United States v. Michael A. Respress

9 F.3d 483, 1993 U.S. App. LEXIS 29005, 1993 WL 454228

• Court: Court of Appeals for the Sixth Circuit
• Decided: November 9, 1993
• Docket: 92-6059
• Status: Published

Opinions

BATCHELDER, Circuit Judge.

Defendant Michael Respress entered a conditional guilty plea to possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841. On appeal, he challenges the district court’s refusal to grant his motion to suppress the cocaine found in his luggage. The only issue before us is whether the government agents were justified in seizing Respress’s suitcase and whether the duration of the seizure was reasonable.

I

On November 19, 1991, Defendant Michael Respress was the next-to-last person to deplane Delta flight #846 from Ontario, California arriving in Cincinnati, Ohio at 8:20 p.m. Task Force Officer Joseph Jones took notice of Respress because (1) he was coming from a so-called drug source city, (2) he was one of the last passengers to deplane, (3) he was wearing an all-black sweatsuit and a quantity of gold jewelry, and (4) he had no carry-on baggage. These characteristics allegedly match the “drug courier profile”¹ often used by narcotics investigators to identify possible drug couriers. Officer Jones watched Respress as he took a seat in the gate area, smoked a cigarette, and then went across the concourse to ask a Delta gate agent about his connecting flight. As Res-press walked away from the Delta counter, Jones approached the gate agent and asked what Respress’s travel plans were. He was told that Respress had a connecting flight to Akron/Canton. Upon further inquiry, the gate agent told Jones that Respress had made reservations for his one-way Ontario-Cincinnati-Akron ticket thirteen hours before departure and had purchased the $685 ticket with cash just twenty minutes before departure. Jones then followed Respress as he walked casually to the gate of his connecting flight.

Jones joined two of his fellow officers, Bauerle and Parker, and conferred briefly with them. They decided that Jones would approach Respress and ask to speak to him, while Parker and Bauerle walked ahead to the area of Respress’s connecting gate.

Jones caught up to Respress and, walking alongside him, identified himself as a police officer, and asked to speak to him. Respress agreed and, in response to Jones’s questions, said that he had been in Ontario visiting family for a few days and was returning to his home in Akron. Jones asked to see Respress’s ticket and Respress complied; the ticket was issued to a Michael Foster. Jones then asked to see some identification, and Respress produced his driver’s license, which was issued to Michael Respress on Ablewhite Avenue in Cleveland, Ohio. When Jones questioned Respress about the discrepancy between his ticket and license, Res-press said that someone else had bought the ticket for him and that the ticket must have been issued in the other person’s name. When Jones inquired as to why Respress’s license listed a Cleveland address if he lived in Akron, Respress said that he had recently moved to Akron. Jones recorded the number on the baggage claim stub that was stapled to the ticket jacket and returned the ticket to Respress. Jones asked why Res-press was flying on a one-way ticket and he replied that someone else had bought him his ticket to Ontario, so he only needed a one-way ticket to return to Akron.

Based on the suspiciousness of some of Respress’s answers, Jones asked if Respress would consent to a search of his person and baggage. Respress refused, saying that he had been cooperative with Jones up to that point and that he did not want to miss his connecting flight, which was leaving in ten minutes. Jones told Respress that he was not under arrest and that he was free to go. Respress then continued on his way to his connecting flight, and Jones went to the airport police office intending to call for a dog sniff test of Respress’s baggage.

When Respress neared his connecting gate, he glanced at the flight board, went to a public telephone and made a call, and then went downstairs to Delta’s main ticket counter. Officer Parker watched all of this and followed Respress downstairs, where Res-press spoke briefly with a ticket agent and then headed outside the terminal. Parker identified himself to the ticket agent and learned that Respress had inquired about cashing a check in order to buy a one-way ticket to Cleveland. The ticket agent also mentioned that there was something suspicious about the way Respress was acting. Parker then followed Respress out of the terminal and saw Respress get into a taxi. Parker quickly radioed the airport police for a patrol car, and Parker and the patrolman stopped Respress’s taxi.

Officer Parker identified himself, told Res-press that he would like to speak to him, and asked why he was leaving the airport and what he was going to do about his luggage. Respress responded that he was going to Cleveland and would pick up his suitcase there. Respress consented to a pat-down search, which revealed $700 in cash.

