United States v. McClain

• Decision Date: 30 December 1977
• Docket Number: Crim. No. 5-82014.
• Citation: 452 F. Supp. 195
• Parties: UNITED STATES of America, Plaintiff, v. John Anthony McCLAIN, Defendant.
• Court: U.S. District Court — Western District of Michigan

452 F. Supp. 195

UNITED STATES of America, Plaintiff, v. John Anthony McCLAIN, Defendant.

Crim. No. 5-82014.

United States District Court, E. D. Michigan, S. D.

December 30, 1977.

Frederick S. Van Tiem, Acting U. S. Atty., and Robert D. Sharp, Asst. U. S. Atty., Detroit, Mich., for plaintiff.

Charles S. Brown, and S. Allen Early, Detroit, Mich., for defendant.

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT'S MOTION TO SUPPRESS

KEITH, Circuit Judge, Sitting by Designation.

This matter was before this court on defendant's motion to suppress pursuant to Rule 12(b), Fed.Rules of Crim.Pro., evidence of drug trafficking obtained by the government after a search of defendant's luggage at Detroit Metropolitan Airport on November 25, 1975, by an agent of the Drug Enforcement Administration (DEA). Briefs were allowed in support of and in opposition to this motion and the matter came on for an evidentiary hearing on September 10, 1976 at which time testimony was heard in open court from DEA Special Agent Paul Markonni and Metropolitan Airport Police Officer Theodore Simon Garcia. At the conclusion of the hearing the court granted defendant's motion and ordered the evidence suppressed. Trans. at 83.

I

On November 25, 1975, Agent Markonni was on duty at Detroit Metropolitan Airport. At approximately 7:18 p. m. he observed the defendant, a young Negro male, deplane from American Airlines flight No. 98, arriving nonstop from Los Angeles. The defendant carried a small piece of luggage with him from the airplane. He proceeded to the American Airlines baggage claim area, and made a telephone call enroute to the baggage area. Agent Markonni had continued to watch McClain after he left the airplane because he appeared to the agent to be "unusually" nervous.

As McClain exited the airport terminal and was about to enter a taxicab, Agent Markonni stopped him, identified himself, and requested identification from him. McClain produced a California driver's license in the name of John McClain. His address on the license was listed as 764 Doheny # 1, Los Angeles, California. Agent Markonni testified that the name John T. McClain was familiar to him as being listed in DEA intelligence reports as a major narcotics distributor in California, and that the address at 764 Doheny # 1 was used by this John T. McClain to conduct narcotics transactions. He had also previously obtained information from DEA agents in Los Angeles that John T. McClain used his nephews and sons as drug couriers. Therefore, after receiving this information as to the defendant's identity, Agent Markonni requested that McClain accompany him to a private area out of public view in the terminal building — the first aid room — so they could continue this conversation. They were joined in the room by a Wayne County Sheriff's Deputy and by Metropolitan Airport Police Officer Theodore Simon Garcia.

Once in the first aid room, Agent Markonni told McClain that he suspected him of possessing a quantity of narcotics. He requested permission to search his luggage, and advised him of his right to refuse the search. McClain indicated that Agent Markonni could search his luggage. Agent Markonni first searched the large wardrobe suitcase, but found no drugs there. He then began to search the smaller suitcase which McClain had carried off of the plane. This suitcase had a number of zippered pockets on the outside, and a zipper with a combination lock covering the center section. Agent Markonni first searched the outside compartments and found only various toilet articles there. He then attempted to open the center section and found it locked by the combination lock. Agent Markonni asked McClain for the combination to the lock. McClain responded that he did not have the combination, that he had borrowed the suitcase from an uncle. Agent Markonni then left McClain in the first aid room with a Wayne County Sheriff's Deputy, and proceeded with Officer Garcia to take the small suitcase to the American Airlines security checkpoint, where he had the suitcase X-rayed. He noticed among the clothing four distinct, dark, rectangular shaped objects in the suitcase which, based upon his experience as a narcotics agent, he thought were narcotics containers. Agent Markonni and Officer Garcia then took the suitcase to the DEA office at the airport where they checked the DEA files to be sure that the address 764 Doheny # 1 was the address Agent Markonni thought it was. It was. They then returned to the first aid room, and again requested the combination to the suitcase lock from McClain. McClain again declined to give them the combination. Thereupon, Agent Markonni broke the lock and opened the suitcase. Inside he found four containers of narcotics. The defendant was then placed under arrest for violation of the Controlled Substances Act.

