U.S. v. Respress

• Decision Date: 09 November 1993
• Docket Number: No. 92-6059,92-6059
• Citation: 9 F.3d 483
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael A. RESPRESS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 483

9 F.3d 483

62 USLW 2328

UNITED STATES of America, Plaintiff-Appellee, v. Michael A. RESPRESS, Defendant-Appellant.

No. 92-6059.

United States Court of Appeals,

Sixth Circuit.

Argued April 27, 1993.

Decided Nov. 9, 1993.

Karen K. Caldwell, U.S. Atty., Lexington, KY, Frederick A. Stine, V, Asst. U.S. Atty. (argued and briefed), E.J. Walburn, Asst. U.S. Atty., Covington, KY, for plaintiff-appellee.

Albert C. Hawes (argued and briefed), Covington, KY, for defendant-appellant.

Before: JONES and BATCHELDER, Circuit Judges; and ENGEL, Senior Circuit Judge.

BATCHELDER, Circuit Judge.

Defendant Michael Respress entered a conditional guilty plea to possession of cocaine with intent to distribute in violation of 21 U.S.C. Sec. 841. On appeal, he challenges the district court's refusal to grant his motion to suppress the cocaine found in his luggage. The only issue before us is whether the government agents were justified in seizing Respress's suitcase and whether the duration of the seizure was reasonable.

I

On November 19, 1991, Defendant Michael Respress was the next-to-last person to deplane Delta flight # 846 from Ontario, California arriving in Cincinnati, Ohio at 8:20 p.m. Task Force Officer Joseph Jones took notice of Respress because (1) he was coming from a so-called drug source city, (2) he was one of the last passengers to deplane, (3) he was wearing an all-black sweatsuit and a quantity of gold jewelry, and (4) he had no carry-on baggage. These characteristics allegedly match the "drug courier profile" ¹ often used by narcotics investigators to identify possible drug couriers. Officer Jones watched Respress as he took a seat in the gate area, smoked a cigarette, and then went across the concourse to ask a Delta gate agent about his connecting flight. As Respress walked away from the Delta counter, Jones approached the gate agent and asked what Respress's travel plans were. He was told that Respress had a connecting flight to Akron/Canton. Upon further inquiry, the gate agent told Jones that Respress had made reservations for his one-way Ontario-Cincinnati-Akron ticket thirteen hours before departure and had purchased the $685 ticket with cash just twenty minutes before departure. Jones then followed Respress as he walked casually to the gate of his connecting flight.

Jones joined two of his fellow officers, Bauerle and Parker, and conferred briefly with them. They decided that Jones would approach Respress and ask to speak to him, while Parker and Bauerle walked ahead to the area of Respress's connecting gate.

Jones caught up to Respress and, walking alongside him, identified himself as a police officer, and asked to speak to him. Respress agreed and, in response to Jones's questions, said that he had been in Ontario visiting family for a few days and was returning to his home in Akron. Jones asked to see Respress's ticket and Respress complied; the ticket was issued to a Michael Foster. Jones then asked to see some identification, and Respress produced his driver's license, which was issued to Michael Respress on Ablewhite Avenue in Cleveland, Ohio. When Jones questioned Respress about the discrepancy between his ticket and license, Respress said that someone else had bought the ticket for him and that the ticket must have been issued in the other person's name. When Jones inquired as to why Respress's license listed a Cleveland address if he lived in Akron, Respress said that he had recently moved to Akron. Jones recorded the number on the baggage claim stub that was stapled to the ticket jacket and returned the ticket to Respress. Jones asked why Respress was flying on a one-way ticket and he replied that someone else had bought him his ticket to Ontario, so he only needed a one-way ticket to return to Akron.

Based on the suspiciousness of some of Respress's answers, Jones asked if Respress would consent to a search of his person and baggage. Respress refused, saying that he had been cooperative with Jones up to that point and that he did not want to miss his connecting flight, which was leaving in ten minutes. Jones told Respress that he was not under arrest and that he was free to go. Respress then continued on his way to his connecting flight, and Jones went to the airport police office intending to call for a dog sniff test of Respress's baggage.

