Petition — Moeller v. United States

81-87

NO.

JUL 16 1981

ALLA”

IN THE

Supreme Court of the United States

OCTOBER TERM, 1981

PAUL EDWARD MOELLER,

Petitioner,

¥.

UNITED STATES OF AMERICA,

PETITION FOR WRIT OF CERTIORARI

TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

PETITION FOR CERTIORARI—CRIMINAL CASE

Parire Louis RuPPERT

7718 N. Main Street

Suite I

Jonesboro, Georgia 30236

Attorney for Petitioner

404-478-5151

NO.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1981

PAUL EDWARD MOELLER,

Petitioner,

V.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

PETITION FOR CERTIORARI—CRIMINAL CASE

Petitioner prays that a writ of certiorari issue to review

the decision of the United States Court of Appeals for the

Fifth Circuit on May 8, 1981, and Petition For Rehearing

denied on June 8, 1981.

QUESTIONS PRESENTED

Did the District Court err in holding that the Defen-

dant’s statement, “Well, I’m not sure. Exactly what do

you want to do?”, and the Defendant’s act of subsequent-

ly following the DEA agent to a recom, constitute a know-

i

ing, intelligent and voluntary waiver of his Fourth

Amendment rights or should his statement and sub-

sequent act be classified as a submission to APPARENT

lawful authority? Higgins v. U.S., 209 F.2d 819; U.S. v.

Jones, 475 F.2d 723.

Can a consent to search ever be implied either by

silence or by tacit non-resistance, or must a consent to

search by specific, affirmative, and clear? Judd v. U.S.,

190 F.2d 699.

When apprehension and undue embarrassment abound,

in light of the totality of the circumstances, thus in-

ducing psychological coercion is voluntary consent so

readily to be found? Phelper v. Decker, 401 F.2d 232.

Should police activity be measured by the impact it

will have on a good law abiding citizen in the background

of an airport terminal in finding voluntary consent? See

U.S. v. Pulvano, 629 F.2d at 115 footnote one (1).

Was it error to fail to advise the suspect of his Fourth

Amendment right to refuse consent given the panoply of

the situation? Schnekloth v. Bustamonte, 412 U.S. 218,

93 S.Ct. 2041, 36 L.Ed.2d 854.

Should mere acquiescence to APPARENT lawful au-

thority be construed as a waiver of Fourth Amendment

rights? Dunaway v. New York, 442 U.S. 200 (1979).

Should more credibility be afforded the testimony of an

experienced agent of the government, who is trained in

police investigation tactics, over that of a mere citizen?

Does probable cause exist under the auspices of U.S. v.

Mendenhall when any one of the criteria is met under the

drug courier profile or must a given quantum of the criteria

setforth therein be met in order to establish probable

cause to detain and or search a citizen passing through an

airport?

Was it error to hold that the making of a phone call of

at least ten minutes in duration and the lack of possession

of any visable baggage claim ticket constituted enough

primia facia evidence to establish a reasonable suspicion

to conclude that criminal activity was afoot or should it

be more properly characterized as the kind of behavior that

could reasonably be expected of anyone changing planes

at an airport? Reid v. Georgia, __. U.S. ___., 65 L. Ed.2d

at 894(3), 100 S.Ct. ___.

When a citizen relinquishes his driver’s license and

airline ticket or any other such items at the request of a

government agent without any awareness as to the length

or affects of this relinquishment, has he not at that time

been seized and therefore entitled to full constitutional

protection? U.S. v. Mendenhall, __. U.S. —__, 100 S.Ct

—__., 64 L.Ed.2d 497.

Given the situation of having “hundreds” of people

present at an airline boarding gate, has psychological

coercion been used to obtain consent to search when

confronted by one who identifies himself as a government

agent and does it not therefore constitute a seizure and

is one thereafter entitled to the guarantees of the U.S.

Constitution?

