United States v. Penny Porter

738 F.2d 622

• Court: Court of Appeals for the Fourth Circuit
• Decided: November 5, 1984
• Docket: 82-5203
• Status: Published

Opinions

WIDENER, Circuit Judge:

Penny Porter appeals her conviction for possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1). Her only contention is that there was no probable cause for her arrest and that the warrantless search of her luggage was unlawful. We disagree, and affirm the judgment of conviction.

An anonymous informant, on a Saturday, February 20, 1982, telephoned the Federal Aviation Administration (FAA) police at Washington National Airport, and was referred to Detective John Dawley, a Washington, D.C., Metropolitan Police Department (MPD) detective assigned to the airport as a Special Deputy U.S. Marshall on the Drug Enforcement Administration (DEA) Task Force. Dawley had been a police detective for eleven years, had been assigned to the MPD narcotics squad, had had several weeks of narcotics-related training, and had testified more than sixty times as an expert in narcotics cases. The informant told Dawley that one Penny Porter was taking or had taken a flight to Miami from National Airport at seven or nine o’clock that night and would be returning with a quantity of cocaine. The informant described Miss Porter as a black woman between 5' 3" and 5' 7" in height, weighing between 115 and 125 pounds, having long brown hair, wearing that evening a brown leather coat and a red miniskirt outfit, and carrying a large gold-colored purse. The informant also gave other information, not detailed in the record, concerning someone other than Miss Porter. Dawley that night checked Eastern Airlines flight rosters at National Airport and noted that a “T. Porter” had left for Miami on an Eastern flight that evening. He also cheeked out the informant’s information that did not concern Miss Porter and found it correct.

The following two days, February 21 and 22, Dawley monitored Eastern flights, observing passengers disembarking from seven or eight Eastern flights arriving from Miami. On February 22, the same informant again called Dawley and advised him that this person (Miss Porter) was to arrive sometime that afternoon. While watching passengers on Eastern flight 190 from Miami leave the plane at about 3:30 p.m., without having checked the manifest for this flight, Dawley observed a woman whose “physical description matched what I had been given” and who was wearing a brown leather coat. She was also wearing jeans, black high-heel shoes, a dark floppy-hat, and sunglasses, and was carrying a piece of carry-on luggage; the red miniskirt outfit and the gold-colored purse were not evident. This woman was one of the last passengers to leave the plane. She attracted Dawley’s attention by turning and looking at him as he stood in the passenger waiting area, watching him continuously as she walked down the causeway, looking over her shoulder, walking rapidly, and appearing nervous.

Detective Dawley approached the woman after she had proceeded to the general passenger area. He displayed his government credentials and told her that he was with the DEA and was investigating narcotics traffic. He asked “if she would mind speaking with me,” to which she replied that she didn’t mind. He asked if she had just arrived by airplane; she said that she had. He asked where she was coming from; she answered, “Miami.” He then asked for her boarding pass, which she produced and which bore the name “T. Porter.” He asked her name, and she responded, “Teresa Porter.”

At that point, Dawley asked Miss Porter to accompany him to the DEA office, housed in the FAA police office at the airport. Dawley, who was not in uniform and was not accompanied by other officers, did not touch her, and there is no evidence that he advised Miss Porter that he was armed (we assume he was), or exhibited a firearm, or otherwise made any show of authority. Dawley testified that Miss Porter “voluntarily accompanied me ... back to the office” and that he would have let her go had she refused to accompany him; he did not indicate to her that she was free to leave. On the way to the DEA office, Miss Porter said that she “had to go to the bathroom bad,” and Dawley told her that once they arrived at the DEA office she could go to the bathroom in the company of a policewoman. Miss Porter and Dawley then walked some 500 feet through the airport concourse, down a series of steps, and through a tunnel to the FAA police office. Dawley was unable to locate a policewoman to accompany her to the bathroom, and asked the FAA desk sergeant to have a policewoman come to the office.

Miss Porter was seated near the door of the FAA office. Dawley asked her for additional identification, and she began going through her carry-on bag. Dawley asked if she would mind if he looked in the bag; she said she did not mind. Dawley put the bag on the counter, felt the sides of the bag, and looked into the bag “for any type of weapon,” but he did not put his hands into the bag. The detective then asked Miss Porter to accompany him to the DEA office, approximately fifty feet beyond the front desk of the FAA office, which she did. Once inside the DEA office, Dawley asked Porter if she had brought back anything from Miami. She responded, “all I have is a little smoke [meaning marijuana], but you’re not going to lock me up for that, are you?” She produced from her left rear pocket a small manila envelope containing what proved to be marijuana cigarettes. Dawley responded affirmatively to her question and placed her under arrest. Only fifteen minutes had passed since Miss Porter had stepped off the plane.

