U.S. v. Waltzer

• Citation: 682 F.2d 370
• Decision Date: 25 June 1982
• Docket Number: D,No. 1012,1012
• Parties: UNITED STATES of America, Appellee, v. David Isaac WALTZER, Appellant. ocket 82-1015.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 370

682 F.2d 370

UNITED STATES of America, Appellee, v. David Isaac WALTZER, Appellant.

No. 1012, Docket 82-1015.

United States Court of Appeals, Second Circuit.

Argued April 21, 1982.

Decided June 25, 1982.

Irving Anolik, New York City, for appellant.

Gregory J. Wallance, Asst. U. S. Atty., E. D. N. Y., Brooklyn, N. Y. (Edward R. Korman, U. S. Atty., E. D. N. Y., Jane Simkin Smith, Asst. U. S. Atty., Brooklyn, N. Y., of counsel), for appellee.

Before OAKES, CARDAMONE and WINTER, Circuit Judges.

RALPH K. WINTER, Jr., Circuit Judge:

David I. Waltzer appeals from a judgment of conviction of the United States District Court, 528 F.Supp. 646, for the Eastern District of New York, Platt, Judge, after a jury trial, for violation of 21 U.S.C. § 841(a)(1) (1976) (possession with intent to distribute cocaine). He asserts as error Judge Platt's denial of a motion to suppress as evidence both his statements to Drug Enforcement Agency (DEA) officers and claim checks, airline tickets and money taken from his person as well as cocaine taken from his luggage. He argues in the alternative that the initial DEA investigatory stop should have triggered the warnings required under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

We affirm.

BACKGROUND

The sequence of events leading to Waltzer's arrest began in the Ft. Lauderdale Airport. Waltzer was observed waiting at the Delta Airline Terminal by Broward County Sheriff James Carl. Carl noted behavior on Waltzer's part which drug investigators believe is common to drug couriers-extreme nervousness, fidgeting, and shaking-and which they say constitutes a reliable "profile." ¹ Sheriff Carl approached the Delta ticket counter and overheard Waltzer identify himself as Walker and observed him purchase a one-way ticket to New York City on Delta flight 1052. After Waltzer left the ticket counter, Carl noted the claim numbers and identification labels of defendant's two pieces of luggage. He then contacted DEA officials at Kennedy International Airport in New York and informed them of his observations. Waltzer was neither questioned nor detained in Ft. Lauderdale.

DEA investigation and observation began as soon as Delta flight 1052 landed. A specially-trained dog named Kane was dispatched to the Delta package area to "sniff" the baggage as it was unloaded. According to the testimony, ² Kane was capable of determining whether a particular piece of luggage contained narcotics and of alerting agents to the presence of drugs by biting and gnawing at the luggage. Kane had a perfect record-on each occasion his alerting of agents to a particular bag had led to the discovery of narcotics. Kane alerted the agents to the luggage described by Sheriff Carl.

Meanwhile, DEA Agent Terry Valentine was observing Waltzer. Upon disembarking, Waltzer left the gate area quickly, abruptly slowed his pace, looked left and right Shortly thereafter, Waltzer made his way back toward the stairway from which he had come. He darted to the right of the stairway, ducked around a corner, returned to stare at Valentine for a third time and then went to make another phone call. After that call, he walked to the stairway for the third time and went up an adjacent escalator. Waltzer proceeded through the upper corridor away from the Delta terminal. Midway through the corridor, he abruptly turned around and again confronted Valentine who was only a short distance away. Waltzer turned and continued away from Delta toward the adjacent Northwest Airlines terminal area. Valentine gave up his observation of Waltzer and returned to the Delta baggage area.

and then entered an adjoining men's room. After approximately two minutes, Waltzer left the men's room and walked at a normal pace toward a stairway leading to the baggage claim area. Immediately before the stairway, Waltzer made a sharp left turn and walked toward an exit. He passed through it and made a quick right back toward the stairway and the baggage claim area, but on the other side of a glass partition. He repeatedly looked to his right through the partition, at one point looking directly at Agent Valentine. Upon reaching the stairway, he looked to his left, walked slowly down the stairs, hesitated at the first baggage carousel, and then proceeded to the next. Again hesitating, he walked across the claim area to a public phone, looked at Valentine, then appeared to place a call.

