United States v. Vincent D. Millan

912 F.2d 1014, 1990 U.S. App. LEXIS 15472, 1990 WL 125548

• Court: Court of Appeals for the Eighth Circuit
• Decided: August 31, 1990
• Docket: 89-2344
• Status: Published

Opinions

McMILLIAN, Circuit Judge.

Vincent D. Millan was convicted of possessing cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B). For reversal, Millan argues that the district court erred in denying his motion to suppress evidence óbtained from an unlawful seizure of his person and subsequent search of his jacket and garment bag. We agree and accordingly' reverse Millan’s conviction.

I.

Millan arrived at the Kansas City International Airport at 7:10 a.m. on January 26, 1989, on a Braniff flight from San Francisco. He was one of the first passengers off the airplane, wore a brown leather aviation-style jacket and carried a dark blue garment bag. He had a gold chain around his neck and hair almost to his shoulders. Mil-lan walked briskly through the airport and proceeded directly to a taxi stand.

Agent Carl Hicks of the Drug Enforcement Agency was assigned to the Kansas City airport on the day of Millan’s flight along with two Platte County Deputy Sheriff detectives, Paul Carrill and Robert Bur-diss.' Hicks was watching for drugs being smuggled through the Kansas City airport and was monitoring incoming flights from Los Angeles and San Francisco. Carrill and Burdiss were present for Hicks’ protection. Hicks noticed Millan disembark and followed Millan through the airport to the taxi stand. Carrill and Burdiss stood several feet away from Millan while Hicks approached him, displayed his badge and asked Millan if he could ask him a few questions. Millan consented. At Hicks’ request Millan produced a one-way ticket from San Francisco which was purchased in cash the day before the flight. The ticket was issued to Vincent Millan and cost $179. Millan also pulled from his back pocket a Missouri driver’s license in the same name.¹ Millan explained he had been in San Francisco visiting his cousin and was returning home to Kansas City, but he could not remember his cousin’s address or telephone number. As Millan began searching his pockets for the address, Hicks noticed two bulges in the inner pockets of Millan’s leather jacket which was unzippered and fastened at the waist.

Suspecting the bulges to be narcotics, Hicks displayed his badge again and told Millan he was with the Drug Enforcement Agency. Hicks asked Millan if he was transporting any drugs from San Francisco, which Millan denied. Hicks then asked Millan if he could search his garment bag and Millan consented. Hicks chose not to search the bag and instead told Millan he suspected that Millan was carrying drugs in the pockets of his jacket. Millan denied having anything in his pockets and gave Hicks permission to touch the jacket. Hicks felt a powdery substance in the pockets and asked Millan how much drugs he was carrying. Millan replied, “none that I put there.” When Millan refused to consent to a warrantless search of his jacket, Hicks told Millan he would take the jacket and bag to the sheriffs office and apply for a warrant. While Hicks was filling out a receipt for the items, Millan attempted unsuccessfully to reach his lawyer by telephone. Hicks left the airport with Millan’s jacket, garment bag and airline ticket.

At the Platte County Sheriffs office, Hicks began preparing a search warrant affidavit while Detective Carrill subjected Millan’s jacket and garment bag to a dog sniff by police dog Gunner. Gunner was trained only to detect marijuana, cocaine and heroine but not amphetamines or meth-amphetamines. Gunner did not alert to the presence of narcotics in Millan’s jacket or garment bag. Carrill informed Hicks and Burdiss of Gunner’s non-alert. After Hicks completed a draft of the affidavit, Millan’s possessions were' subjected to another dog sniff by Missouri Highway Patrol dog Oseo. Oseo, like Gunner, was trained to detect cocaine, marijuana and heroine but not amphetamines. Oseo did not alert to the presence of narcotics. Hicks and Burdiss were also apprised of Osco’s non-alert.

