U.S. v. Regan

• Decision Date: 01 September 1982
• Docket Number: No. 81-1722,81-1722
• Citation: 687 F.2d 531
• Parties: UNITED STATES of America, Appellee, v. John H. REGAN, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 531

687 F.2d 531

UNITED STATES of America, Appellee, v. John H. REGAN, Defendant, Appellant.

No. 81-1722.

United States Court of Appeals, First Circuit.

Argued April 7, 1982.

Decided Sept. 1, 1982.

Christopher J. Muse, Boston, Mass., with whom Robert F. Muse, Boston, Mass., was on brief, for defendant, appellant.

Charles T. Spurlock, Asst. U. S. Atty., Boston, Mass., with whom William F. Weld, U. S. Atty., Boston, Mass., was on brief, for appellee.

Before FAIRCHILD, ^* CAMPBELL and BOWNES, Circuit Judges.

LEVIN H. CAMPBELL, Circuit Judge.

In several recent cases, this circuit has considered the constitutionality of airport encounters between drug agents and suspected drug couriers. United States v. Jodoin, 672 F.2d 232 (1st Cir. 1982); United States v. West, 651 F.2d 71 (1st Cir. 1981); United States v. Viegas, 639 F.2d 42 (1st Cir.), cert. denied, 451 U.S. 970, 101 S.Ct. 2046 (1981). These precedents would dispose of the present case if it did not raise a further question, namely, how long may police detain a traveller's suitcase under a reasonable suspicion standard?

On March 18, 1981, at about 12:45 p. m., appellant John Regan and a male companion entered the Delta Airlines terminal at the Fort Lauderdale airport. Regan, who was walking with the aid of crutches, carried a small brown shoulder bag, and his companion carried a larger brown suitcase. The two men walked to the Delta ticket counter and joined a line there.

Regan and his companion aroused the curiosity of two Broward County deputy sheriffs who were conducting an unrelated narcotics surveillance in the terminal. The deputies testified that Regan appeared to be very nervous, that he constantly scanned the interior of the terminal as if looking to see if he was being watched, and that his nervousness made them think that Regan might be engaged in transporting contraband. One of the two deputies assumed a position in line behind Regan and his companion, and noticed that Regan repeatedly glanced at the larger of the two suitcases.

When Regan reached the head of the line, the deputy sheriff heard him request a one-way ticket to Boston. The deputy also observed Regan make out two identification stickers which he attached to his suitcases before the ticket agent placed both bags on a conveyor belt. Both deputies testified that as Regan left the ticket counter to board his flight, he several times looked at the larger suitcase which was by then on the luggage conveyor belt. As Regan approached the escalator leading to the departure area, he and his companion exchanged goodbyes. The other man then departed the terminal while Regan mounted the escalator and continued toward his plane's departure gate.

The two deputies then took a closer look at Regan's suitcases. They noted the numbers on the baggage claim tickets and found the name on the identification stickers to be illegible. The deputies went to the departure gate where they observed Regan boarding a Boston-bound Delta flight which had been scheduled to depart at 1:00 p. m. The deputies testified that Regan had entered the terminal to buy his ticket and check in at only 12:45 p. m., 15 minutes before flight time. After the plane's departure, the two deputies returned to the Delta ticket area where they spoke with the ticket agent who had sold Regan his ticket. They learned that Regan had purchased his one-way ticket to Boston with cash and that Delta had no local telephone contact number for him. One of the deputy sheriffs then telephoned DEA special agent Sampson in Boston, summarized these observations, and suggested that the DEA agents continue the surveillance upon Regan's arrival in Boston. ¹

Upon receipt of this information, agent Sampson contacted DEA special agent Lemon and state police officer Palombo and in their company proceeded to observe the disembarkation of the Delta flight. Regan, using his crutches as support, was one of the last passengers to leave the plane. ² He was met by a woman, later identified as Celinda Kaye, who greeted him with a kiss.

