The informant told Dawley that one Penny Porter was taking or had taken a flight to Miami from National Airport at seven or nine o'clock that night and would be returning with a quantity of cocaine. The informant described Miss Porter as a black woman between 5' 3"' and 5' 7"' in height, weighing between 115 and 125 pounds, having long brown hair, wearing that evening a brown leather coat and a red miniskirt outfit, and carrying a large gold-colored purse. The informant also gave other information, not detailed in the record, concerning someone other than Miss Porter. Dawley that night checked Eastern Airlines flight rosters at National Airport and noted that a "T. Porter" had left for Miami on an Eastern flight that evening. He also checked out the informant's information that did not concern Miss Porter and found it correct.

The following two days, February 21 and 22, Dawley monitored Eastern flights, observing passengers disembarking from seven or eight Eastern flights arriving from Miami. On February 22, the same informant again called Dawley and advised him that this person (Miss Porter) was to arrive sometime that afternoon. While watching passengers on Eastern flight 190 from Miami leave the plane at about 3:30 p.m., without having checked the manifest for this flight, Dawley observed a woman whose "physical description matched what I had been given" and who was wearing a brown leather coat. She was also wearing jeans, black high-heel shoes, a dark floppy hat, and sunglasses, and was carrying a piece of carry-on luggage; the red miniskirt outfit and the gold-colored purse were not evident. This woman was one of the last passengers to leave the plane. She attracted Dawley's attention by turning and looking at him as he stood in the passenger waiting area, watching him continuously as she walked down the causeway, looking over her shoulder, walking rapidly, and appearing nervous.

Detective Dawley approached the woman after she had proceeded to the general passenger area. He displayed his government credentials and told her that he was with the DEA and was investigating narcotics traffic. He asked "if she would mind speaking with me," to which she replied that she didn't mind. He asked if she had just arrived by airplane; she said that she had. He asked where she was coming from; she answered, "Miami." He then asked for her boarding pass, which she produced and which bore the name "T. Porter." He asked her name, and she responded, "Teresa Porter."

At that point, Dawley asked Miss Porter to accompany him to the DEA office, housed in the FAA police office at the airport. Dawley, who was not in uniform and was not accompanied by other officers, did not touch her, and there is no evidence that he advised Miss Porter that he was armed (we assume he was), or exhibited a firearm, or otherwise made any show of authority. Dawley testified that Miss Porter "voluntarily accompanied me ... back to the office" and that he would have let her go had she refused to accompany him; he did not indicate to her that she was free to leave. On the way to the DEA office, Miss Porter said that she "had to go to the bathroom bad," and Dawley told her that once they arrived at the DEA office she could go to the bathroom in the company of a policewoman. Miss Porter and Dawley then walked some 500 feet through the airport concourse, down a series of steps, and through a tunnel to the FAA police office. Dawley was unable to locate a policewoman to accompany her to the bathroom, and asked the FAA desk sergeant to have a policewoman come to the office.

Miss Porter was seated near the door of the FAA office. Dawley asked her for additional identification, and she began going through her carry-on bag. Dawley asked if she would mind if he looked in the bag; she said she did not mind. Dawley put the bag on the counter, felt the sides of the bag, and looked into the bag "for any type of weapon," but he did not put his hands into the bag. The detective then asked Miss Porter to accompany him to the DEA office, approximately fifty feet beyond the front desk of the FAA office, which she did. Once inside the DEA office, Dawley asked Porter if she had brought back anything from Miami. She responded, "all I have is a little smoke [meaning marijuana], but you're not going to lock me up for that, are you?" She produced from her left rear pocket a small manila envelope containing what proved to be marijuana cigarettes. Dawley responded affirmatively to her question and placed her under arrest. Only fifteen minutes had passed since Miss Porter had stepped off the plane.

Detective Dawley advised Miss Porter of her Miranda rights and asked whether she understood these rights; she said that she did and expressed no desire to see a lawyer. Without a warrant, he then searched her carry-on bag. He found a gold purse; in the purse was a red miniskirt wrapped around a plastic bag containing what turned out to be cocaine, with an apparent retail value of about $60,000.00. The record is silent as to whether Miss Porter or Dawley carried the bag into the DEA office. At the time of the arrest the bag was within arm's reach of Miss Porter and between Dawley and Miss Porter, who was seated near the window. After another Miranda warning, Miss Porter made several inculpatory statements before indicating that she wanted to see a lawyer. Before trial, Miss Porter moved to have suppressed the cocaine that was seized, and the district court denied the motion. It found that the detective's initial encounter with Miss Porter was proper under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), that Miss Porter went to the DEA office voluntarily, and that the warrantless search was justified as incident to the arrest for the marijuana.

A district court engages in a factual determination in resolving a dispute over the nature of an encounter between police and citizen, see United States v. Gooding, 695 F.2d 78, 82 (4th Cir.1982). That is to say, whether the encounter is voluntary on the part of the citizen and raises no constitutional concerns, see Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229 (1983) (plurality opinion); United States v. Mendenhall, 446 U.S. 544, 552, 100 S.Ct. 1870, 1876, 64 L.Ed.2d 497 (1980) (opinion of Stewart, J.); Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 1879 n. 16, 20 L.Ed.2d 889 (1968); whether a limited "seizure" has occurred under Terry v. Ohio, requiring a reasonable, articulable suspicion of criminal activity, Reid v. Georgia, 448 U.S. 438, 440, 100 S.Ct. 2752, 2753, 65 L.Ed.2d 890 (1980) (per curiam); or whether a traditional arrest, requiring probable cause, has occurred. For this reason we will not disturb such a determination unless it is clearly erroneous. United States v. Gooding, 695 F.2d at 82.

We do not find clearly erroneous the district court's finding that Detective Dawley's initial contact with Porter in the airport passenger area was a Terry stop. ¹ The detective had the requisite reasonable, articulable suspicion of criminal activity to so detain Miss Porter and ask for identification. An informant's tip can provide the justification for a Terry stop even if the informant's reliability is unknown, and certainly can do so if, as here, the information is corroborated, a matter discussed more fully below. See United States v. Gorin, 564 F.2d 159, 160-61 (4th Cir.1977), cert. denied, 434 U.S. 1080, 98 S.Ct. 1276, 55 L.Ed.2d 788 (1978).

We need not determine whether the district court's finding that Porter went voluntarily to the DEA office was clearly erroneous. ² For the purposes of our opinion, we assume that Miss Porter was under arrest after she was identified during the lawful Terry stop, because even at that point the detective had probable cause for an arrest based on the informant's information corroborated through the detective's investigation and observation. Detective Dawley had confirmed as true every fact that the informant had supplied. The informant had said that Penny Porter was leaving or had left for Miami from National Airport on Saturday night, February 20, 1982. Dawley confirmed from the flight roster that a "T. Porter" had taken an Eastern flight to Miami out of National Airport that evening. His police experience had taught him that people generally use aliases similar to their own names, and he thus reasonably believed that "T. Porter" was the Penny Porter the informant had described. ...