United States v. Ruffino

• Decision Date: 30 July 1984
• Docket Number: No. 84 CR 28.,84 CR 28.
• Parties: UNITED STATES of America, Plaintiff, v. Frank Anthony RUFFINO, Defendant.
• Court: U.S. District Court — Northern District of Illinois

592 F. Supp. 409

UNITED STATES of America, Plaintiff, v. Frank Anthony RUFFINO, Defendant.

No. 84 CR 28.

United States District Court, N.D. Illinois, E.D.

July 30, 1984.

Robert A. Novelle, Serpico, Novelle, Dvorok & Navigato, Ltd., Chicago, Ill., for defendant.

Robert B. Breisblatt, U.S. Atty., Chicago, Ill., for plaintiff.

Memorandum

LEIGHTON, District Judge.

This one-count indictment charges defendant Frank Anthony Ruffino with a violation of federal narcotic laws. He moves to suppress evidence which he alleges was taken from his person following an unconstitutional search of his carry-on bag at the O'Hare International Airport. The government, however, contends that defendant consented to the search about which he now complains.

Evidence has been heard, oral and written submissions of the parties have been made to the court; the only issue to be resolved is whether the government has sustained its burden of proving that when defendant's carry-on bag was searched, it was with his consent. This issue arises from the following facts.

I

On February 9, 1982 at about 7:10 p.m., Special Agent Robert Fulkerson, two Chicago police officers Rosemary Burzinski and Thomas Kinsella, all assigned to the Chicago O'Hare Airport Drug Task Force, were watching passengers deplane from a Northwest Orient Airline flight which had originated in Tampa, Florida, a city considered a source of narcotics by the Drug Enforcement Administration. Two of these deplaning passengers were defendant and his cousin, Scott Ruffin. The agents had no information, reliable or otherwise, that any passenger on the plane was in possession of contraband, or that defendant or his cousin possessed any drugs.

The three agents were on special assignment; their purpose, under instructions of their superiors, was to observe incoming passengers from source cities, stop, interrogate them, and elicit consent so that they could search the passengers for drugs. They had done this on a number of occasions, in excess of one hundred times before February 9. With this purpose in mind, they kept defendant and his cousin under observation and saw that the two men were carrying carry-on bags, the defendant a red-trimmed one.

Then, the agents followed defendant and his cousin to the Eastern Airlines baggage claim area located on the street level of the terminal. There, defendant turned toward the exit doors; his cousin proceeded a short distance away. At this point, none of the agents had what any of them considered was probable cause to search either defendant or his cousin. Fulkerson approached defendant and displayed his credentials. Kinsella followed Ruffin and identified himself. Burzinski was some distance but nearer Fulkerson and defendant. Neither Kinsella nor Burzinski heard what transpired between defendant and Fulkerson.

It was defendant's testimony that Fulkerson approached him from behind, grabbed his left elbow so as to stop his movement, and announced his office, displaying his credentials; that the agent told him there was a tip that he was carrying drugs and he wanted to talk with him about this information. Defendant states that Fulkerson asked him if he was carrying drugs; and, according to defendant, asked for identification and his airline ticket which defendant produced showing his proper identification. Fulkerson, according to defendant, continued to interview and thus detain him; he asked about defendant's purpose in Chicago which defendant answered telling him he had been in business in Florida, which he had just sold, and was in Chicago to visit family and friends. Defendant states that Fulkerson repeated the statement about the tip he claimed existed about defendant carrying drugs. He states that Fulkerson told him he wanted to look into the carry-on bag which by this time was on the floor of the baggage retrieval area. Defendant swears that Fulkerson reached for the bag, grabbed it, and started going through it; that he, defendant, did nothing to resist Fulkerson or object to the search because he never was told by Fulkerson that he could refuse to allow search of the bag. Defendant states that Fulkerson never told him either that he was not under arrest, or that he was free to leave the airport terminal.

It was Fulkerson's testimony that he approached defendant by moving alongside of him and displaying his credentials; that he asked defendant if he could talk with him and defendant agreed. Fulkerson swears that he asked defendant for identification which was produced in the form of an airline ticket and driver's license. These Fulkerson said he examined and returned to defendant, asking him the purpose for his trip to Chicago. Fulkerson states that he told defendant he was not under arrest but asked him if he could search the carry-on bag; and defendant, according to Fulkerson, said that the search could be made. Thereupon, he searched the carry-on bag and found a box containing a "Deering Preparation System." Fulkerson said he opened the box and found a small strainer with a white residue about which he asked defendant who said that it was cocaine. Then, according to Fulkerson, he placed defendant under arrest, read him his constitutional rights, and in a search that followed, the cocaine, which is the subject of the charge in this case, was found in defendant's boot.

