United States v. Erma Smith

574 F.2d 882

• Court: Court of Appeals for the Sixth Circuit
• Decided: August 8, 1978
• Docket: 77-5234
• Status: Published

Opinions

CELEBREZZE, Circuit Judge.

Appellant, Erma Smith, was convicted after a bench trial of possessing with intent to distribute a controlled substance (heroin), in violation of 21 U.S.C.' § 841(a)(1). The issues raised on appeal are whether the district court should have granted Appellant’s motion to suppress the heroin for the reason that it was the fruit of an illegal stop by a Drug Enforcement Agency (DEA) agent or because it was the fruit of a warrantless search for which her consent was coerced. For the reasons stated below, we affirm.

On November 3,1975, DEA Agent James Seward was on general surveillance duty in the Detroit Metropolitan Airport. He watched closely persons deplaning from a non-stop flight from Los Angeles since such flights were known to frequently carry drug couriers. Agent Seward’s attention was drawn to Appellant since she had the following characteristics of the DEA’s “drug courier profile:”¹ youth, carrying only a purse and small carry-on bag and picking up no luggage at the airport, traveling alone and being met by no one at the airport, and directly leaving the airport in a hurried and nervous manner.² An additional salient factor was an abnormal and obvious bulge around Appellant’s abdomen, which in Agent Seward’s experience suggested that she was carrying illegal drugs.³

So alerted, agent Seward followed Appellant and stopped her as she hailed a cab outside the airport. He identified himself and told Appellant he suspected she was carrying illegal narcotics. He asked Appellant for some identification and, appearing very nervous, she produced her driver’s license and a plane ticket in the name of Mr. L. Summers.⁴ Agent Seward asked Appellant to accdmpany him to the airport DEA office for further investigation and she went along voluntarily. At the DEA office, Agent Seward, in the presence of another agent, asked for her consent to search her purse and carry-on bag. Although informed that she could refuse consent, Appellant consented to the search saying she had nothing to hide. The search of the purse turned up marijuana and Appellant was immediately placed under arrest. A full search of Appellant’s person then revealed that her abnormal abdominal bulge was a package of heroin strapped to her body.

Appellant raises three issues on appeal, each directed to the refusal of the district court to suppress the heroin. She argues that the initial stop by Agent Seward was illegal as not based upon probable cause or reasonable suspicion under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). From this she argues that her consent to the search of her purse was the tainted fruit of the illegal stop and that her consent was not otherwise shown to be voluntary. From this flows the argument that her ensuing arrest and search of her person were illegal as the fruit of the illegal search of her purse.⁵

In this Circuit’s several examinations of the drug courier profile and the fourth amendment,⁶ the rule has emerged that the characteristics of the drug courier profile are not alone enough to provide probable cause to arrest nor necessarily enough to create a reasonable suspicion to stop under Terry.7 The components of the profile may be considered, however, along with other relevant information known to the officer in evaluating whether he had probable cause to arrest or reasonable suspicion to stop.⁸ We are presented here with the issue of whether a person meeting most of the characteristics of the drug courier profile plus exhibiting an abnormal abdominal bulge gave Agent Seward reasonable suspicion to stop pursuant to Terry9

The standard espoused in Terry is a general one:

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. 392 U.S. at 21, 88 S.Ct. at 1880 (footnote omitted).

While our cases have held that the drug courier profile alone does not necessarily provide sufficient “specific and articulable facts,” we think that the elements of the profile met here plus the abnormal abdominal bulge provided such facts.¹⁰ Agent Seward testified that both his experience and training films he had viewed led him to believe illegal narcotics were being carried in the bulge. Appellant offered no evidence as to possible innocent behavior associated with such bulges. While this is conceivably consistent with innocent behavior, none is readily apparent. Moreover, Terry itself dealt with “a series of acts, each of them perhaps innocent in itself, but which taken together warranted further investigation.” Id. at 22, 88 S.Ct. at 1880. Agent Seward was “entitled to draw [specific reasonable inferences] from the facts in light of his experience.” Id. at 27, 88 S.Ct. at 1883. We hold that Agent Seward had knowledge of sufficient specific and articu-lable facts which gave him a reasonable suspicion “that criminal activity may [have been] afoot,” id. at 30, 88 S.Ct. at 1884, permitting him to temporarily stop Appellant under the authority of Terry.

