United States v. Tolbert

• Decision Date: 29 June 1981
• Docket Number: Crim. No. 80-80253.
• Parties: UNITED STATES of America, Plaintiff, v. Delphine O. TOLBERT, Defendant.
• Court: U.S. District Court — Western District of Michigan

517 F. Supp. 1081

UNITED STATES of America, Plaintiff, v. Delphine O. TOLBERT, Defendant.

Crim. No. 80-80253.

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

June 29, 1981.

Gary M. Felder, Asst. U. S. Atty., Detroit, Mich., for plaintiff.

Isaiah King, Houston, Tex., for defendant.

OPINION

FEIKENS, Chief Judge.

Defendant Delphine Tolbert is charged with possession of about 280 grams of cocaine, a violation of 21 U.S.C. § 841(a)(1). She brings this motion to suppress evidence which was seized at the time of her arrest. The parties have agreed to a stipulation of the facts.

On March 28, 1980, defendant traveled from Miami to Detroit on a commercial airline flight, changing planes in Atlanta. At the airport in Atlanta, she was observed as she deplaned from her first flight by Special Agent Gerald Chapman of the Drug Enforcement Administration ("DEA") and Officer James Burkhalter of the Atlanta Police Department. Defendant noticed that Chapman was watching her. She reacted with a look of concern.

Chapman and Burkhalter followed defendant as she walked from this arrival area to the departure gate for her connecting flight to Detroit. Chapman watched her check in for the second flight. He learned from this observation that defendant had one piece of checked luggage, that she had paid for her ticket in cash, and that her ticket had been handwritten. He also learned that she was traveling under the name of L. Jones. Using this information, he was able to learn from the airline that defendant had purchased her ticket about twenty minutes before her flight had left Miami.

Based on this information, which fit the DEA's "drug courier profile", Chapman and Burkhalter approached defendant. Chapman identified himself as a DEA agent, and asked defendant for her airline ticket and a piece of identification. Defendant handed Chapman her ticket folio, which contained a roundtrip ticket from Miami to Detroit and a baggage claim check with the number 387-945 on it. She stated that her identification was in the checked luggage. Chapman asked her a few questions. He stated again that he was a narcotics agent, and that he was trying to determine whether or not she was transporting illegal drugs. Defendant became nervous, and denied that she was doing so. Chapman asked for permission to search her pocketbook and luggage, but defendant refused. The conversation ended, and Chapman notified the Detroit DEA Airport Detail of what had occurred.

When defendant arrived in Detroit, DEA Special Agent Bruce Bryda and other agents recognized her from Chapman's description, and continued the surveillance. Defendant left the arrival gate and walked toward the baggage claim area. The agents followed. They observed her looking around as though she was trying to determine whether someone was following her. She passed through the baggage claim area without claiming any baggage, then walked outside. Her pace quickened as she approached a taxi.

As defendant was getting into the taxi, Bryda and Special Agent Anderson approached her. They identified themselves and asked for her ticket and some identification. She handed them her ticket folio, but said she did not have any identification. Bryda observed that the baggage claim check, previously observed by Agent Chapman in Atlanta, was now missing. He informed her that they believed that she was carrying narcotics, and asked her to step inside the terminal so they could ask her some more questions.

Once inside the terminal, Bryda asked defendant if she had any luggage. She said that she did not. By this time, all of the luggage from the flight from Atlanta had been claimed, except for one bag. Bryda examined the bag, and noted that the claim number corresponded to the number which Chapman had observed on defendant's ticket folio when he had stopped her in Atlanta. Bryda claimed the bag, and brought it to the airport DEA office.

In the office, Bryda asked defendant if he could search her purse. She consented. He then asked her if the checked luggage belonged to her. She denied it. Agent Anderson then searched her purse and discovered a pictured card which identified her as Delphine Tolbert, not L. Jones, as her ticket had indicated. He also found a set of keys. Bryda opened the luggage with one of the keys, and discovered cocaine. He then formally placed defendant under arrest and advised her of her rights.

Defendant argues that the evidence must be suppressed for two reasons. First, she argues that the confrontation with Chapman and Burkhalter in Atlanta was a "stop" not predicated upon reasonable suspicion, see, e. g., Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 1879-1881, 20 L.Ed.2d 889 (1968), and that the evidence was a "fruit" of this stop, see, e. g., Wong Sun v. United States, 371 U.S. 471, 484-87, 83 S.Ct. 407, 415-417, 9 L.Ed.2d 441 (1963). The government maintains that no Fourth Amendment "stop" occurred there, or, in the alternative, that it was justified by reasonable suspicion. Second, defendant argues that even if the first stop was proper, the evidence must be suppressed because the search of the luggage without a search warrant violated her Fourth Amendment rights. See, e. g., Arkansas v. Sanders, 442 U.S. 753, 757-61, 99 S.Ct. 2586, 2589-2592, 61 L.Ed.2d 235 (1979); United States v. Chadwick, 433 U.S. 1, 11, 97 S.Ct. 2476, 2483, 53 L.Ed.2d 538 (1977). The government responds that, even though Bryda conducted the search without a warrant and without probable cause, no right of defendant was violated because she had "abandoned" the luggage.

