United States v. Raymond J. Place

IRVING R. KAUFMAN, Circuit Judge,

dissenting:

The majority holds that the detention of Raymond Place’s cocaine-filled luggage, even if an investigatory stop were justified, constituted a violation of Place’s Fourth Amendment rights. It takes this position because it is of the opinion that a holding to the contrary would extend Terry “stops” into a general search warrant. 1 I cannot agree that the investigative stop of Place’s luggage was unreasonable within the meaning of Terry or that affirmance of the district court’s holding would produce an untenable result. Accordingly, I dissent.

The Fourth Amendment prohibits only those seizures which are “unreasonable.” Although searches conducted without prior judicial approval are considered “unreasonable,” Katz v. United States, 389 U.S. 347, 357 , 88 S.Ct. 507, 514 , 19 L.Ed.2d 576 (1967), Terry instructs that a law enforcement official may, in appropriate circumstances, detain a person to investigate possible criminal activity without possessing either warrant or probable cause to arrest. Terry v. Ohio, 392 U.S. 1, 22 , 88 S.Ct. 1868, 1880 , 20 L.Ed.2d 889 (1968). In assessing the propriety of these so-called Terry stops, courts must evaluate the scope of the particular intrusion. Id. at 17 n.15, 88 S.Ct. at 1877 n.15. See Reid v. Georgia, 448 U.S. 438 , 100 S.Ct. 2752 , 65 L.Ed.2d 890 (1980); United States v. Mendenhall, 446 U.S. 544 , 100 S.Ct. 1870 , 64 L.Ed.2d 497 (1980). Furthermore, in determining the intrusiveness of a stop, the governmental interest in deterring criminal conduct must be balanced against the individual’s constitutionally protected privacy. Terry v. Ohio, supra, 392 U.S. at 20-21 , 88 S.Ct. at 1879-1880 ; United States v. Brignoni-Ponce, 422 U.S. 873, 878 , 95 S.Ct. 2574, 2578 , 45 L.Ed.2d 607 (1975); United States v. Mendenhall, supra, 446 U.S. at 561 , 100 S.Ct. at 1881 (Powell, J. concurring).

I fail to see how the majority, after weighing the competing interests involved here, could conclude that the Terry-type stop amounted to a seizure in violation of Place’s Fourth Amendment rights. The public interest in holding the suitcase for a “sniff test” was compelling — detection of an individual who trafficks in drugs. See United States v. Mendenhall, supra, 446 U.S. at 561 , 100 S.Ct. at 1881 (Powell, J. concurring). Surely, the 1,125 grams of cocaine Place was carrying in his suitcase could not be regarded as an amount so *55 insignificant as not to warrant concern. In addition, if Place had been allowed to leave with his baggage, it is likely the evidence would have been destroyed. Indeed, just such a consideration forms part of the Supreme Court’s rationale for permitting a warrantless seizure in some instances involving automobiles. See United States v. Chadwick, 433 U.S. 1 , 97 S.Ct. 2476 , 53 L.Ed.2d 538 (1977); Chambers v. Maroney, 399 U.S. 42 , 90 S.Ct. 1975 , 26 L.Ed.2d 419 (1970).

Moreover, in answer to the agents’ questions, Place falsely claimed several times that both he and his luggage had been searched in Miami, refused to admit that he owned a valise which clearly belonged to him, and suggested that the agent abandon his law enforcement duties. Coupling Place’s behavior in the Miami and LaGuardia airports, conduct, we are told by experts, to be characteristic of a drug courier, with these responses reveals such a strong suspicion of illegal activity that the agents would have been remiss in their duty had they not detained Place’s bags.

The majority, however, finds that a less than two-hour detention of Place’s cocaine-filled luggage — not Place — outweighs even such a forceful governmental interest. Place, my brothers seem to deduce, suffered so great an inconvenience that his privacy interests were violated. I do not believe so. I must emphasize that this is not an instance of taking a person into custody, an event which must be supported by probable cause. See Dunaway v. New York, 442 U.S. 200 , 99 S.Ct. 2248 , 60 L.Ed.2d 824 (1979). Neither are we dealing with an actual search which must be grounded in probable cause. We merely must determine the propriety of detaining baggage. Furthermore, the majority seems to agree the investigatory stop of Place’s person could have been justified. If this is so, the reasoning underlying their greater concern for Place’s effects simply eludes me.