Officer Jones then arrived on the scene and asked Respress whether he intended to take the taxi all the way to Akron, his alleged destination. Respress responded that he had changed his plans and decided to visit a friend named McAllen on Market Street in Cincinnati. However, he was not able to give an address for McAllen. Respress explained that he was going to Cleveland eventually and would pick up his suitcase there. When Jones reminded Respress that his flight was going to Akron, not Cleveland, Respress said that he meant to say Akron but that he was very tired.

After discovering that Respress no longer had his ticket with him, Officer Bauerle obtained consent from the taxi driver to search the taxi. Parker then reached down behind the cushion of the rear seat where he could feel a piece of paper, which he could not pull out. After removing the rear seat cushion, Parker retrieved the paper, which turned out to be Respress’s ticket. Respress said that it must have fallen out of his pocket. Parker questioned the taxi driver, who said that Respress had instructed him to drive to the bus station so that he could catch a bus to Cleveland. Jones asked Respress if he would consent to a search of his suitcase, and, as before, Respress said no. Jones then told Respress that they would attempt to seize his bag and get a search warrant for it, and Respress departed.

During the next several hours, Jones retrieved the suitcase from the airline, completed an affidavit, and presented the affidavit to a magistrate judge. At 7:05 a.m., approximately ten hours after the suitcase was seized, the magistrate judge issued a search warrant for the bag. The search was conducted and 2.8 kilograms of cocaine were seized from the suitcase. The suitcase was then sent on to the airport. Two days later, Respress called the airport to confirm the bag’s arrival, and when he attempted to retrieve his bag at the airport, he was arrested.

Respress was indicted for possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841. He filed a motion to .suppress the cocaine on grounds that it was seized in violation of the Fourth Amendment; the motion was denied. He then entered a conditional guilty plea and was sentenced to 78 months imprisonment with a four year term of supervised release. This appeal followed.

II

The sole issue before us is whether the officers had sufficient justification to seize the suitcase while they obtained a search warrant. Respress does not contest his consensual encounter with Officer Jones, the Terry stop² of his taxi, the consensual searches of his person, or the validity of the search warrant for his suitcase. Respress only argues that the seizure of his suitcase without his consent and without a warrant violated the Fourth Amendment. The government contends that “the appropriate focus is whether, based upon the totality of the circumstances, reasonable suspicion existed to detain Respress’ suitcase.”

Both parties cite United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983) as support for their respective conclusions. Place concerned whether “reasonable suspicion,” which is less than probable cause, permitted the temporary detention of a piece of luggage in order to subject the bag to a canine sniff test for drugs. The Court first determined that a sniff test is not a search under Fourth Amendment jurisprudence, but a temporary detention of a suitcase is a seizure for Fourth Amendment purposes. Id. at 707,103 S.Ct. at 2645. The Court then held that “reasonable suspicion” was sufficient to support an investigatory detention of luggage which was limited in scope; but, it also held that the detention in the particular case before it was not reasonable under the circumstances. This conclusion was required, the Court said, for several reasons, including the duration of the seizure (90 minutes) and the failure of the officers to tell Place where or when he could get his suitcase back. Id. at 707-710,103 S.Ct. at 2644-2646. Relying on Place, the government argues that the seizure in the instant case was the least intrusive way of pursuing the investigation and that the officers were justified in “detaining] the suitcase long enough to confirm or dispel their suspicions.”

We find the instant case to be distinct from both Respress’s and the government’s characterizations of it. This is not a case involving reasonable suspicion which justifies something less than a search (e.g., a sniff test), nor is this a case in which a positive sniff test takes “reasonable suspicion” into the realm of “probable cause” thus justifying the issuance of a search warrant. This was a plain old-fashioned seizure of a person’s effects, based on probable cause, in order to prevent the disappearance of evidence and so that a warrant could be obtained and a search conducted.

The practice of seizing an item based on probable cause in order to secure a search warrant for it was approved long before Place. Indeed, the Court’s decision in Place would have been unnecessary had there been probable cause to seize the defendant’s suitcase, because seizures based on probable cause have long been lawful.