Appellant argues in the alternative that Terry has no application to this cause since Terry involved a seizure of weapons and here drugs were seized. Since our prior drug courier profile cases have assumed that Terry was applicable to this factual situation without fully discussing the issue,¹¹ we offer this further explanation. A careful reading of Terry reveals that it discusses two distinct police activities. First, it approves investigative stops by the police. These do not require probable cause but only require what has been called a reasonable suspicion that the person stopped was engaged or was about to engage in criminal activity. Id. at 22, 88 S.Ct. 1868. The propriety of such stops was never seriously questioned in Terry.12 The Court’s sanction of the practice was designed to serve the legitimate governmental interest in “effective crime prevention and detection.” Id.

The second aspect of Terry was its approval of frisks by the police of the persons they have stopped. Such frisks, which are limited searches of the person, also do not require probable cause but only a reasonable suspicion that the person stopped is armed. Id. at 30, 88 S.Ct. 1868. The propriety of such frisks was the “crux of [the] case,” id. at 23, 88 S.Ct. 1868, and the Court’s sanction of them is what makes Terry significant. The rationale behind allowing frisks was to permit the officer to take reasonable precautions for his own safety consistent with the detainee’s fourth amendment interests. Id. at 26-27, 88 S.Ct. 1868.

Subsequent Supreme Court opinions confirm this two-part analysis of Terry. In Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972), the Court cited Terry for the proposition that an officer may make a “brief stop of a suspicious individual, in order to determine his identity or maintain the status quo . . . .” It was at a later point in the opinion that the Court discussed the legality of the search involved there. More recently in United States v. Brignoni-Ponce, 422 U.S. 873, 880-81, 95 S.Ct. 2574, 2580, 45 L.Ed.2d 607 (1975), the Court again read Terry as treating the stop and the frisk separately in approving a limited stop based upon reasonable suspicion even though not accompanied by any search.

In this case, we are concerned only with the first aspect of Terry — the stop. This has no particular connection to weapons and requires only a reasonable suspicion that the detainee has engaged or is about to engage in criminal activity, which can include drug offenses. It is only the second aspect of Terry — the frisk — which is connected to weapons since it requires a reasonable suspicion that the detainee is armed.¹³ But this cause does not involve a Terry frisk and the government has not argued, and could not on this record, that the search of Appellant was justified by a reasonable fear that Appellant was armed. Appellant’s argument that Terry is inapplicable misses the mark.

Other circuits have reached the result we reach here.¹⁴ Of particular interest is the recent Second Circuit decision in United States v. Oates, 560 F.2d 45 (2d Cir. 1977). There the court said it was “well-settled that ... a citizen may be . ‘stopped,’ for investigative purposes,” id. at 57, and it “is now axiomatic that a law enforcement officer has the power, indeed the obligation, to detain a person temporarily for the purpose of interrogating him” if the officer has a reasonable suspicion about the person. Id. at 58-59. (Footnote omitted.) Just as we have done here, the Court analyzed separately the propriety of the stop and the frisk. Oates also involved a stop in an airport and the court approved a procedure like that in this case of escorting the detainee to a private office to escape the congestion of the airport’s public areas. Id. at 57.¹⁵

Thus Appellant’s arguments that the requisite reasonable suspicion under Terry did not exist and that Terry is inapplicable must fall. With them falls Appellant’s claim that her consent to the search of her' purse was the fruit of an illegal stop.. Nor do we agree with the contention that Appellant's consent was otherwise involuntary. The district court found her consent voluntary and that finding is not clearly erroneous. United States v. Sumlin, 567 F.2d 684, 688 (6th Cir. 1977); United States v. Hearn, 496 F.2d 236, 242 (6th Cir.), cert. den. 419 U.S. 1048, 95 S.Ct. 622, 42 L.Ed.2d 642 (1974). Consequently, the search of Appellant’s purse was legal and the discovery of marijuana provided probable cause to arrest her. The search of Appellant’s person was legal as an incident to her arrest. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). The district court did not err in refusing to suppress the heroin.

Affirmed.

1 . This Circuit is rapidly developing substantial case law regarding the DEA’s loosely formulated “drug courier profile” and the fourth amendment. For an explication of the profile and its fourth amendment significance, see United States v. Canales, 572 F.2d 1182 (6th Cir. 1978); United States v. Pope, 561 F.2d 663 (6th Cir. 1977); United States v. Lewis, 556 F.2d 385 (6th Cir. 1977), cert. den.-U.S.-, 98 S.Ct. 722, 54 L.Ed.2d 754 (1978); United States v. Craemer, 555 F.2d 594 (6th Cir. 1977); United States v. Gill, 555 F.2d 597 (6th Cir. 1977); and United States v. McCaleb, 552 F.2d 717 (6th Cir. 1977).

2 . Profile characteristics not exhibited by Appellant include use of currency to pay for the plane ticket and a round trip in a short period of time to and from a major drug import center, such as Los Angeles.

3 . The bulge did not cause Appellant to appear pregnant.