My brothers perhaps react so strongly not because the law calls for it, but because they are particularly offended by what they term the “high-handed procedure” of the agents. They fail to recollect that Place was offered the opportunity to accompany his bags. He refused, asserting he had pressing business elsewhere. Certainly Place may still have been inconvenienced had he gone with the agents, but the Supreme Court has suggested the appropriate alternative course of action to be followed: Place should simply have consented to a luggage search. See Arkansas v. Sanders, 442 U.S. 753 , 764 n.12, 99 S.Ct. 2586 , 2593 n.12, 61 L.Ed.2d 235 (1979). Instead, he asked whether an “arrangement,” a euphemism for a bribe, could be made so that he could leave with his suitcases. Moreover, inconvenience has never been the sole standard for delineating the reasonableness of an investigatory stop. Causing an automobile to pull over merely because of an erratic pattern of driving with a subsequent questioning of the driver and a search of the car’s interior has been held permissible by the Supreme Court. See Robbins v. California,-U.S.-, 101 S.Ct. 2841 , 69 L.Ed.2d 744 (U.S., 1981). Surely, this is a greater intrusion on an individual’s privacy and convenience than a brief detention of baggage.

The majority, moreover, ignores the critical difference between an individual’s privacy interests in the contents of his suitcases as distinguished from the suitcases themselves. In United States v. Chadwick, supra, 433 U.S. at 13 n.8, 97 S.Ct. at 2485 n.8, the Supreme Court explicitly distinguished between these two interests by stating that a person’s principal privacy interest lies not in the baggage itself, but in the contents. Accord, Arkansas v. Sanders, supra, 442 U.S. at 764, 99 S.Ct. at 2593 . A search of the interior of the suitcase, therefore, would have been much more intrusive than temporarily removing the bags from Place’s possession.

Similarly, while recognizing the importance of the privacy interest in first-class mail, the Court in Van Leeuwen stated that no Fourth Amendment interest was disturbed by delaying the forwarding of mail because the privacy interest was in the packages themselves; that privacy was pro *56 tected until the approval of a magistrate was obtained. United States v. Van Leeuwen, 397 U.S. 249, 253 , 90 S.Ct. 1029, 1033 , 25 L.Ed.2d 282 (1970). I am indeed aware of the possible difference between the privacy interest in packages placed in the mails and in luggage carried by an individual, a point the majority labors to emphasize. I do not, however, find such nebulous distinctions as persuasive as my brothers. 2 We are searching for principles to guide us by turning to Van Leeuwen , not minutiae, and it seems clear to me the Supreme Court’s counsel is applicable to suitcases as well as to mail. By applying the Court’s reasoning, the conclusion is inescapable that detaining Place’s luggage did not violate his privacy interest.

I would hold, on the facts presented to us here, that the temporary detention of Place’s luggage was a reasonable “stop” within the meaning of Terry . At the time the bags were detained there were objective and articulable facts to warrant the agents’ belief that Place’s bags contained contraband. This suspicion was based on the same conduct which justified the investigatory stop of Place’s person. I believe we make bad law today in holding that a valise cannot be detained under the circumstances here. This, it seems to me, totally ignores the unwarranted hurdles we are placing in the path of agents engaged in the difficult task of controlling the heavy traffic in drugs.

. One cannot quarrel with the notion that Terry stops, approved by the Supreme Court, expanded the law in a manner which some seem to find unsettling. The Supreme Court, however, ever mindful of the need to protect precious Fourth Amendment rights, safeguards them zealously. The Court, guided by the tenets of the Constitution, has thoroughly considered the constitutionality of Terry stops and has resolved the issue. Where the facts fit the Terry principles, I do believe lower courts consider the Supreme Court’s mandate the governing authority.

. I also remain unconvinced that decisions of other circuits which consider baggage detention a Terry stop are distinguishable. See United States v. West, 651 F.2d 71 (1st Cir. 1981); United States v. Viegas, 639 F.2d 42 (1st Cir.), cert, denied, 101 S.Ct. 2046 (1981); United States v. Klein, 626 F.2d 22 (7th Cir. 1980). The majority finds differences only through ignoring patent similarities with the situation here. My brothers, for instance, claim that the agents indicated Place’s luggage would be detained for an indefinite period. In Viegas , the agents’ comments could fairly be said to imply the same notion. See United States v. Viegas, supra, 639 F.2d at 44 . Furthermore, the argument for distinction is somewhat tenuous. How could it matter that the bags were moved to another location when the majority states that dispossession itself is the cardinal fault?