U.S. v. Smith

• Citation: 574 F.2d 882
• Decision Date: 08 August 1978
• Docket Number: No. 77-5234,77-5234
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Erma SMITH, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 882

574 F.2d 882

UNITED STATES of America, Plaintiff-Appellee, v. Erma SMITH, Defendant-Appellant.

No. 77-5234.

United States Court of Appeals,

Sixth Circuit.

Argued Dec. 15, 1977.

Decided April 19, 1978.

Rehearing En Banc Denied Aug. 8, 1978.

Clarence M. Bradfield, Terry & Bradfield, Detroit, Mich., (Court Appointed-CJA), Gad L. Holland, Detroit, Mich., for defendant-appellant.

Philip M. Van Dam, U. S. Atty., Victoria Toensing, Asst. U. S. Atty., for plaintiff-appellee.

Before WEICK, EDWARDS and CELEBREZZE, Circuit Judges.

CELEBREZZE, Circuit Judge.

Appellant, Erma Smith, was convicted after a bench trial of possessing with intent to distribute a controlled substance (heroin), in violation of 21 U.S.C. § 841(a)(1). The issues raised on appeal are whether the district court should have granted Appellant's motion to suppress the heroin for the reason that it was the fruit of an illegal stop by a Drug Enforcement Agency (DEA) agent or because it was the fruit of a warrantless search for which her consent was coerced. For the reasons stated below, we affirm.

On November 3, 1975, DEA Agent James Seward was on general surveillance duty in the Detroit Metropolitan Airport. He watched closely persons deplaning from a non-stop flight from Los Angeles since such flights were known to frequently carry drug couriers. Agent Seward's attention was drawn to Appellant since she had the following characteristics of the DEA's "drug courier profile:" ¹ youth, carrying only a purse and small carry-on bag and picking up no luggage at the airport, traveling alone and being met by no one at the airport, and directly leaving the airport in a hurried and nervous manner. ² An additional salient factor was an abnormal and obvious bulge around Appellant's abdomen, which in Agent Seward's experience suggested that she was carrying illegal drugs. ³

So alerted, agent Seward followed Appellant and stopped her as she hailed a cab outside the airport. He identified himself and told Appellant he suspected she was carrying illegal narcotics. He asked Appellant for some identification and, appearing very nervous, she produced her driver's license and a plane ticket in the name of Mr. L. Summers. ⁴ Agent Seward asked Appellant to accompany him to the airport DEA office for further investigation and she went along voluntarily. At the DEA office, Agent Seward, in the presence of another agent, asked for her consent to search her purse and carry-on bag. Although informed that she could refuse consent, Appellant consented to the search saying she had nothing to hide. The search of the purse turned up marijuana and Appellant was immediately placed under arrest. A full search of Appellant's person then revealed that her abnormal abdominal bulge was a package of heroin strapped to her body.

Appellant raises three issues on appeal, each directed to the refusal of the district court to suppress the heroin. She argues that the initial stop by Agent Seward was illegal as not based upon probable cause or reasonable suspicion under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). From this she argues that her consent to the search of her purse was the tainted fruit of the illegal stop and that her consent was not otherwise shown to be voluntary. From this flows the argument that her ensuing arrest and search of her person were illegal as the fruit of the illegal search of her purse. ⁵

In this Circuit's several examinations of the drug courier profile and the fourth amendment, ⁶ the rule has emerged that the characteristics of the drug courier profile are not alone enough to provide probable cause to arrest nor necessarily enough to create a reasonable suspicion to stop under Terry. ⁷ The components of the profile may be considered, however, along with other relevant information known to the officer in evaluating whether he had probable cause to arrest or reasonable suspicion to stop. ⁸ We are presented here with the issue of whether a person meeting most of the characteristics of the drug courier profile plus exhibiting an abnormal abdominal bulge gave Agent Seward reasonable suspicion to stop pursuant to Terry. ⁹

The standard espoused in Terry is a general one:

in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. 392 U.S. at 21, 88 S.Ct. at 1880 (footnote omitted).

