U.S. v. Winfrey

• Decision Date: 28 September 1990
• Docket Number: No. 89-1361,89-1361
• Citation: 915 F.2d 212
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Andrew Matthew WINFREY, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 212

915 F.2d 212

UNITED STATES of America, Plaintiff-Appellee, v.Andrew Matthew WINFREY, Jr., Defendant-Appellant.

No. 89-1361.

United States Court of Appeals Sixth Circuit.

Argued Nov. 16, 1989.

Decided Sept. 28, 1990.

Thomas A. Ziolkowski, Asst. U.S. Atty., David Debold(argued), John R. Roth, Asst. U.S. Atty., Office of the U.S. Atty., Detroit, Mich., for plaintiff-appellee.

Jill L. Price, Claretta J. Varner(argued), Rafael C. Villarruel, Federal Public Defenders Office, Detroit, Mich., for defendant-appellant.

Before KRUPANSKY and RYAN, Circuit Judges, and JOHNSTONE, Chief District Judge.^*

RYAN, Circuit Judge.

DefendantAndrew M. Winfrey, Jr. appeals the decision of the district court denying his motion to suppress evidence discovered during a search of his person by officers of the Wayne County, Michigan, Sherriff's Department and the Drug Enforcement Administration (DEA) at the Detroit Metropolitan Airport.

We find no fourth amendment violation, and affirm.

I.

Andrew Matthew Winfrey, Jr. was arrested in June 1988 at the Detroit Metropolitan Airport following the discovery on his person of approximately two hundred fifty grams of cocaine.He was later indicted on one count of possession with an intent to distribute a controlled substance, in violation of 21 U.S.C. Sec. 841(a)(1).Winfrey moved to suppress all evidence confiscated by the officers, charging that the airport search and his arrest violated his rights under the fourth amendment of the Constitution.The district court denied Winfrey's motion to suppress, whereupon Winfrey entered a conditional plea of guilty to the count contained in the indictment, reserving, under Fed.R.Crim.P. 11(a)(2), the right to appeal the district court's adverse ruling on the motion to suppress.Winfrey was sentenced to thirty-three months of incarceration.

II.

During the evening of June 8, 1988, four officers of the Wayne County Sheriff's Department--Jerry Adams, Steve Burke, and two others--assigned to routine patrol of an indoor parking facility at the Detroit Metropolitan Airport, noted that a blue Ford Taurus parked in the garage was missing all of its wheel covers.Suspecting the vehicle had been vandalized, the officers decided that it merited closer scrutiny.The officers observed several rolls of cash bound with rubber bands, and a prescription medicine vial on the vehicle's front seat.¹A record check of the vehicle's license plate revealed that the automobile was not stolen, and that there were no warrants outstanding against its female owner.On the basis of the roll of cash and the empty prescription vial on the front seat, the officers suspected that the vehicle could have some connection to narcotic activity.The deputies then contacted the airport office of the DEA.Shortly thereafter, Officer David Gentry, a Michigan State Police officer assigned to a special DEA drug interdiction task force at the Detroit airport, arrived at the garage along with Special Agent Charles Moffitt of the DEA.After conferring with Gentry and Moffitt, and at Gentry's direction, the officers already on the scene placed the automobile under surveillance.Gentry and Moffitt then went to the terminal building in order to observe passengers arriving on incoming flights.

Approximately ninety minutes after first placing the Taurus under surveillance, the officers observed Winfrey, who was carrying a garment bag and a briefcase, enter the parking garage and prepare to enter the vehicle.The four officers approached Winfrey, identified themselves as police officers, and requested permission to ask a few questions.There was conflicting evidence as to whether any of the Wayne County officers were in uniform, but the record discloses that at least one of the plainclothes officers had a pistol holstered at his hip.

The officers initially questioned Winfrey about his presence in the garage and then asked to examine his driver's license, automobile registration, and his airline ticket.It was apparent from the automobile's certificate of registration that Winfrey was not the owner of the vehicle and that it was registered to a woman whose address was different than the address that appeared on Winfrey's driver's license.When asked to explain why he was driving someone else's car, Winfrey responded that the car belonged to his live-in girlfriend and that he was using it with her permission.Comparison of Winfrey's driver's license with his airline ticket revealed that he had been traveling under the name of Andrew Matthews or Matthew Andrews.His name is Andrew Matthew Winfrey.Defendant claimed the ticket agent made a mistake and used his first and middle name rather than his last name.

