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UNITED STATES v. ESPOSITO

February 12, 1980

UNITED STATES OF AMERICA against MICHAEL ESPOSITO, Defendant.


The opinion of the court was delivered by: NEAHER

MEMORANDUM AND ORDER

Defendant, charged in a two-count indictment with conspiracy and possession with intent to distribute quantities of cocaine in violation of 21 U.S.C. §§ 841(a)(1), 846, moves to suppress certain physical evidence and statements claimed to be tainted by an allegedly unlawful search and seizure. The facts as established after an evidentiary hearing in the matter are as follows:

 On September 19, 1978, Lieutenant Burt Koch of the Las Vegas Metropolitan Police Department, assigned to the police sub-station at McCarren Airport, received a telephone call from United Airlines officials, who informed him that two individuals, defendant and one Edward Bonilla, had boarded a United flight from J.F.K. Airport in New York to Las Vegas with tickets purchased with a stolen credit card. When the plane arrived at approximately 12:00 o'clock noon, Koch and three other officers Tony Garibay, Talmadge Wilson and an Officer Cabrales met the defendant and Bonilla as they came off the plane in the ramp area. The flight stewardess had pointed the suspects out to the police officers.

 The officers approached the defendant and Bonilla, identified themselves and advised them of the investigation they were conducting concerning the airline tickets. Detective Wilson requested that defendant produce some type of identification and his airline ticket. In response, defendant produced a ticket bearing his name, and Detective Wilson thereupon advised him of his rights in accordance with Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). The defendant indicated that he understood his rights. The officers then took the defendant and Bonilla back to the sub-station for further questioning.

 At the sub-station, Wilson showed Koch the ticket he had obtained from defendant, which had two baggage claim checks attached to the envelope. Koch took the claim checks, gave them to Officer Cabrales and sent him to the United carousel to claim the corresponding bags. The officers in the meantime questioned defendant, who stated in response that he was unaware that the purchase of the tickets was made with a stolen credit card and explained that, while in a bar in New York, an unidentified white male approached him and offered to sell him tickets at a cheaper price than he could obtain.

 Officer Cabrales returned with two articles of yellow luggage which bore claim tags that matched the numbers of the stubs on defendant's ticket. Koch asked the defendant if the bags were his. He replied that he had a brown bag and later stated "no they are definitely not mine." Bonilla claimed the bags were not his either. When asked to explain why he possessed claim checks for these bags, defendant claimed there must have been a mistake in New York. Koch then sent Officer Cabrales to the United carousel to search for a brown bag and to see if anyone was looking for two yellow bags.

 Cabrales again returned and reported that no luggage was left on the carousel and that no one was searching for a missing bag. Defendant repeated that he was sure the bags were not his. The bags were then opened and a plastic bag seized which contained what proved later to be cocaine. Other articles consistent with defendant's ownership of the luggage were uncovered during a complete search. Defendant was placed under arrest and again advised of his Miranda rights. He stated he understood them and shortly thereafter gave an incriminating statement, which he now moves to suppress along with the physical evidence seized.

 Defendant initially argued that his conduct with respect to the luggage was not a voluntary abandonment which could justify a warrantless search of the bags. After the hearing, however, the direction of his contentions shifted. He now argues in addition that his arrest was illegal on the ground that the police failed to administer Miranda warnings before they requested his identification and airline ticket, which he urges was direct evidence of the crime for which he was then under investigation. Although it is not clear whether the basis for this claim is grounded in the Fourth or Fifth Amendment, the court concludes defendant's contentions are without merit and denies the motion to suppress for the following reasons.

 Addressing first defendant's claimed improper arrest, we start with his contention that his rights were violated when the police officers requested and received production of his airline ticket. The argument is apparently that he was in custody for Miranda purposes and hence entitled to his warnings at the outset of the detention rather than after he had produced what he claims was incriminating evidence. Analysis of defendant's claim must begin, however, with a determination of the propriety of the officers' actions when they first stopped defendant at the foot of the plane's ramp.

 As the Court of Appeals for this circuit noted in United States v. Oates, 560 F.2d 45, 58 (2 Cir. 1977), "the issues involved in determining the propriety of stops, arrests and searches must be resolved by an objective rather than a subjective standard" (footnote and citations omitted). Viewed in this manner, defendant's detention at the foot of the ramp for the purpose of ascertaining his identity was clearly a minimally intrusive stop permissible in the circumstances under the rationale of Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1967), rather than an arrest.

 Notwithstanding contrary dicta of Dunaway v. New York, 442 U.S. 200, 99 S. Ct. 2248, 60 L. Ed. 2d 824 (1979), which intimated that the Terry doctrine may be confined to protective searches for weapons and may not be used to justify the investigative stops on reasonable suspicion with which we have become familiar, the law in this circuit remains that an officer's right to make an initial stop depends on a reasonable belief that the suspect is engaging in criminal activity, regardless of whether he is also armed and dangerous. United States v. Vasquez, 612 F.2d 1338, 1345 (2 Cir., 1979) (Kaufman, J., concurring). As the Court stated in Adams v. Williams, 407 U.S. 143, 145, 92 S. Ct. 1921, 1923, 32 L. Ed. 2d 612 (1972):

 
"The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response."

 Thus, investigation of possible criminal behavior, including brief detention for questioning, is permissible even though there is no probable cause to make an arrest as long as the officers are able to point to specific and articulable facts, which, taken together with rational inferences from those facts, reasonably warrant that intrusion. See Brown v. Texas, 443 U.S. 47, 99 S. Ct. 2637, 61 L. Ed. 2d 357 (1979); United States v. Brignoni-Ponce, 422 U.S. 873, 95 S. Ct. 2574, 45 L. Ed. 2d 607 (1975); Terry v. Ohio, supra, 392 U.S. at 21-22, 88 S. Ct. at 1879-1880. See also United States v. Vasquez, supra; United States v. Nieves, 609 F.2d 642, 647-48 (2 Cir., 1979); United States v. Price, 599 F.2d 494, 500 (2 Cir. 1979). Upon such facts, "(a) brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable . . . ." Adams v. Williams, supra, 407 U.S. at 146, 92 S. Ct. at 1923. See United States v. Brignoni-Ponce, supra, 422 U.S. at 882-83, 95 S. Ct. at 2580-81. Moreover, the Court of Appeals for this circuit recently recognized that in appropriate circumstances the Terry doctrine authorizes not only investigative stops but also temporary detention of suspects and removal to a location more conducive to effective interrogation. United States v. Nieves, supra, 609 F.2d at 647, citing United States v. Oates, supra, 560 F.2d at 56-61.

 Here, there is no dispute that the officers had in their possession sufficient information or articulable facts to warrant the initial stop under the Terry rationale. Defendant argues in his supplemental memorandum, in fact, that the officers lacked probable cause to arrest him until after he identified himself and relinquished the incriminating airline ticket, while in no manner disputing the sufficiency of the information to support the initial stop. Thus, the question becomes whether the officers acted ...


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