U.S. v. Weaver

• Citation: 966 F.2d 391
• Decision Date: 11 August 1992
• Docket Number: No. 89-2887,89-2887
• Parties: UNITED STATES of America, Appellee, v. Arthur T. WEAVER, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 391

966 F.2d 391

61 USLW 2015

UNITED STATES of America, Appellee, v. Arthur T. WEAVER, Appellant.

No. 89-2887.

United States Court of Appeals,

Eighth Circuit.

Submitted June 12, 1990.

Decided June 5, 1992.

Rehearing and Rehearing En Banc

Denied Aug. 11, 1992.

Susan M. Hunt, Kansas City, Mo., argued, for appellant.

Anita L. Mortimer, Asst. U.S. Atty., Kansas City, Mo., argued, for appellee.

Before Richard S. ARNOLD, ^* Chief Judge, WOLLMAN, Circuit Judge, and HANSON, ^** Senior District Judge.

WOLLMAN, Circuit Judge.

Arthur T. Weaver appeals his conviction on a charge of possession of cocaine with intent to distribute, a violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A). The sole issue before us on appeal is whether the district court ¹ erred in denying Weaver's motion to suppress evidence. We affirm.

I.

In the early morning hours of March 8, 1989, Drug Enforcement Administration (DEA) agent Carl Hicks and Platte County Detectives Paul Carrill and Tully Kessler were at the Kansas City International Airport awaiting the arrival of Braniff Flight 650, a direct flight to Kansas City from Los Angeles due in at 6:45 a.m. As Weaver disembarked from Flight 650 he caught Officer Hick's attention because he was a "roughly dressed" young black male who was carrying two bags and walking rapidly, almost running, down the concourse toward a door leading to a taxi stand. Because Hicks was aware that a number of young roughly dressed black males from street gangs in Los Angeles frequently brought cocaine into the Kansas City area and that walking quickly towards a taxicab was a common characteristic of narcotics couriers at the airport, he became suspicious that Weaver was a drug trafficker.

Hicks and his fellow officers began running down the concourse after Weaver. Weaver stopped, turned around, saw the three men approaching him, and hesitated. Hicks displayed his badge and asked Weaver if he would answer some questions. In response to Hicks' question, Weaver said that he had been in Los Angeles trying to find his sister who had been missing for several years. Hicks requested to see Weaver's airline ticket, but after searching his pockets Weaver said that he must have left it on the plane. When Hicks asked Weaver if he had any identification, Weaver replied that he did not, but gave Hicks his name and Kansas City address. Hicks testified that while it is extremely uncommon for adults not to have identification, it is common for persons carrying narcotics not to have any. Hicks also testified that Weaver appeared to be very nervous: his voice was unsteady, his speech was rapid, his hands shook, and his body swayed. Officer Carrill testified that although people often become nervous when approached by a police officer, Weaver exhibited more nervousness than innocent people usually do.

Hicks again displayed his badge, identified himself as a DEA agent looking for drugs, and asked to search Weaver's bags. After telling Hicks that he did not have any drugs, Weaver initially assented to Hicks' searching his bags, but then changed his mind and told Hicks that he could not search the bags without a warrant. Weaver then said that he needed to catch a taxi to see his mother in the hospital, picked up his bags, and walked out of the terminal towards a taxicab.

Hicks decided at this point to detain Weaver's bags and apply for a search warrant. He and the other officers followed Weaver to the sidewalk outside the terminal, where Hicks told Weaver that he was going to detain his bags and attempt to get a search warrant. Weaver stopped, set down the bags, opened one of them and removed a sweater, saying, "[L]ook, there's no drugs in my bag," but would not let Hicks look in the bag. Weaver again picked up the bags and walked toward a taxi.

Hicks followed Weaver and again told him that he was going to seize his bags and attempt to get a search warrant. Hicks told Weaver that he was free to remove anything he needed in order to continue his trip. Weaver said he needed a coat out of the bag. Hicks told him that that was fine and that he would give Weaver a receipt for the bag. Nevertheless, Weaver got into the back seat of a taxi with both bags. Hicks grabbed one of the bags and tried to take it out of the taxi. When Weaver began hitting Hicks' hand in an attempt to pry it off his bag, Hicks placed him under arrest.

The officers then conducted a pat down search on Weaver. They found a plastic bag filled with crack cocaine and a smoking pipe, along with $2,532 in currency. Hicks obtained a warrant and searched both of Weaver's bags. One of the bags contained more than six pounds of crack cocaine.

Weaver moved to suppress all physical evidence obtained from his person and baggage. Following a hearing, the district court denied the motion. Weaver entered a conditional guilty plea, reserving the right to appeal the denial of the suppression motion. The district court sentenced Weaver to 151 months' imprisonment, supervised release of five years, a fine of ten thousand dollars, and a special assessment. This appeal followed.

II.