When Respress neared his connecting gate, he glanced at the flight board, went to a public telephone and made a call, and then went downstairs to Delta's main ticket counter. Officer Parker watched all of this and followed Respress downstairs, where Respress spoke briefly with a ticket agent and then headed outside the terminal. Parker identified himself to the ticket agent and learned that Respress had inquired about cashing a check in order to buy a one-way ticket to Cleveland. The ticket agent also mentioned that there was something suspicious about the way Respress was acting. Parker then followed Respress out of the terminal and saw Respress get into a taxi. Parker quickly radioed the airport police for a patrol car, and Parker and the patrolman stopped Respress's taxi.

Officer Parker identified himself, told Respress that he would like to speak to him, and asked why he was leaving the airport and what he was going to do about his luggage. Respress responded that he was going to Cleveland and would pick up his suitcase there. Respress consented to a pat-down search, which revealed $700 in cash.

Officer Jones then arrived on the scene and asked Respress whether he intended to take the taxi all the way to Akron, his alleged destination. Respress responded that he had changed his plans and decided to visit a friend named McAllen on Market Street in Cincinnati. However, he was not able to give an address for McAllen. Respress explained that he was going to Cleveland eventually and would pick up his suitcase there. When Jones reminded Respress that his flight was going to Akron, not Cleveland, Respress said that he meant to say Akron but that he was very tired.

After discovering that Respress no longer had his ticket with him, Officer Bauerle obtained consent from the taxi driver to search the taxi. Parker then reached down behind the cushion of the rear seat where he could feel a piece of paper, which he could not pull out. After removing the rear seat cushion, Parker retrieved the paper, which turned out to be Respress's ticket. Respress said that it must have fallen out of his pocket. Parker questioned the taxi driver, who said that Respress had instructed him to drive to the bus station so that he could catch a bus to Cleveland. Jones asked Respress if he would consent to a search of his suitcase, and, as before, Respress said no. Jones then told Respress that they would attempt to seize his bag and get a search warrant for it, and Respress departed.

During the next several hours, Jones retrieved the suitcase from the airline, completed an affidavit, and presented the affidavit to a magistrate judge. At 7:05 a.m., approximately ten hours after the suitcase was seized, the magistrate judge issued a search warrant for the bag. The search was conducted and 2.8 kilograms of cocaine were seized from the suitcase. The suitcase was then sent on to the airport. Two days later, Respress called the airport to confirm the bag's arrival, and when he attempted to retrieve his bag at the airport, he was arrested.

Respress was indicted for possession of cocaine with intent to distribute in violation of 21 U.S.C. Sec. 841. He filed a motion to suppress the cocaine on grounds that it was seized in violation of the Fourth Amendment; the motion was denied. He then entered a conditional guilty plea and was sentenced to 78 months imprisonment with a four year term of supervised release. This appeal followed.

II

The sole issue before us is whether the officers had sufficient justification to seize the suitcase while they obtained a search warrant. Respress does not contest his consensual encounter with Officer Jones, the Terry stop ² of his taxi, the consensual searches of his person, or the validity of the search warrant for his suitcase. Respress only argues that the seizure of his suitcase without his consent and without a warrant violated the Fourth Amendment. The government contends that "the appropriate focus is whether, based upon the totality of the circumstances, reasonable suspicion existed to detain Respress' suitcase."

Both parties cite United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983) as support for their respective conclusions. Place concerned whether "reasonable suspicion," which is less than probable cause, permitted the temporary detention of a piece of luggage in order to subject the bag to a canine sniff test for drugs. The Court first determined that a sniff test is not a search under Fourth Amendment jurisprudence, but a temporary detention of a suitcase is a seizure for Fourth Amendment purposes. Id. at 707, 103 S.Ct. at 2645. The Court then held that "reasonable suspicion" was sufficient to support an investigatory detention of luggage which was limited in scope; but, it also held that the detention in the particular case before it was not reasonable under the circumstances. This conclusion was required, the Court said, for several reasons, including the duration of the seizure (90 minutes) and the failure of the officers to tell Place where or when he could get his suitcase back. Id. at 707-710, 103 S.Ct. at 2644-2646. Relying on Place, the government argues that the seizure in the instant case was the least intrusive way of pursuing the investigation and that the officers were justified in "detain[ing] the suitcase long enough to confirm or dispel their suspicions."

We find the instant case to be distinct from both Respress's and the government's characterizations of it. This is not a case involving reasonable suspicion which justifies something less than a search (e.g., a sniff test), nor...