—

INDEX

TABLE OF CONTENTS

Page

i ahi sean Gass secs becee eae ks i

ECT TEP CORES EEPROM ET ee eee eT iv

2 Ae ee iv

EE a cak cM aden hed Opa eaekeeee ena es 1

PP Oat cieed Vener cbeescsaeakanenewaes 2

Constitution Provisions Involved.................. 3

NE Tacha Ga wadse anes ec ehedessnu Ns at's 3x 0006 1

os oo is aye ue pak tea cee’ 2

Reasons For Granting the Writ.................05. 3

NG oa a dc ce sa 66.404 .a sbie'ene-u.6 11

pe SRST Teer Sere Cee eee ee ee Ce la

BOG sca kcccavbetaeveretiseuronessenences lb

akc as ccsadects vesscandevetvcccusecess le

EEE TPs oss cw re tnvsnaveravccnececssscccess ld

TABLE OF AUTHORITY

Amos v. United States, 225 U.S. 313, 41 S.Ct. 266,

es lacs eens ise sne bs akes 4

Brann 0. Tenet, 448 UB. Gi aoc cv cccccesincknecvers 9

Bumper v. North Carolina, 391 U.S. 543, 548-550,

88 iS. Ct. 1788, 1792, 20 L.Ed.2d. 797 (1968) are 10

Davis v. Mississippi, 349 U.S. 721 (1969)........... 9

Delaware v. Provse, 440 U.S. 648. ..... 0.000 e eee eee i)

iv

TABLE OF AUTHORITY (Continued)

Page

Dunaway v. New York, 442 U.S. 200 (1979)......... S

Herter v. United States, 9 Cir., 27 F.2d. 521.......... 5

Higgins v. United States, 209 F.2d 819.............. 5, 8

Johnson v. United States, 333 U.S. at 13,

aS SES 8

Judd v. United States, 190 F.2d 649.............. 4,5,8

Karwicki v. United States, 4th Cir., 55 F.2d 225,

SHER TTISS a oe Orr 4

Kovach v. United States, 6th Cir., 53 F.2d 639....... 4

Michigan v. Mosely, 423 U.S. 96, 96 S.Ct. 321,

46 L.Ed.2d 313 (1976)... 00.00 cc ce ee eee 5

Phelper v. Decker, 401 F.2d 232.............0 cee ee 10

Ray v. United States, 5th Cir., 84 F.2d 654, 656...... 5,7

Reid v. Georgia, __. U.S. , 65 L.Ed.2d at

804(3), 100 S.Ct. i. ccc ccc cee eee .lii, 10

Rosenthall v. Henderson, (CA 6th 1966) 389 F.2d 514. 6

Schnekloth v. Bustamonte, 412 U.S. 218,

93 S.Ct. 2041, 36 L.Ed.2d 854................0.4. 7

Terry v. Ohio, 392 U.S. 1, 16-19 (1968). ............ 8,9

United States v. Brignoni-Ponce, 422 U.S. 873, 878.... 9

United States v. Como, 340 F.2d 891

(2nd Cir., 1065).......ccccccccccccccccccces 5, 8, 10

United States v. Herbst, 641 F.2d 1164 (1981)

ee 7,9

United States v. Jones, 475 F.2d 723............... 6, 10

United States v. Kelch, D.C. 8.D. Ill. 1921,

EN 05546 bs40.0b 6000 0504554460%426060000 4

TABLE OF AUTHORITY (Continued)

Page

United States v. McCunn, D.C. 8.D. N.Y. 1930,

ee a ad case awe eeaueesscees 4

United States v. Mendenhall, _. U.S. at —__.,

100, S.Ct. 1877, 64 L.Ed.2d 509.............. iii, 8, 9

United States v. Mitchell, 322 U.S. 65, 64 S.Ct. 896,

MEE rica ccdcnpaccncsavercosscecerves

United States v. Nikrosch (CA 7th 1966)

Re 6

United States v. Novero, D.C. 8.D. N.Y. 1930,

ee eased ug bss 5 bccs 90046005 00.00 4

United States v. Pulvano, 629 F.2d at 1155

iE SEP CcacGbeeeceeecseeceeesncecesss 5,7

CONSTITUTIONAL PROVISIONS

United States Constitution:

ET IIIs oon dp 0.000 sed doce deaeec's passim

STATUTE

IUD ccs bon cscs cs sacesdcaceces

OPINION BELOW

The opinion of the United States Court of Appeals For

the Fifth Circuit, Case No. 80-7797, and the Petition For

Rehearing which was denied on June 8, 1981, are both

printed in Appendix A and B.

