United States of America, Plaintiff-Counterdefendant/appellant v. $25,000 U.S. Currency, and Tomasino Gino Cirimele, Claimant/appellee

845 F.2d 857

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 21, 1988
• Docket: 85-5854
• Status: Published

Opinions

CYNTHIA HOLCOMB HALL, Circuit Judge:

The United States filed a civil forfeiture action pursuant to 21 U.S.C. § 881(a)(6) against money seized from Tomasino Ciri-mele (“Cirimele”) following his arrest at Los Angeles International Airport. Ciri-mele moved to suppress the evidence obtained from him at the airport. The district court granted Cirimele’s motion, stating that the agents did not have a reasonable and articulable suspicion of criminal activity so as to justify Cirimele’s detention. Cirimele thereafter moved for summary judgment against the government in the forfeiture action. The district court granted the motion, finding that the government had failed to establish probable cause to forfeit. We find that the district court erred in granting Cirimele’s motion to suppress and his motion for summary judgment. The district court’s ruling is reversed and this case is remanded to the district court for further proceedings.

I

On November 10, 1982, a Drug Enforcement Agent (“D.E.A.”) from Atlanta relayed information to D.E.A. Joseph Leszc-zynski, in Los Angeles, that narcotics couriers were using an Eastern Airlines flight from Los Angeles to Miami to transport the profits of narcotics transactions. The information given to the agent was that the couriers were generally unaccompanied males who traveled without checked baggage, and stayed in Miami a brief time before returning to Los Angeles.

On November 16, 1982, Agent Leszczyn-ski and Detectives Farrant and Maldi of the Los Angeles Police Department observed Cirimele leaving a car that had pulled up to the curb outside the Eastern terminal. Cir-imele carried only a blue nylon gym bag. The car immediately sped away from the curb and Cirimele did not exchange any good-byes with the occupant. Cirimele then walked to the Eastern ticket line, purchased a ticket, and took a seat at a nearby bench. As he sat on the bench, he guarded his bag carefully between his legs and appeared anxious.

Agent Leszczynski and the two detectives approached Cirimele and identified themselves. Detective Farrant positioned himself directly in front of Cirimele. Agent Leszczynski and Detective Maldi were situated a few feet behind Detective Farrant. Cirimele was seated on the right side of the bench directly next to a concrete pillar. Detective Farrant asked if he could speak with Cirimele for a few minutes. Cirimele said yes. Detective Farrant then asked Cirimele if he would mind showing him some identification. Cirimele produced identification in the form of an alien identification registration card issued in the name of Tomasino Cirimele. Farrant then asked Cirimele if he would mind showing him his airline ticket. The airline ticket was issued to a D. Chili.

Detective Farrant informed Cirimele that he was conducting a narcotics investigation and that he wished to search Cirimele’s bag. Cirimele allowed Farrant to do so. A search of the bag produced two airline tickets dated November 12, 1982, for travel from Fort Lauderdale, Florida, to Los An-geles, California. The tickets were issued to a Tony Roma and a D. Tomasino. The detective also found objects from hotels in Southern California.

Farrant then asked Cirimele if he would accompany him to his office, which was located one hundred feet away, to “check everything out.” Cirimele stated that he did not mind going but he did not want to miss his flight.

When they arrived at the office, Agent Leszczynski asked Cirimele if he could search his wallet for additional identification. Cirimele allowed Leszczynski to do so. The search produced a small paper bundle of cocaine. Cirimele then pulled out $25,000 in U.S. currency from his pockets.

The government filed a civil forfeiture action pursuant to 21 U.S.C. § 881 against the currency on April 7, 1983. On July 26, 1984, the district court granted Cirimele’s motion to suppress the evidence obtained by the officers subsequent to the initial questioning. On March 12, 1985, the district court entered summary judgment in favor of Cirimele, concluding that the government had failed to establish probable cause to forfeit. The government appeals the district court’s grant of the motion to suppress and the summary judgment entered in favor of Cirimele.

II

The basic issue before us is whether the district court correctly granted Cirimele’s motion to suppress the evidence obtained during the encounter with the agents in the terminal, and from the search of the bag there, as well as the evidence obtained from the search in the D.E.A. office. The district court held that Cirimele was “seized” under the fourth amendment at the time of the initial encounter, and that the agents did not have a reasonable and articulable suspicion of criminal activity that justified Cirimele’s detention at that point. Therefore, the court suppressed the evidence that was obtained during the detention.

