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UNITED STATES v. TAIBE

March 17, 1978.

UNITED STATES of America
v.
Joseph M. TAIBE.



The opinion of the court was delivered by: COSTANTINO

MEMORANDUM AND ORDER

COSTANTINO, District Judge.

 The defendant, Joseph Taibe, is charged with possession of cocaine with intent to distribute in violation of 21 U.S.C. ยง 841(a)(1). Taibe moves to suppress the physical evidence seized from him at the time of his arrest on August 24, 1977. A suppression hearing was held and the following facts were established.

 At approximately 3:00 p.m. on August 24, 1977, Drug Enforcement Administration ("DEA") Special Agents John Huber, Robert Sears, and Louis Miranda had occasion to review a DEA airport log entry which informed them that Joseph Taibe would be arriving at John F. Kennedy International Airport aboard United Airlines Flight 40 from Fairbanks, Alaska at approximately 4:30 p.m. Flight 40 had made a stop-over in Seattle, Washington enroute to New York. A security check at the Seattle Airport revealed that Taibe was carrying approximately $30,000 in cash and was travelling with an airline ticket issued to John Melli. The agents also reviewed a DEA computer print-out which indicated that Taibe was identified by the DEA as a drug trafficking suspect.

 At approximately 4:45 p.m. the three agents initiated a surveillance of Taibe. He was observed deplaning and proceeding to the waiting area where he was met by Michael Tullo. After a brief conversation, Taibe gave Tullo his baggage claim ticket. The two men took separate escalators, riding parallel to each other toward the baggage area. Once the baggage area, Tullo went to the baggage carousel and retrieved Taibe's suitcase, while Taibe, followed by Agent Miranda, exited the terminal and entered the airport parking lot.

 Tullo, followed by Agents Huber and Sears, then exited the terminal with Taibe's suitcase. He met Taibe in the parking lot and both men proceeded to Tullo's parked automobile. Tullo placed Taibe's suitcase in the back seat of the automobile behind the driver's seat. Tullo seated himself in the driver's seat while Taibe occupied the front passenger's seat.

 Agents Huber and Sears approached Tullo's vehicle at the passenger's side while Agent Miranda approached the vehicle at the driver's side. At the time of the approach, the windows of the vehicle were raised, the doors were locked, and the engine was not running. The agents identified themselves, displayed their credentials, and asked the occupants to get out of the automobile. For some moments Taibe and Tullo did not exit the automobile. Agent Huber testified that they appeared confused during this time period. Agent Sears testified that he observed Taibe attempting to stuff his coat under the front seat of the automobile. Agents Miranda and Sears then drew their revolvers. Agent Sears attempted to open the door to the vehicle, discovered it was locked, and banged on the window. The agents began shouting for the occupants to get out of the vehicle.

 Taibe and Tullo exited the automobile. They were searched for weapons and asked to show identification. Agent Huber asked Taibe for permission to look through his suitcase. Taibe gave his consent to such a search. Agent Sears informed Agent Huber that he had seen Taibe attempt to stuff his coat under the front seat of the car. Agent Huber went to the open door on the passenger side of the vehicle, reached for Taibe's suitcase which was on the rear seat on the driver's side, and brought it to the front seat of the car. He picked up Taibe's jacket from the floor of the car near the front seat and as he was doing so a handkerchief and a bag containing white powder fell out of the left-hand side pocket of the jacket and onto the sill of the car door. Agent Huber asked Taibe if he knew what was in the bag. Taibe said he did not know. Agent Huber placed the jacket on the front seat and brought the suitcase to the trunk area where it was searched.

 Agent Huber found a brown paper bag in the suitcase. Inside the paper bag was a clear plastic bag containing white powder which was later found to be lactose. Agent Huber also found a box with the words "Drug and Narcotics Identification Kit" written on it. At this point, Taibe was given his Miranda warnings. He and Tullo were asked if they would accompany the agents to the DEA office and they agreed to do so. Neither Taibe nor Tullo were placed under arrest at this time. Agent Huber took the suitcase, jacket, handkerchief, and bag of white powder, and locked the door to the automobile, giving the keys to Tullo.

 Taibe, Tullo, and the agents proceeded to the DEA office. At the office, Agent Huber performed a field test on the powder that had fallen from Taibe's jacket and determined that the substance was cocaine.Taibe and Tullo were placed under arrest and given their Miranda warnings. Agent Huber asked Taibe's consent to search his suitcase again, advising Taibe that a search warrant could be obtained to search his baggage in any event. Taibe agreed to a second search of the suitcase which led to the discovery of two razor blades, a mirror, a small spoon, and a plastic tube labeled "quality tester, diometer," - "coke", in addition to the bag containing lactose and the narcotics identification kit. Taibe's jacket was also searched and approximately $42,000 in cash was found.

 Defendant Taibe propounds two arguments in support of his motion to suppress the physical evidence seized from him. First, he asserts that the DEA agents lacked probable cause to stop him for investigative purposes and that, therefore, the subsequent search was improper. Second, defendant argues that assuming the agents were justified in stopping him, he did not freely and voluntarily consent to the search of his suitcase and jacket which led to the discovery of the cocaine in his possession.

 The government argues that there was reasonable suspicion to justify the limited investigative stop of the defendant, that the defendant voluntarily consented to the search of his suitcase, and that in the course of the suitcase search the cocaine which fell from the defendant's jacket inadvertently came within the "plain view" of Agent Huber. The government also offers two variations of the so-called "inevitable discovery" doctrine to support the validity of the search and seizure in issue. Under the first variation, the government contends that the search of the suitcase, to which the defendant voluntarily consented, established probable cause to search the vehicle. Given the then extant exigent circumstances, a warrantless search of the vehicle was justifiable and the discovery of the cocaine in the defendant's jacket was inevitable. The government's second variation of the "inevitable discovery" doctrine is urged if the court should find that the consent search of the defendant's suitcase was improper. According to this argument, the government claims that there was probable cause to search the vehicle prior to the time Agent Huber entered the vehicle to reach for the defendant's suitcase, and that the seizure of the cocaine was, again, inevitable.

 The court turns first to defendant's argument that the DEA agents lacked probable cause to stop him. As the government correctly points out, the Supreme Court, in Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), established that "a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possible criminal behavior even though there is no probable cause to make an arrest." Id. at 22, 88 S. Ct. at 1180. See also Adams v. Williams, 407 U.S. 143, 92 S. Ct. 1921, 32 L. Ed. 2d 612 (1972). Police officers are permitted to make brief investigative stops of individuals based on the reasonable suspicion that such individuals are engaged or are about to become engaged in criminal conduct. United States v. Oates, 560 F.2d 45, 59 (2d Cir. 1977).

 The proper starting point in analyzing the constitutionality of the conduct of the special agents is to determine whether they are able to point to "specific and articulable facts which, taken together with rational inferences from those facts", reasonably warranted stopping the defendant at the airport parking lot. Terry v. Ohio, supra 392 U.S. at 21, 88 S. Ct. 1868. Bearing in mind the observation of the Court of Appeals for the Second Circuit that the test for a reasonable stop is "rather lenient", United States v. Santana, 485 F.2d 365, 368 (2d Cir. 1973), cert. denied, 415 U.S. 931, 94 S. Ct. 1444, 39 L. Ed. 2d 490 (1974); see also United ...


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