Waltzer returned to the Delta baggage carousel. He retrieved the two bags which had been identified by the dog, and the trio of agents asked to speak to him. He agreed and the group walked over to a wall to avoid the flow of passengers.

A somewhat bizarre conversation ensued in response to the agents' questions. Waltzer denied having a baggage claim although he was holding one in his hand. He purported not to know why he was traveling under an assumed name. He stated that he was carrying $1,000 on his person so as to entertain relatives in Ft. Lauderdale with whom he had stayed. Finally, Waltzer indicated he was traveling alone and denied there were drugs in his bags. The agents asked Waltzer if he would consent to a search of his bags. He refused and, following that refusal, was arrested and given his Miranda rights. The entire conversation took about 10 minutes.

Subsequently, a search warrant was issued, and cocaine was discovered inside Waltzer's luggage. The claim check, airline tickets, cash, cocaine and his statements to the officers were used against him at trial.

DISCUSSION

Waltzer claims that the initial stop and, therefore, all that flowed from it, was based on little more than a flimsy suspicion generated by overreliance upon the so-called courier profile. If so, this case might raise far more serious legal issues. See Reid v. Georgia, 448 U.S. 438, 100 S.Ct. 2752, 65 L.Ed.2d 890 (1980); United States v. Place, 660 F.2d 44 (2d Cir. 1981), cert. granted, --- U.S. ----, 102 S.Ct. 2901, 72 L.Ed.2d ---- (1982). The DEA agents had more specific grounds to stop Waltzer than general similarities to the profile, however, for, unlike Place, the dog had designated luggage independently connected to him before he was stopped.

We regard the dog's designation of the luggage as itself establishing probable cause, enough for the arrest, more than enough for the stop. Cf. United States v. Johnson, 660 F.2d 21 (2d Cir. 1981); United States v. Bronstein, 521 F.2d 459 (2d Cir. 1975), cert. denied, 424 U.S. 918, 96 S.Ct. 1121, 47 L.Ed.2d 324 (1976). The testimony indicated that the dog Kane had a record of 100 percent accuracy. Given that record of accuracy and the designation of luggage connected to Waltzer by independent evidence, the DEA agents did not have to stand helplessly by while Waltzer claimed the luggage and left the airport.

Canine identification is a non-intrusive, discriminating and, in cases such as Kane, reliable method of identifying packages containing narcotics. Its use is considerably less offensive to Fourth Amendment values than other methods of policing the transportation of drugs. In avoiding the subjectivity of some aspects of the profile-e.g., identification of nervous or evasive behavior-and the overbreadth of others-e.g., getting off an airplane first or traveling from a "source city"-it abjures reliance upon those factors which have led to recent expressions of judicial skepticism. See Reid, supra; Place, supra; United States v. Morin, 665 F.2d 765 (5th Cir. 1982). We see no reason to encourage reliance upon the so-called profile when more reliable, less intrusive, means of establishing probable cause exist. ³ Where designation by a dog with a record of accuracy occurs, therefore, we hold that probable cause has been established as to the person possessing the luggage. ⁴

We reaffirm, moreover, our prior rulings that canine sniffing is neither a search nor seizure for purposes of the Fourth Amendment. Johnson, supra; Bronstein, supra. The Ninth Circuit has recently ruled otherwise and stated that the reasoning of our prior cases "seems to have (been) rejected" by the Supreme Court. United States v. Beale, 674 F.2d 1327, 1331 (9th Cir. 1982). We disagree. The cases cited, Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979); United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977), stand for the proposition that individuals have a privacy interest in their personal luggage. The issue, however, is not whether such a privacy interest exists but whether canine sniffing intrudes on that interest. We again hold it does not. Odor is extrinsic to the luggage, which is not opened, and the...