Where law enforcement authorities have probable cause to believe that a container holds contraband or evidence of a crime, but have not secured a warrant, the Court has interpreted the [Fourth] Amendment to permit seizure of the property, pending issuance of a warrant to examine its contents, if the exigencies of the circumstances demand it or some other recognized exception to the warrant requirement is present.

Place, 462 U.S. at 701, 103 S.Ct. at 2641. See also United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977) (detention of footlocker based on probable cause permissible); Arkansas v. Sanders, 442 U.S. 753, 761-62, 99 S.Ct. 2586, 2591-92, 61 L.Ed.2d 235 (1979) (defendant conceded and Court agreed that seizure of defendant’s suitcase based on probable cause was unobjectionable); United States v. Jacobsen, 466 U.S. 109, 114, 104 S.Ct. 1652, 1656, 80 L.Ed.2d 85 (1984) (seizure of package being transported by Federal Express not unconstitutional, because “government agents may lawfully seize such a package to prevent loss or destruction of suspected contraband”; but, “the Fourth Amendment requires that they obtain a warrant before examining the contents of such a package.”); United States v. Jodoin, 672 F.2d 232, 233-36 (1st Cir.1982) (three-day detention of luggage permissible based on probable cause). Therefore, we need only consider whether on these facts the officers had probable cause to detain Respress’s suitcase.

We initially note that because the officers obtained no new investigatory information between the time of the seizure and the time they applied for the search warrant, if there was probable cause to search the suitcase, there was ipso facto probable cause to seize the suitcase.³ And, because the magistrate judge found probable cause and issued the warrant, for us to find a lack of probable cause would be a bold second-guess on our part, and in direct contradiction of binding authority, which requires that we generally defer to a magistrate’s finding of probable cause.⁴ See Illinois v. Gates, 462 U.S. 213, 236, 103 S.Ct. 2317, 2331, 76 L.Ed.2d 527 (1983) (probable cause determination made by a judicial officer should be given great deference by a reviewing court because that officer is in the best position to consider the totality of the circumstances); see also United States v. Williams, 962 F.2d 1218, 1221 (6th Cir.) (factual conclusions made by the district court in refusing to suppress evidence are reviewed for clear error and the evidence is taken in a light most likely to support the district court’s decision), cert. denied, — U.S.—, 113 S.Ct. 264, 121 L.Ed.2d 194 (1992).

Considering the facts carefully, we find that the officers did have probable cause. At the time Respress’s suitcase was seized, the officers knew the following about Respress:

(1) He had certain characteristics that matched those of the typical drug courier (as identified by the drug courier profile), among them, coming from a drug source city and having purchased his $685 one-way ticket with cash twenty minutes prior to departure;

(2) The name on his ticket was not his true name;

(3) His driver’s license address was different from Ms claimed place of residence;

(4) After a brief interchange with Officer Jones, he suddenly changed his travel plans, even though he had just told Jones he did not want to miss his connecting flight to Akron (which was departing shortly and on which his baggage was set to go);

(5) He inquired at the Delta ticket counter about cashing a check in order to purchase a ticket to Cleveland, when he had $700 cash in his pocket and could have easily arranged an Akron-Cleveland flight or shuttle once he arrived in Akron;

(6) His plans as described to the taxi driver were to take a bus to Cleveland, but he told the officers his plans were to visit a friend in Cincinnati for a time, for whom Respress had no address;

(7) WHle in the taxi, his plane ticket to Akron “fell” out of Ms pocket so far down in between the seat cushions that removal of the seat was required in order to retrieve it; and

(8) By purposefully missing his connecting flight to Akron and getting in a taxi to go somewhere in Cmcmnati, he abandoned Ms luggage (at least for a time), with the apparent purpose of distancing himself from what might be found in Ms smtcase.