While our cases have held that the drug courier profile alone does not necessarily provide sufficient "specific and articulable facts," we think that the elements of the profile met here plus the abnormal abdominal bulge provided such facts. ¹⁰ Agent Seward testified that both his experience and training films he had viewed led him to believe illegal narcotics were being carried in the bulge. Appellant offered no evidence as to possible innocent behavior associated with such bulges. While this is conceivably consistent with innocent behavior, none is readily apparent. Moreover, Terry itself dealt with "a series of acts, each of them perhaps innocent in itself, but which taken together warranted further investigation." Id. at 22, 88 S.Ct. at 1880. Agent Seward was "entitled to draw (specific reasonable inferences) from the facts in light of his experience." Id. at 27, 88 S.Ct. at 1883. We hold that Agent Seward had knowledge of sufficient specific and articulable facts which gave him a reasonable suspicion "that criminal activity may (have been) afoot," id. at 30, 88 S.Ct. at 1884, permitting him to temporarily stop Appellant under the authority of Terry.

Appellant argues in the alternative that Terry has no application to this cause since Terry involved a seizure of weapons and here drugs were seized. Since our prior drug courier profile cases have assumed that Terry was applicable to this factual situation without fully discussing the issue, ¹¹ we offer this further explanation. A careful reading of Terry reveals that it discusses two distinct police activities. First, it approves investigative stops by the police. These do not require probable cause but only require what has been called a reasonable suspicion that the person stopped was engaged or was about to engage in criminal activity. Id. at 22, 88 S.Ct. 1868. The propriety of such stops was never seriously questioned in Terry. ¹² The Court's sanction of the practice was designed to serve the legitimate governmental interest in "effective crime prevention and detection." Id.

The second aspect of Terry was its approval of frisks by the police of the persons they have stopped. Such frisks, which are limited searches of the person, also do not require probable cause but only a reasonable suspicion that the person stopped is armed. Id. at 30, 88 S.Ct. 1868. The propriety of such frisks was the "crux of (the) case," id. at 23, 88 S.Ct. 1868, and the Court's sanction of them is what makes Terry significant. The rationale behind allowing frisks was to permit the officer to take reasonable precautions for his own safety consistent with the detainee's fourth amendment interests. Id. at 26-27, 88 S.Ct. 1868.

Subsequent Supreme Court opinions confirm this two-part analysis of Terry. In Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972), the Court cited Terry for the proposition that an officer may make a "brief stop of a suspicious individual, in order to determine his identity or maintain the status quo . . . ." It was at a later point in the opinion that the Court discussed the legality of the search involved there. More recently in United States v. Brignoni-Ponce, 422 U.S. 873, 880-81, 95 S.Ct. 2574, 2580, 45 L.Ed.2d 607 (1975), the Court again read Terry as treating the stop and the frisk separately in approving a limited stop based upon reasonable suspicion even though not accompanied by any search.

In this case, we are concerned only with the first aspect of Terry the stop. This has no particular connection to weapons and requires only a reasonable suspicion that the detainee has engaged or is about to engage in criminal activity, which can include drug offenses. It is only the second aspect of Terry the frisk which is connected to weapons since it requires a reasonable suspicion that the detainee is armed. ¹³ But this cause does not involve a Terry frisk and the government has not argued, and could not on this record, that the search of Appellant was justified by a reasonable fear that Appellant was armed. Appellant's argument that Terry is inapplicable misses the mark.

Other circuits have reached the result we reach here. ¹⁴ Of particular interest is the recent Second Circuit decision in United States v. Oates, 560 F.2d 45 (2d Cir. 1977). There the court said it was "well-settled that . . . a citizen may be . . . 'stopped,' for investigative purposes," id. at 57, and it "is now axiomatic that a law enforcement officer has the power, indeed the obligation, to detain a person temporarily for the purpose of interrogating him" if the officer has a reasonable suspicion about the person. Id. at 58-59. (Footnote omitted.) Just as we have done here, the Court analyzed separately the propriety of the stop and the frisk. Oates also involved a stop in an airport and the court approved a procedure like that in this case of escorting the detainee to a private office to escape the congestion of the airport's public areas. Id. at 57. ¹⁵

Thus Appellant's arguments that the requisite reasonable suspicion under Terry did not exist and that Terry is inapplicable must fall. With them falls Appellant's claim that her consent to the search of her purse was the fruit of an illegal stop. Nor do we agree with the contention that Appellant's consent was otherwise involuntary. The district court found her consent voluntary and that finding is not clearly erroneous. United States v. Sumlin, 567 F.2d 684, 688 (6th Cir. 1977); United States v....