U.S. v. White

• Decision Date: 12 December 1989
• Docket Number: No. 88-2656,88-2656
• Citation: 890 F.2d 1413
• Parties: UNITED STATES of America, Appellee, v. Bennie Ree WHITE, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1413

890 F.2d 1413

58 USLW 2342

UNITED STATES of America, Appellee, v. Bennie Ree WHITE, Appellant.

No. 88-2656.

United States Court of Appeals,

Eighth Circuit.

Submitted April 10, 1989.

Decided Nov. 14, 1989.

Rehearing Denied Dec. 12, 1989.

Jerald W. Newton, Santa Monica, Cal., for appellant.

Richard Poehling, St. Louis, Mo., for appellee.

Before ARNOLD and MAGILL Circuit Judges, and PECK, ^* Senior Circuit Judge.

ARNOLD, Circuit Judge.

Bennie Ree White was indicted for possession of cocaine with intent to distribute, in violation of 21 U.S.C. Secs. 841(a)(1) and 841(b)(1)(B)(ii)(II). After entering a conditional plea of guilty and receiving a 63-month prison sentence, White appeals the District Court's ¹ denial of his motion to suppress evidence and to quash the search warrants. White also appeals the sentence imposed by the District Court. We agree with White that the officers who detained him in Lambert International Airport lacked an adequate basis to form the reasonable, articulable suspicion of ongoing or imminent criminal activity required by Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The search that White challenges, however, was authorized by a warrant (obtained by the officers on the basis of information gained during their warrantless detention of White). It was objectively reasonable (even though legally incorrect) for the officers to believe that the information contained in the affidavit for the warrant was lawfully obtained. White was therefore not entitled to have the evidence excluded, United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), and we affirm his conviction.

I.

At approximately 5:30 on the morning of March 14, 1988, two officers working with the Drug Enforcement Administration (DEA) Task Force at Lambert International Airport in St. Louis stationed themselves to observe passengers arriving on TWA Flight # 72 from Los Angeles. The officers, Larry Coulson and Larry Fox, had no advance information alerting them to Bennie Ree White or to any other particular passenger. They awaited Flight # 72 because on two occasions in the preceding four months they had seized drugs from passengers traveling on that flight, Tr. 65, ² and because Los Angeles is considered a source city for drugs.

Officer Coulson testified that White was the last passenger he saw leave the airplane, although he first stated that White "came off near the end of the crowd," and later admitted that he had no "knowledge whether or not there were other passengers on the plane after Mr. White deplaned[.]" Tr. 11, 43. Coulson also acknowledged that the order of passengers exiting an airplane depends to a certain extent on seating assignment and amount of carry-on luggage. Tr. 43.

Besides White's observed position among the deplaning passengers, Coulson also noticed that White was traveling alone, he was holding a small carry-on bag tucked under his arm with both hands instead of using the shoulder strap, and he did not stop to check with a TWA agent or monitor for connecting-flight information, but proceeded directly to the baggage-claim area. As White made his way through the concourse, he stopped and looked around approximately three times--once at the corner of the gate, once just past the screening area, and once at the corner before the carousel area--according to Coulson, who concluded that White was nervous. Tr. 14-15, 43. At the baggage carousel, White continued to appear agitated to Coulson, who testified that White tapped his foot, wrung his hands, and seemed "anxious for his bag to come on." Tr. 15. White retrieved a suit bag, and then walked with both pieces of luggage to a nearby row of chairs, where he began fastening a shoulder strap onto the larger bag.

At that point, Officers Coulson and Fox approached White. White was still facing the chairs, adjusting the strap, when Coulson circled around behind him to determine if there were any bulges in White's pockets. Coulson detected nothing conspicuous such as a bulge. Tr. 54. Fox and Coulson then identified themselves as drug agents and asked if White would talk to them. Fox was standing in front of White, and Coulson was standing right next to Fox, two to three feet from White. Tr. 53, 71. White testified that, with the row of chairs behind him, he felt that he would have to walk through the officers to leave and that he could not do that. Tr. 71.