The airline ticket indicated that Winfrey had just arrived in Detroit from Miami, Florida.In response to the officers' questions, Winfrey stated that he had been in south Florida for two days inquiring about purchasing a beauty salon in Fort Lauderdale, in partnership with his brother, and that upon his arrival in Florida he discovered that he had left his cash at home whereupon he immediately returned to Detroit.Upon a consensual search of Winfrey's briefcase, the Wayne County officers found no documentation or other evidence confirming the existence of the alleged beauty salon transaction or of any other business deal in south Florida.In response to the observation by one of the officers to the effect that he was traveling rather "light," Winfrey explained that he had left some of his luggage in Florida.

One of the Wayne County officers then asked Winfrey if he was carrying a firearm, and when Winfrey responded that he was not, the officer requested permission to search him.Winfrey consented, and the officer conducted the pat-down search and found no weapon.Officer Adams testified that he noticed a large bulge in Winfrey's groin area during the pat-down search, but allowed the search to conclude without comment.

A simultaneous consensual search of the automobile was conducted.The officers discovered nothing unusual or incriminating in the vehicle, beyond the $2,500 in cash and the prescription vial they had seen on the front seat.

The record indicates that as the Wayne County officers searched Winfrey and the automobile, they retained Winfrey's driver's license and the automobile's registration certificate, both of which Winfrey had voluntarily given to the officers.Winfrey was instructed not to retrieve the keys from the trunk of the vehicle and to keep his hands out of his pockets.When the consensual pat down and automobile search were concluded, Winfrey requested permission to proceed on his way but the Wayne County officers ordered him to wait with them for the return of the DEA agents.According to Winfrey, the officers said, "You can't leave now.We'll tell you when you can leave."Sheriff Deputy Adams testified that defendant was told he could not leave until DEA agents arrived.Sheriff Deputy Burke testified that defendant never asked to leave but rather agreed to stay.

Sheriff Deputy Burke testified that agents of the DEA were again contacted and asked to return to the scene:

Having worked the airport for numerous years, and we have had the occasion to work with DEA in the past, the answers that I was getting from the subject, the fact that he didn't have the paperwork indicating any business deals had transpired [in Florida], it was unusual to have money on the front seat lying like that, and in the past we have discovered that people who carry money rolled up in wads of that nature have in fact been involved in drug dealings, and we thought it might be advisable for DEA to come and converse with this gentleman.

In approximately ten to fifteen minutes, the two DEA agents, Gentry and Moffitt, returned to the garage.Officer Gentry posed additional questions to Winfrey and requested that Winfrey permit him to conduct another pat-down search.Winfrey protested that he had already been searched and that, moreover, Gentry lacked a warrant to search either his person or the vehicle.According to Winfrey, the following exchange occurred between him and Gentry.

I told him, "Don't you have a search warrant?"I said, "I have been searched once already."He said "I can get a search warrant.Are you going to give me any trouble?"I said, "No, not with all these guns around here I am not going to give you any trouble."He smiled and said, "Everybody, Mr. Winfrey is giving me consent."

Gentry, who had purportedly been alerted by Officer Adams to the large bulge in Winfrey's groin area and had been apprised of all the circumstances giving rise to Winfrey's detention, proceeded to pat down Winfrey for a second time, discovering nearly two hundred fifty grams of cocaine cached in Winfrey's trousers.Winfrey was then formally placed under arrest.

III.

Defendant contends the search of his person which uncovered the package containing cocaine was invalid as a "fruit" of an illegal seizure under the fourth amendment and that the cocaine ought to have been suppressed.

In his principal argument, Winfrey charges that the Wayne County officers scrutinized his conduct and approached him in the first instance merely because there was cash on the front seat of the automobile he had parked in the garage.This, in his view, was not a sufficient basis for the reasonable and articulable suspicion necessary to conduct an investigatory Terry-type stop.Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889(1968).Winfrey contends this case should be distinguished from those in which law enforcement officers form the requisite reasonable and articulable suspicion based upon an individual's conduct which is consistent with various objective behavioral manifestations of a classical "drug courier profile."Winfrey argues further that even if such a reasonable and articulable suspicion was validly formed, the limits of a proper Terry stop were exceeded in this case and that he was...