Weaver contends that the law enforcement officers did not have a reasonable, articulable suspicion of criminal activity and thus violated his Fourth Amendment right to be free from unreasonable searches and seizures.

Police may, without a warrant, briefly stop and ask questions of a person whom they reasonably suspect of criminal activity. Terry v. Ohio, 392 U.S. 1, 20-23, 88 S.Ct. 1868, 1879-81, 20 L.Ed.2d 889 (1968). Detention of a person's luggage in an airport must satisfy the same Terry standards. United States v. Place, 462 U.S. 696, 708, 103 S.Ct. 2637, 2645, 77 L.Ed.2d 110 (1983); United States v. White, 890 F.2d 1413, 1416 (8th Cir.1989), cert. denied, --- U.S. ----, 111 S.Ct. 77, 112 L.Ed.2d 50 (1990). Reasonable suspicion must derive from more than an "inchoate and unparticularized suspicion or 'hunch.' " Terry, 392 U.S. at 27, 88 S.Ct. at 1883. For a Terry stop to be valid, the police must point to particular facts and inferences rationally drawn from those facts that, when viewed under the totality of the circumstances and in light of the officer's experience, create a reasonable suspicion of criminal activity. United States v. Sokolow, 490 U.S. 1, 7-8, 109 S.Ct. 1581, 1585-86, 104 L.Ed.2d 1 (1989); United States v. Crawford, 891 F.2d 680, 681 (8th Cir.1989). "[T]he relevant inquiry is not whether particular conduct is 'innocent' or 'guilty,' but the degree of suspicion that attaches to particular types of non-criminal acts." Sokolow, 490 U.S. at 10, 109 S.Ct. at 1587 (quoting Illinois v. Gates, 462 U.S. 213, 243-44 n. 13, 103 S.Ct. 2317, 2335 n. 13, 76 L.Ed.2d 527 (1983)). Thus, a series of acts that appear innocent, when viewed separately, may warrant further investigation when viewed together. Id. "[C]onduct typical of a broad category of innocent people provides a weak basis for suspicion." Crawford, 891 F.2d at 681; see also Reid v. Georgia, 448 U.S. 438, 441, 100 S.Ct. 2752, 2754, 65 L.Ed.2d 890 (1980) (per curiam).

Because Weaver felt free to leave when the officers first questioned him, that encounter was consensual and did not constitute a seizure. Florida v. Royer, 460 U.S. 491, 497-508, 103 S.Ct. 1319, 1323-30, 75 L.Ed.2d 229 (1983) (plurality). It was only when Hicks told Weaver that he intended to seize Weaver's bags that a seizure for Fourth Amendment purposes occurred. United States v. Harvey, 946 F.2d 1375, 1377 (8th Cir.1991); United States v. McKines, 933 F.2d 1412, 1423 (8th Cir.) (en banc), cert. denied, --- U.S. ----, 112 S.Ct. 593, 116 L.Ed.2d 617 (1991). See also United States v. Galvan, 953 F.2d 1098, 1102-03 (8th Cir.1992). Our decision therefore turns on whether the officers had a reasonable, articulable suspicion that Weaver was engaged in criminal activity when they pursued him to detain his baggage after he attempted to leave.

Hicks testified that he took the following factors into consideration when he decided to detain Weaver's bags: (1) that Weaver got off a direct flight from Los Angeles, a source city for drugs; (2) that he was a roughly dressed young black male who might be a member of a Los Angeles street gang that had been bringing narcotics into the Kansas City area; (3) that he moved rapidly from the airplane toward a taxicab; (4) that he had two carry-on bags and no checked luggage; (5) that he had no identification on his person; (6) that he did not have a copy of his ticket; (7) that he appeared very nervous when he talked to Hicks; (8) and that he made no mention of visiting his mother until the last second before he tried to leave the consensual interview. ²

In Reid v. Georgia, the Supreme Court concluded that a drug agent could not, as a matter of law, have reasonably suspected the defendant of criminal activity by relying on the following factors: (1) the defendant's arrival from a source city for cocaine; (2) the defendant's arrival early in the morning when "law enforcement activity is diminished;" (3) the defendant and his companion had no luggage other than shoulder bags; and (4) the apparent attempt of the defendant and his companion to conceal the fact that they were traveling together. 448 U.S. at 441, 100 S.Ct. at 2754.

In United States v. Sokolow, the Court held that agents had a reasonable basis on which to suspect that the defendant was transporting illegal drugs where: (1) the defendant had paid more than $2,000 for two airline tickets in cash; (2) he traveled under a name which did not match the name listed for his telephone number; (3) his original destination was Miami, a source city for illicit drugs; (4) he stayed in Miami for only 48 hours; (5) he appeared nervous; and (6) he checked none of his luggage. Although "[a]ny one of these factors is not by itself proof of any illegal conduct and is quite consistent with innocent travel[,] ... together they amount to reasonable suspicion." 490 U.S. at 8-9, 109 S.Ct. at 1586...