U.S. v. Seventy-Three Thousand, Two Hundred Seventy-Seven Dollars, U.S. Currency

• Decision Date: 31 May 1983
• Docket Number: SEVENTY-THREE,No. 82-2536,SEVENTY-SEVEN,82-2536
• Parties: UNITED STATES of America, Plaintiff-Appellee, v.THOUSAND, TWO HUNDREDDOLLARS, UNITED STATES CURRENCY, Defendant, Appeal of Joseph STECKEL, Claimant-Intervenor.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 283

710 F.2d 283

UNITED STATES of America, Plaintiff-Appellee, v. SEVENTY-THREE THOUSAND, TWO HUNDRED SEVENTY-SEVEN DOLLARS, UNITED STATES CURRENCY, Defendant, Appeal of Joseph STECKEL, Claimant-Intervenor.

No. 82-2536.

United States Court of Appeals, Seventh Circuit.

Argued April 26, 1983.

Decided May 31, 1983.

James J. Ewers, Eisenberg, Giesen, Ewers & Hayes, S.C., Madison, Wis., for claimant, intervenor.

Canella E. Henrichs, Asst. U.S. Atty., Dan K. Webb, U.S. Atty., Chicago, Ill., for plaintiff-appellee.

Before PELL, POSNER and COFFEY, Circuit Judges.

COFFEY, Circuit Judge.

This appeal concerns the legitimacy of a search and seizure conducted by agents of the Drug Enforcement Administration (DEA) at Chicago's O'Hare International Airport. This is an action brought by the government for forfeiture of $73,277.00 in currency found in the possession of one Joseph Steckel. The district court, after finding no violation of the claimant's Fourth Amendment rights, concluded that the intended use of the seized money was to purchase a controlled substance. The court ordered the currency forfeited to the United States pursuant to 21 U.S.C. Section 881(a)(6). The claimant, Joseph Steckel, appeals. The order of the district court is AFFIRMED.

I.

On May 15, 1980, Drug Enforcement Administration agents Bob Fulkerson and George Faz were stationed at O'Hare International Airport monitoring the arrival of airline passengers on flights originating from the Miami-Fort Lauderdale area. The DEA had previously determined that southern Florida is a major source area for illegal drugs and narcotics and thus, as part of their assault on illicit drug trafficking, agents frequently observe passengers arriving on flights originating from this area.

At approximately 11:15 a.m., Delta Airlines Flight No. 548 arrived from Fort Lauderdale. Among the passengers deplaning was one Joseph Steckel carrying a brown vinyl travel bag. Steckel attracted the attention of the agents as he cautiously surveyed the people in the boarding area after deplaning. After departing from the gate area, Steckel entered the concourse area and looked to his rear, over his shoulder on several occasions as he proceeded to a telephone booth where he placed a call and continued to scan the concourse area, up and down, while in the booth.

After completing the call, Steckel proceeded through the Delta Concourse toward the main terminal. At this point Agents Fulkerson and Faz began to follow him. Steckel continued to glance over his shoulder, scanning the concourse area in a manner consistent with an attempt to detect surveillance. He proceeded to and entered a restroom and after a short time exited the restroom and walked toward a row of wall-mounted telephones. ¹ Steckel then appeared to place several additional telephone calls, all the while looking up and down the concourse area. After completing these calls, Steckel headed toward the main terminal repeatedly glancing over his shoulder and making eye contact with Agent Fulkerson. About halfway through the concourse, Steckel stopped near a small seating area and Agent Fulkerson approached him.

Agent Fulkerson testified that he walked alongside Steckel, identified himself as a federal officer, showed him (Steckel) his badge and asked him if he could speak with him for a minute. Steckel replied that it would be "okay." ² When Fulkerson asked Steckel for some form of identification, Steckel replied that he had left his billfold in Madison, Wisconsin and was thus without any formal identification, but he did orally identify himself to the officer as Alan Bundy and indicated that he had been in Florida visiting friends. Fulkerson requested Steckel to display his airline ticket, and upon examination he noted that the ticket had been issued in the name of an alias, Alan Bundy, and had been paid for in cash. Fulkerson returned the ticket to Steckel, and in doing so observed that Steckel was upset as he was physically shaking and his voice was quivering.

