United States v. Davis

• Decision Date: 11 March 1986
• Docket Number: Crim. No. 85-477-W.
• Citation: 638 F. Supp. 472
• Parties: UNITED STATES of America v. Willie C. DAVIS, Jr. a/k/a Reggie Knight.
• Court: U.S. District Court — District of Massachusetts

638 F. Supp. 472

UNITED STATES of America v. Willie C. DAVIS, Jr. a/k/a Reggie Knight.

Crim. No. 85-477-W.

United States District Court, D. Massachusetts.

March 11, 1986.

Mitchell Dembin, Asst. U.S. Atty., Boston, Mass., for plaintiff.

Owen Walker, Federal Defender, Boston, Mass., for defendant.

MEMORANDUM AND ORDER

WOLF, District Judge.

Defendant, Willie C. Davis a/k/a Reggie Knight, was arrested at Logan Airport on December 11, 1985, and indicted by a grand jury on December 19, 1985, for possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1). On January 15, 1986, defendant moved to suppress all evidence taken from him or his luggage by government agents and all statements made by him to government agents as a result of such evidence being seized. Defendant contends that this evidence was taken from him in violation of his rights under the Fourth Amendment against unreasonable searches and seizures.

The court held an evidentiary hearing on February 4, 1986. (the "Suppression Hearing"). The sole witness at this hearing was Herbert J. Lemon, Jr., one of the Drug Enforcement Administration ("DEA") Special Agents who arrested defendant.¹ At the court's request, the parties filed supplemental memoranda on February 11, 1986, at which time this matter was taken under advisement.

For the reasons stated below, the court finds that the evidence in question was not discovered as a result of an unreasonable seizure or search. Defendant's motion to suppress must, therefore, be denied

I. Findings of Fact

Based on the uncontradicted evidence presented at the Suppression Hearing, which the court finds credible, the court finds the facts of this case as follows.

On December 11, 1985, Agent Lemon was on duty at Logan Airport, at Gate Four of the Eastern Airlines Terminal. He was dressed in a suit and tie. Lemon has been a DEA Agent for 15 years and has participated in more than 100 arrests. Transcript of Suppression Hearing ("Tr.") at 4-5. At approximately 4:00 p.m., Agent Lemon observed defendant exit Eastern flight number 914 from Miami, Florida. He noticed defendant because defendant was the third from last person off the plane. Tr. at 5-7. Lemon also noticed that two people were following close behind defendant —a male five feet behind defendant and a female about ten feet behind defendant. Tr. at 7. Lemon observed all three walking at a very rapid pace and nodding to each other. He concluded that the three people were trying to communicate without appearing as if they were traveling together. He also concluded that defendant was in control of the other two. Tr. at 7-8.

Lemon followed the three people. Tr. at 8. He observed defendant nodding back to the others as they were taking the escalator down to the main concourse. Tr. at 9. He also observed that defendant was carrying a red, canvas gym bag and a small, brown paper bag. The male suspect had one piece of luggage and the female suspect was carrying a purse. Id.

The trio, still walking some distance apart, exited the terminal building without stopping to claim baggage and proceeded to the area where taxi cabs were parked. Id. Agent Lemon followed them out of the building. He approached defendant on the sidewalk, identified himself as a federal agent, and asked defendant if he would speak with him. Tr. at 10. Defendant responded that he would talk with Agent Lemon. Id.

Lemon first asked defendant from where he had arrived. Defendant initially did not answer and then repeated the question. After defendant still did not answer, Lemon asked him if he had just arrived from Miami. Defendant repeated the question, and said yes, he had arrived from Miami. Id. While Lemon was speaking with defendant, Special Agent Mieczyslaw K. Swidwinski, also dressed in civilian clothes, joined Lemon and began speaking with the other male suspect. Tr. at 12-13.

The two other suspects had been standing nearby, watching Lemon speak to the defendant. Lemon asked defendant if he was traveling with them. Defendant "hesitated, repeated the question, hesitated again, and then stated that he was not with the other two individuals." Tr. at 11.

Agent Lemon next asked defendant if he had his plane ticket. Defendant responded by showing Lemon two boarding passes with the names Reggie Knight and Donald Robinson on them. After examining the boarding passes, Lemon returned them to defendant and asked again if defendant had his ticket. Tr. at 11. Defendant repeated the question, hesitated, and said he must have left his ticket on the plane. Tr. at 12.

