U.S. v. Stevie

• Decision Date: 15 August 1978
• Docket Number: Nos. 77-1335,77-1424,s. 77-1335
• Citation: 578 F.2d 204
• Parties: UNITED STATES of America, Appellee, v. Robert Charles STEVIE, Appellant. UNITED STATES of America, Appellee, v. Raymond Lee REYNOLDS, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 204

578 F.2d 204

UNITED STATES of America, Appellee, v. Robert Charles STEVIE, Appellant.

UNITED STATES of America, Appellee, v. Raymond Lee REYNOLDS, Appellant.

Nos. 77-1335, 77-1424.

United States Court of Appeals,

Eighth Circuit.

Submitted Aug. 31, 1977.

Decided Nov. 17, 1977.

Rehearing and Rehearing En Banc Granted Jan. 6, 1978.

On Petition Rehearing En Banc Aug. 15, 1978.

See 582 F.2d 1175.

Mark W. Peterson, Minneapolis, Minn., for appellants, and on brief, for Robert Charles Stevie.

Joseph S. Friedberg, Minneapolis, Minn., for appellant, Raymond Lee Reynolds.

Joseph T. Walbran, Asst. U. S. Atty., Minneapolis, Minn., for appellee; Andrew W. Danielson, U. S. Atty., Minneapolis, Minn., on the brief.

Before GIBSON, Chief Judge, and HEANEY and WEBSTER, Circuit Judges.

WEBSTER, Circuit Judge.

In separate trials on stipulated facts, the appellants were found guilty by the District Court ¹ of possession with intent to distribute marijuana in violation of 21 U.S.C. § 841(a)(1). Approximately 250 pounds of marijuana concealed in suitcases were seized in a search of the station wagon in which appellants were riding. On appeal they contend that this evidence, which was the corpus delicti of the case, should have been suppressed because it was the fruit of an unreasonable seizure of the automobile and an illegal search of its contents in violation of the Fourth Amendment.

Following the filing of briefs in this appeal the Supreme Court rendered its decision in United States v. Chadwick, 1 U.S. 433, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977), holding that the search of a double-locked footlocker was subject to the Fourth Amendment's warrant requirement when it was seized on probable cause but not searched until later at the station house. The applicability of Chadwick was argued on appeal. Because of this, we deem it appropriate to set forth the facts of this case in some detail.

On February 9, 1976, in response to a tip from an informant who had provided reliable information in the past, Officer John Boulger and Agent Markus Kryger of the Drug Enforcement Administration Task Force were at the Minneapolis-St. Paul International Airport to conduct a surveillance of incoming passengers. Their intention was to observe one James Erickson, who, according to their information, had traveled to Phoenix, Arizona, to purchase a large quantity of marijuana and was to arrive by air from either Phoenix or Las Vegas, Nevada. As a result of prior occurrences, the agents knew of James Erickson and that he had connections with Theodore Luciow. They further were aware that Theodore Luciow's twin brother, Anthony, had been arrested in possession of approximately 300 pounds of marijuana contained in an Avis rental car rented in Arizona by Raymond Reynolds. At that time reliable informants told them that Anthony Luciow had gone to Arizona to purchase this marijuana from Reynolds.

Among passengers embarking from a Las Vegas incoming flight shortly before midnight, two young, white males caught the agents' attention because they were acting "(i)n a suspicious manner" and were "apprehensive of things around them." The two men, appellants Stevie and Reynolds, did not communicate with each other but maintained a distance of approximately fifty feet between themselves. In addition, it was noted that Stevie was walking faster than the other passengers.

When they reached the lower level of the airport, Stevie proceeded to the baggage claim area and Reynolds approached the Avis car rental counter, neither speaking to the other. Stevie removed two large suitcases from the baggage carousel. Agent Kryger observed that these appeared to be heavy. At that point, without pretense of secrecy, Agent Kryger walked up next to Stevie and observed the name "M. Roberts" and a Phoenix address on the bags' nametags. After looking warily at Agent Kryger, Stevie engaged a uniformed skycap to handle the luggage and returned for three more large, new suitcases. He gave directions to the skycap and then walked over to the Avis counter and spoke to Reynolds for the first time since the agents had commenced observing them. Their gestures indicated that the conversation pertained to the two agents, who continued to observe them until Officer Boulger went out to his car in the airport parking lot. Stevie then left the building and joined the luggage handler who had taken the bags directly to the Avis parking lot and loaded them into a rented Oldsmobile station wagon.

