Opinion
Crim. No. 89-277.
September 14, 1989.
Steven J. Irwin, Asst. U.S. Atty., New Orleans, La., for plaintiff.
Maria I. O'Byrne Stephenson, (Simmons) New Orleans, La., Ferdinand J. Kleppner, Metairie, La., for Simmons.
Ralph Whalen, New Orleans, La., for Roser.
Before the court are the Motions of Defendants, Brent E. Roser and Robert Simmons, to Suppress Evidence. The United States of America opposes these Motions. The Motions were heard on Thursday, August 31, 1989.
FACTS
On October 22, 1987, Defendants Roser and Simmons arrived at New Orleans International Airport on an incoming flight from Los Angeles, California. Few other facts are uncontested. Roser and Simmons acknowledge that they were acquainted with one another, but deny that they were traveling together. Each testified that he did not know where the other was seated on the flight from Los Angeles, and both deny having had any contact with the other during the flight. Without elaborating, Simmons admits that their presence on the same flight was not merely coincidental. Roser testified that he consumed "three or four" alcoholic beverages during the flight, indicating that he drank both beer and vodka.
Roser and Simmons testified that they did not exit the aircraft together, nor did they proceed up the concourse together. Contradictory testimony of two Jefferson Parish Narcotics Officers, Agents Simone and Davis, suggests that Roser was visibly intoxicated and was physically assisted by Simmons as they proceeded up the concourse together. The Agents further testified that Simmons continually looked over his shoulder and appeared extremely nervous.
According to Agents Simone and Davis, as Roser and Simmons neared the top of the concourse, the Agents approached Roser and Simmons together and identified themselves as Jefferson Parish Police Officers. However, they did not immediately inform Roser and Simmons that they were narcotics agents. Simone and Davis testified that both Roser and Simmons agreed to answer their questions, and that Simone questioned Roser while Davis questioned Simmons. Simone testified that he and Roser were approximately five to ten feet away from Davis and Simmons and that all four had stepped to the side of the public concourse to avoid impeding the flow of passengers. Both Agents testified that their attention was drawn to Roser and Simmons because of Roser's visibly intoxicated condition and Simmons' extreme nervousness. They indicated that they had no other information which would lead them to suspect that Roser and Simmons were engaged in criminal activity.
Roser revealed to Simone that he had arrived from Los Angeles and was to paint a house in New Orleans. According to Simone, upon further inquiry, Roser indicated that he did not know whose house he was supposed to paint. At this point, Simone apparently informed to Roser that he was a narcotics agent, and he requested permission to search Roser's carry-on luggage. Roser admits that he consented to the search, but whether, as Simone testified, Roser knelt down and opened his luggage to facilitate the search and suggested that Simone could search anything he wanted to search is disputed. Nevertheless, because the search of Roser's luggage failed to yield contraband, Roser's actions here are significant only insofar as they tend to corroborate his willingness to cooperate with Simone.
Simone testified that after he completed the search of Roser's carry-on luggage, he stood up and noticed that Roser had "assumed a search position" on the wall of the public concourse, having raised his hands above his head and spread his feet apart. Understanding Roser to have consented to any type of search and interpreting Roser's action as an invitation to conduct a body search, Simone did so. His search yielded a large plastic bag containing cocaine, which Roser had concealed in the inside pocket of his sports jacket. Roser denies having assumed a "search position," or otherwise consenting to a body search.
Agent Davis testified that both he and Simmons were positioned close enough to Simone and Roser that they witnessed Simone remove the package of cocaine from Roser's jacket. Davis indicated that Simmons then became even more nervous and apprehensive, backed against the wall of the public concourse, closed the top of his jacket, and folded his arms tightly against his upper body. Davis proceeded to conduct a pat down search of Simmons, and he located an identically packaged quantity of cocaine in the inside pocket of Simmons' quilted jacket.
Simone and Davis testified that Roser and Simmons were then arrested and informed of their rights. Both agents testified that approximately five minutes elapsed from the time that they approached Roser and Simmons until the arrests were made. The Officers also indicated that two additional undercover Jefferson Parish Narcotics Agents were nearby, but that neither of these two identified himself to Roser and Simmons nor assisted Simone and Davis in questioning, searching, and arresting Roser and Simmons.
In conflict with the testimony of Agents Simone and Davis is the testimony of Roser and Simmons. Both suggest that Simmons was approximately twenty-five to thirty feet in front of Roser when each was approached separately by law enforcement officers. Each testified that they were initially approached by a single officer who was then joined by three to four additional officers. Both testified that they felt constrained and unable to leave, but neither indicated that they felt threatened, coerced, or intimidated. Roser testified that he told Agent Simone that he came to New Orleans to paint his father's garage.
