United States v. James Gooding

WIDENER, Circuit Judge,

dissenting:

I think the majority makes far too much of the district court’s use of the word “Terry” in its brief opinion. All the district court said about the matter at hand in its one page written opinion was: “The Terry stop, questioning and subsequent arrest of the defendant at the National Airport by the narcotics agents was lawful.... ” If the court had said the Mendenhall 1 stop, then I take it the result in this case would have been the opposite.

I think the use of the word “Terry” by the district court was nothing more than inadvertent, and I cannot read into the simple clause I have quoted above a “factual determination that there was such a [Terry] seizure.” Neither can I read into the record a basis for the assumption by the majority that the district court applied and rejected the “not free to leave” test of Mendenhall by the mere fact that the government relied on that case. Indeed, during the suppression hearing, the district court again referred to “Terry” just before it said, obviously referring to the defendant, as well as other narcotics couriers, “... all he had to do was say, ‘Bye bye,’ you know and the officer can’t stop him from going out.” Can this be other than a factual finding that the defendant was free to leave at any time during the initial questioning?

The facts upon which the plurality opinion of Justice Stewart in Mendenhall found that there had been no constitutional intrusion when the defendant was free to leave, and upon which the concurring opinion of Justice Powell held that the officers possessed reasonable and articulable suspicion of criminal activity, were not significantly different from the facts here. In Mendenhall the defendant was arriving on a flight from Los Angeles, a city of origin for heroin (here it was New York); the Mendenhall defendant was the last person to leave the plane (here the defendant was dressed in casual clothes on a flight usually filled with passengers wearing business suits); the defendant in Mendenhall “ ‘appeared to be very nervous’ ” as this defendant was “nervous, suspicious;” the defendant in Mendenhall completely scanned the whole area where the agents were standing, while this defendant looked up and down the corridors of the concourse and made a telephone call, getting angry and distraught over someone’s not answering; and the Mendenhall defendant proceeded past the baggage area without claiming any luggage, while this defendant made two other telephone calls, ate' a meal, and then walked past the taxicab and limousine stand, headed toward other public transportation. 446 U.S. 544, n. 1 , 100 S.Ct. at 1873, n. 1 .

The approach of the officers in each case was the same. It was in public view and not rude or overpowering. Nothing in the officer’s approach here, as in Mendenhall, even suggested that the defendant was not free to leave at any time. Because the defendant was free to leave, I would affirm the district court on the basis of the plurality opinion in Mendenhall, but if that would not suffice, I note that this defendant acted just as suspicious as the defendant in Mendenhall, for which activities the concurring opinion in Mendenhall found a reasonable and articulable suspicion of criminal activity-

Certainly if the officers in this case had walked up to the defendant and said only “Sir, we are investigating narcotics traffic between New York and Washington and request that you consent to a search of your luggage,” a consent which followed would have been valid. I see no reason to distinguish this case because of the preliminary question requiring identification.

I would thus affirm. 2

. United States v. Mendenhall, 446 U.S. 544 , 100 S.Ct. 1870 , 64 L.Ed.2d 497 (1979).

. The recent case of United States v. Black, 675 F.2d 129 (7th Cir.1982), sustained a conviction on facts not significantly different from those *86 at hand. Black pointed out there are three kinds of fourth amendment intrusion. The first is an arrest which must be justified by probable cause. The second is an investigatory stop which includes a detention of the person. This second type stop requires a reasonable and articulable suspicion that the person stopped has committed or is committing a crime. The third category is that in which there is no restraint of the liberty of the person involved, but his voluntary cooperation is elicited through non-coercive questioning. This third type of stop does not rise to the level of seizure of the person if the person is free to leave under the plurality opinion of Justice Stewart in Mendenhall .