II

The initial question before the Court is whether the "investigative stop" of McClain as he was about to leave the airport was reasonable under the circumstances and in light of the facts then known to Agent Markonni. If not, then the stop violated McClain's Fourth Amendment right to be free of unreasonable searches and seizures, and the evidence obtained by the government as a result of the stop and subsequent search must be suppressed.

A police officer may conduct a limited frisk search for weapons without the consent and before the arrest of an accused, if the search is motivated by a reasonable suspicion that the suspect is armed or dangerous. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Agent Markonni testified that he had no suspicion that McClain was armed, and that he did not search him for his own protection or the protection of others.¹ Thus, the search involved in this case does not come within this Terry exception.

Although "a brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time," Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972), "in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Terry v. Ohio, 392 U.S. at 21, 88 S.Ct. at 1880 (1968). The stop must be based on more than an officer's unsupported intuition, United States v. Mallides, 473 F.2d 859, 862 (9th Cir. 1973), or his good faith. See, Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959).² The officer may obtain "specific and articulable facts" through his direct observation, or as a result of his prior investigation of the defendant, or from a tip from a reliable informant. Thus, in Terry v. Ohio, supra, the stop could be upheld on the following "specific and articulable facts" which the police officer observed:

He had observed Terry, Chilton and Katz go through a series of acts, each of them perhaps innocent in itself, but which taken together warranted further investigation. There is nothing unusual in two men standing together on a street corner, perhaps waiting for someone. Nor is there anything suspicious about people in such circumstances strolling up and down the street, singly or in pairs. Store windows, moreover, are made to be looked in. But the story is quite different where, as here, two men hover about a street corner for an extended period of time, at the end of which it becomes apparent that they are not waiting for anyone or anything; where these men pace alternately along an identical route, pausing to stare at the same store window roughly 24 times; where each completion of this route is followed immediately by a conference between the two men on the corner; where they are joined in one of these conferences by a third man who leaves swiftly; and where the two men finally follow the third and rejoin him a couple of blocks away. It would have been poor police work indeed for an officer of 30 years' experience in the detection of thievery from stores in this same neighborhood to have failed to investigate this behavior further.

Ibid., 392 U.S. at 22-23, 88 S.Ct. at 1880. And in Adams v. Williams, supra, a stop was upheld where a police officer, driving alone on car patrol at 2:15 a. m. in a high crime area, was approached by a known informant who told him that an individual seated in a nearby vehicle was carrying narcotics and had a gun at his waist. 407 U.S. at 144-45, 92 S.Ct. at 1921.

The stop of McClain by DEA Agent Markonni involved the use of the drug courier profile which has been implemented by the DEA at Detroit Metropolitan Airport. Some of the characteristics of a drug courier have been described as follows:

(1) the use of small denomination currency for ticket purchases; (2) travel to and from major drug import centers, especially for short periods of time; (3) the absence of luggage or use of empty suitcases on trips which normally require extra clothing; and (4) travel under an alias.

United States v. Van Lewis, 409 F.Supp. 535, 538 (E.D.Mich.1976), aff'd. 556 F.2d 385 (6th Cir. 1977). The characteristics of the profile were described by Agent Markonni under direct examination at the evidentiary hearing as follows:

Q.: Were you instrumental in compiling what is known as a drug courier's profile, sir?

A.: Yes, I was.

Q.: Is that profile utilized by the offices of the Drug Enforcement Administration at the Airport?

A.: Yes, it is.

Q.: Could you please describe for purposes of the record to the court what that profile means and the criteria by which you utilize the profile in surveilling individuals?

A.: Basically, it's a number of characteristics which we attribute or which we believe can be used to pick out drug couriers. And these characteristics are basically things that normal

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