I find that defendant did not abandon her luggage. The search violated her Fourth Amendment rights. Thus, the evidence must be suppressed. Weeks v. United States, 232 U.S. 383, 393-94, 34 S.Ct. 341, 344-345, 58 L.Ed. 652 (1914), overruled on other grounds, Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960). For this reason, I do not need to decide the constitutionality of the first confrontation between defendant and Chapman and Burkhalter in Atlanta. In light of the case law on "abandonment", however, I will clarify the precise nature of my holding.

The theory of "abandonment" in Fourth Amendment cases appears to have originated in Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924). In Hester, revenue officers hid near the front of a farmhouse owned by Hester's father. Hester walked out of the house and handed a quart bottle to someone named Henderson. An alarm was sounded, and the revenue officers began to run toward the two men. Hester grabbed a gallon jug from a nearby car and ran off across an open field. Henderson followed, carrying the bottle Hester had given him. One of the officers pursued them and fired a shot into the air. Hester dropped the jug and it broke. Henderson tossed his bottle away. Both continued to run. The officers seized the remnants of both containers. They were found to contain moonshine whiskey. Despite the absence of a search warrant, the Supreme Court affirmed Hester's conviction for concealing distilled spirits. They said:

It is obvious that even if there had been a trespass, the above testimony was not obtained by an illegal search or seizure. The defendant's own acts, and those of his associates, disclosed the jug, the jar and the bottle — and there was no seizure in the sense of the law when the officers examined the contents of each after it had been abandoned. This evidence was not obtained by the entry into the house and it is immaterial to discuss that....

Apart from the justification, the special protection accorded by the Fourth Amendment to the people in their "persons, houses, papers, and effects" is not extended to open fields. The distinction between the latter and the house is as old as the common law.

265 U.S. at 58-59, 44 S.Ct. at 446.

Hester may be interpreted in either of two ways. First, Hester and Henderson may have "abandoned"¹ the containers by dropping or tossing them away as they ran. Second, the Fourth Amendment may have been considered irrelevant to any search of an open field, or seizure of evidence found there. If Hester stood for the first proposition, it would provide strong support for the government's position that defendant "abandoned" her luggage. I conclude, however, that it is explained better by the second theory. The language of the opinion lends itself more readily to that interpretation. The final sentences quoted above sound like the holding. The reference to "abandonment" appears to have been just a loose description of the facts. Moreover, the Supreme Court has cited the case often as an example of the "protected areas" theory of the Fourth Amendment. Katz v. United States, 389 U.S. 347, 351 n.8, 88 S.Ct. 507, 511 n.8, 19 L.Ed.2d 576 (1967); Lopez v. United States, 373 U.S. 427, 466 n.12, 83 S.Ct. 1381, 1402 n.12, 10 L.Ed.2d 462 (1963) (Brennan, J., dissenting); Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 682, 5 L.Ed.2d 734 (1961); Rios v. United States, 364 U.S. 253, 262 n.6, 80 S.Ct. 1431, 1437 n.6, 4 L.Ed.2d 1688 (1960); Olmstead v. United States, 277 U.S. 438, 465, 48 S.Ct. 564, 568, 72 L.Ed. 944 (1928), overruled on other grounds, Katz v. United States, supra; United States v. Lee, 274 U.S. 559, 563, 47 S.Ct. 746, 748, 71 L.Ed. 1202 (1927); Carroll v. United States, 267 U.S. 132, 151, 45 S.Ct. 280, 284, 69 L.Ed. 543 (1925). But see Michigan v. Tyler, 436 U.S. 499, 517, 98 S.Ct. 1942, 1954, 56 L.Ed.2d 486 (1978) (Rehnquist, J., dissenting); Abel v. United States, 362 U.S. 217, 241, 80 S.Ct. 683, 698, 4 L.Ed.2d 668 (1960). Thus, Hester is better understood as a product of that discredited theory. Katz v. United States, supra, 389 U.S. at 351-52, 88 S.Ct. at 511-512. It cannot support the government's "abandonment" argument here.²

Four later Supreme Court cases discuss "abandonment" in the context of the Fourth Amendment.³ Two of these discuss the topic in factual situations which are...