II

Since the government meets defendant's motion to suppress with the contention that on the occasion in question he consented to a search of his carry-on bag, it has "the burden of proving that the necessary consent was obtained and that it was freely and voluntarily given...." United States v. Giuliani, 581 F.Supp. 212, 218 (N.D.Ill.1984); see Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229 (1983). This burden is not satisfied by a showing of mere submission to a claim of lawful authority. Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 329, 99 S.Ct. 2319, 2326, 60 L.Ed.2d 920 (1979); Bumper v. North Carolina, 391 U.S. 543, 548-49, 88 S.Ct. 1788, 1791-92, 20 L.Ed.2d 797 (1968). The consent claimed to have been obtained, must be proved by clear and positive testimony; it must be unequivocal, specific and intelligently given, uncontaminated by any duress or coercion. United States v. McCaleb, 552 F.2d 717, 721 (6th Cir.1977). Whether consent to a search was voluntarily given is a question of fact to be determined from the totality of all the circumstances. United States v. Mendenhall, 446 U.S. 544, 558-59, 100 S.Ct. 1870, 1879, 64 L.Ed.2d 497 (1980); United States v. Cantero, 551 F.Supp. 397, 400 (N.D.Ill. 1982).

This being so,

The fact finding required with regard to airport stops must involve distinguishing nuances of tone and language — whether a phrase was worded as an order or a question, whether a question was so peremptory as to be a command in all but punctuation — that are subject to easy distortion or poor recall by parties and that hence might allow covert coercion easily to escape a casual review by a court.

United States v. Berry, 670 F.2d 583, 596 (5th Cir.1982). The psychological peculiarities of airport stops led the court in Berry to observe that while

they can be conducted in a fashion that prevents coercion of the individual stopped, we also note that the very nature of such stops may render them intimidating. The nervousness that air flight often engenders, the need quickly to make connections for continuing one's journey, the mere surprise from being accosted in a crowded airport concourse by a law enforcement officer for no apparent reason, and the pressure to cooperate with police to avoid an untoward scene before crowds of people, all make it easy for implicit threats or subtle coercion to exert tremendous pressure on an individual to acquiesce to the officer's wishes. In such a situation it would be easy to misinterpret acquiescence to an officer's demands as consent; acquiescence cannot, of course substitute for free consent. 670 F.2d at 596.

Therefore, because of these nuances of meaning, this court keeps in mind that

The credibility of those who testify concerning the facts touching on consent is always important and crucial; so for this reason, a court should consider the whole nexus of its sense impressions of the witness. Dyer v. Mac Dougall, 201 F.2d 265, 268-69 (2d Cir.1952); see Hall v. United States, 465 F.Supp. 571, 574 (N.D.Ill.1979). And the demeanor of such witnesses is highly useful, even if not an infallible method of ascertaining the truth and accuracy of their narratives.

United States v. Cantero, 551 F.Supp. 397, 400 (N.D.Ill.1982). The tests relevant to a determination of credibility are the nature and character of the testimony, "inconsistencies, ... and discrepancies of a witness' testimony or between the testimony of different witnesses, or any contradictory testimony." Young Ah Chor v. Dulles, 270 F.2d 338, 341 (9th Cir.1959); cf. Roberto v. Aguon, 519 F.2d 754, 757 (9th Cir.1975).

III

In this proceeding, these tests will be applied solely to the testimony of defendant and Fulkerson; they are the only persons, of the five involved, who claim to know what occurred during the crucial moments at O'Hare when, the government contends, defendant consented to the search of his carry-on bag. Their testimony is in irreconcilable conflict; therefore, this court is entitled to narrow the question to one of credibility. United States v. McCorkle, 413 F.2d 307, 310 (7th Cir.1969).

Defendant has testified that after Fulkerson confronted him near the Eastern Airlines baggage retrieval area, he dropped his carry-on bag to the floor; that he denied he had any drugs in his possession when Fulkerson told him there was a tip he was carrying drugs; that he knew a search of the bag would surely result in a search of his person and discovery of what he had secreted in his boot; that Fulkerson never told him he could decline being interviewed or refuse search of the bag; and that Fulkerson told him he...