United States v. James Edward Smith

649 F.2d 305, 1981 U.S. App. LEXIS 11833
CourtCourt of Appeals for the Fifth Circuit
DecidedJune 30, 1981
Docket80-7449
StatusPublished
Cited by18 cases

This text of 649 F.2d 305 (United States v. James Edward Smith) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth 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. James Edward Smith, 649 F.2d 305, 1981 U.S. App. LEXIS 11833 (5th Cir. 1981).

Opinion

FAY, Circuit Judge:

Appellant was convicted of possession with intent to distribute the controlled substances cocaine hydrochloride and methaqualone, in violation of 21 U.S.C. § 841(a)(1). He appeals that conviction on the sole ground that the drugs were illegal *307 ly seized in violation of his Fourth Amendment rights and, therefore, should have been suppressed. We conclude that the evidence should not be suppressed and, accordingly, we affirm the conviction.

THE FACTS

On January 16, 1980, appellant, James Edward Smith, was travelling from Fort Lauderdale, Florida to Detroit, Michigan via Atlanta, Georgia. His flight to Atlanta was being monitored by Special Agent Mathewson of the Drug Enforcement Administration (DEA) and Detective Burkhalter of the Atlanta Police Department as part of their routine surveillance for drug traffickers. The Miami-Fort Lauderdale area is known to DEA agents as the most significant source of cocaine in the United States.

For reasons that are unclear to us, the agents observed and followed the appellant while he was in the Atlanta airport. They noticed that he was carrying only one small suitcase and had no bag-claim stubs attached to his ticket. They followed him to the gate from which his plane to Detroit was to leave, and obtained his ticket from the gate agent. The ticket indicated that it had been paid for with cash and that it was for one-way travel only. A check with the airline computer indicated further that the reservation had been changed shortly before the flight was to depart and that the purchaser had left no local telephone callback number.

The above recited facts matched some of the factors in what has become known as the “Drug Courier Profile.” Accordingly, Agent Mathewson decided to attempt to interview the appellant. The officers approached the appellant, identifying themselves as police officers, and asked if they could speak with him for a minute. Appellant said “Sure.” Agent Mathewson asked appellant if he could see his airplane ticket and some identification. Appellant voluntarily provided both. At this point the agents noted that appellant was exhibiting signs of nervousness, including shaky hands and shortness of breath. There was then a brief discussion of what appellant had been doing in Florida and how long he had been there. Agent Mathewson then informed appellant that he was a federal narcotics agent and asked if appellant was carrying any drugs. Appellant responded in the negative. Agent Mathewson then asked if appellant would voluntarily submit to a brief pat-down of his undergarments and a search of his suitcase. Appellant agreed to the search. Agent Mathewson then asked appellant if he would prefer to be searched in a nearby Delta office, where it would be less embarrassing. Appellant said “Sure.”

When they entered the office, appellant began to open his suitcase, but was stopped by Agent Mathewson. The agent told him that he should be informed of his rights before being searched. Reading from a card, Agent Mathewson informed the appellant that he had the right to refuse to allow the search of his person and personal property, that he had a right to contact an attorney before deciding whether to permit the search, and that any illegal items found could be used against him in court. When asked if he understood those rights, appellant said “Yes.” Agent Mathewson began searching the suitcase, while Detective Burkhalter began a pat-down search of defendant’s outer clothing. Upon feeling a lumpy object with a powdery consistency, Agent Burkhalter looked first in an outer and then in an inner pocket for the object. In appellant’s inner pocket he discovered a bag containing the substance later determined to be cocaine hydrochloride. Appellant was arrested and taken to the DEA office for processing. While in that office, a thorough search of his person was undertaken and a quantity of methaqualone tablets were discovered in his underwear.

THE STATUS OF THE CASE

The only legal question presented in this case was appellant’s motion to suppress the contraband on the grounds that it was illegally seized. The motion was referred to a United States Magistrate, who recommended that it be denied. The magistrate concluded that (1) the contact between appellant and the police was not a seizure and, therefore, the proscriptions of the Fourth *308 Amendment were inapplicable, (2) the search of appellant’s person and suitcase was pursuant to a valid, knowing, and willful consent, and (3) the officers did not extend the scope of the search beyond the reasonable limits to which appellant consented. The District Judge adopted the magistrate’s findings, except the judge found the initial contact between the officers and appellant to be an illegal seizure unsupported by either reasonable suspicion or probable cause. The District Court nonetheless found appellant guilty on the grounds that the search resulting in the seizure of contraband was effectuated pursuant to a valid and knowing consent. Appellant appealed, and a panel of this Court remanded the case to the District Court to consider under United States v. Robinson, 625 F.2d 1211 (5th Cir. 1980), whether the taint of the illegal stop had become sufficiently attenuated so that the consent was valid. The District Court, while still finding the consent to have been voluntarily given, held that the taint of the illegal search was not sufficiently attenuated to make the consent valid. We hold that the District Court erred in treating the initial contact between appellant and the agents as a seizure within the meaning of the Fourth Amendment, but that the court was correct in its initial determination of guilt based on the voluntariness of the consent. THE INITIAL POLICE CONTACT

The District Court determined that the initial conversation between appellant and the agents was an illegal seizure because they had neither reasonable suspicion nor probable cause to justify that contact. There is no question, and the government fully admits, that the agents did not have reasonable suspicion or probable cause to stop appellant. The mere existence of several of the criteria set forth in the drug courier profile, without more, does not justify a seizure. The government correctly points out, however, that not all police-citizen contacts are seizures subject to the proscriptions of the Fourth Amendment. United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). The central consideration in determining whether a police-citizen contact falls within the purview of the Fourth Amendment is whether “in the view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” Id. at 554,100 S.Ct. at 1877.

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Bluebook (online)
649 F.2d 305, 1981 U.S. App. LEXIS 11833, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-james-edward-smith-ca5-1981.