DISCUSSION
The leading case in the Fifth Circuit on the interplay of airport drug investigations and the fourth amendment is United States v. Berry, 670 F.2d 583 (5th Cir. Unit B 1982) (en banc). In Berry, the court noted that the Supreme Court has recognized three distinct levels or tiers of police-citizen contact within the context of the fourth amendment. On the first level is mere communication between a citizen and an officer, involving no element of detention or coercion. This type of contact does not implicate the fourth amendment. On the second level are brief detentions or investigatory stops which must be supported by "reasonable suspicion" on the part of the detaining officer based on "specific and articulable facts which, taken together with rational inferences from these facts, reasonably warrant an intrusion." Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968). The third level consists of full scale arrests that involve the type of restrictions on liberty imposed by formal custody and, therefore, must be supported by probable cause. Berry, 670 F.2d at 591. The Fifth Circuit continues to subscribe to the analysis outlined in Berry. See United States v. Gonzales, 842 F.2d 748 (5th Cir. 1988).
In a lengthy opinion, the Berry court attempted to characterize the delicate balance that must be struck between Government and individual interests, and it stressed that the more intrusive the communication between the police and the citizen, the more likely that the encounter is a "seizure" which must be supported by reasonable suspicion. While the intricacies of the Fifth Circuit's decision in Berry need not be reiterated here, in accord with Berry the court employs the following analysis with regard to Defendants Roser and Simmons.
Ultimately, the court finds the testimony of Agents Simone and Davis more plausible than the testimony of Defendants Roser and Simmons. Regardless of Roser's proximity to Simmons when Agents Simone and Davis initially approached them, because the Agents' conduct did not involve coercion or detention, this initial encounter did not implicate the fourth amendment. The jurisprudence in the Fifth Circuit is well settled that a mere statement that a person is a law enforcement officer is not alone so coercive as to render an encounter between citizen and police a seizure. Gonzales, 842 F.2d at 751; see also Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983). It is undisputed that both Roser and Simmons voluntarily agreed to answer the Agents' questions. However, the sequence of events that followed the initial encounter must be analyzed separately for each Defendant.
The court concludes that the search of Roser is validly founded on Roser's consent. In reaching its conclusion, the court discredits Roser's testimony to the extent that it differs from the testimony of Agent Simone.
Roser agreed to answer Agent Simone's questions, and he indicated that he had arrived from Los Angeles. When questioned further, he responded that he was in New Orleans to paint a house, but then said he didn't know whose house he was supposed to paint. Only then did Agent Simone reveal that he was a narcotics agent, and he asked for permission to search Roser's carry-on luggage. Suggesting that Simone could search anything he wanted, Roser in fact assisted Agent Simone to perform the search by kneeling down and unzipping the luggage. Although this search failed to yield contraband, Roser's actions are relevant because they corroborate his willingness to cooperate with Agent Simone. Indeed, nothing leads the court to believe that Roser was uncooperative. When Agent Simone arose, he found that Roser had assumed a "search position" against the wall of the public concourse. This behavior being consistent with Roser's earlier statement that Simone could search anything he wanted, Simone accepted Roser's invitation to conduct a body search. Simone discovered and removed a large package of cocaine from an inside pocket of Roser's jacket.
The court finds that Roser voluntarily submitted to the body search conducted by Simone. The Fifth Circuit has outlined six primary factors for consideration in determining whether consent to a search is knowing and voluntary. Specifically, those factors are (1) the voluntariness of defendant's custodial status, (2) the presence of coercive police procedure, (3) the extent and level of the defendant's cooperation with the police, (4) the defendant's awareness of his right to refuse to consent, (5) the defendant's education and intelligence, and (6) the defendant's belief that no incriminating evidence will be found. Gonzales, 842 F.2d at 754; United States v. Ruigomez, 702 F.2d 61, 65 (5th Cir. 1983).
Here, Roser cooperated by answering Agent Simone's questions. When Roser testified, he did not once suggest that Simone threatened, coerced, or tricked him in any manner to obtain his consent. Roser completed high school and had no problems communicating with Simone. While Roser was not informed of his right to refuse to consent to a search, apprising the subject of the right to refuse consent is not required to render consent voluntary. Gonzales, 842 F.2d at 755; Berry, 670 F.2d at 598 n. 14. Finally, while Roser was certainly aware that incriminating evidence would be uncovered by a body search, this factor was not held dispositive in Gonzales, nor should it be dispositive here. The Fifth Circuit in Gonzales related that the key question regarding the validity of consent is "`not whether [the suspect] acted in her ultimate self-interest [by consenting to the search], but whether she acted voluntarily.'" Gonzales, 842 F.2d at 755 (citing Berry, 670 F.2d at 598 n. 16 (in turn quoting United States v. Mendenhall, 446 U.S. 544, 559, 100 S.Ct. 1870, 1879, 64 L.Ed.2d 497 (1980))). The court concludes that Roser's actions were voluntary and that his fourth amendment rights were not violated.
