United States v. Harlan Waksal, 709 F.2d 653, 11th Cir. (1983)
United States v. Harlan Waksal, 709 F.2d 653, 11th Cir. (1983)
2d 653
The sheriffs stopped appellant and his companion as they exited the ticket area.
The agents, who were non-uniformed, identified themselves by voice and by
showing their badges and identification cards. It is undisputed that the agents
did not touch appellant, nor did they display firearms. The sheriffs asked
appellant for identification and his ticket, whereupon appellant produced an
Ohio driver's license and a one-way ticket to Boston; upon request for
clarification, appellant explained he was a doctor traveling back to where he
practiced in Boston.
Officer Capone then explained that he and Officer Carl were narcotics agents
seeking public cooperation in combatting the drug problem in South Florida and
requested to inspect appellant's luggage. Appellant repeated that he was a
doctor traveling to Boston and that he did not understand the problem, Capone
replied that there was no problem, but that he still desired to examine Waksal's
carry-on baggage. Waksal then said something akin to, "Go ahead and look,"
whereupon the officers asked if appellant would accompany them to a small
room near the baggage area. Appellant said, "Okay."
Officer Capone then left to arrange transportation for appellant to the police
station, at which point appellant engaged Officer Carl in conversation.
Apparently appellant asked what would have been done had he not consented to
the search or had he refused to stop and speak with the officers. Officer Carl
claims not to have responded to this question until appellant repeated it in the
police station. Officer Carl then answered that the sheriffs could have called
ahead to the Drug Enforcement Administration ("DEA") in Boston, or could
have used a narcotics-detecting dog to sniff the bags in order to establish
probable cause to obtain a search warrant.4
7
The district court found that Waksal was not "seized," within the meaning of
the Fourth Amendment, during his encounter with the police in the airport
ticket area. The court further found that appellant voluntarily accompanied the
sheriffs to the back room and consented to the search of his baggage; therefore,
the court found traditional Fourth Amendment concerns posed by a warrantless
search and seizure were never invoked. The United States urges on appeal that
appellant's contact with the officers, due to its voluntary nature, falls wholly
without the concerns of the Fourth Amendment. Appellant, on the contrary,
claims that the encounter at the airport resulted in an illegal detention under the
Fourth Amendment and an impermissible search.
10
We must determine whether appellant's encounter with the police violated the
strictures of the Fourth Amendment that, "[t]he right of the people to be secure
in their persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated...." This task is simplified by the government's
concession that Officers Capone and Carl did not possess the requisite
"reasonable suspicion" to justify a "seizure" under the Fourth Amendment. We
limit our consideration to whether appellant's encounter with the officers
constituted a Fourth Amendment "seizure," either in the nature of a stop or an
arrest. 5 If we determine that a seizure occurred, we must face the question of
whether appellant's consent to the subsequent search vitiated any illegalities
stemming from the improper police conduct.
2. General Fourth Amendment Jurisprudence
11
12
Obviously,
not all personal intercourse between policemen and citizens involves
"seizures" of persons. Only when the officer, by means of physical force or show of
authority, has in some way restrained the liberty of a citizen may we conclude that a
"seizure" has occurred.
13
14
15
17
On the other hand, several factors may indicate police conduct so coercive that
a reasonable person, regardless of the overt indications of his or her will, would
not feel free to ignore police questioning and simply walk away.11 Among the
more significant of these factors, according to the Berry court, are whether the
police: physically block an individual's path; place implicit restraints on a
citizen's freedom by retaining his or her ticket for more than a minimal amount
of time or by taking the ticket over to an airline ticket counter; intimate that an
investigation has focused on an individual; or indicate that a failure to respond
to questioning or a request to search suggests guilt. Berry, 670 F.2d at 597.
18
In Berry, a DEA agent stopped Berry as he was taking luggage to a taxi on the
basis of Berry's nervousness and a recognition of his face. Berry and his
companion gave false names to the agent. The DEA agent asked Berry and his
companion if they were carrying drugs, to which they said they were not. The
agent then secured Berry's consent to accompany him to the DEA office. In the
office, the agent informed Berry of his right to decline to consent to a search
and invited Berry to contact an attorney. Berry agreed to be searched, and
illegal drugs were found. The Court found on the facts that the initial contact
was not a search, but that the defendants' "forced walk" with DEA agents to an
office off the main airport concourse was "tantamount to an arrest." Id. at 602.