Detective Dawley advised Miss Porter of her Miranda rights and asked whether she understood these rights; she said that she did and expressed no desire to see a lawyer. Without a warrant, he then searched her carry-on bag. He found a gold purse; in the purse was a red miniskirt wrapped around a plastic bag containing what turned out to be cocaine, with an apparent retail value of about $60,000.00. The record is silent as to whether Miss Porter or Dawley carried the bag into the DEA office. At the time of the arrest the bag was within arm’s reach of Miss Porter and between Dawley and Miss Porter, who was seated near the window. After another Miranda warning, Miss Porter made several inculpatory statements before indicating that she wanted to see a lawyer. Before trial, Miss Porter moved to have suppressed the cocaine that was seized, and the district court denied the motion. It found that the detective’s initial encounter with Miss Porter was proper under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), that Miss Porter went to the DEA office voluntarily, and that the warrantless search was justified as incident to the arrest for the marijuana.

A district court engages in a factual determination in resolving a dispute over the nature of an encounter between police and citizen, see United States v. Gooding, 695 F.2d 78, 82 (4th Cir.1982). That is to say, whether the encounter is voluntary on the part of the citizen and raises no constitutional concerns, see Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229 (1983) (plurality opinion); United States v. Mendenhall, 446 U.S. 544, 552, 100 S.Ct. 1870, 1876, 64 L.Ed.2d 497 (1980) (opinion of Stewart, J.); Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 1879 n. 16, 20 L.Ed.2d 889 (1968); whether a limited “seizure” has occurred under Terry v. Ohio, requiring a reasonable, articulable suspicion of criminal activity, Reid v. Georgia, 448 U.S. 438, 440, 100 S.Ct. 2752, 2753, 65 L.Ed.2d 890 (1980) (per curiam); or whether a traditional arrest, requiring probable cause, has occurred. For this reason we will not disturb such a determination unless it is clearly erroneous. United States v. Gooding, 695 F.2d at 82.

We do not find clearly erroneous the district court’s finding that Detective Dawley’s initial contact with Porter in the airport passenger area was a Terry stop.¹ The detective had the requisite reasonable, articulable suspicion of criminal activity to so detain Miss Porter and ask for identification. An informant’s tip can provide the justification for a Terry stop even if the informant’s reliability is unknown, and certainly can do so if, as here, the information is corroborated, a matter discussed more fully below. See United States v. Gorin, 564 F.2d 159, 160-61 (4th Cir.1977), cert. denied, 434 U.S. 1080, 98 S.Ct. 1276, 55 L.Ed.2d 788 (1978).

We need not determine whether the district court’s finding that Porter went voluntarily to the DEA office was clearly erroneous.² For the purposes of our opinion, we assume that Miss Porter was under arrest after she was identified during the lawful Terry stop, because even at that point the detective had probable cause for an arrest based on the informant’s information, corroborated through the detective’s investigation and observation. Detective Dawley had confirmed as true every fact that the informant had supplied. The informant had said that Penny Porter was leaving or had left for Miami from National Airport on Saturday night, February 20, 1982. Dawley confirmed from the flight roster that a “T. Porter” had taken an Eastern flight to Miami out of National Airport that evening. His police experience had taught him that people generally use aliases similar to their own names, and he thus reasonably believed that “T. Porter” was the Penny Porter the informant had described. The informant had given Dawley information about another person, which Dawley also verified, working most of the night (until 4 a.m.) to do so. The informant had given a description of Miss Porter’s physical characteristics and her dress, for which Dawley watched over a period of two days and which he recognized when Miss Porter walked off of Eastern flight 190 on Monday, February 22. The informant had even called back on February 22 to report that the person in question would arrive that very afternoon, which of course she did. Dawley’s observations of Miss Porter as she left the plane also indicated that she was the one for whom he was searching; she was one of the last passengers to leave the plane, and she appeared nervous, walked quickly, and watched him continuously as she proceeded to the general passenger area.³ Dawley finally confirmed from the boarding pass that the person he stopped was the “T. Porter” for whom he had been searching.

The detective at least at that point, if not before, had probable cause to arrest Miss Porter. The facts which the detective corroborated here are virtually indistinguishable from those in Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959). In Draper, the Court found that a narcotics agent had probable cause to arrest a man whom the agent observed having particular physical characteristics, wearing particular clothing, carrying a tan zipper bag, alighting from a train which was arriving from a particular place, and walking at a fast pace, all as predicted by the informant about a man the informant said was peddling narcotics. In Draper, the informant had given the agent information previously which the agent had always found accurate and reliable. Id. at 309, 79 S.Ct. at 331. In the Supreme Court’s recent expression on the use of informants to provide probable cause, the Court has declared that, while the veracity of an informant is highly relevant in determining the value of an informant’s report, it is only one element of a “totality of the circumstances” approach for determining the “commonsense, practical question” whether there is probable cause. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 2327-28, 76 L.Ed.2d 527 (1983). In Gates a detailed tip in an anonymous letter was corroborated to a large degree by police investigation and observation, providing probable cause for the issuance of an arrest warrant for two suspected drug traffickers. The details of the tip here, like those in Draper and Gates, were carefully corroborated by Detective Dawley’s investigation and observation, and Dawley found himself in a situation identical to that of the agent in Draper, who the Court said “had personally verified every facet of the information given him by [the informant] except whether petitioner had accomplished his mission and had the ... heroin on his person or in his bag.” Draper v. United States, 358 U.S. at 313, 79 S.Ct. at 333. At least at the time Miss Porter produced her boarding pass, therefore, the detective had probable cause to arrest her.

