U.S. v. Pulvano

• Decision Date: 07 November 1980
• Docket Number: No. 79-5693,79-5693
• Citation: 629 F.2d 1151
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joseph Edward PULVANO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1151

629 F.2d 1151

UNITED STATES of America, Plaintiff-Appellee, v. Joseph Edward PULVANO, Defendant-Appellant.

No. 79-5693.

United States Court of Appeals, Fifth Circuit.

Nov. 7, 1980.

Dan Alfaro, Corpus Christi, Tex., for defendant-appellant.

William S. Sutton, Janet F. King, Asst. U. S. Attys., Atlanta, Ga., for the U.S.

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

Before RONEY, HILL and FAY, Circuit Judges.

FAY, Circuit Judge:

Appellant was convicted, after a non-jury trial, of possessing cocaine hydrochloride with intent to distribute, in violation of 21 U.S.C. § 841(a) (1). Appellant seeks reversal on the grounds that the trial court erred in denying his motion to suppress certain evidence. Appellant asserts that the evidence was obtained in violation of the Fourth Amendment's proscription against unreasonable searches and seizures. We reject appellant's contention and affirm the judgment of the District Court.

Appellant, Joseph Edward Pulvano, was arrested at Atlanta's Hartsfield International Airport for falsely identifying himself to police officers in violation of Georgia law. A search of his person disclosed that he possessed 26.9 grams of what appeared to be cocaine. A subsequent search of appellant's baggage disclosed an additional 212.9 grams of the same substance. Because the facts leading up to and surrounding appellant's arrest and subsequent search are crucial to our analysis of the legal questions presented, we will review them in detail.

At 8:45 a. m. on July 27, 1979, appellant arrived at Atlanta's Hartsfield International Airport on Delta flight 462, a non-stop flight from West Palm Beach, Florida. Appellant was dressed in blue jeans and a wrinkled long-sleeve shirt with his shirt tail hanging out. It was this attire that first brought appellant to the attention of Agent Terry Mathewson and his companion, Special Agent Gerald Chapman, both of whom work for the Drug Enforcement Administration (DEA). Particularly, Agent Mathewson thought appellant's appearance was "disheveled" and not in conformance with that of the other passengers on the flight, most of whom appeared to be businessmen. When appellant exited the airplane he was carrying a small yellow suitcase. Upon entering the concourse, appellant approached a Delta agent and inquired about Delta flight 116 to Newark, New Jersey. As appellant showed his ticket to the Delta agent, Agent Mathewson, who had begun closer observation of appellant, was able to notice that there were no baggage claim checks on the ticket envelope. From there, appellant proceeded to a phone booth and placed a long-distance phone call. Agent Mathewson testified that he had no idea what was said by appellant during that three to four minute call. Thereafter, appellant left that concourse and headed toward the main terminal. Agent Mathewson did not observe appellant after he left the concourse until some fifteen minutes later, when Agent Mathewson saw him at gate 41-42. Appellant's flight to Newark, New Jersey departed from that gate area. At this time, Agent Mathewson saw appellant place a small yellow suitcase in locker number 315, a locker in the immediate vicinity of that gate area. Appellant then checked-in at the gate from which his flight was to leave. Agent Mathewson obtained appellant's ticket from the gate agent and discovered that it was a one-way ticket, purchased for cash, in the name of J. N. Penn. Agent Mathewson continued his investigation by reviewing appellant's flight reservation information in Delta's computer. This disclosed that appellant purchased the ticket twenty-six minutes before flight time and that he left no call-back number at which he could be reached during that time prior to departure.

On the basis of the information known to him then, Agent Mathewson decided that an interview with appellant was proper. Agent Mathewson testified that this conclusion was based on the fact the information known about appellant corresponded positively with a drug-courier profile developed by the DEA to help agents determine when airport searches should be conducted. The facts that were significant to Agent Mathewson included the following: appellant was flying from West Palm Beach, Florida, a known "source" city, to Newark, New Jersey, a known "use" city; appellant's appearance was unkempt and unlike that of the other passengers on the flight; appellant purchased his ticket for cash shortly before departure and failed to give a call-back telephone number; appellant was traveling with only one small suitcase; and, lastly, appellant made a relatively brief long-distance call upon deplaning.