The Court reasoned that the trip to the office was substantially similar to the
To the extent the analysis of airport stops in Berry may be classified as dictum,
the principles espoused have become firmly embedded as precedent by
subsequent decisions of this Circuit. See, e.g., United States v. Elsoffer, 671
F.2d 1294 (11th Cir.1982); United States v. Robinson, 690 F.2d 869 (11th
Cir.1982). In addition, the recent decision of the Supreme Court in Florida v.
Royer, --- U.S. ----, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983), affirms the
correctness of the Berry Court's analysis. In Royer, the defendant met several
characteristics of the drug courier profile, including travel from a source to a
destination city, use of an assumed name, and the carrying of large quantities of
solid luggage. After initial questioning, the defendant was asked to accompany
two detectives to a small back room. The detectives retained his driver's license
and airline ticket and, without Royer's consent, retrieved his luggage from the
airline and brought it to the room. The detectives never indicated that Royer
was free to depart. A plurality of the Court held that Royer at first was seized
under the Fourth Amendment during questions in the airport concourse, and
that later, as a practical matter, Royer became subject to arrest in the back
room. Absent probable cause, his consent was tainted by this illegality and thus
failed to justify the search. Id., --- U.S., at ---- - ----, 103 S.Ct., at 1326-29, 75
L.Ed.2d at 239-43. (White, J., joined by Marshall, Powell, and Stevens, JJ.).
The plurality in Royer also made clear that the state has the burden of proving
that a suspect's consent was freely and voluntarily given. Id. --- U.S. at ----, 103
S.Ct. at 1322, 75 L.Ed.2d at 234.13
3. Analysis
20
a. Seizure
21
Appellant contends that three aspects of the police conduct particularly indicate
the unduly coercive nature of the initial stop. First, he claims that his exit from
the airline ticket area was physically blocked by the officers. Second, he
alleges that the police intimated that an investigation had focused exclusively
on him; Waksal notes especially the use of a harsh tone of voice and also
claims that the officers stated they were "conducting an investigation." Third,
appellant argues that the retention by the police of his ticket and license during
the interrogation did not lead him to believe he was free to leave.
23
The first two of appellant's contentions are without merit. There is no credible
evidence that the officers blocked appellant's way. They did not touch
appellant, nor did they display firearms. They merely identified themselves as
police authorities by displaying their badges and did nothing unusual or
objectionable to gain appellant's attention. Nor did the sheriffs suggest that an
investigation had focused exclusively on the appellant. Nothing supports the
claim that the agents used a harsh tone of voice. The officers carefully chose
non-coercive language in asking for appellant's help in combatting the drug
smuggling problem in the region. They did not even ask appellant if he was
hiding drugs in his bags or on his person.
24
However, appellant's third contention, that the officers failed to return his ticket
and license until after Waksal had already consented to accompany them to the
nearby office, persuasively indicates an encounter that had progressed beyond
truly voluntary police-citizen contact. While obviously not decisive under a
totality of the circumstances test, this factor is nevertheless highly material in
analyzing the coerciveness of the police conduct. We fail to see how appellant
could have felt free to walk away from police officers when they still possessed
the documents necessary for him to continue his journey. The police action
necessarily leads us to question the voluntariness of Waksal's consent to
accompany the agents to the office and the resulting search.
25
In United States v. Elsoffer, 671 F.2d 1294 (11th Cir.1982), this Court found
that the retention of a suspect's ticket and license strongly suggested that
Elsoffer was not free to walk away from the police. The Court stated:
26
In particular, the [Berry ] court noted that retaining an individual's ticket for
more than a minimal amount of time might well tip the balance in favor of
Elsoffer, 671 F.2d at 1297. This reasoning is persuasive in the instant action.
28
The depth of the Elsoffer Court's concern over this factor showing coerciveness
is demonstrated by the dictum offered in the following footnote:
29
We note that our holding [of a seizure prior to the request to go to the lounge]
would not differ even if the record was clear in showing that the agents had
returned Elsoffer's documents before asking him whether he would consent to a
search or go to a lounge. We do not believe that after a return of the documents
retained during interrogation, followed by requests to consent to a search and
go to an office, an individual would feel that his detention had ended.
30
31
This factor was also cited as significant in United States v. Robinson, 690 F.2d
869 (11th Cir.1982). In that case, police officers had stopped a citizen and
retained his ticket and driver's license while securing consent to go to another
room to conduct a search. Just as in the instant case, the police officer returned
the ticket before the actual trip to the back room. The Court noted that these
particular facts played an important part in its finding of a seizure. Id. at 875.