JURISDICTION

The decision of the United States Court of Appeals For

the Fifth Circuit was entered on May 8, 1981. Timely

application for Petition For Rehearing was filed on May

21, 1981 and subsequently denied on June 8, 1981.

Federal jurisdiction of the Court of first instance is

invoked under 21 U.S.C. § 841(a)(1).

CONSTITUTIONAL PROVISIONS INVOLVED

Constitution of the United States:

FOURTH AMENDMENT

The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches

and seizures, shall not be violated, and no warrants shall

issue, but upon probable cause, supported by oath or

affirmation, and particularly describing the place to be

searched, and the persons or things to be seized.

STATUTE

21 U.S.C. § 841(a)(1)

§ 841 prohibited acts A-Unlawful acts

(a) Except as authorized by this subchapter, it shall

be unlawful for any person knowingly or intentionally —

(1) to manufacture, distribute, or dispense, or possess

with intent to manufacture, distribute, or dispose,

a controlled substance;

1

2

STATEMENT OF THE CASE

On May 8, 1980, at approximately 8:55 A.M., special

agent Terry Mathewson of the Drug Enforcement Ad-

ministration was on duty at the Atlanta Airport observing

passengers at Gate 67, Delta Concourse F, which was the

arrival gate of Delta Flight 412, a non-stop flight from

West Palm Beach, Florida. Agent Mathewson observed

the Petitioner, Paul Edward Moeller, deplane. Believing

that Petitioner met the criteria for the drug courier profile,

Agent Mathewson subsequently confronted Petitioner

among “hundreds” of people in the gate seating area.

(See footnote four of Magistrate’s report in Appendix C.)

Agent Mathewson requested Petitioner consent to a

search of his person and tote-bag. Petitioner accompanied

Agent Mathewson to a Delta office whereupon a search

ensued and Petitioner was charged with possession of

cocaine with intent to distribute, a Schedule II Controlled

Substance in violation of 21 U.S.C. § 841(a)(1), which is

the basis of Federal Court jurisdiction.

Petitioner was taken before a United States Magistrate,

a copy of the Magistrate’s report is set forth in Appendix

C.

At sentencing, September 29, 1980, Petitioner received

a sentence of five (5) years and a $10,000.00 fine followed

by three (3) years mandatory parole.

Prior to trial, Petitioner filed a Motion to Suppress

Illegally Obtained Evidence and Fruits Thereof pursuant

to Rule 41(f) of the Federal Kules of Criminal Procedure,

Title 18, U.S.C. § 2236, and also under the Fourth, Fifth

and Sixth Amendments to the Constitution of the United

States, and a memorandum of points and authorities in

support of the Motion to Suppress Evidence. An Eviden-

3

tiary Hearing was held June 16, 1980—motion denied

July 24, 1980.

On September 2, 1980, trial was held and Petitioner

was found guilty as charged. Petitioner appealed and filed

briefs on January 26, 1981 after receiving an extension of

time on December 3, 1980.

On May 8, 1981, The Fifth Circuit sustained the Dis-

trict Courts ruling and Petitioner timely filed a Motion

For Rehearing which was denied on June 8, 1981. (See

Appendix A and B.)

On June 12, 1981, Petitioner filed his Motion For Stay

of Mandate which was granted on June 22, 1981. (See

Appendix D.)

REASONS FOR GRANTING THE WRIT

I. The decision below is incensistent with decisions of

this Court and various Circuit Courts and is therefore

incorrect.

A. The writ should be granted since the Petitioner did

not make a knowing, intelligent, and voluntary waiver of

his Fourth Amendment rights by the statement, ‘Well,

I’m not sure. Exactly what do you want to do?” and his

subsequent act of following the DEA agent to a room as

erroneously held by the District Court but such should be

classified as no more than mere submission to APPARENT

lawful authority.