The affidavit was completed and signed by Detective Burdiss. It contained all of the information obtained at the airport but made no mention of the' dog sniffs. A warrant was issued and two plastic bags containing a white powder substance were found in Millan’s jacket. The officers conducted a field test on the substance for the presence of amphetamines which yielded a positive result. The bags were sent to a crime laboratory and the laboratory test revealed that they contained 500.9 grams of 97% pure cocaine. Millan’s garment bag contained a box of plastic bags, paper on which was written financial calculations, and clothing.

Before trial, Millan moved to suppress the evidence seized at the airport including the contents of his garment bag and the cocaine found in his jacket. The motion was referred to a magistrate who recommended that the evidence be suppressed. After a de novo hearing, the district court denied Millan’s motion to suppress. Millan waived his right to a jury trial and submitted the case to the court on stipulated facts. The court found him guilty of possession with intent to distribute over 500 grams of cocaine. This appeal followed.

II.

The sole issue for our review is whether the district court erred in denying Millan’s motion to suppress. Millan argues that his motion should have been granted because Agent Hicks did not have a reasonable and articulable suspicion to stop and question him about drugs at the airport.² See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). He argues that all the evidence obtained after Hicks displayed his badge for a second time was tainted by the unlawful seizure and should have been suppressed. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). We agree.

Millan concedes that the initial encounter he had with Hicks was consensual and therefore did not implicate the fourth amendment. However, Millan argues, and we agree, that the consensual encounter turned into a fourth amendment seizure when Hicks showed Millan his badge for the second time and began questioning Mil-lan about drugs. United States v. Nunley, 873 F.2d 182, 184-85 (8th Cir.1989) (consensual encounter turned into a seizure when the agent told the defendant he was there to stop the flow of drugs through the airport); United States v. Sadosky, 732 F.2d 1388, 1392-93 (8th Cir.) (consensual encounter became a seizure when the agent revealed he was investigating narcotics violations and wanted to question the defendant because of his unusual behavior), cert. denied, 469 U.S. 884, 105 S.Ct. 254, 83 L.Ed.2d 191 (1984). For this type of seizure to be lawful under the fourth amendment, the government must show that Hicks had a reasonable and articulable suspicion that criminal activity was underway. Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 1884, 20 L.Ed.2d 889 (1968). A Ferrotype stop is justified if the government can point to “specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant th[e] intrusion.” Id. at 21, 88 S.Ct. at 1880. While the level of suspicion an officer must possess is less than probable cause it must be more than just an “unparticularized suspicion or hunch.” Id. at 27, 88 S.Ct. at 1883.

The totality of the circumstances known to Hicks at the time of the seizure does not supply the requisite level of suspicion to justify the intrusion into Millan’s fourth amendment rights. Before he displayed his badge for the second time, Hicks knew that Millan (1) arrived on an early morning flight from San Francisco, (2) was one of the first passengers to deplane, (3) carried a garment bag and no checked luggage, dressed casually, wore a gold chain around his neck and had long hair, (4) walked rapidly through the airport without distraction, (5) purchased his one-way ticket with cash the day before the flight, (6) was not traveling under an assumed name, (7) said he had been visiting his cousin but could not remember his cousin’s address or telephone number, and (8) had something evenly-shaped in the inner pockets of his leather bomber jacket. Because these circumstances “describe a very large category of presumably innocent travelers,” they cannot, without more, justify the seizure. Reid v. Georgia, 448 U.S. 438, 441, 100 S.Ct. 2752, 2754, 65 L.Ed.2d 890 (1980) (per curiam).

While we recognize that each case must be decided on its own set of facts, a review of some cases in which courts have found reasonable suspicion to justify a Terry-type seizure helps establish the parameters of the reasonable suspicion standard. The most recent ease in which the Supreme Court upheld an airport stop, United States v. Sokolow, 490 U.S. 1, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989), involved behavior far more suspicious and unusual than Millan’s. In Sokolow, the police were aware that the defendant had paid $2,100 for two airplane tickets from a roll of $20 bills and was traveling under a name that did not match the name under which his telephone number was listed. 109 S.Ct. at 1583. Likewise, in Florida v. Royer, 460 U.S. 491, 502, 103 S.Ct. 1319, 1326, 75 L.Ed.2d 229 (1983), the defendant was traveling under an assumed name. Finally, in a case decided by this court, United States v. Poitier, 818 F.2d 679, 683 (8th Cir.1987), the defendant gave untruthful answers during a consensual encounter with the police. In sharp contrast to these cases, Millan gave Hicks no objective reason to suspect Millan was supplying false identification or lying about his trip to San Francisco.