We review de novo the district court’s grant of Cirimele’s motion to suppress, and we uphold its findings of fact unless they are clearly erroneous. United States v. Mitchell, 812 F.2d 1250, 1253 (9th Cir.1987). The ultimate conclusion of the lawfulness of a seizure is a mixed question of law and fact that we review de novo. Id.

We must first determine whether Ciri-mele was seized within the meaning of the fourth amendment at the time of the initial encounter. If he was not seized at that time, we must determine whether he was seized at any point during the encounter, and whether, at that point, there was a fourth amendment violation. Furthermore, we must determine whether the searches that occurred violated the fourth amendment. If there was a fourth amendment violation, the evidence obtained must be suppressed. See Weeks v. United States, 232 U.S. 383, 398, 34 S.Ct. 341, 346, 58 L.Ed. 652 (1914).¹

It is well-established that not every police encounter is a seizure as defined by the fourth amendment. See, e.g., Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 1323, 75 L.Ed.2d 229 (1983); United States v. Erwin, 803 F.2d 1505, 1508 (9th Cir.1986). As the Supreme Court stated:

[L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, [or] by asking him if he is willing to answer some questions. ...

Royer, 460 U.S. at 497, 103 S.Ct. at 1323. An individual is “seized within the meaning of the fourth amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980) (Stewart, J.). “Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a ‘seizure’ has occurred.” Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 1879, n. 16, 20 L.Ed.2d 889 (1968).

Cirimele argues that he was seized when the officers approached him in the airport concourse and identified themselves, since he was “surrounded” by the officers and blocked by a concrete pillar. He states that a reasonable person in this situation would not have felt free to leave. However, the evidence in the record does not substantiate this claim. Agent Leszczynski was standing four to five feet away from Cirimele and Cirimele could have easily walked around the pillar and the officers. From where the officers were standing, neither the pillar nor the officers prevented Cirimele from leaving the area. The officers showed no sign of force or aggression, and at no time did they raise their voices or show their firearms. Therefore, Cirimele was not seized at the point of the ■ initial encounter in the airport concourse. See Erwin, 803 F.2d at 1508 (no seizure where stop occurred in public place and there was no show of force). Cf. United States v. Sokolow, 831 F.2d 1413, 1416 (9th Cir.1987) (defendant seized when agents grabbed him by the arm, pulled him onto the walkway, and sat him down at the curb).

Likewise, Cirimele was not seized when the detective asked him for his identification and airline ticket. Under Royer, asking for and examining Cirimele’s ticket and his alien registration card were permissible. See Royer, 460 U.S. at 501, 103 S.Ct. at 1326 (requesting and examining airline ticket and driver’s license were “no doubt permissible in themselves”). In United States v. Erwin, this court held that initial questioning and request for identification did not implicate fourth amendment rights under circumstances almost identical to those here. 803 F.2d at 1506-07, 1508 (a reasonable person would not have believed that he was not free to leave when approached in parking lot and asked for identification and ticket).² Other circuits are in accord. See United States v. Poitier, 818 F.2d 679, 682 (8th Cir.1987) (asking for identification did not fall into the category of an investigatory stop), cert. denied, — U.S. -, 108 S.Ct. 700, 98 L.Ed.2d 651 (1988); United States v. Black, 675 F.2d 129, 136 (7th Cir.1982) (request for and examination of driver’s license and airline ticket not a seizure), cert. denied, 460 U.S. 1068, 103 S.Ct. 1620, 75 L.Ed.2d 945 (1983); United States v. Jensen, 689 F.2d 1361, 1363-64 (11th Cir.1982) (officers’ request for identification and inquiry whether defendant was carrying drugs did not constitute seizure). Based on Royer, Erwin, and the law of other circuits, we hold that Cirimele was not seized for purposes of the fourth amendment at the time of the initial encounter nor at the time he was asked for his airline ticket and identification.

Because Cirimele was not seized at the point of the initial encounter or request for identification, we must determine if at some later point he was seized within the meaning of the fourth amendment.³ After the initial questioning, the officers requested permission from Cirimele to search his bag. Detective Farrant testified that Ciri-mele allowed him to conduct the search. The request to search the bag is not a seizure within the fourth amendment. There is no fourth amendment violation when an officer stops an individual and poses a question to him. Royer, 460 U.S. at 497, 103 S.Ct. at 1323. In Erwin, discussed above, the officers asked the defendant if he had any drugs in his possession, and if they could search his bag. Erwin, 803 F.2d at 1507. He refused. Id. The officers then detained the bag and allowed Erwin to leave. Id. The district court held, and we agreed, that this initial questioning did not implicate his fourth amendment rights, although the actual seizure of the bag without Erwin’s consent required reasonable suspicion. Id. at 1508. Thus, under Erwin, when the detectives asked Cirimele if they could search his bag, there was no seizure under the fourth amendment.