After Reynolds left the Avis counter area, Agent Kryger spoke to the person at the counter and learned from her that the automobile had been rented to an R. Reynolds of Phoenix, Arizona, who signed his name "Raymond L. Reynolds."

When Reynolds and Stevie left the airport parking lot they were followed by Agent Kryger and Officer Boulger in separate vehicles. The two agents were in radio contact with each other and with the DEA office. They exchanged information as to Reynolds' name and his connection with the Luciow brothers. In addition they learned from their office that the middle initial of the Ray Reynolds involved in the case of Anthony Luciow was "L." As they followed the rented automobile on a four-lane express highway, they observed that the passenger in the car was continually facing the rear and the driver was frequently looking into his rearview mirror. Although Agent Kryger testified their initial intention was to follow the appellants to their destination, the agents determined this would be impracticable and so stopped them on the highway.

Agent Kryger approached the driver's side and asked the driver for his identification. The driver produced a driver's license which revealed that he was Raymond L. Reynolds of Phoenix, Arizona. Officer Boulger established that the passenger's identity was Robert Stevie. Thus, neither of the identities matched the name "M. Roberts" on the suitcase nametags. As Agent Kryger was standing at the window of the car examining the driver's license he smelled the distinctive odor of marijuana. ²

At this point the agents instructed Reynolds and Stevie to get out of the car and placed them under arrest. The agents opened one of the suitcases that had been placed on the floor of the rear area of the rental station wagon. ³ Inside they found wrapped bricks of a vegetable substance later determined to be marijuana.

This appeal presents the following issues for consideration: (1) whether the initial stop of the rental car was justified, (2) whether there existed probable cause to search the suitcase, and (3) whether the warrantless search of the suitcase at the scene is valid in light of the recent Supreme Court decision of United States v. Chadwick, supra.

I.

Appellants' initial contention is that the agents did not have "specific and articulable facts" as required by Terry v. Ohio, 392 U.S. 1, 20-22, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), to justify stopping the car for an investigatory stop. They argue that the facts of this case present insufficient indicia of criminal activity to justify the agents' actions in stopping appellants' vehicle.

Terry requires a dual inquiry into the reasonableness of an investigatory stop. The reviewing court must determine: "(1) whether the facts warranted the intrusion on the individual's Fourth Amendment rights, and (2) whether the scope of the intrusion was reasonably related 'to the circumstances which justified the interference in the first place.' " Carpenter v. Sigler,419 F.2d 169, 171 (8th Cir. 1969). The District Court applied this standard and held the facts warranted the agents' suspicions that criminal activity might be afoot. We agree.

The agents were at the airport as a result of the tip of an informer, whose information had proven reliable in the past, that a sizable shipment of marijuana was about to arrive there. Although they did not see the party they were expecting, they independently observed and noted the suspicious conduct of the two appellants. The fact that Stevie and Reynolds consciously avoided communication became significant when it later became apparent that they knew each other and in fact left the airport in the same automobile. Additionally, Agent Kryger noted that the suitcases were large and very heavy, and Stevie and Reynolds acted suspiciously when Kryger conspicuously appeared to be curious. Most significantly, the name on the automobile rental form was one the agents were aware of from prior drug activity and belonged to a person who may have been associated with the party they were expecting to observe. Finally, there was appellants' furtive conduct in their automobile. Altogether, there were more than sufficient objective facts known to the police officers to justify an investigatory stop for further inquiry. See Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); United States v. Bailey, 547 F.2d 68 (8th Cir. 1976); United States v. Geelan, 509 F.2d 737 (8th Cir. 1974), cert. denied, Moore v. United States, 421 U.S. 999, 95 S.Ct. 2395, 44 L.Ed.2d 666 (1975); Orricer v. Erickson, 471 F.2d 1204 (8th Cir. 1973); Carpenter v. Sigler, supra.

II.

The second half of the Terry test whether the scope of the intrusion was reasonably related to the circumstances justifying the interference in the first instance must be answered in the affirmative. The stop was proper, as was the demand that appellants provide identification. As a result of this reasonable and limited intrusion, two additional facts became known to the officers when they requested identification from Stevie and Reynolds. The first was that the name on the luggage nametag previously observed at the airport did not match that of either of the appellants. It is not uncommon for drug traffickers to travel under assumed names. ⁴ Of even more crucial significance, however, the officers detected the odor of marijuana emanating from the interior of the automobile. ⁵

This Court has held that the presence...