United States v. Maria Vasquez

IRVING R. KAUFMAN, Chief Judge

(concurring):

I concur in Judge Meskill’s thorough opinion. In light of my brother Oakes’s dissent, however, I add a few words to clarify my views in this difficult area. Our disagreement lies not in our mutual concern for fundamental rights of privacy, but rather in the extent to which our prior cases preclude, at least temporarily, reconsideration of the principles that undergird them.

The Fourth Amendment, on its face, prohibits only those searches and seizures that are “unreasonable.” Courts, therefore, must undertake the “difficult task” of translating this “abstract prohibition . into workable guidelines for the decision of particular cases.” Camara v. Municipal Court, 387 U.S. 523, 528 , 87 S.Ct. 1727, 1730 , 18 L.Ed.2d 930 (1967). Thankfully, our struggle to divine the limits of reason in concrete cases is rendered less onerous by the basic precept that “searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable.” Katz v. United States, 389 U.S. 347, 357 , 88 S.Ct. 507, 514 , 19 L.Ed.2d 576 (1967).

Nevertheless, in Terry v. Ohio, 392 U.S. 1, 22 , 88 S.Ct. 1868, 1880 , 20 L.Ed.2d 889 (1968), Chief Justice Warren wrote for the Court that in “appropriate circumstances and in an appropriate manner,” a law enforcement official may “approach a person for purposes of investigating possible criminal behavior,” armed with neither warrant nor probable cause to arrest. Despite the obvious utility of these so-called Terry stops to effective law enforcement, the Chief Justice emphasized that in adjudicating their propriety, courts must “make the scope of the particular intrusion ... a central element in the analysis of reasonableness.” Id. at 18 n.15, 88 S.Ct. at 1878. Based on Terry , therefore, the Supreme Court has consistently reiterated that a “brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information,” Adams v. Williams, 407 U.S. 143, 146 , 92 S.Ct. 1921, 1923 , 32 L.Ed.2d 612 (1972), satisfies the Fourth Amendment if “the facts available to the officer at the moment of the seizure or the search ‘warrant a man of reasonable caution in the belief’ that the action taken was appropriate.” Terry, supra, 392 U.S. at 21-22 , 88 S.Ct. at 1880 . Accord, United States v. Brignoni Ponce, 422 U.S. 873, 880 , 95 S.Ct. 2574 , 45 L.Ed.2d 607 (1975).

Terry and its progeny, as Judge Oakes cogently argues, threatened to unlock, a Pandora’s Box by permitting police officers *1348 to “seize” citizens without the dual safeguards of a warrant and probable cause. But Teriy itself limited the potential abuse inherent in a grant of broad discretion to law enforcement officials by requiring that a police officer “be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant” the intrusion at issue. Terry, supra, 392 U.S. at 21 , 88 S.Ct. at 1880 . In this manner, the Supreme Court apparently believed, judges could discern impermissible actions not based on “reasonable” suspicion.

The plethora of airport-search cases decided by this court have relied on these teachings of Terry. See, e.g., United States v. Vasquez-Santiago, 602 F.2d 1069 (2d Cir. 1979); United States v. Price, 599 F.2d 494 (2d Cir. 1979); United States v. Rico, 594 F.2d 320 (2d Cir. 1979); United States v. Riquelmy, 572 F.2d 947 (2d Cir. 1978); United States v. Oates, 560 F.2d 45 (2d Cir. 1977); United States v. Magda, 547 F.2d 756 (2d Cir. 1976). The modus operandi in these cases is that agents of the Drug Enforcement Administration (DEA) stop individuals disembarking from incoming domestic flights and ask them for identification and a few questions concerning their presence in the airport. To justify even these limited intrusions, we have required DEA agents to state the “specific and articulable” facts mandated by Terry . To be sure, the agents’ recitations have taken on a familiar ring — “source” cities, darting eyes, twisting heads and bodies, nervous demeanor, etc. But although it has not gone without notice that the vast majority of these “suspects” have been of Hispanic ancestry, our prior cases, grounded firmly in Terry , have held that this disturbing factor is effectively counterbalanced by the ability of DEA agents to articulate specific facts that render their suspicions reasonable.

Thus, I do not suppose that any of us would have been troubled by this case were it not for Dunaway v. New York, 442 U.S. 200 , 99 S.Ct. 2248 , 60 L.Ed.2d 824 (1979). In Dunaway , the Court intimated that Terry has been interpreted too generously. Mr. Justice Brennan suggested, though by no means expressly, that Terry may be limited to its specific facts and thus confined to a protective search for weapons. See id. at 210, 99 S.Ct. 2255 . Nevertheless, the opinion also contains passages indicating the continued validity of minimally intrusive stops in a variety of settings. Id. Thus, although I sympathize with Judge Oakes’s view that Dunaway invites reconsideration of our airport-search cases, I am constrained to abide by established precedent and leave that leap to a higher court. Indeed, this issue, may soon be resolved in United States v. Mendenhall, 596 F.2d 706 (6th Cir. 1979) (en banc), cert. granted, - U.S. -, 100 S.Ct. 113 , 62 L.Ed.2d 73 (1979), the first airport-search case to reach the high court. I am hopeful that the justices will illuminate the contrary dicta of Dunaway , and thus signal the proper resolution of future cases. For the moment, I am satisfied that Terry retains sufficient force to warrant its application in the instant case. I therefore join in my brother Meskill’s opinion.