At this point the three law enforcement officers split up, agent Sampson going to identify Regan's luggage as it was unloaded and agent Lemon and officer Palombo remaining in the terminal and continuing their surveillance of Regan and Ms. Kaye. During this period of surveillance, agent Lemon and officer Palombo noticed that as they followed Regan and Ms. Kaye to the baggage claim area, Regan, on three occasions looked back over his shoulder as if trying to detect whether he was being followed. Just prior to their arrival at the baggage claim area, the two officers observed Ms. Kaye leave the terminal. Regan continued to the baggage claim area and eventually halted near one end of the baggage conveyor apart from the other passengers waiting to retrieve their luggage. At this point, agent Sampson rejoined the two men and all three continued to observe Regan. The officers noticed that as Regan waited for his luggage, he periodically scanned the baggage area in a manner which to them suggested that he was trying to detect surveillance. When Regan's bags were placed on the conveyor belt, Regan removed them from the belt, put both crutches under one arm and, after first presenting his baggage claim checks to the security guard, proceeded to leave the baggage claim area with the bags.

As Regan approached the glass doors leading out of the terminal to the street, agent Sampson approached him from the right, identified himself as a DEA agent, presented his credentials and asked Regan if he would mind speaking with the two DEA agents for a few minutes. Regan turned around, placed the larger suitcase on the floor, and replied, "Sure." Sampson and Lemon, who were both dressed in street clothes, flanked Regan, with each officer standing at about two or three feet away from either side. Trooper Palombo, who was also dressed in street clothes, stood about ten feet away from the group of men.

In response to questions from agent Sampson, Regan stated that he had just returned from a four-day pleasure trip to Fort Lauderdale. When asked if he would show his plane ticket to the agents, Regan reached into his pocket, pulled out a small number of bills but was unable to locate his plane ticket. He explained his inability to produce the ticket by stating that he must have left the ticket on the plane. ³ When agent Sampson asked Regan for some identification, Regan produced a Massachusetts driver's license made out in his name. The agents examined the license and promptly returned it to Regan.

At this point, Regan asked the agents what the problem was. Agent Sampson responded that the agents were conducting a narcotics examination and asked Regan if he carried any drugs in his bag. Regan stated that he had some prescription drugs and, without being asked, unzipped the smaller bag and tendered three prescription bottles to the agents. Agent Lemon then informed Regan that the agents were not talking about prescription drugs but were looking for drugs like cocaine and marijuana. Regan, according to the agents, paled and his hands began to shake; however he told the agents that the larger suitcase contained only clothes. Agent Lemon then asked Regan if he would permit the agents to examine the contents of the bag, advising him that he could refuse if he wished. Regan replied that he did not want the agents to look in the bag, and that it was locked. He inquired what would happen if he refused. Agent Sampson responded that Regan was free to leave, but that the agents intended to have a narcotics detection dog examine the bag. The agent went on to say that if the dog "alerted" to the bag, thereby indicating the likely presence of illegal substances, the agents intended to apply for a search warrant. When Regan asked if he would have to wait while the procedure was performed, the agents informed him that he was free to leave and that if he chose to leave, he would be given a receipt for his bag. Regan stated that he would prefer to leave the bag and agreed to accompany the agents to the DEA office in the terminal in order to obtain a receipt.

At this point, Celinda Kaye arrived in the baggage claim area, saw Regan with the agents and attempted to avoid being seen by walking behind two mailboxes and a glass display case. While agent Sampson and Regan continued their discussion, agent Lemon, accompanied by trooper Palombo, walked over to where Ms. Kaye was standing and identified themselves. When the two men asked Kaye if she knew Regan, Ms. Kaye replied that she had never seen him before in her life. However, after agent Lemon informed Kaye that he had seen her meet Regan upon his arrival at the airport, Ms. Kaye admitted that she worked with Regan and had come to the airport to drive him home. When asked for identification, Ms. Kaye stated that she had left her identification in her car which was parked outside the terminal. Agent Lemon then asked if he could check her pocketbook for weapons. Although Ms. Kaye at first refused to permit the search, upon Lemon's continued insistence, she consented. The search revealed no weapons. Agent Lemon and officer Palombo then accompanied Ms. Kaye to her car where she produced her license and registration. After a routine check of the license and registration disclosed no problems, Ms. Kaye was advised that she was free to go. Agent Lemon and officer Palombo then proceeded to the DEA office, and Ms. Kaye reentered the terminal to wait for Regan.

While agent Lemon and officer Palombo were questioning Ms. Kaye, agent Sampson and Regan had proceeded to the DEA office on the third floor of the terminal building. Upon their arrival at the office, Sampson called the U. S. Customs office and learned that the dog handler was off duty and would not be available until the following day. ⁴ Agent Sampson then asked Regan to once again produce his license and the prescription vials which he earlier had shown to the...