He agreed to speak with the officers, and answered truthfully when asked if he had just arrived on a flight from Los Angeles. He produced his airline ticket and identification upon request, and the name on his ticket matched that on his driver's license. The ticket was for a one-way trip from Los Angeles to St. Louis, and had been purchased with cash. The precise cost of the ticket is not clear from the record, but it was less than $500. Tr. 48. According to Coulson, White's hands were trembling when he removed his driver's license from his wallet.

After the license and ticket were handed back to him, White asked why he had been stopped. Fox responded that White exhibited characteristics of individuals trafficking in narcotics. Fox then requested permission to search White's luggage, and White declined to give his consent. The officers "again explained to him what the situation was" and that the search would be brief. Tr. 20. Nevertheless, White said he wanted to take his luggage and leave. At that point, the officers told White that he was not under arrest and was free to go, but he could not leave with his luggage. The bags would have to stay in order to allow a narcotics detection dog to sniff them. White testified that he asked six or seven times to leave with his luggage and each time was told he could not. Tr. 71-72.

Officer Coulson left to get the trained dog and, upon his return with the dog a minute later, found that Fox had taken White to the DEA office in the airport, where the officer was preparing a receipt for White's bags. At the office, Coulson started the dog on its search while White was still present, and the dog "alerted" to one of the pieces--the carry-on bag. After the dog completed its search, White was given a receipt for both bags, and he left the airport without his luggage. Later that morning, the officers obtained a warrant to search the carry-on bag. They found a package containing cocaine in it, and used that discovery to support an application for a warrant to search the larger bag for evidence of narcotics traffic. Apparently, no such evidence was found in the second bag.

White moved to suppress the evidence obtained pursuant to the search warrant, asserting that the officers detained him and his luggage without a reasonable suspicion of criminality. The Magistrate remarked that "it is evident that the initial [consensual] encounter ultimately escalated into an investigative seizure.... [which] must be supported by a reasonable and articulable suspicion of criminal activity" to withstand scrutiny under the Fourth Amendment. No. 88-0104-CR(1), Memorandum at 7 (July 13, 1988). The Magistrate concluded that the officers' observations provided them with the basis for such suspicion, id. at 7-8, and recommended denial of the motion to suppress. The District Court adopted the Magistrate's Memorandum and Recommendations, with a supplemental discussion in which the Court held that the encounter between White and the officers had been entirely consensual, and that White had been free to leave at all times, although not with his luggage.

White entered a conditional guilty plea, reserving his right to challenge the denial of his motion to suppress. The District Court sentenced him to 63 months' imprisonment with a four-year term of supervised release, a $2,500 fine, and a $50 fee. White brought this appeal, raising again his Fourth Amendment claim regarding the search, as well as challenging the constitutionality of the Sentencing Guidelines and of the mandatory five-year minimum prison term for the charged offense, and arguing for a two-step reduction in his base offense level for acceptance of responsibility, under Guidelines Sec. 3E1.1.

II.

We agree with the Magistrate that what began as a consensual encounter between the officers and White escalated into a Terry-type investigative stop requiring a reasonable, articulable suspicion to survive Fourth Amendment scrutiny. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). When White asked why he had been stopped, and Officer Fox responded that White exhibited characteristics of those trafficking in drugs, White could reasonably believe at that point that he "was the particular focus of a narcotics investigation," and was not free to go. United States v. Nunley, 873 F.2d 182, 184-85 (8th Cir.1989) (consensual encounter transformed into seizure when agent "told Nunley that he was there to stop the flow of drugs through the airport, in response to her query about why he was questioning her"). See also United States v. Sadosky, 732 F.2d 1388, 1392-93 (8th Cir.), cert. denied, 469 U.S. 884, 105 S.Ct. 254, 83 L.Ed.2d 191 (1984):

A Terry analysis is ... necessary because, as the conversation between Sadosky and the law enforcement agents proceeded, Agent Olby stated that they were investigating possible narcotics violations and that they wanted to question Sadosky due to his unusual behavior. These ... statements ... indicated to Sadosky that the agents' investigation was in fact focused on him and implied that Sadosky's failure to cooperate could lead to his arrest. Thus there was a reasonable indication that Sadosky was restrained or seized, despite the agents' assurance that he was free to go.

The fact that more than one officer approached White, ³ and that the two officers stood in front of him while his back was to the row of chairs, in a way which seemed to block his means of egress, further contributed to his reasonable perception that he was not free to leave...