In order for the search of the bag to be legal, the consent must have been voluntary and not the result of duress or coercion. Schneckloth v. Bustamante, 412 U.S. 218, 248, 93 S.Ct. 2041, 2058, 36 L.Ed.2d 854 (1973). Determining whether the consent was voluntary depends upon the totality of the circumstances, id. at 248-49, 93 S.Ct. at 2058-59, and is a question of fact reviewed under the clearly erroneous standard. United States v. Licata, 761 F.2d 537, 544-45 (9th Cir.1985) (defendant’s consent to search a package was valid where he clearly understood his rights, did not suffer from a lack of education or intelligence, and the agents did not act in a coercive manner).

This court, in United States v. Nikzad, 739 F.2d 1431 (9th Cir.1984), addressed the question of whether the defendant consented to the search of his luggage. Nikzad’s nervous behavior in the baggage claim area caught the attention of D.E.A. agents. Id. at 1432. The agents approached Nikzad outside of the terminal and asked to speak to him. Id. He was told he was free to leave but he agreed to talk to the agents. Id. The agents then asked permission to search his suitcase. Id. Although Nikzad was told he did not have to consent to the search, he allowed the officers to search the bag. Id. This court held that the initial stop was a valid Terry stop, see Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), but that there was inadequate evidence in the record to determine if the consent to search the luggage was valid, and remanded this question to the district court. Id. at 1433.

Under Nikzad, there is inadequate evidence in the record to determine if Ciri-mele freely and voluntarily consented to the search of the bag. In this case, Ciri-mele was asked by Detective Farrant if he could search the bag and he responded, “Yes”. Cirimele contends that he did not understand English sufficiently well to freely consent. Cirimele bases this contention on an alleged lack of proficiency in English. The government argues that Ciri-mele appeared to understand what was happening. Detective Farrant testified that Cirimele spoke English very well and appeared to understand it. This factual dispute is for the district court, and we therefore remand this question of whether Cirimele freely consented to the search of the bag.

If the district court finds that Cirimele consented to the search of the bag, then his consent would have been effective to legalize this search. Royer, 460 U.S. at 501, 103 S.Ct. at 1326. In addition, the product of the search would be admissible evidence. Id. at 502, 103 S.Ct. at 1326.⁴

Assuming Cirimele voluntarily consented to the search of the bag, the next issue is whether he was seized for purposes of the fourth amendment at a later point. After the search, Detective Farrant asked Cirimele if he would accompany the officers to their office, which was located one hundred feet away, “to check everything out.” Cirimele said that he did not mind going, but that he did not want to miss his flight. The agents assured Cirimele that he would not miss his flight if everything checked out. The initial encounter in the airport concourse, which in itself did not violate the fourth amendment, may have escalated into a seizure when Cirimele was taken to the D.E.A. office. See Royer, 460 U.S. at 503, 103 S.Ct. at 1327; United States v. Moreno, 742 F.2d 532, 536 (9th Cir.1984).⁵

In order for an investigatory stop to be valid under the fourth amendment, the officers must have had a reasonable and artic-ulable suspicion that Cirimele had committed or was about to commit a crime. Royer, 460 U.S. at 498, 103 S.Ct. at 1324; Sokolow, 831 F.2d at 1417. We review de novo whether reasonable suspicion existed. Id.

At the point Cirimele was taken to the office, the officers knew: (1) Cirimele had made a quick exit from a car without “exchanging good-byes” with the driver; (2) he carried only a duffle bag; (3) he appeared anxious; (4) he was to board an Eastern flight to Miami, a city known to have a high level of drug activity; (5) he was traveling under an assumed name; and (6) the contents of the bag discovered during the search (if the district court finds there was valid consent), including two tickets issued under different names. We find that these facts, taken collectively, established the requisite suspicion necessary to detain Cirimele.⁶ See Erwin, 803 F.2d at 1510-11.