One must look at the totality of the circumstances in

deciding whether Petitioner made an intelligent and in-

tentional waiver of his Fourth Amendment rights. As is

amply supported by case citition below, it is unreasonable

to assume that Petitioner consented to a search of his

person and bag. Looking at the moments of the initial

4

confrontation, Petitioner expressed concern for missing

his flight which was to depart in approximately thirty (30)

minutes and the “hundreds’’ present (reference Magis-

trate’s report, Appendix C page three (3), footnote four)

had not yet started to board. It is, therefore, only reason-

able to conclude that Petitioner did not consent as he so

testified and any act of accompanying Agent Mathewson

was in mere submission to APPARENT lawful authority

since Agent Mathewson had possession of Petitioner’s

driver’s license and airline ticket and he was not free to

leave. °

The Court in Judd v. U.S., 190 F.2d 649, has held that

“the government must show a consent that is unequivocal

and specific, freely and intelligently given and the burden

of the government is particularly heavy.’”’ The Court went

on to state “Before a Court holds a Defendant to have

waived his protection under the Fourth Amendment,

there must be convincing evidence to that effect.’’ But

such a waiver or consent must be proved by clear and posi-

tive testimony, and it must be established that there was

no duress or coercion, actual or implied. Amos v. U.S.,

225 U.S. 313, 41 S.Ct. 266, 65 L.Ed. 654; U.S. v. Kelch,

D.C. S.D. Ill. 1921, 272 F 484. The government must show

consent that is ‘unequivocal and specific.” Karwicki v.

U.S., 4th Cir., 55 F.2d 225, 226, ‘freely and intelligently

given.” Kovach v, U.S., 6th Cir., 53 F.2d 639. Non resis-

tance to the orders or suggestions of the police is not

infrequent in such a situation; true consent, free of fear or

pressure, is not so readily to be found. United States v.

Novero, D.C., 58 F.Supp. 275; United States v. McCunn,

D.C. 8.D. N.Y. 1930, 40 F.2d 295. In fact, the cireum-

stances of the Defendant’s plight may be such as to make

any claim of actual consent “not in accordance with

ol

5

human experience’, and explainable only on the basis of

“physical or moral compulsion.”’ Ray v. United States, 5th

Cir., 84 F.2d 654, 656. “The line between an accused’s

voluntary consent and his involuntary submission to

police authority is often difficult to draw.”’ United States

v. Como, 340 F.2d 891 (2nd Cir., 1965). The protection of

the Fourth Amendment extends to all equally —to those

justly suspected or accused, as well as to the innocent.

Ray v. United States, 84 F.2d at 656. In Higgins v. United

States, 209 F.2d at 820, it is stated “if a valid confession

precedes a search by police, permission may show true

consent to the search’’. United States v. Mitchell, 322 U.S.

65, 645 Ct. 896, 88 L.Ed. 1140. “But no sane man who

denies his guilt would actually be willing that policemen

search his room for contraband which is certain to be

discovered. It follows that when police identify them-

selves as such, search a room, and find contraband in it,

the occupant’s words or signs of acquiescense in the

search, accompanied by denial of guilt, do not show con-

sent; at least in the absence of some extraordinary cir-

cumstance, such as ignorance that contraband is present.

No such circumstance is shown here.”

B. Consent to search must be specific, affirmative and

clear and should not be implied either by silence or tacit

non-resistance.

’ The District of Columbia circuit in Judd v. United

States, 190 F.2d at 651 citing Herter v. United States, 9th

Cir., 27 F.2d 521 stated, “a finding of consent in such

circumstances has been held to be ‘unfounded in reason.”

See also: United States v. Pulvano, citing Michigan v.

Mosely, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1976),

“where it appears that the DEA agents went to great

lengths to ensure that Appellant’s rights were protected

6

and that, if he did give his consent, it was done volun-

tarily.”

