The opinion of the court was delivered by: PLATT
Defendant, who is charged with violating 21 U.S.C. § 841(a)(1), possession with intent to distribute cocaine, has moved to suppress all physical evidence taken from him by Drug Enforcement Agents on August 17, 1979. He alleges that his Fourth Amendment rights were violated when he was stopped for questioning in both Miami and LaGuardia International Airports and when his baggage was seized at LaGuardia and searched pursuant to a warrant issued by United States Magistrate John Caden.
The facts are as follows:
On August 17, 1979, Dade County Detectives Robertson McGavock, John Facchiano, Lodi Wolf and Everett Titus were observing passenger activity at the National Airlines ticket counter in Miami International Airport. Detective McGavock had taken a place in the ticket line while the other detectives stood off to one side watching the queue. (Tr. 8-9).
During the surveillance, one person, later to be identified as the defendant in the instant case, attracted Mr. McGavock's attention. (Tr. 9). Carrying two black suitcases and a brown handbag, defendant had arrived on the line directly behind Mr. McGavock, and immediately began "scanning the lobby area ... looking very closely at each person that was seated or standing in ... the immediate area." (Tr. 10). This systematic "scanning" continued for the entire twenty minutes that defendant spent in the line. (Tr. 10).
Five minutes after defendant entered the line, Mr. McGavock stepped out of it to speak to Detective Facchiano about the defendant.
As this transpired, defendant fixed his gaze upon the two detectives and continued to watch as Mr. McGavock left Mr. Facchiano and moved to different locations within the immediate lobby area. (Tr. 11-12). Each time Mr. McGavock switched positions, the defendant kept him under attentive view, though if the detective looked at him, the defendant would endeavor to appear as if he were not looking at Mr. McGavock. (Tr. 12).
Defendant finally arrived at the head of the line, paid for his ticket in cash and checked his bags. In completing this last act, he turned and looked over his shoulder to scan the lobby once again, but, when Detective McGavock came into his view he stopped scanning and focused on the detective. (Tr. 13). Defendant then turned back to the counter, completed his transaction, and began walking toward Concourse F, the departure gate for National Airlines. (Tr. 14).
Mr. McGavock then moved quickly to the counter and spotted defendant's bags on the conveyer belt. He noticed that they were tagged for LaGuardia airport, to which a National flight was scheduled to depart at 12:40 P.M.
It is at this time that a curious ballet begins. After looking at the luggage on the conveyer belt, Mr. McGavock followed defendant as he made his way to Concourse F. Suddenly, the defendant turned and started walking back in the direction from which he had just come. As the two passed, Mr. McGavock continued on to another counter where he stopped to observe defendant. As he watched, defendant strode back to the lobby from where he had just come and walked a complete circle around the area, looking back over his shoulder continuously. (Tr. 16-17). Defendant then made his way back toward Concourse F but stopped en route to enter a men's restroom. (Tr. 17).
At that moment, Detective Facchiano rejoined Detective McGavock and told him that the name on the bags appeared to be Place. Not more than a minute passed before defendant came out of the restroom and began, once again, to make his way to Concourse F. The detectives followed and watched as defendant got into line to pass through the various security gates now common to all airports. (Tr. 18-19).
At this juncture, Detective Facchiano approached defendant and displayed his credentials. As he did so, Mr. McGavock met them and also displayed his credentials. A conversation ensued, the essentials of which, as testified to by Mr. McGavock, are reproduced here.
Detective Facchiano, in reply to defendant's question "was there anything wrong?" told defendant, "Sir, we have a big problem with contraband going out of here in the airport." Upon hearing this, defendant broke out into a sweat. (Tr. 19). Mr. Facchiano continued, "Sir, I was wondering whether you might show us some identification and your airline ticket." In response, defendant handed his ticket to the detective and rummaged through his brown handbag for his driver's license. Both the airline ticket and the New Jersey driver's license identified the defendant as Raymond Place. (Tr. 19-21).
As the conversation continued, it was made clear by the detectives that the "contraband" mentioned earlier was, in fact, narcotics. Defendant responded to this information by stating "Well, I don't use any stuff like that." (Tr. 21). Mr. Facchiano then asked, "Well, sir, it's nothing that you have to do but would you mind if we looked inside your suitcase." Defendant gave his consent, adding that he didn't have anything in them. (Tr. 21-22).
The two detectives looked at each other and then at their watches. The time was 12:35; defendant's flight was to leave at 12:40. Mr. Facchiano turned to the defendant and said, "Well, that's all right. Have a nice flight, Mr. Place." (Tr. 22).
Had nothing else occurred, defendant Place would probably not be in front of this Court, but defendant, as he walked back toward the security gates, turned to the detectives and said something to the effect of "Hey, I knew you guys were cops when I saw you down in the lobby." When the detectives asked him how many he had spotted, the defendant replied "Oh, four or five" and then left. (Tr. 22).
Detective McGavock then decided to look at defendant's baggage himself. He ran to the loading area and spotted the two bags on top of a cart. The name tags were apparently visible and on both of them was the name R. Place. The addresses on the tags, however, differed: the smaller of the two bore the address 1885 South Ocean Drive, Hallandale, Florida; the larger one had 1865 South Ocean Drive in the same city. (Tr. 24-25).