We agree with the district court, regardless of the point at which Miss Porter’s arrest in fact occurred, that the warrant-less search of her carry-on bag in the DEA office was lawful as incident to the arrest. The defendant argues that the bag was within the exclusive control of Detective Dawley after her arrest, that there were no exigent circumstances, and therefore that a warrant was necessary for Dawley to search the bag. This argument fails for two reasons. First, the Supreme Court has specifically rejected the argument. New York v. Belton, 453 U.S. 454, 461-62 n. 5, 101 S.Ct. 2860, 2864-65 n. 5, 69 L.Ed.2d 768 (1981). The Court has established a “bright-line” rule, see id. at 463-72, 101 S.Ct. at 2865-70 (Brennan, J., dissenting), that a lawful custodial arrest justifies a contemporaneous search without a warrant of the person arrested and the immediately surrounding area, id. at 457, 101 S.Ct. at 2862 (citing Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685 (1969)); United States v. Litman, 739 F.2d 137 (4th Cir.1984) (en banc). Miss Porter had been lawfully arrested, and it is undisputed that the bag was within her reach.⁴ The Supreme Court has rejected the suggestion that more need be litigated, in particular, the issue of whether one of the reasons supporting the search-incident-to-arrest exception is present. New York v. Belton, 453 U.S. at 459, 101 S.Ct. at 2863, citing United States v. Robinson, 414 U.S. 218, 235, 94 S.Ct. 467, 477, 38 L.Ed.2d 427 (1973). We also do not believe that the bag was within the exclusive control of Detective Dawley. Again, the bag was within reach of Miss Porter, and any evidence within it was easily accessible. A primary rationale of the search-incident-to-arrest exception to the warrant requirement is that the arrestee may attempt to conceal or to destroy evidence, Chimel v. California, 395 U.S. at 763, 89 S.Ct. at 2040, and we think that even if such an inquiry were necessary the rationale of that search warrant exception is applicable in this case.

The judgment of conviction is accordingly

AFFIRMED.

1 . A majority of the Supreme Court has not decided whether mere questioning of an individual by a police official can, without more, amount to a seizure under the Fourth Amendment. Immigration and Naturalization Service v. Delgado, — U.S. -, -, 104 S.Ct. 1758, 1761, 80 L.Ed.2d 247 (1984). Likewise, we need not determine in this case that no seizure occurred when Detective Dawley initially asked questions of Miss Porter, because he had the objective justification necessary to conduct what was at most a Terry stop.

2 . A panel of this court has noted,

"Several courts have held that agents may request, without coercion, suspects stopped in public places to accompany them to an office or other place more convenient for an investigation.” United States v. Corbin, 662 F.2d 1066, 1070 (4th Cir.1981), citing United States v. Chatman, 573 F.2d 565, 567 (9th Cir.1977); United States v. Oates, 560 F.2d 45, 57 (2d Cir.1977). In Corbin, 662 F.2d at 1071 & n. 13, and in United States v. Mendenhall, 446 U.S. at 574-75 & n. 13, 100 S.Ct. at 1887-88 & n. 13 (White, J., dissenting), findings of consent to accompany DEA agents to an airport office were upheld even though the trial courts had found that the agents would not in fact have permitted the detained persons to leave. Here, the detective's testimony that he would have permitted Miss Porter to leave provided a basis for the district court’s finding even more substantial than that in Corbin and Mendenhall. Of course, if Miss Porter went voluntarily to the DEA office, her statement that she had some marijuana certainly provided probable cause for her arrest.

We recognize, however, that there is some force to the argument that what may have begun as a Terry stop and Miss Porter’s voluntary accompaniment of the detective to the DEA office may well have been transformed into an arrest when the detective told Miss Porter that she could only go to the restroom in the company of a policewoman.

As the Supreme Court recently has noted, an initially consensual encounter between a, police officer and a citizen can be transformed into a seizure or detention within the meaning of the Fourth Amendment, "if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.”

Immigration and Naturalization Service v. Delgado, — U.S. -, -, 104 S.Ct. 1758, 1761, 80 L.Ed.2d 247 (1984) (citation omitted).

3 . We recognize that these characteristics, often common in the DEA's drug courier profile, standing alone cannot provide sufficient reasonable, articulable suspicion even to justify a Terry stop. Reid v. Georgia, 448 U.S. at 440-41, 100 S.Ct. at 2753-54; United States v. Harrison, 667 F.2d at 1161. Here, of course, what the detective observed supplemented other information already known to him.

4 . The fact that Miss Porter may have been arrested on the way to the DEA office and searched after she arrived there is irrelevant. We have upheld, as incident to arrest, a search of items within the reach of the arrestee even where the person had been arrested and driven to an FBI field office 30 minutes away before being searched. United States v. McEachern, 675 F.2d 618, 622 (4th Cir.1982). Here, only 15 minutes passed between the time Miss Porter left the plane and the time her bag was searched.