Having concluded that an interview of appellant was appropriate, Agent Mathewson, now in the company of Detective Jim Burkhalter, waited for appellant between Locker 315 and the gate from which the plane to Newark was to leave. As appellant approached the locker, Agent Mathewson identified himself as a police officer and asked if he would answer a few questions. Appellant said, "Sure." Agent Mathewson asked to see appellant's plane ticket, and appellant gave it to him. Agent Mathewson asked appellant if the name on the ticket, J. N. Penn, was his, and appellant said, "Yes." Agent Mathewson then asked appellant if he had any identification. Appellant produced a Florida driver's license bearing the name Joseph Edward Pulvano. When asked why he had given an incorrect name initially, appellant said simply, "The name on the ticket is Penn." Agent Mathewson then asked if appellant had any luggage with him, and appellant responded negatively. Agent Mathewson then confronted appellant with the fact that he was seen deplaning with a small yellow suitcase and subsequently placing it in locker 315. Agent Mathewson then asked if he could search the suitcase. After some hesitation, appellant handed Agent Mathewson the key to the locker. Agent Mathewson retrieved the suitcase and asked appellant if he would accompany them to a nearby Delta office. Appellant said, "O.K." and followed the two agents to the office. Up to this point in time neither officer had used any force or coercion to obtain appellant's cooperation, nor had they told him he was under arrest or otherwise restrained his freedom of movement.

Once in the Delta office, appellant was informed that he had a right to refuse to allow the search of his person and his suitcase. Agent Mathewson then asked appellant if he would consent to a search of the suitcase. After a series of ambiguous responses, appellant said he would not give his consent. Agent Mathewson then informed appellant that he was seizing the suitcase and would attempt to obtain a warrant to search it. After a pat-down search of appellant's outer clothing from the waist down revealed nothing, appellant was allowed to continue on his journey, without his suitcase.

What proceeded next is not absolutely clear. Apparently, Agent Mathewson had some misgivings about allowing appellant to leave. After some discussion with other agents, it was determined that appellant could be arrested under Georgia law for falsely identifying himself to Agent Mathewson during their initial contact. Thereafter, appellant was arrested and a more thorough search revealed a vial of a white powdery substance having the appearance of cocaine. Appellant then was taken to the DEA office and advised of his Miranda rights. He was again asked if he would consent to a search of his suitcase, but also informed that he had a right to refuse to give his consent. Appellant remained silent for two to three minutes and then, pointing to the suitcase, said, "There is cocaine in there, in the suitcase." Thereafter, appellant signed a written consent form giving the agents permission to search the suitcase. Upon making the search, the agents discovered 212.9 grams of cocaine hydrochloride.

Prior to trial, appellant made a motion to suppress the government's evidence on the grounds that it was unconstitutionally obtained in violation of his Fourth Amendment rights against unreasonable searches and seizures. A suppression hearing was held before a United States Magistrate. Agent Mathewson was the only witness to testify at the hearing. In a lengthy opinion, the Magistrate concluded that (1) the initial questioning of appellant at the locker was not a stop or an arrest under the Fourth Amendment, and, therefore, neither probable cause nor reasonable suspicion were required at that time, (2) the taking of appellant's bag and subsequent questioning in the Delta office was an unconstitutional seizure, unsupported by probable cause, (3) appellant was not prejudiced by this unconstitutional seizure because no evidence of criminality was thereby disclosed, (4) the later arrest of appellant for giving false identification was proper, as supported by probable cause, (5) the subsequent search of appellant in which cocaine was discovered was proper as incident to a lawful arrest, and (6) the search of appellant's suitcase was constitutional, irrespective of the prior illegal seizure, because it was conducted pursuant to appellant's voluntary and knowing consent. The Magistrate recommended that appellant's motion to suppress be denied. The District Court adopted the Magistrate's report and orally denied appellant's motion to suppress. It is the correctness of that ruling that is the basis for this appeal.

Appellant contends that the trial court erred in denying his motion to suppress certain evidence. He asserts that the evidence should have been excluded because it was obtained unconstitutionally, in violation of his Fourth Amendment right to be free from unreasonable governmental searches and seizures. For the reasons set out below, we reject appellant's contention and affirm the District Court's judgment.

We are initially required to determine if and when appellant was seized within the meaning of the Fourth Amendment. It is only at that point...