This case is also distinct from cases which have rested on the officer’s perception of a suspicious bulge in the defendant’s clothing. In United States v. Aguiar, 825 F.2d 39, 41 (4th Cir.), cert. denied, 484 U.S. 987, 108 S.Ct. 505, 98 L.Ed.2d 503 (1987), the agent noticed a bulge on the defendant’s ankle and white plastic showing beneath the cuff of his trouser. In United States v. Harrison, 667 F.2d 1158, 1160, 1161 (4th Cir.), cert. denied, 457 U.S. 1121, 102 S.Ct. 2937, 73 L.Ed.2d 1335 (1982), agents observed for approximately eight seconds a four to six-inch long bulge on the defendant’s back beneath his jacket. In contrast to these eases, Hicks’ belief that Millan’s pockets contained narcotics could not have been anything more than a hunch. The bulges Hicks noticed were in Millan’s coat pockets, not in an unusual location, and Millan could have been carrying his wallet, gloves, or a hat in those pockets. Reasonable suspicion requires some particularized suspicion about the individual that is more than just a hunch. Reid v. Georgia, 448 U.S. at 441, 100 S.Ct. at 2754.

All the other factors relied upon by the government are characteristics about Mil-lan that match a drug courier profile and are insufficient to justify the seizure. Although the Supreme Court recently recognized the evidentiary significance of factors that are set forth in a drug courier profile, it did not overrule the oft-cited principle enunciated in Reid v. Georgia that these factors alone, without some reasonable suspicion relating to the particular conduct of the individual, cannot justify a Terry stop. United States v. Sokolow, 109 S.Ct. at 1587; see United States v. Poitier, 818 F.2d at 683 (citing Reid v. Georgia, 448 U.S. at 440-41, 100 S.Ct. at 2753-54). In Reid v. Georgia, the Supreme Court held that the one factor relied upon by the government which related to the particular conduct of the suspects was “too slender a reed to support the seizure.” 448 U.S. at 441, 100 S.Ct. at 2754. According to the Court, the officer’s suspicion that the two suspects were attempting to conceal the fact that they were traveling together was “a belief that was more an inchoate and unparticularized suspicion or hunch than a fair inference in the light of his experience.” Id. (citation omitted). The only other evidence the government could point to was the fact that the suspects matched a drug courier profile. The Court refused to justify the search on this evidence because it “describe[s] a very large category of presumably innocent travelers, who would be subject to virtually random seizures were the Court to conclude that as little foundation as there was in this case could justify a seizure.” Id.

Hicks’ belief that Millan’s jacket pockets contained narcotics is “too slender a reed” to justify the seizure. Id. The additional fact that Millan acted in a manner “typical of persons unlawfully carrying narcotics,” which today encompasses all types of travel behavior, is insufficient without more to justify the seizure. Id. at 440, 100 S.Ct. at 2753; see United States v. Sokolow, 109 S.Ct. at 1588-89 (Marshall, J., dissenting) (describing behavior which is now considered typical of drug couriers). Accordingly the judgment of the district court denying Millan’s motion to suppress and finding him guilty must be reversed.

1 . When Hicks first observed Millan disembarking the airplane, he did not believe Mil-lan was carrying any identification because he did not observe a wallet in Millan’s pocket.

2 . Millan alternatively argues that his motion should have been granted because (1) Hicks did not have probable cause to seize his jacket and garment bag, (2) the seizure of his possessions lasted an unreasonably long period of time, and (3) the search warrant affidavit contained material omissions that rendered the search warrant invalid. We need not address these alternative grounds for reversal because we agree with Mil-lan that the initial seizure was unlawful.