U.S. v. Robinson
| Decision Date | 17 September 1980 |
| Docket Number | No. 79-5252,79-5252 |
| Citation | 625 F.2d 1211 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Michael Kelly ROBINSON, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Stephen A. Kermish, Atlanta, Ga., for defendant-appellant.
William S. Sutton, Asst. U. S. Atty., Atlanta, Ga., for plaintiff-appellee.
Appeal from the United States District Court for the Northern District of Georgia.
Before BROWN, HILL and RANDALL, Circuit Judges.
This is an appeal from a conviction in a nonjury trial for possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). Appellant Robinson moved to suppress the introduction at trial of the cocaine on the ground that it had been seized at the Atlanta Hartsfield International Airport by agents of the Drug Enforcement Administration (DEA) in violation of his fourth amendment rights. After a hearing, the magistrate recommended that the motion to suppress be denied, and the district court adopted the magistrate's findings and recommendation without a hearing. Robinson waived jury trial and was tried and found guilty on stipulated facts. This appeal followed.
The hearing before the magistrate on the motion to suppress the cocaine focused on the manner in which the cocaine had been obtained from Robinson by the DEA agents. On the basis of the testimony presented at the hearing, the magistrate made the following findings of fact with respect to the seizure of the cocaine:
1. On September 21, 1978, DEA Agent(s) Paul Markonni and Michael L. Dorsett were on duty at the Atlanta Airport observing passengers at the arrival gate of Flight 1122, a non-stop flight from Miami, Florida.
2. At approximately 3:15 p. m., Agent Markonni's attention became focused upon (Robinson) when Agent Dorsett informed him that (Robinson) had exited from the doorway leading from the airplane, and that he stared directly at the two DEA Agents, appeared to be nervous and perspiring, and was looking around the arrival area unlike the other passengers.
3. Agent Markonni first saw (Robinson) while he was walking up Concourse "F" towards the main terminal, carrying only a standard size briefcase, and then observed him turn around several seconds later and return to the Delta gate agent to ask about his connecting flight to Birmingham, Alabama.
4. After receiving directions for his Birmingham flight, (Robinson) walked up the concourse 10 or 11 feet, and then turned and stared directly at Markonni. He then walked further up the concourse, only to again pause and stare at Markonni, and then proceeded to Gate 61 and not Gate 53, the proper gate for his Birmingham flight which was 50-60 feet further up the concourse, and around the corner.
5. Agent Markonni secreted himself behind the desk at Gate 53, and observed (Robinson) speak to the gate agent and then walk slowly in the area of the connector to the main terminal.
6. (Robinson) reached the area of the security checkpoint area of the main terminal, stopped, and returned back to the concourse, appearing to hesitate going down the stairs adjacent to the security checkpoint.
7. Agent Markonni then walked up beside (Robinson) and was able to observe (Robinson's) airplane ticket that he carried strapped to his briefcase and he noticed no baggage claim tickets attached to the airplane ticket.
8. Agent Markonni then identified himself as a federal officer to (Robinson), showed him his credentials, and asked whether he could see his airline ticket.
9. (Robinson) gave Markonni his ticket as requested, which revealed that it was issued in the name Michael Reilly, which (Robinson) explained by saying he had borrowed the ticket. (Robinson) also produced a driver's license in the name of Michael Robinson.
10. (Robinson) denied to Agent Markonni that he was carrying narcotics, and further consented to Markonni's request that he permit a brief search of his person and briefcase.
11. Markonni then asked whether (Robinson) would accompany him to a downstairs office (not identified as the police precinct office), so as to avoid the public observing the search, to which (Robinson) also agreed, and in addition, (Robinson) placed his briefcase on a table, and asked whether Markonni wished to search it.
12. Markonni deferred searching the briefcase at this point, and instead proceeded with (Robinson) to the downstairs precinct office approximately 125 feet, or 3 minutes away from the point of the initial stop.
13. Upon reaching the precinct office, Officer E. W. White accompanied Markonni and (Robinson) to an adjacent office at Markonni's request.
14. (Robinson) was again requested to allow a search of his person and personal property, and was read the following from a card carried by Markonni:
You have the right to allow or refuse to allow a search to be made of your person and personal property that you have with you. Do you understand?
15. (Robinson) replied that he understood his rights and consented to the search.