The Court stated that the agent's "holding [Robinson's] license and ticket he
needed for his flight to Birmingham would 'strongly indicate that a reasonable
person would believe his freedom restrained.' " Id. at 877, quoting Berry, 670
F.2d at 603, n. 26 (footnote omitted). The Berry court also recognized the
importance of this factor in an analysis of the Mendenhall test. See Berry, 670
F.2d at 597.14
32
33
34
35
The only issue remaining for our determination is whether the cocaine obtained
during the offending seizure should have been suppressed at trial. Ordinarily,
evidence secured by the exploitation of the illegality of a search or seizure is
"the tainted fruit of a poisonous tree" and is not admissible at trial. See
generally, Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d
441 (1963); Dunaway, 442 U.S. at 218-19, 99 S.Ct. at 2259-60 (statements
given during a period of illegal detention are inadmissible even though
voluntarily given if they are the products of the illegal detention and not the
result of an independent act of free will). However, evidence seized through the
exploitation of an illegality becomes admissible upon "proof both that the
consent was voluntary and that it was not the product of the illegal detention."
Berry, 670 F.2d at 604. See also Brown v. Illinois, 422 U.S. 590, 601-602, 95
S.Ct. 2254, 2261, 45 L.Ed.2d 416 (1975) (Wong Sun requires not merely that a
statement meets the Fifth Amendment voluntariness standard but that it be
"sufficiently an act of free will to purge the primary taint" in light of the distinct
policies and interests of the Fourth Amendment). The second prong of the
required proof concerns the attenuation of the illegality. Factors to be
considered in this inquiry are: "(a) the temporal proximity of the arrest and the
consent to the search, (b) intervening circumstances, and (c) the purpose and
flagrancy of the official misconduct. Taylor v. Alabama, --- U.S. ----, 102 S.Ct.
2664, 73 L.Ed.2d 314 (1982); Dunaway v. New York, 442 U.S. 200, 218, 99
S.Ct. 2248, 2254, 60 L.Ed.2d 824 (1979); Brown v. Illinois, 422 U.S. 590, 60304, 95 S.Ct. 2254, 2261-62, 45 L.Ed.2d 416 (1975); Berry, 670 F.2d at 604-05;
U.S. v. Robinson, 625 F.2d at 1219-20." United States v. Robinson, 690 F.2d
869, 877 (11th Cir.1982). 17
36
37
REVERSED.
The "drug courier profile" was developed by the Drug Enforcement Agency to
aid agents in spotting those carrying illegal drugs at airports. While the specific
characteristics for which an agent is on the lookout vary from airport to airport,
the basic concept underlying all profiles is the same. Drug couriers more often
The record fails to indicate whether Capone also returned appellant's personal
identification at this point. If Capone indeed failed to return the identification
until even later, appellant's argument is strengthened. Appellant, however, fails
to assert this point and we do not find it critical one way or the other. The
threshold point upon which we focus is the request that appellant consent to a
search while the sheriffs retained his ticket and identification
Appellant forwards a version of the facts in which he claims to have asked this
question of his alternatives before consenting to the search, while still in the
airport ticket area. He claims he stated that the officers' response left him with
little choice but to consent. He alleges the officers agreed he had no choice but
to consent. Appellant's version of the events, and the fact that an assistant state
attorney refused to prosecute the case because he was persuaded by this
account, is immaterial to this panel on review, because the facts must be
construed in the light most favorable to the government, United States v.
Glasser, 315 U.S. 60, 80, 62 S.Ct. 457, 459, 86 L.Ed. 860 (1942); United States
v. Troutman, 590 F.2d 604, 606 (5th Cir.1979), and because the district court's
credibility choices are binding upon this Court absent clear error. See United
States v. Bowles, 625 F.2d 526, 536-37 (5th Cir.1980). Included among those
findings reversable only if clearly erroneous is the district court's determination
of appellant's voluntary consent to the ensuing search. Id
The term "seizure" throughout this opinion is used to mean any police-citizen
encounter invoking Fourth Amendment protections, without specifying the
level of those protections
Terry involved the warrantless stop and frisk of people on the street whom an
experienced police officer believed, solely from their suspicious actions, were
about to rob a store. The court upheld the procedure, making clear that a
requirement of less than probable cause may be acceptable to justify a short
detention. However, the court cautioned that, "the scope of [a] search must be
strictly tied to and justified by the circumstances which rendered its initiation
permissible." Id., 392 U.S. at 19, 88 S.Ct. at 1878. Thus, a stop conceivably
could extend to confirming or denying an officer's reasonable suspicion by
asking a simple question or two and to frisking a suspect for weapons if the
policeman reasonably believed his or her life was threatened, or the stop could
extend to maintaining the status quo by securing an identification if the subject
of an officer's reasonable suspicion was perhaps about to get away
Terry has been applied as well to stops merely for investigative purposes.
Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972)
"Probable cause exists where the facts and circumstances within [the officers']
knowledge and of which they had reasonably trustworthy information [are]
sufficient to warrant a man of reasonable caution in the belief that 'an offense
has been or is being committed [by the person to be arrested].' " Brinegar v.
United States, 338 U.S. 160, 175-76, 69 S.Ct. 1302, 1310-11, 93 L.Ed. 1879
(1949), quoting Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288,
69 L.Ed. 543 (1925). Also see Dunaway v. New York, 442 U.S. 200, 99 S.Ct.
2248, 60 L.Ed.2d 824 (1979)
In Stein v. Reynolds Securities, Inc., 667 F.2d 33, 34 (11th Cir.1982), this
Court adopted as binding precedent all the post-September 30, 1981, decisions
of the full bench of the former Fifth Circuit or of Unit B
10
See Berry, 670 F.2d at 591-92. Terry also failed to reach the issue of whether
the initial stop, comprising only questions, before the suspect was spun around
and patted down, constituted a Fourth Amendment seizure. The Terry Court's
failure to address this question may explain in part why Mendenhall likewise
did not provide a conclusive resolution of this issue
11
The Supreme Court has indicated that a court must go behind a reported verbal
consent to determine if consent was truly voluntary under all the circumstances,
for acquiesence may not substitute for free consent. See, e.g., Bumper v. North
Carolina, 391 U.S. 543, 548-49, 88 S.Ct. 1788, 1791-92, 20 L.Ed.2d 797 (1968)
12
The Supreme Court found that the receipt of Miranda warnings by Dunaway
did not cure the unconstitutionality of his detention. Dunaway, 442 U.S. at 217,
99 S.Ct. at 2259
13
14
Mendenhall, in which the Supreme Court found there was no seizure on the
facts, 446 U.S. at 555, 100 S.Ct. at 1877-78 presented a less compelling case
for elevating the importance of this factor than does the instant action. In
Mendenhall, the DEA agents returned the petitioner's ticket before she was
asked to go to the DEA office. In addition, Mendenhall was told explicitly that
she had the right to decline the search
Other circuits have also identified the retention of documents beyond the
interval required for an appropriate brief scrutiny as a "watershed point" in the
seizure question. See United States v. Viegas, 639 F.2d 42, 44 n. 3 (1st Cir.),
reh. denied, 451 U.S. 970, 101 S.Ct. 2046, 68 L.Ed.2d 348 (1981); United
States v. Black, 675 F.2d 129, 140 (7th Cir.1982). Also see Mendenhall, 446
U.S. at 570 n. 3, 100 S.Ct. at 1885 n. 3 (White, J., dissenting) ("It is doubtful
that any reasonable person about to board a plane would feel free to leave when
law enforcement officers have her plane ticket.").
15
See also United States v. Phillips, 664 F.2d 971, 1023-24 (5th Cir.1981), cert.
denied, --- U.S. ----, 102 S.Ct. 2965, 73 L.Ed.2d 1354 (1982)
16
The government argues that Waksal was trying to bluff his way through a
difficult situation by asserting that he was a doctor, under the belief that one of
We note that the factors relevant to the consent inquiry are quite similar to
those relevant to the seizure inquiry discussed above. See Robinson, 690 F.2d at
876, n. 5. Also see Royer, --- U.S. at ----, 103 S.Ct. at 1326, 75 L.Ed.2d at 239
(upon going to the back room, the consent given by Royer evaporated, leaving
him as a practical matter under arrest). We also note that an appellate court may
consider suppression based upon the taint of an illegality where there is no
district court finding but where there is a sufficiently developed factual record,
as in this case. See Brown v. Illinois, 422 U.S. at 604, 95 S.Ct. at 2262
18