United States v. Jesse Lee Sanford

658 F.2d 342, 1981 U.S. App. LEXIS 17106
CourtCourt of Appeals for the Fifth Circuit
DecidedOctober 5, 1981
Docket80-7929
StatusPublished
Cited by33 cases

This text of 658 F.2d 342 (United States v. Jesse Lee Sanford) 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. Jesse Lee Sanford, 658 F.2d 342, 1981 U.S. App. LEXIS 17106 (5th Cir. 1981).

Opinions

VANCE, Circuit Judge:

Jesse Lee Sanford was convicted of possession with intent to distribute heroin in violation of 21 U.S.C. § 841(a)(1). He was sentenced to imprisonment for six years followed by three years special mandatory parole. On appeal Sanford urges that the district court erred in denying his motion to suppress heroin obtained during a search of his person at the Atlanta Hartsfield International Airport. The district court’s denial of Sanford’s motion was based on the report and recommendation of the United States Magistrate who conducted the evidentiary hearing.

The evidence before the magistrate was contradictory. The magistrate believed the government’s testimony and did not believe that of defendant. That credibility choice, as adopted by the district judge, is, of course, binding and establishes the basis on which this court reviews the challenged order.

Agent Paul Markonni of the Drug Enforcement Administration (DEA) and Detective James Burkhalter of the Atlanta police were the officers involved in the search and arrest of Sanford. Markonni has worked for seven years with DEA airport details and has participated in more than 400 arrests of couriers carrying drugs through airports.

On April 29, 1980, Markonni and Burkhalter were watching passengers disembark from Delta Flight 1088 arriving from Dallas and Los Angeles. They were watching that particular flight because it is a heavily traveled connection flight from Los Angeles, which is the main heroin distribution center in the United States. In addition, Dallas is a major transshipment point for drugs smuggled into the United States from Mexico. Markonni was standing behind the gate agent and observing persons who approached the agent and asked questions about connecting flights. He saw that the ticket Sanford presented to the agent had no baggage claim attached and that Sanford was carrying only a small gym bag. Although Sanford’s trip could have been made on a single ticket, Markonni observed that he had separate tickets and that they apparently had been purchased with cash. This combination of circumstances caused Markonni to investigate further by checking on Sanford through the Delta computer. Among the items of information was a Dallas telephone number given by Sanford as the number where he could be contacted. When Markonni called the number the person who answered denied knowing anyone named Jesse Sanford.

Meanwhile Sanford spotted Burkhalter, apparently recognized him as an officer and immediately appeared nervous and concerned. At the time Markonni returned to Burkhalter Sanford was making a telephone call. He appeared to notice both officers at that time and became even more nervous, continually looking back over his shoulder directly at the two officers during the telephone conversation.

When Sanford finished his call Markonni approached him, identified himself and asked if he might speak with him for a few minutes. Sanford agreed. Markonni requested to see Sanford’s tickets. When Sanford opened his bag and produced the tickets Markonni noticed that there was no clothing in the bag. Markonni then asked Sanford to consent to a search of his person and bag. Sanford agreed and began to remove items from his bag. Markonni then advised Sanford that he could be searched [344]*344either at the gate area or in a private office. When asked if he would prefer to go to the private office Sanford answered in the affirmative.

Markonni, Burkhalter and Sanford walked to a nearby Delta office where Markonni read Sanford his rights from a rights card.1 Sanford stated that he understood his rights and still agreed to a search. Markonni then began to pat down Sanford, and in his lower abdominal area found a plastic bag containing heroin.

After holding an evidentiary hearing the magistrate found there was no seizure of Sanford’s person and that even if there had been a seizure Sanford’s free and voluntary consent purged any taint of illegal detention. As did the appellant in United States v. Robinson, 625 F.2d 1211 (5th Cir. 1980), Sanford contends that (1) his initial stop constituted a seizure; (2) there was not sufficient reasonable suspicion to justify the seizure; (3) he did not voluntarily consent to the search; and (4) even if he did consent, such consent does not purge the taint of his illegal seizure. Because we disagree with Sanford’s first three contentions it is not necessary that we reach the fourth.

(D

The seizure issue involves a facet of the law that has developed in the wake of Tarry v. Ohio, 392 U.S. 1, 88 S.Ct. 1864, 20 L.Ed.2d 889 (1968). The situation now before us was dealt with in Justice Stewart’s opinion in United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). Speaking only for himself and Justice Rehnquist, he wrote:

The Fourth Amendment’s requirement that searches and seizures be founded upon an objective justification, governs all seizures of the person, “including seizures that involve only a brief detention short of traditional arrest. Davis v. Mississippi, 394 U.S. 721 [89 S.Ct. 1394, 22 L.Ed.2d 676] (1969); Terry v. Ohio, 392 U.S. 1, 16-19 [88 S.Ct. 1868, 1877-79, 20 L.Ed.2d 889] (1968).” United States v. Brignoni-Ponce, 422 U.S. [873], at 878 [95 S.Ct. 2574, 2578, 45 L.Ed.2d 607], Accordingly, if the respondent was “seized” when the DEA agents approached her on the concourse and asked questions of her, the agents’ conduct in doing so was constitutional only if they reasonably suspected the respondent of wrongdoing. But “[o]bviously, not all personal intercourse between policemen and citizens involves ‘seizure’ of persons. 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., at 19, n.16 [88 S.Ct., at 1879 n.16].

Id. at 551-52, 100 S.Ct. at 1875-76. (footnote omitted). Of particular relevance is the test which Justice Stewart formulated:

We conclude that a person has been “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.

Id. at 554, 100 S.Ct. at 1877 (footnote omitted).

Central to Sanford’s first position is his argument that by their very nature all investigatory stops by DEA agents working airport drug details are Terry type stops requiring reasonable suspicion. He argues with considerable force that no reasonable person would have felt free to go after learning the identity of the officers, learning that he was suspected of carrying narcotics and being invited to submit to a search. He undertakes to distinguish the facts in this case from those in United States v. Elmore, 595 F.2d 1036 (5th Cir. 1979), cert. denied, 447 U.S. 910, 100 S.Ct.

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Bluebook (online)
658 F.2d 342, 1981 U.S. App. LEXIS 17106, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-jesse-lee-sanford-ca5-1981.