16. Markonni's initial patdown search of (Robinson) revealed nothing unusual, nor did his subsequent search of (Robinson's) briefcase.
17. Markonni's suspicions regarding (Robinson) persisted, and he again searched (Robinson's) person, this time noticing something unusual beneath (Robinson's) clothing, in the area of his lower abdomen.
18. At no time during the search did (Robinson) indicate a desire to discontinue the search, nor was he ever told he was under arrest, or prohibited from leaving or coerced into consenting to be searched.
19. (Robinson) was then told to drop his trousers, and Markonni further satisfied himself that there was something unusual inside a blue and white paraplegic diaper worn by (Robinson), which was recovered by Markonni and was revealed to be a package of cocaine wrapped in tape. (Robinson) was then placed under arrest.
Record on Appeal, Vol. 1, at 17-19 ().
The magistrate made four findings with respect to the legality of the seizure of the cocaine. First, relying on United States v. Ballard, 573 F.2d 913 (5th Cir. 1978), a case in which an initial encounter between DEA agents and a defendant similar to the initial encounter in this case was assumed to be an investigatory (Terry ) 1 stop requiring reasonable suspicion, the magistrate treated the initial encounter between Markonni and Robinson as a Terry stop. Second, the magistrate determined that the three facts known to Markonni at the time of the investigatory stop which matched elements of the "drug courier profile" 2 (1) Robinson's nervousness, (2) his arrival from a major drug distribution center, and (3) his lack of luggage other than a briefcase were insufficient to justify a reasonable suspicion of criminal activity. Therefore, the magistrate held that the investigatory stop was violative of the fourth amendment. Third, the magistrate found that Robinson voluntarily consented to accompany Markonni to the precinct office in the airport and that he voluntarily consented to the search. Fourth, the magistrate found that Robinson's voluntary consent to the search, which was given after he was warned concerning his fourth amendment rights, removed the taint of the illegal stop. Therefore, the magistrate concluded that the cocaine was admissible at trial.
On appeal, Robinson argues that the magistrate erred in its determination that his consent was voluntary and that the consent removed the taint of the illegal stop. On the other hand, the Government contends that the district court erroneously concluded that the initial encounter was a Terry stop requiring reasonable suspicion and that, even if the initial encounter was a Terry stop, it was supported by a reasonable suspicion of criminal activity.
Thus, we are faced with four issues in this case: (1) whether and when a seizure within the meaning of the fourth amendment occurred; (2) if a seizure occurred, whether reasonable suspicion existed at the time of the seizure; (3) whether Robinson voluntarily consented (a) to accompany Markonni to the precinct office in the airport, and (b) to the search; and (4) if Robinson voluntarily consented but the seizure, if any, was illegal, whether the search was the tainted product of the illegal seizure.
On October 1, 1979, the Supreme Court granted the petition for certiorari in United States v. Mendenhall, 444 U.S. 822, 100 S.Ct. 42, 62 L.Ed.2d 29 (1979), a "drug courier profile" case involving issues similar to those presented by the case before us. After hearing oral argument in this case in Atlanta, Georgia on November 29, 1979, we decided to delay disposition of this appeal pending the Court's action in Mendenhall. The Court's decision in Mendenhall was announced on May 27, 1980. --- U.S. ----, 100 S.Ct. 1870, 64 L.Ed.2d 497. As we will explain below, the majority opinion in Mendenhall is, in our view, dispositive of only one of the four issues in this case the voluntary consent issue. Soon after its decision in Mendenhall, the Court decided a second case involving the "drug courier profile," Reid v. Georgia, --- U.S. ----, 100 S.Ct. 2752, 65 L.Ed.2d --- (1980) (per curiam). After carefully studying Mendenhall and Reid, and after considering supplemental briefs submitted by the parties, we have determined that the case must be remanded to the district court for factual and legal findings with respect to three of the four issues raised on appeal. For purposes of clarity, we will separately discuss each of the issues on appeal and the reasons for our disposition of each issue.
The threshold question in this case is whether and when a "seizure" within the meaning of the fourth amendment occurred. Relying on United States v. Ballard, 573 F.2d 913 (5th Cir. 1978), the magistrate assumed that Robinson was "seized" and thus, reasonable suspicion was required at the moment Markonni originally approached Robinson and began...
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