U.S. v. Zukas, 87-1568
| Decision Date | 12 April 1988 |
| Docket Number | No. 87-1568,87-1568 |
| Citation | 843 F.2d 179 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Anton Gregory ZUKAS, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Rip Collins, Austin, Tex., Mel Black, Miami, Fla., for defendant-appellant.
LeRoy Morgan Jahn, Asst. U.S. Atty., Helen M. Eversberg, U.S. Atty., James H. DeAtley, Asst. U.S. Atty., Austin, Tex., for plaintiff-appellee.
Appeal from the United States District Court for the Western District of Texas.
Before WISDOM, REAVLEY and JOLLY, Circuit Judges.
In this appeal from his conviction for conspiring to possess with intent to distribute cocaine, Anton Zukas challenges the district court's denial of his motion to suppress evidence. We affirm.
Anton Zukas was charged with conspiring to possess with intent to distribute cocaine and entered a guilty plea conditioned upon the outcome of his suppression hearing. The court denied his motion to suppress the cocaine, which was found in the luggage of the passenger of the plane that Zukas had leased and flown from Miami to Texas. Zukas was sentenced to fifteen years imprisonment and fined $10,000. Zukas contends that the search was the result of a de facto arrest made without probable cause, thus violating fourth amendment search and seizure requirements. The district court found, however, that the search was based on reasonable suspicion, and was no more intrusive than that suspicion warranted.
Zukas and his passenger became the subject of an investigation by the Drug Enforcement Administration ("DEA") based upon their conformity with DEA drug-smuggler profiles. At the bench trial, the district court made the following findings of fact. The investigation began November 5, 1986, when a confidential informant contacted Robert Nestoroff, a narcotics agent with the Texas Department of Public Safety. The informant, known by Agent Nestoroff for three or four years, had supplied reliable and accurate information in the past. The informant told Nestoroff that Zukas and one passenger had arrived at the municipal airport in Austin, Texas, in a Piper Navaho aircraft, and paid in cash for refuelling. The informant noted that the plane had extended-range fuel tanks and that the passenger, a "Miami-Vice type," appeared very nervous, wore gold jewelry and carried a large amount of cash. The two men left for a hotel.
Agent Nestoroff, an experienced DEA agent, drove to the airport to look at the aircraft. He observed that, in addition to extended-range fuel tanks, it had tinted windows and high security locks. Nestoroff went to the hotel where he discovered that both men had paid cash for their rooms, requested 5:30 a.m. wake-up calls, and the passenger, a California resident, had made long-distance calls to California.
Nestoroff ran a computer check on the pilot of the plane and discovered that Zukas was a suspected narcotics smuggler who had previously been arrested in connection with a seizure of marijuana from an aircraft. Nestoroff also learned that the Piper had been leased through Sun States Aviation, a legitimate business that provided the type of aircraft preferred by smugglers. He further discovered that the flight had originated in Miami and had flown to Austin via Tallahassee.
At trial Nestoroff testified that the aircraft used by narcotics smugglers are often equipped with extended-range fuel tanks, tinted windows and high security locks. He also testified that the suspects' route from Miami--a known drug-trafficking center--to California--another known trafficking center--via Austin, Texas, and their schedule--arriving late in the day and leaving early--were consistent with other smuggling operations with which he was personally familiar. In addition, the nervousness of the passenger, the facts that the men had paid cash for the fuel and hotel, that they arrived late in the day and planned to leave early the next (when police officers generally are not on duty) all supported the suspicion that these men might be smugglers.
Based upon the informant's observations of the suspects, his own observations of the aircraft, Zukas' prior history, the ownership of the aircraft and the flight schedule, Agent Nestoroff decided to return to the airport the next morning with two other officers and a dog trained in drug detection. While one officer and the dog waited farther away from the scene, Nestoroff and a fellow officer drove onto the tarmac in order to observe the men while they were engaged in preflight preparations. When it became apparent that the suspects were making final flight preparations, Nestoroff parked his car in front of the plane in a way that blocked its access to the runway. Nestoroff testified that at this point he approached the aircraft to perform a ramp check. A ramp check, authorized by state and federal law, permits officers of the Federal Aviation Administration ("FAA") or police to examine the pilot's and aircraft's licensing and certification to ensure that they conform to FAA regulations. Zukas furnished the appropriate documents, which Nestoroff examined and determined were valid. Instead of returning these documents, however, Nestoroff retained them and informed the pilot that the agents suspected that the aircraft was being used to transport controlled substances. Zukas stated that he did not know who owned the aircraft. Nestoroff left Zukas to continue his work, and went to the rear of the plane to talk with the passenger who had been speaking to a second officer. This officer had informed the passenger that the DEA agents suspected that the aircraft contained controlled substances, but also told him that he was not under arrest. Nestoroff learned at this time that this passenger had been travelling under a false name.
Nestoroff then asked Zukas if he would consent to a search of the aircraft. Zukas agreed and the passenger also consented to a search of his own bags. The agents found cocaine in the passenger's bag and placed both men under arrest. Zukas then informed the officers that the passenger had a second bag in the aircraft. This bag was also searched and found to contain cocaine.
To analyze the appellant's fourth amendment contentions, we must determine first at what point a fourth amendment seizure occurred and then determine whether the particular intrusion caused by the seizure was justified by the requisite amount of suspicion supported by objective facts. The Supreme Court has identified three tiers of citizen-police contact for purposes of fourth amendment analysis. United States v. Berry, 670 F.2d 583 (5th Cir.1982). The first tier, communication between police and citizens, involves no coercion or detention and does not implicate the fourth amendment. An investigatory stop, at the second level of contact, is a brief seizure that must be supported by...
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