Lemon then asked defendant if he had any identification. Defendant repeated the question and then answered that he did not have any identification. Id. Shortly thereafter, Lemon noticed the female suspect walk behind defendant. Defendant stepped back toward her. It appeared to Lemon that defendant's hands were moving behind his back. Tr. at 13. Lemon stepped around defendant and saw him trying to pass a black card case to the female suspect. Lemon intercepted the case. He opened the case, saw some papers in it, but did not examine its contents. Tr. at 17-18, 62. He then asked defendant what the case contained. Defendant repeated the question and then answered that the case contained telephone numbers and some identification. Tr. at 13.

At that point, Lemon asked defendant if he had any drugs in his gym bag. Defendant said that he did not have drugs in the bag. Tr. at 14. Lemon told defendant he was going to see if a drug dog was in the airport because, if so, he was going to have the dog sniff defendant's bag to see if it contained drugs. Id. Defendant shrugged his shoulders but did not otherwise respond. Id.

Lemon then asked defendant if he could look in defendant's gym bag. Defendant said he could look in the bag. Tr. at 14.² Lemon next asked Swidwinski to search defendant's bag. Swidwinski found about one pound of cocaine and some marijuana. Tr. at 15. Defendant's plane ticket was also in the bag. Id.

Lemon then arrested defendant. A subsequent search of defendant's card case revealed that it contained a small quantity of cocaine. Tr. at 62-63.

II. Conclusions of Law

Defendant has moved to suppress all evidence resulting from the search of his bag. He contends that (1) defendant was unlawfully stopped; (2) defendant's card case was illegally seized; (3) that the defendant's card case was illegally opened; (4) the unlawful seizure and/or opening of the case tainted the subsequent search; and (5) defendant did not voluntarily consent to the search of his gym bag. The government responds that (1) the Fourth Amendment was not implicated by the initial stop; (2) Lemon had a reasonable suspicion for seizing defendant's card case; (3) the opening of the card case was improper, but did not taint the subsequent search; and (4) defendant voluntarily consented to the search of his bag. The court concludes that the government has borne its burden of proving that its contentions are correct. United States v. Finucan, 708 F.2d 838, 844 (1st Cir.1983).

A. The Initial Stop and Subsequent Detention

The court finds that the initial stop was the type of consensual encounter that does not implicate the Fourth Amendment.³ Florida v. Rodriquez, 469 U.S. 1, 105 S.Ct. 308, 310-11, 83 L.Ed.2d 165 (1984). The Supreme Court recently stated that:

Law enforcement officers do not violate or implicate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if he is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions.... Nor would the fact that the officer identifies himself as a police officer, without more, convert the encounter into a seizure requiring some level of objective justification. United States v. Mendenhall, 446 U.S. 544, 555 100 S.Ct. 1870, 1877-78, 64 L.Ed.2d 497 (1980) (opinion of Stewart, J.).

Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229 (1983) (opinion of White, J.) A suspect is not seized as long as a reasonable person in his position would have believed that he was not free to leave. Mendenhall, 446 U.S. at 554-55, 100 S.Ct. at 1877-78 (opinion of Stewart, J.);⁴Terry v. Ohio, 392 U.S. 1, 16, 88 S.Ct. 1868, 1877, 20 L.Ed.2d 889 (1968).

In this case, up to the point that Lemon seized defendant's card case, a reasonable person in defendant's position would have felt free to walk away from the agent, or at least refuse to speak with him. Lemon approached defendant, identified himself as a federal agent, and asked defendant if he minded answering some questions. The agent was dressed in a business suit, did not display a weapon, did not touch defendant, and did not use forceful language. Mendenhall, 446 U.S. at 554-55, 100 S.Ct. at 1877-78 (opinion of Stewart, J.). Defendant did not object to speaking with Agent Lemon.⁵ The totality of circumstances indicate that from the time at which Lemon initially stopped defendant, to the point where he intercepted defendant's card case, a Fourth Amendment seizure of defendant had not occurred. Cf. United States v. Place, 462 U.S. 696, 701, 707-08, 103 S.Ct. 2637, 2641, 2644-45, 77 L.Ed.2d 110 (1983) (defendant was "seized" when agents detained his luggage); Royer, 460 U.S. at 501, 103 S.Ct. at 1326 (opinion of White, J.) (asking for and examining suspect's ticket and driver's license did not constitute seizure); Mendenhall, 446 U.S. at 555, 100 S.Ct. at 1877-78 (opinion of Stewart, J.) (suspect not seized "simply by reason of the fact that the agents approached her, asked her if she would show them identification, and posed to her a few questions"); United States v. Berryman, 717 F.2d 650, 661 (1st Cir.1983), cert. denied, 465 U.S. 1100, 104 S.Ct. 1594, 80 L.Ed.2d 125 (1984) (defendant was not seized at least until after agents found gift-wrapped package in...