In addition, “an investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop. Similarly, the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer’s suspicion in a short period of time.” Royer, 460 U.S. at 500, 103 S.Ct. at 1325-26. In Royer, the Court held that the circumstances surrounding the questioning did not meet this test. Royer was taken to a small room characterized as a “large closet” with one desk and two chairs. Royer, 460 U.S. at 502, 103 S.Ct. at 1327. In addition, the Court said there was no reason indicated in the record for transferring the site of the interrogation to the small room. Id. at 505, 103 S.Ct. at 1328. The Court also stated that the state failed to touch on the question of “whether it would have been feasible to investigate the contents of Royer’s bag in a more expeditious way.” Id.

Cirimele was taken to a large office, unlike the “large closet” in Royer, approximately 25 feet long furnished with desks, telephones, and filing cabinets. The office was large enough to accommodate four people comfortably. There was also a definite purpose for the trip to the office. The officers wanted to further identify Cirimele by running a computer check and by possibly conducting a further search. The length of the detention was no longer than necessary to effectuate the purpose of detaining Cirimele. The officers needed only a few minutes to search Cirimele’s wallet for additional identification and while they were doing this they discovered that Ciri-mele had cocaine in his possession. Therefore, since the government justified the encounter on the basis of reasonable suspicion and because it was sufficiently limited to satisfy the conditions of an investigative seizure, there is no fourth amendment violation.

The final question is whether, while Ciri-mele was detained in the office, he consented to the search of his wallet. As we concluded above, it is not clear whether Cirimele had a sufficient command of the English language to freely consent. We therefore must also remand the question of whether Cirimele consented to the search of his wallet to the district court. See Nikzad, 739 F.2d at 1433.

Ill

We find that the district court erred when it granted Cirimele’s motion to suppress. On remand, the district court must first consider whether Cirimele consented to the search of his bag and wallet. If he consented to these searches, the court must consider the evidence obtained therefrom in order to determine whether there exists probable cause to forfeit the currency. See United States v. $93,685.61 in U.S. Currency, 730 F.2d 571, 572 (9th Cir.1984), cert. denied, 469 U.S. 831, 105 S.Ct. 119, 83 L.Ed.2d 61 (1984).

REVERSED and REMANDED.

1 . Although the district court only found that Cirimele was seized at the initial encounter, we analyze whether a fourth amendment violation occurred at any point during the encounter because we may affirm the district court’s ruling on any basis presented by the record. See Trerice v. Pedersen, 769 F.2d 1398, 1400 (9th Cir.1985). That is, we may affirm the district court’s correct legal results even if they were reached for the wrong reasons. Bruce v. United States, 759 F.2d 755, 758 (9th Cir.1985). If we find that a fourth amendment violation occurred at a later time than the initial encounter, we can affirm the district court's suppression of the evidence thus obtained.

2 . In United States v. Patino, 649 F.2d 724 (9th Cir.1981), we concluded that the defendant was “seized” at the point she was stopped and asked to show her identification and airline ticket. Id. at 728. This case was decided prior to Royer and Erwin, which we believe control here.

3 . Contrary to the suggestion of the dissent, we adhere to the requirement that reasonable suspicion exist before an investigatory stop is made. We simply hold that at the time of the initial questioning and at the time of the request for identification, no seizure occurred because a reasonable person would have believed he was free to leave. Because there was no seizure, the reasonable suspicion requirement of the fourth amendment does not apply. In contrast, later in this opinion we discuss the existence of reasonable suspicion when Cirimele was taken to the D.E.A. office.

4 . Upon searching the bag, Detective Farrant discovered: (1) two airline tickets dated November 12, 1982 for travel from Fort Lauderdale, Florida, to Los Angeles, California, which were issued under the names Tony Roma and D. Toma-sino; (2) a hotel room key, a pad of paper and a business card from a Redondo Beach, California hotel; (3) a pen from a Long Beach, California hotel; and (4) a mending kit and first aid kit from a Los Angeles, California hotel.

5 . We note that, unlike the situation in Royer or Moreno, there is no indication that the agents retained Cirimele's bag either when he was escorted to the office or while he was present in the office. In fact, one agent recalls that Ciri-mele carried his own bag to the D.E.A. office. However, we need not decide whether Cirimele was seized because, even if he was, the seizure was supported by reasonable suspicion.

6 . This case is different from United States v. Sokolow, 831 F.2d 1413 (9th Cir.1987). In Sokolow we placed limits on detentions based solely upon “personal characteristics shared by drug couriers and the public at large”, such as nervousness and travel to a “drug source” city. We contrasted situations in which the suspect exhibits behavior consistent with an ongoing crime, such as traveling under an alias. Id. at 1419-20.