The court acknowledges the Fifth Circuit's conclusion in Gonzales, 842 F.2d at 752, that a mere communication may be transformed into a seizure within the ambit of the fourth amendment when a police officer reveals that he is "working narcotics." However, the circumstances that prompted the Gonzales court to conclude that a communication had been transformed into a seizure are not present here. Considering all the circumstances surrounding Agent Simone's encounter with Roser, the court concludes that Agent Simone's statement that he was a narcotics agent did not have the same implications as the officer's statement in the Gonzales scenario that he was "working narcotics." Therefore, the court finds that Agent Simone's encounter with Roser remained a mere communication that need not have been based upon reasonable suspicions. Consequently, the fruits of the body search to which Roser consented are admissible.
The court notes, however, that the Fifth Circuit has not always concluded that a seizure had occurred as soon as an officer revealed that he was a narcotics agent. See United States v. Setzer, 654 F.2d 354 (5th Cir. 1981). If a seizure has occurred, to be lawful it must be supported by reasonable suspicions. Absent reasonable suspicions, the fruits of a subsequent voluntary search may be inadmissible. The Gonzales court reasoned that this information implicitly could convey that the subject is a suspect in a drug investigation, and that knowing this a reasonable person would no longer feel free to leave.
In Gonzales, the officers who initially approached the defendant first told her that they were with the DEA. Compared to the defendant's diminutive stature, both DEA officers stood over six feet tall, one weighing 280 pounds, the other weighing 175 pounds. Moreover, when the officers approached, the defendant was the only person in the baggage area "and was standing near a corner and a bank of telephones." Gonzales, 842 F.2d at 750. Certainly, Gonzales' encounter was more confrontational than Roser's. The Gonzales court obviously found these factors significant, and so too does this court.
This court need not decide whether Simone in fact had reasonable suspicions to justify a seizure of Roser.
Nonetheless, the court does not rely solely on its finding that Roser consented to be searched. An equally valid ground upon which to justify the search is that at all times after their attention was drawn to Roser, Agents Simone and Davis had probable cause to arrest Roser for disturbing the peace. While Roser was not charged with this offense, nor, perhaps, were the officers solely motivated to stop him because of his visible intoxication, the existence of probable cause is in no way diminished. See United States v. Causey, 834 F.2d 1179, 1181-83 (5th Cir. 1987) (en banc). Thus, at all times during his encounter with Roser, Agent Simone had the right to conduct a body search of Roser incident to a lawful arrest even though he had not informed Roser that he was under arrest nor informed Roser of his Miranda rights. See United States v. Setzer, 654 F.2d 354 (5th Cir. 1981).
La.Rev.Stat.Ann. § 14:103 provides in part that appearing in an intoxicated condition in such a manner as would foreseeably disturb or alarm the public constitutes disturbing the peace for which the offender shall be fined not more than $100.00 or imprisoned for not more than ninety days, or both.
For all the foregoing reasons, the court concludes that Roser's fourth amendment rights were not violated and that the evidence sought to be suppressed was properly seized.
Turning now to Defendant Simmons, the court concludes that Simmons' reaction upon seeing the package of cocaine discovered on Defendant Roser supplied Agent Davis with the reasonable suspicion necessary to justify an involuntary detention of brief duration. At this point, the information known by Agent Davis was that Simmons had arrived from a known source city for narcotics, that he and Roser deplaned and proceeded up the concourse together, that he appeared extremely nervous and watchful, that his nervousness was heightened when he saw the package of cocaine seized from Defendant Roser, and that he then backed against the wall of the public concourse, zipped up his jacket, and folded his arms tightly against his body. Incident to a stop based on reasonable suspicion, Agent Davis then had the right to conduct a pat down search of Simmons. Considering the bulky nature of the package of cocaine detected on Simmons, the court concludes that it was not inconceivable to think that the package was a weapon. Therefore, Agent Davis' retrieval of the package of cocaine was consistent with the purposes of a Terry search. Moreover, the court also finds that at the moment Agent Davis felt the bulky package on the inside of Simmons' jacket, he then had probable cause to arrest Simmons, which in turn conferred the right to conduct a full body search. Thus, the court holds that Simmons' fourth amendment rights were not violated and that the evidence sought to be suppressed was properly obtained.