United States v. Fred S. Berryman

717 F.2d 651, 1983 U.S. App. LEXIS 28186
CourtCourt of Appeals for the First Circuit
DecidedMay 6, 1983
Docket82-1194
StatusPublished
Cited by35 cases

This text of 717 F.2d 651 (United States v. Fred S. Berryman) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Fred S. Berryman, 717 F.2d 651, 1983 U.S. App. LEXIS 28186 (1st Cir. 1983).

Opinions

SWYGERT, Senior Circuit Judge.

On September 8, 1981, the defendant in this case, Fred S. Berryman, was accosted by two Drug Enforcement Administration (“DEA”) agents after his arrival at Logan International Airport in Boston from Fort Lauderdale, Florida. In the course of this encounter two pounds of cocaine were discovered inside a package within the defendant’s suitcase. He was subsequently indicted on a charge of knowingly possessing with intent to distribute a controlled substance in violation of 21 U.S.C. § 841(a)(1) (1976). Before trial the defendant moved to suppress evidence and statements produced as a result of the encounter, arguing that they had been obtained in violation of the fourth amendment to the United States Constitution. After an evidentiary hearing the district court denied the motion, and the defendant was convicted following a jury trial. This appeal, which challenges the denial of the motion to suppress, raises two issues: whether the encounter between the defendant and the DEA agents is governed by the fourth amendment’s proscription of “unreasonable seizures” at all, and if so whether it was justified by reasonable suspicion. The district court did not reach the second issue because it found that no seizure had occurred. We reverse.

I

At the suppression hearing the two DEA agents and the defendant testified. The district court made some specific findings and generally credited the agents’ testimony. Tr. 135, 137. The facts so found are as follows.

The defendant arrived at Logan Airport on Delta Airlines flight 326, which was scheduled to arrive at 8:14 P.M., but in fact arrived at about 8:30. Tr. 3-6, 23-24. The flight originated in Fort Lauderdale, which is known to be a “source city” for the illegal distribution of narcotics. Tr. 4-5. The agents observed Berryman, who was among neither the first nor the last to leave the plane, walk quickly toward the terminal and glance over his shoulder once. Tr. 6, 25, 135. The agents next observed the defendant in the baggage claim area, where he stood five to ten feet from the baggage carousel, occasionally looked around, and picked up one bag. Tr. 7. His manner suggested he might have been looking for someone who was to pick him up. Tr. 30. He later told the agents that his wife was to meet him. Tr. 45. When he walked to the sidewalk outside the terminal, looking around once more, the agents approached him for questioning. Tr. 7. Their approach [653]*653was motivated only by what they had observed, not by a tip. Tr. 11-12.

Standing on either side of Berryman but not touching him, the agents identified themselves as DEA agents and asked whether he would answer some questions. Tr. 8-9, 21. When he agreed, they asked where he had arrived from, and he answered truthfully. Tr. 9. They next asked to see his airline ticket and some identification, and Berryman complied. The ticket was one-way and had been paid for in cash; the name on the ticket corresponded to that on the driver’s license Berryman produced. Tr. 9. When asked why and how long he had been in Fort Lauderdale, Berryman said he had been there for three days on business concerning the purchase of land in Alaska. Tr. 9-10. The defendant asked what was the matter; the agents replied that the level of drug traffic between Fort Lauderdale and Boston was high. Tr. 10.

The agents then asked whether they could search Berryman’s suitcase, and he consented. Agent Lemon testified that he informed the defendant that he could refuse to give them permission to search the suitcase. Tr. 11. The defendant’s testimony was that at this point he inquired whether he had any choice in the matter and was informed, “not really.” Tr. 103. The suitcase, which Berryman unlocked on the sidewalk, contained a giftwrapped package with a card, which Berryman said he was delivering for someone he had met in Florida and whose contents were unknown to him. Tr. 12-13. After feeling the package and opening the card with the defendant’s permission, Lemon obtained permission to x-ray the package. Tr. 12-14. The defendant accompanied the agents to the security area. Tr. 15. Lemon testified that at this point Berryman was not free to leave. Tr. 48, 49. When the x-ray revealed no solid objects Lemon told Berryman that he suspected the package contained cocaine, and obtained permission to open it. Tr. 16. Berryman accompanied the agents to a Delta Airlines baggage claim office; he remained outside the office with Agent Fencer while Lemon entered the office and opened the package. Tr. 16-17. Fencer testified that he would have prevented Ber-ryman from leaving at this point unless Lemon consented, because Lemon was in charge. Tr. 86-88. The package contained two bags of cocaine. Tr. 17-18. Lemon gave Berryman Miranda warnings but advised him that he was not then under arrest. Tr. 19. Berryman was taken to the DEA airport office, where the agents called the office of the United States Attorney, patted Berryman down, and checked his identification again. Tr. 20-21. Berryman left after being told that he might be arrested at a later time. Tr. 20-21.

II

A

In Terry v. Ohio, 392 U.S. 1, 19, 20, 25-27, 88 S.Ct. 1868, 1878, 1879, 1882-83, 20 L.Ed.2d 889 (1968), the Supreme Court rejected both the notion that the fourth amendment does not regulate police-citizen encounters falling short of arrests, and the notion that it prohibits encounters based on less than probable cause for arrest. Instead, the Court held that, although some police-citizen encounters do not implicate fourth amendment concerns at all, id. at 19 n. 16, 88 S.Ct. at 1879 n. 16, more intrusive encounters short of arrests must be justified by reasonable suspicion proportional to the degree of the intrusion, id. at 19, 20-22, 88 S.Ct. at 1878, 1879-80. That suspicion cannot be inchoate, but must be based on “specific and articulable facts ... together with rational inferences from those facts” in order to establish a basis for review of the police actions. Id. at 21, 88 S.Ct. at 1880; see also Reid v. Georgia, 448 U.S. 438, 440, 100 S.Ct. 2752, 2753, 65 L.Ed.2d 890 (1980) (per curiam); Brown v. Texas, 443 U.S. 47, 51, 99 S.Ct. 2637, 2640, 61 L.Ed.2d 357 (1979); Delaware v. Prouse, 440 U.S. 648, 661, 99 S.Ct. 1391, 1400, 59 L.Ed.2d 660 (1979); United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 2578, 45 L.Ed.2d 607 (1975); Adams v. Williams, 407 U.S. 143, 146-49, 92 S.Ct. 1921, 1923-24, 32 L.Ed.2d 612 (1972).

[654]*654We note initially that no articulable suspicion existed in this case at the time the DEA agents first accosted Berryman, making their investigation proper only if the encounter was not the type regulated by the fourth amendment. The facts that prompted the investigation — that Berryman had arrived from Fort Lauderdale, that he walked quickly and looked over his shoulder once, and that he stood five or ten feet from the baggage carousel, looked around several times, and picked up one bag — are weaker than those the Court found insufficient in Reid v.

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Bluebook (online)
717 F.2d 651, 1983 U.S. App. LEXIS 28186, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-fred-s-berryman-ca1-1983.