In response to further questioning, Steckel told Fulkerson that he had been in Florida for the past four days visiting friends, that he was presently unemployed and that his travel bag contained clothes. During the initial stages of this conversation Fulkerson informed Steckel that he was not under arrest. Agent Fulkerson then asked Steckel if he would consent to a search of his travel bag, informing him that the search was voluntary and he could refuse. Steckel refused the search request at this time and stated that he was in a hurry to catch his plane. Fulkerson next inquired as to the time Steckel's flight was scheduled to depart and Steckel advised him that it was to leave at 12:30 p.m. Fulkerson then informed Steckel that since it was only 11:40 a.m., he had plenty of time to catch his flight which would be departing from the Republic Airlines gate a short distance away.

Fulkerson resumed his questioning asking Steckel if his travel bag contained any drugs and Steckel replied "no." Fulkerson inquired about what Steckel's travel bag contained in addition to clothing and after some hesitation Steckel stated that there was approximately $50,000.00 in cash in the bag which he had taken to Florida for investment purposes. Agent Faz had rejoined Fulkerson during this conversation with Steckel. Fulkerson again requested permission to inspect the travel bag and this time, according to Agent Fulkerson, Steckel agreed, sat down in the public seating area and unzipped the bag and opened it, revealing a large sum of money.

Shortly after the discovery of the large amount of currency in the travel bag, three other DEA agents joined Fulkerson and Faz. George Salvemini, Fulkerson's supervisor, was promptly apprised of the situation including Fulkerson's suspicions and observations. Salvemini sat on the seat next to Steckel and in response to questions put to him by Agent Salvemini, Steckel revealed his true identity and stated that he had been in Florida working on an investment for his father initially stating that he had intended to purchase real estate, later changing his story, saying he had intended to purchase a boat. A subsequent search of Steckel's travel bag by Agent Salvemini revealed a small amount of suspected marijuana residue in the bottom of the bag. ³ Steckel's other piece of luggage, a suit bag, was then retrieved by agents who discovered a small plastic bag containing marijuana therein and airline tickets issued in the name of two aliases. ⁴ Steckel explained to the agents that the contents of the bag was kitty litter, rather than marijuana. Steckel was then arrested and given his Miranda warnings. Steckel initially stated that he had traveled to Florida to purchase cocaine for a friend and that the currency belonged to that friend. Later that day, in return for an assurance that no criminal action would be taken against him, Steckel signed a written statement in which he stated that he had been "dealing" in marijuana for the past 2 1/2 years and had consummated transactions with a DEA-known drug trafficker. He also admitted that he had gone to Florida on this occasion intending to purchase 250 pounds of marijuana at $300.00 per pound, but had been unable to do so.

The government then brought the present action under 21 U.S.C. Sec. 881(a)(6) for forfeiture of the money seized from Steckel, $73,277.00, on the ground that the currency was the proceeds of a drug transaction or was intended to be used to purchase a controlled substance. ⁵ As claimant, Steckel asserted that the DEA agents lacked probable cause or a reasonable basis for an investigatory stop of him and the subsequent seizure and forfeiture of the currency violated his constitutional rights. ⁶ The forfeiture case proceeded to trial before the district court and on August 16, 1982, the district court found that: (1) the initial encounter between Steckel and Fulkerson was not a seizure; (2) Steckel had given valid consent prior to the search of his travel bag; (3) the earliest point a seizure occurred was at that moment in time when Fulkerson and Faz were joined by the other three DEA agents; (4) the seized currency was intended to be used to purchase a controlled substance; and (5) the seized currency was ordered forfeited to the United States. This appeal followed.

II.

Steckel's principal argument on appeal is that the seizure of his person at the airport was unlawful. He argues that the seizure of his person occurred either at the moment Fulkerson initially approached him or when he told Fulkerson that he had a plane to catch. Steckel maintains that the seizure was without a reasonable suspicion that criminal activity was afoot. The fruit of this illegal seizure, the currency, should thus be suppressed as "fruit of a poisonous tree" per Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441 (1963). Steckel disagrees with the trial court's conclusion that he voluntarily consented to the search of his travel bag and contends the determination was erroneous. ⁷

When evaluating the findings of the district court concerning an airport drug courier alleged search and seizure such as the one involved herein, our review is narrow. The determination whether an encounter between an individual and a law enforcement officer constitutes a "seizure" is an extremely factual one, depending on the circumstances of each particular case. United States v. Moya, 704 F.2d 337 at 341 (7th Cir.1983). Particular deference must be given to the district judge who had the opportunity to observe the demeanor and hear the testimony of the witnesses. United States v. Black, 675 F.2d 129, 134 (7th Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 1520, 75 L.Ed.2d 945 (1983).

As an appellate court, we are not at liberty to substitute our judgment for that of the trial court. See United States v. Briggs, 700 F.2d 408, 416 (7th Cir.1983). An appellate court's function is limited. It is the...