United States v. Gaetano Phillip Puglisi

723 F.2d 779, 1984 U.S. App. LEXIS 26207
CourtCourt of Appeals for the Eleventh Circuit
DecidedJanuary 23, 1984
Docket82-8592
StatusPublished
Cited by77 cases

This text of 723 F.2d 779 (United States v. Gaetano Phillip Puglisi) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh 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. Gaetano Phillip Puglisi, 723 F.2d 779, 1984 U.S. App. LEXIS 26207 (11th Cir. 1984).

Opinions

TJOFLAT, Circuit Judge:

Gaetano Puglisi was indicted by a federal grand jury for possessing cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) (1976). He was tried by the court and found guilty. We reverse Puglisi’s conviction because the cocaine which was introduced in evidence at trial and provided the basis for his conviction was seized from him in violation of the fourth amendment.

I.

The critical events in this narcotics case began at 9:05 a.m. on April 19, 1982, when Gaetano Puglisi arrived in Atlanta’s Harts-field International Airport on Delta Flight 1122 from Fort Lauderdale, Florida. He deplaned at gate A25 and walked amidst the other disembarking passengers down the rampway to the waiting area by the gate. Puglisi did not have any carry-on baggage. Two uniformed Delta employees were standing in the waiting area directing [781]*781the arriving passengers to their connecting flights. Puglisi’s connecting flight to his hometown, Las Vegas, was scheduled to leave gate A19 in approximately twenty-five minutes. Standing immediately behind the two Delta employees was the renowned Special Agent Paul Markonni of the Drug Enforcement Administration (DEA). Markonni, in plainclothes, was observing the deplaning passengers from this flight because the Port Lauderdale, Miami, and Palm Beach areas were the most significant entrance sources of marijuana, cocaine, and methaqualone in the United States.

According to Markonni, as Puglisi entered the waiting area he looked forward and fixed his eyes on Markonni for two to three seconds. Markonni returned this stare for one to two seconds. His curiosity piqued, Markonni observed Puglisi walk through the waiting area, turn, and look back in Markonni’s direction for a few seconds. Markonni followed Puglisi to gate A19. After Puglisi checked in for his Las Vegas flight, Markonni went to the check-in desk and obtained the ticket Puglisi had surrendered to the Delta clerk. Markonni took the ticket to an adjoining desk and recalled Puglisi’s reservation record from the Delta computer. The record indicated that Puglisi’s itinerary consisted of a one-way flight from Fort Lauderdale to Las Vegas, via Atlanta. Both legs of the flight, apparently, were nonstop. The ticket had been reserved at 1:03 that morning and the person making the reservation left no callback number. The ticket had been purchased with cash.

Markonni then approached Puglisi, who was standing near a Delta information counter. Markonni showed Puglisi his badge, identified himself as a DEA agent, and asked permission to speak with Puglisi. Puglisi gave his permission, and at that point Markonni asked in a normal conversational tone if he could see Puglisi’s ticket. Puglisi complied, and Markonni noticed that one baggage claim check was stapled inside the ticket cover and that the ticket had been issued in the name of “John Shapiro.” Markonni asked Puglisi his name and he replied, “Gaetano Puglisi.” Markonni then handed the ticket back and requested some identification. Puglisi handed over his Nevada driver’s license which was in his true name. In response to Markonni’s inquiry about the discrepancy in the names on the ticket and on the license, Puglisi answered that a friend had purchased the ticket for him. Then, according to Markonni,

I [Markonni] said, “Why didn’t your friend purchase the ticket in your name?” And he hesitated for a moment and said, “Well he was at the airport.” And I said, “Well, I really don’t understand. Apparently I don’t understand why ... he could have purchased the ticket in your name even if he was at the airport.” At ' that point, Mr. Puglisi didn’t even answer that question.... He just didn’t say anything at all.

Next, Markonni asked Puglisi how long he had been in Ft. Lauderdale. Puglisi replied that he had been there three days visiting friends. At this point, Markonni noticed that Puglisi had become very nervous and was having difficulty breathing. Markonni returned Puglisi’s license and asked him if he would consent to a search of his person and the bag he had checked with Delta. Markonni advised him that he could refuse permission. Puglisi replied that he would consent to a frisk search and agreed to Markonni’s suggestion that they retire to a more private place. Upon reaching a flight ramp, Puglisi spontaneously assumed the classic police search stance— hands on the wall, with legs and arms spread — to Markonni’s surprise. Markonni patted him down but found no drugs. Markonni once more asked Puglisi if he would consent to a search of his bag. Puglisi responded without hesitation, “No, I don’t want you to search my suitcase. I’ve got personal things in there, personal stuff in there.” Markonni asked for the ticket again and jotted down the claim check number. Markonni returned the ticket and said, “Okay, that’s it as far as I am concerned.” At that point, Puglisi walked away. The entire encounter had taken approximately four minutes.

[782]*782Markonni went directly to the Delta baggage loading ramp, one floor below the passenger waiting area, and, with the help of a Delta employee, located Puglisi’s bag. It was a leather folding suit bag and was sitting on a cart adjacent to the airplane that was leaving for Las Vegas. The bag had a claim check that matched Puglisi’s. Markonni directed the Delta employee to remove the bag from the cart. The time was approximately 9:17 a.m., twelve minutes after Markonni’s first encounter with Puglisi. Markonni and the Delta employee took the bag upstairs to gate A19 where they were met by another DEA agent. Markonni spotted Puglisi walking toward gate A19 from a bank of telephones on the passenger concourse. When Puglisi arrived at the gate, Markonni stated, “Mr. Puglisi, we have located your piece of luggage.” Puglisi replied quickly, “I have talked to somebody. I have talked to a friend on the telephone and she told me not to let you search anything and I want to get on my plane [scheduled to leave in ten to twelve minutes].” Markonni told Puglisi, “Well you’re free to do that. You’re free to go, but I’m afraid I will have to retain your suitcase until I can get a drug dog out here to check it.” At trial, Markonni explained that the purpose of this statement was “[t]o tell him we located his bag, there was time left if he would consent to a search, and that we could do it and he would not miss his flight.” Puglisi cut Markonni short, however, and said “Do what you got to do,” and walked on the aircraft. This second confrontation lasted about three minutes, concluding around 9:25 a.m. Markonni then directed the second DEA agent to watch the aircraft until it backed out of the gate, dismissed the Delta employee, and took the bag to his office.

Markonni phoned the Douglas County, Georgia, Sheriff’s Department from his office and requested that they bring “Sergeant Bandit,” a narcotics detector dog, to the airport. The dog handler was at the Georgia Police Academy some miles away and had to drive back to Douglas County to pick up the dog before bringing him to the airport.1 The handler and Sergeant Bandit arrived at the airport at approximately 11:27 a.m., and ten minutes later the dog alerted2 to Puglisi’s bag. Nearly 140 minutes had elapsed since Markonni had seized the bag. Markonni immediately took the bag to the federal courthouse in Atlanta, obtained a search warrant, and searched the bag. He found two parcels of white powder in the pocket of a pair of jogging shorts.

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Bluebook (online)
723 F.2d 779, 1984 U.S. App. LEXIS 26207, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-gaetano-phillip-puglisi-ca11-1984.