4 . Traveling under an alias is another characteristic in the drug courier profile.

5 . The government could have argued, perhaps successfully, that the arrest of Appellant was independently based on probable cause. The government conceded at oral argument, however, that there was no probable cause to arrest Appellant until the marijuana was found in her purse. Thus the government relies upon the legality of the initial stop of Appellant under Terry and the voluntariness of her consent to the search of her purse. We accept the government’s concession for purposes of analysis only and proceed to examine the legality of the stop and the voluntariness of her consent. We express no opinion as to whether there was probable cause to arrest Appellant independent of the discovery of marijuana in her purse.

6 . See cases cited in note 1, supra.

7 . This rule was established in McCaleb, 552 F.2d at 720, and Craemer, 555 F.2d at 596, and followed in Lewis, 556 F.2d at 389, and Pope, 561 F.2d at 667-68.

8 . Pope, 561 F.2d at 667, and Gill, 555 F.2d at 599. In Lewis, 556 F.2d at 389-90, the profile was one “layer of information” in the “laminated total” of probable cause.

9 . Since the government does not argue this created probable cause to arrest, we do not address that issue. See note 5, supra.

10 . The presence of an abnormal bulge in one’s clothing was given special significance in suggesting the presence of drugs in United States v. Oates, 560 F.2d 45, 60 (2d Cir. 1977). The bulge more than compensates for the few missing elements of the drug courier profile. See note 2, supra.

Our recent decision in United States v. Ca-nales, 572 F.2d 1182 (6th Cir. 1978), sets forth a somewhat different factual situation also found to support a reasonable suspicion to stop pursuant to Terry, although falling short of probable cause.

11 . See Canales, 572 F.2d at 1183; Pope, 561 F.2d at 667; Lewis, 556 F.2d at 389-90; Craemer, 555 F.2d at 597, and McCaleb, 552 F.2d at 720.

12 . Technically the Court’s approval of stops solely for detention or interrogation was dictum as the Court expressly limited its holding to stops that accompany frisks for weapons, 392 U.S. at 19 n. 16, 88 S.Ct. 1868. Later cases, however, clearly elevate this dictum to constitutional proportions. Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972), and United States v. Brig-noni-Ponce, 422 U.S. 873, 880-81, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975), discussed infra.

13 . One need look no further than Terry’s companion case, Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968), to realize that a Terry frisk cannot be used to search for drugs.

14 . See, e. g., United States v. McDaniel, 550 F.2d 214, 217 (5th Cir. 1977); United States v. Magda, 547 F.2d 756 (2d Cir. 1976); United States v. Branch, 178 U.S.App.D.C. 99, 108 n. 24, 545 F.2d 177, 186 n. 24 (1976); and United States v. Hall, 174 U.S.App.D.C. 13, 525 F.2d 857 (1976).

15 . All of the actions taken by Agent Seward were consistent with a Terry stop and did not amount to an arrest (until Appellant was arrested upon discovery of the marijuana in her purse). The permissible purposes of a Terry stop include determining the detainee’s identity, Adams v. Williams, 407 U.S. at 146, 92 S.Ct. 1921, maintaining the status quo temporarily, id., asking the detainee to explain the suspicious circumstances, United States v. Brignoni-Ponce, 422 U.S. at 881-82, 95 S.Ct. 2574, and general investigation and interrogation, United States v. Oates, 560 F.2d at 57 & 59. Certainly a request for consent to search is within the range of permissible actions. Escorting Appellant to the DEA office was reasonable under the circumstances, since she went voluntarily, and did not convert the Terry stop into an arrest. Oates, 560 F.2d at 57.

Of particular interest on the issue of whether escorting appellant to the airport DEA office constituted an arrest is our recent decision in United States v. Canales, 572 F.2d 1182 (6th Cir. 1978). Canales was another Detroit airport drug seizure case in which the district court found that the defendant voluntarily accompanied DEA agents to the airport DEA office. While Canales is factually distinguishable from this case in that there the defendant suggested they go to the DEA office, we did not place special emphasis on that fact. Rather, we said that if the district court’s findings were not clearly erroneous, then “the defendant’s presence in the DEA office was as a volunteer and not an arrestee.” 572 F.2d at 1188. The findings were held not clearly erroneous and the conviction was affirmed. The district court’s finding here that appellant went to the DEA office voluntarily is similarly not clearly erroneous, making her presence there “as a volunteer and not an arrestee.”

The situations here and in Canales are both distinguishable from that in United States v. McCaleb, 552 F.2d 717, 720 (6th Cir. 1977), where the defendants “were taken to the private office and were not free to leave.” (Emphasis added.) Some element of official coercion is necessary to effectuate an arrest.