United States v. Bisram Sugrim

OAKES, Circuit Judge

(dissenting):

This is yet another case of extending Terry stops 1 to situations never envisaged by the “narrow” exception to the probable cause requirement carved out by that case. As continuously extended, the Terry exception swallows up the Fourth Amendment, a *31 danger to which I have previously alluded in connection with, e.g., airport stops, United States v. Vasquez, 612 F.2d 1338, 1349 (2d Cir.1979) (dissenting opinion), cert. denied, 447 U.S. 907 , 100 S.Ct. 2991 , 64 L.Ed.2d 857 (1980), and searches on the high seas, United States v. Streifel, 665 F.2d 414, 425-26 (2d Cir.1981), (dissenting opinion). As pointed out in Streifel , this wholesale extension of Terry to cover cases in which there is not probable cause, but in which there is a course of organized police conduct (here roving patrols of the Buffalo, N.Y., bus terminal) is simply inconsistent with the Supreme Court’s position in Dunaway v. New York, 442 U.S. 200, 210 , 99 S.Ct. 2248, 2255 , 60 L.Ed.2d 824 (1979), that “[bjecause Terry involved an exception to the general rule requiring probable cause, this Court has been careful to maintain its narrow scope. Terry itself involved a limited, on-the-street frisk for weapons.” The fears I expressed in Vasquez to the effect that “[i]f airports can support special police conduct, why not other public places — bus terminals, railroad stations, subway stops, restaurants, bars?,” are obviously in danger of being transformed from apprehensions to realities at the cost of serious erosion to the Fourth Amendment. 2

Even while conceding that this case involves a roving patrol, see Almeida-Sanchez v. United States, 413 U.S. 266, 268 , 93 S.Ct. 2535, 2537 , 37 L.Ed.2d 596 (1973), the majority opinion seeks to avoid the impact of the Supreme Court’s decided cases by arguing that this was “not a full blown search and seizure requiring probable cause, but rather a brief detention,” opinion at 29, thus calling for application of the standard announced in United States v. Brignoni-Ponce, 422 U.S. 873, 881, 884 , 95 S.Ct. 2574, 2581 , 45 L.Ed.2d 607 (1975). This might have been true up until the time that the officers asked Sugrim and his sister to step into the small interview room. But at that time, though our record tells us all too little about it, the recent case of Florida v. Royer, 460 U.S. 491, 497 , 103 S.Ct. 1319, 1326 , 75 L.Ed.2d 229 (1983), seems to compel a finding that there was a seizure, though as to whether it could or should be characterized as “full blown” in the majority’s language I venture no opinion. Once this fact is recognized, our case of United States v. Barbera, 514 F.2d 294 (2d Cir.1975), clearly controls, and requires that we find the agents’ actions constitutionally impermissible.

To arrive at the conclusion that there was a seizure, I have to postulate that the INS agents identified themselves by badge or card and that Sugrim and his sister (who was carrying $31,000 in cash in her purse) did not just willy nilly step into a little *32 room at the bus terminal with two perfect strangers. This assumption, it seems to me, hardly taxes one’s imagination. By then it is clear that Sugrim himself had been asked where he was from, whether he was a United States citizen, where his green card was, and where he had come from and where he was going. His sister had been asked similar questions. Sugrim might even have supposed — this would also not have required a great leap of thought— that these were government agents who were detaining him and his sister when they asked the two to accompany them to the small interview room.

To be sure we do not know how long Sugrim and his sister were detained. Nor do we know the furnishings of the room, what the officers said in the room or other surrounding circumstances, perhaps helpful to this point. See Florida v. Royer, 103 S.Ct. at 1326 . We do, however, know three things — first, that at some point agent Du-bay had gone out and taken a look into the windows of Sugrim’s van; second, that Sugrim, accompanied by one of the agents, subsequently went out to the van and brought back to the officers a travel bag containing what the government terms a large quantity of cocaine; and third, that computer checks were run on Sugrim’s sister while all this was going on. From the combination of these facts we can surmise that the officers suspected that Sugrim had something in his travel bag and that something was not an illegal alien. We must also surmise that Sugrim went out to the van under compulsion since the government does not justify the search of the bag by consent, a matter as to which it has the burden. See United States v. Arboleda, 633 F.2d 985, 993 (2d Cir.1980) (dissenting opinion), cert. denied, 450 U.S. 917 , 101 S.Ct. 1362 , 67 L.Ed.2d 343 (1981). It is thus certain that at some point prior to Sugrim’s retrieval of the bag he was detained, i.e., seized by the agents. He is thus like Barbera in United States v. Barbera, which the majority here seeks to distinguish on the unpersuasive basis that that case, but not this, involves “more than a limited intrusion since the border patrol agent took Barbera by the arm and escorted him off the bus.”

In my view neither the facts nor controlling law permit the majority to shrink Fourth Amendment protection so as to exclude Sugrim from its cover. The best that the government could argue was that this case “must fall under the umbrella of the border area concept.” Since that umbrella reaches “100 air miles from any external boundary,” 8 C.F.R. § 287.1 (a)(2) (1983) (issued under 8 U.S.C. § 1357 (a)(2) (1982)), see Barbera, 514 F.2d at 296-97 , the “umbrella” is a very broad one indeed, and one whose reach suggests to me that the courts have to be pretty careful before they raise it lest they cast a shadow on the rights of all of us.

. Terry v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968).

. It is true that there is language in the plurality opinion in Florida v. Royer, 460 U.S. 491, 497-501 , 103 S.Ct. 1319, 1326-29 , 75 L.Ed.2d 229 (1983), suggesting that in the airport context, Terry-like stops accompanied by a temporary detention of luggage are permissible. See also United States v. Mendenhall, 446 U.S. 544 , 100 S.Ct. 1870 , 64 L.Ed.2d 497 (1980). This theme was repeated in what some would call dictum in United States v. Place, - U.S. -, 103 S.Ct. 2637, 2643-44 , 77 L.Ed.2d 110 (1983), with respect to the seizure of baggage, though again this was in an airport context ("Because of the inherently transient nature of drug courier activity at airports____" Id. at 2643 .) However, nothing in the record before us, except for the agents’ asking Sugrim to bring in his bag from his van, indicates any suspicion that he was a drug courier. Unlike the usual airport search cases he is not said to have been nervous, to have been the first (or last) off the plane, to have been looking around, to have baggage with no nametag (he had no baggage with him when first interrogated), to have paid cash for a ticket, or to have any of the other "indicia” that create “articulable reasonable suspicion.” Nor, in the parlance of what INS agents say they are looking for in Buffalo, did the suspects have “baggage with ... stickers from other countries," "foreign accents,” or types of clothing or hair cuts identifying them as of foreign extraction.

According to the agents, it was "[n]ot exactly their color” that drew the agents’ attention to Sugrim and his sister. Skin color and facial features, I would suppose, are still not facts that would justify a reasonable belief that a person is an alien, even at a bus terminal in the city of Buffalo. See United States v. Brignoni-Ponce, 422 U.S. 873, 886-87 , 95 S.Ct. 2574, 2582-83 , 45 L.Ed.2d 607 (1975). As for the agents’ assertion that their suspicions were aroused by the sight of a rough, unkempt, unshaven man talking to an impeccably dressed woman, these INS agents would have a field day were they to visit Brattleboro, Vermont, Martha’s Vineyard, Massachusetts, or New Haven, Connecticut.