Admittedly, many of these facts are also consistent with innocent behavior, particularly when viewed separately, but when facially innocent actions taken together create bona fide suspicions, probable cause may arise. See Gates, 462 U.S. at 243-45, 103 S.Ct. at 2334-35.⁵ And, when taken in a light most likely to support the magistrate’s finding of probable cause, the facts clearly exhibit a substantial probability that incriminating evidence would be found in Respress’s suitcase. Respress’s contradictory statements, suspicious behavior, sudden change of plans, and apparent abandonment of his luggage, made it probable that drugs would be found in his suitcase. Probable cause requires nothing more.⁶

The analysis does not end here, however, because even with the existence of probable cause to effect a seizure, the duration of the seizure pending the issuance of a search warrant must still be reasonable. See United States v. Saperstein, 723 F.2d 1221 (6th Cir.1983). Respress does not direct our attention to any facts which would illustrate an unreasonable delay in securing the warrant; in fact, he does not even specifically object to the duration of the seizure. Our review of the record reveals that the time between the seizure of the suitcase and the issuance of the warrant was approximately ten hours, and, given the time of day, this was not an unreasonable length of time for preparing an affidavit, submitting it to a magistrate, having it reviewed, and getting the warrant issued. We also note that durations longer than this have been upheld without controversy. See, e.g., Jodoin (three-day period between seizure of suitcase and acquisition of warrant permissible where seizure was based on probable cause). Because the time between the seizure of the suitcase and the issuance of the warrant was reasonable, we uphold the seizure and the search.

III

Finding that the seizure of Respress’s suitcase was based on probable cause and reasonable in duration, we AFFIRM the conviction.

1 . "The 'drug courier profile' is an abstract of characteristics found to be typical of persons transporting illegal drugs.” Florida v. Royer, 460 U.S. 491, 493 n. 2, 103 S.Ct. 1319, 1322 n. 2, 75 L.Ed.2d 229 (1983). The profile is a lawful starting point for police investigations. See United States v. Sokolow, 490 U.S. 1, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989).

2 . Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

3 . The dissent's assertion that "the magistrate never found that the officers seized the bag based upon probable cause, but rather that they did so based upon reasonable suspicion,” see p. 491 n. 7, is not supported by the record. The magistrate judge concluded that the stop of Respress's taxi was justified based on reasonable suspicion and that in the course of the taxi stop, "the officers discovered additional information which enhanced their suspicion of some wrongdoing and led them to seek a search warrant for the defendant’s luggage.” At no time did the magistrate judge say the officers seized the bag based on mere reasonable suspicion.

Also, the dissent's suggestion that the magistrate judge who issued the search warrant considered the fact that Respress had not picked up his bag by the next day, see p. 489 n, 3, is factually inaccurate. At the time the search warrant was issued, the government still held the bag, the government had not made arrangements to deliver the bag, and Respress had made no inquiry regarding its availability.

4 . The dissent’s reliance on United States v. Ogbuh, 982 F.2d 1000, 1002 (6th Cir.1993) for the proposition that we review a finding of probable cause de novo, see p. 491 n. 7, is misplaced. The probable cause at issue in Ogbuh was the probable cause to arrest without a warrant, not the probable cause derived from the face of an affidavit in support of a search warrant. There is a clear distinction here, and the Supreme Court has spoken clearly on this point:

[W]e have repeatedly said that after-the-fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review. A magistrate's "determination of probable cause should be paid great deference by reviewing courts...."

.. .The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him ... there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a "substantial basis for ... concluding]” that probable cause existed.

Illinois v. Gates, 462 U.S. 213, 236, 238-39, 103 S.Ct. 2317, 2331, 2332-33, 76 L.Ed.2d 527 (1983) (quoting Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 590, 21 L.Ed.2d 637 (1969) and Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 736, 4 L.Ed.2d 697 (1960), overruled in part on other grounds by United States v. Salvucci, 448 U.S. 83, 85, 100 S.Ct. 2547, 2549, 65 L.Ed.2d 619 (1980), respectively).

5 . The Gates Court wrote:

As discussed previously, probable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity. By hypothesis, therefore, innocent behavior frequently will provide the basis for a showing of probable cause; .... In making a determination of probable cause the relevant inquiiy is not whether particular conduct is "innocent” or “guilty,” but the degree of suspicion that attaches to particular types of noncriminal acts.

Id. at 243 n. 13, 103 S.Ct. at 2335 n. 13.

6 . Because we find probable cause existed to detain the suitcase, we do not reach the question of whether the seizure of the suitcase or the length of its detention would have been justified based on reasonable suspicion alone.