Mr. McGavock's next step was to check with National Airlines for a callback number on defendant Place's reservation. Upon obtaining that number, Mr. McGavock called the Police Department in Hallandale and asked them to check to see if the addresses existed and to see to what address the callback number belonged. Hallandale police advised Mr. McGavock that neither of the addresses existed
and that the telephone number was that for 1980 South Ocean Drive, Hallandale. (Tr. 25-27).
After completing this check, Mr. McGavock decided to call Drug Enforcement Agency officials in New York. He talked to DEA Special Agent Gerard Whitmore and relayed to him his observations, a description of Mr. Place, and the flight number and its time of arrival. (Tr. 27-28). Specifically, Mr. McGavock described defendant's scanning activities, his nervousness, the discrepancies on the baggage identification tags, the conversation with Mr. Place and the fact that the addresses did not exist. (Tr. 27-29).
The scene shifted to New York's LaGuardia Airport where Special Agents Whitmore and Iglesias awaited the arrival of Place's flight from Miami. With the aid of Mr. McGavock's description, the two agents observed the defendant deplane. (Tr. 75-76). As described by Agent Whitmore, the defendant was trying to keep up with another male, attempting to converse with him, and, at the same time, looking about the baggage area. (Tr. 76). Furthermore, as defendant walked down the terminal, he constantly looked behind him, and, at one point, he stopped, looked at people at the next gate, and then looked behind and around himself. (Tr. 77).
Observing this behavior and fearing that he might flee if he spotted them, the agents chose not to follow the defendant but went directly to the National baggage claim area. Defendant eventually made his way to the same area but stood outside the actual pick-up location looking at every person in the area. (Tr. 77-78). When the luggage arrived, defendant Place walked into the area, claimed his bags, and after a few minutes deliberation left the area. (Tr. 78-79).
The ballet, begun in Florida, now resumed in New York. Agent Whitmore began to follow defendant who walked down a corridor and then abruptly stopped, turned around and looked straight at the agent. (Tr. 82). To avoid the appearance of "tailing" defendant, Agent Whitmore walked by him and into a stairwell. The defendant then resumed walking down the corridor, this time with Agent Iglesias not far behind. (Tr. 82).
The defendant made his way to the TWA baggage claim area where he put down his bags and used the telephone apparently to call a limousine. At this point, Agent Whitmore decided to approach the defendant; he took out his credentials and identified himself as a Federal narcotics agent. (Tr. 83).
Defendant immediately remarked, "I knew you guys were cops. I spotted him (Iglesias) as soon as I got out of the plane." (Tr. 83). Agent Whitmore then informed defendant that the Dade County police had relayed some information about the defendant, and based on that and on Agent Iglesias' and his own observations Agent Whitmore said that he believed "There was a possibility that (defendant) was carrying narcotics." (Tr. 84).
After identifying the bags next to him as his own and asking the agents whether they actually believed he was carrying narcotics (to which Agent Whitmore said Yes), the defendant remarked that a gang of police surrounded him in Miami and searched his person and his bags and that he had been humiliated and embarrassed by these searches. (Tr. 84). The agents told defendant that their information was to the contrary to which defendant replied "I don't care what your understanding is my luggage and I were searched at the Miami Airport." (Tr. 85). After requesting and receiving defendant's airplane ticket and driver's license, (which Agent Iglesias took possession of in order to run a computer check on defendant), Agent Whitmore asked defendant to consent to a search of his luggage. Defendant apparently refused (Tr. 83) and was then told by Agent Whitmore that a search warrant would be sought to enable the agents to search his luggage and that the agents would detain his bags until a Federal judge had determined whether or not such warrant should issue. In addition, defendant was told that he was free to go, that he was not under arrest, but that he could accompany the agents and his baggage to the judge. (Tr. 88-89). Defendant declined to do so but, when Agent Whitmore was the sole agent present, he twice asked Agent Whitmore if there was "some way that we could arrange for him to leave with his luggage." (Tr. 91, 94).
Although not without some hysterics on Mr. Place's part (Tr. 93-94), the agents left LaGuardia with the bags and proceeded to Kennedy Airport where they subjected the bags to a "sniff search" by "Honey", a trained police dog. "Honey", in sniffing defendant's bags which had been intermingled with other pieces of luggage, reacted positively to the smaller bag and ambiguously to the larger. (Tr. 98). The following Monday, August 20, 1979, the agents presented these facts to United States Magistrate John Caden who issued a search warrant for the smaller bag only. (Tr. 100). Agent Whitmore then proceeded, in the presence of two other DEA agents, to search the smaller bag and discovered therein approximately 1125 grams of cocaine, the evidence which defendant now seeks to suppress.
In support of this motion, defendant argues that his Fourth Amendment rights were violated by the Dade County officers when they questioned him at Miami International Airport. It therefore follows, defendant reasons, that the subsequent action taken by DEA officials was tainted by the illegality of that encounter. He also argues that the questioning in LaGuardia was illegal, that the "sniff search" was improper, and that therefore the search of the bag was unlawful. The Government, on the other hand, contends that the initial questioning was neither a stop nor a seizure within the purview of the Fourth Amendment, or, in the alternative, that even if there was a "stop", the Dade County officers had a "reasonable suspicion" based on objective and articulable facts ...