C. A consent to search cannot be lightly inferred, and

the government must establish by clear and convincing

evidence that the consent was voluntarily given and was

not coerced, either physically or psychologically. United

States v. Jones, 475 F.2d at 728.

If we assume consent was given, Petitioner argues that

he was psychologically coerced into giving his consent due

to inordinate intimidation by legal authority, as is amply

supported by the Fifth’s Cireuit opinion of the above-

styled case dated May 8, 1981. Twice while still in the

gate area, Agent Mathewson identified himself as a police

officer among “hundreds” of people seated around Peti-

tioner. (Reference Magistrate’s report Appendix C, Page

3, footnote 4). This ultimately caused apprehension and

embarrassment to Petitioner. Based upon the totality of

the circumstances, Petitioner argues that the District

Court’s findings are clearly erroneous.

D. Before a Court holds a Defendant to have waived

his protection under the Fourth Amendment, there must

be convincing evidence to that effect and the fact as to

whether or not Petitioner was made aware of his right to

refuse consent should properly be considered in deter-

mining any waiver.

The difficulty in determining whether consent was

voluntarily given, and the recognition that many persons —

accused of crime are ignorant of their rights, had led some

Courts to require as a prerequisite to effective consent,

that the suspect be apprised of his right to refuse consent.

See: United States v. Nikrosch (CA 7th 1966) 367 F.2d 746;

Rosenthall v. Henderson (CA 6th 1968) 389 F.2d 514. Other

Courts however, have continued to follow the vein that a

7

failure to warn the suspect is merely one factor to be con-

sidered in determining whether, under all the circum-

stances of the particular case, consent to search was

voluntary. The Supreme Court apparently settled this

question in Schneckloth v. Bustamonte, 412 U.S, 218, 93

S.Ct, 2041, 36 L.Ed.2d 854, holding that “the questions

of voluntariness is to be determined from the totality of

the circumstances,”’

Lack of consent is evidenced by the fact that Petitioner

was never apprised of his Miranda warnings by Agent

Mathewson, the same Agent Mathewson who in United

States v. Pulvano, had advised Pulvano of his rights to

refuse to allow the search of his person and his suitcase

and subsequently advised Pulvano of his Miranda warn-

ings. Again in United Slates v. Herbst, 641 F.2d 1164

(1981), Fifth Cireuit, Agent Mathewson read Griffin and

McGowan their rights concerning the search, Petitioner,

unlike Griffin and MeGowan, at no time used a false

name, in fact he gave his true identity when so requested,

Whereas Griffin and MeGowan lied about their identity

thereby supplying the agent with a reasonable suspicion

that they were engaged in criminal activity and thereby

justifying a Terry-type detention. See also: United States

v. Pulvano citing Michigan v. Mosely, 423 U.S. 96, 968.Ct.

$21, 46 L.Ed.2d 313 (1976), “where it appears that the

DEA agents went to great lengths to ensure that Appel-

lant’s rights were protected and that, if he did give his

consent, it was done voluntarily.”” The protection of the

Fourth Amendment extends to all equally—to those

justly suspected or accused, as well as to the innocent.

Ray v."United States, 84 F.2d at 656 (1936),

I. Mere acquiescence to lawful authority should not be

construed as a waiver of Petitioner’s Fourth Amendment

rights. Dunaway v. New York, 442 U.S. 200 (1979).

In United States v. Mendenhall, citing Dunaway v. New

York, 442 U.S. 200, wherein this Court stated, ‘Consent

cannot be presumed from a showing of acquiescence to

authority.”” The 2nd circuit held in United States v, Como,

340 F.2d 891, that “the line between an accused’s volun-

tary consent and his involuntary submission to police

authority is often difficult to draw.”

The Fifth Cireuit in Higgins v. United States, 209 F.2d

819, cited an excerpt of this Courts opinion of Johnson v.

United States, 333 U.S. at 13, 68 S.Ct. at 368, wherein

this Court said, “Entry to Defendant’s living quarters,

which was the beginning of the search was demanded

under color of office. It was granted in submission to au-

thority rather than as an understanding and intentional

waiver of a Constitutional right.”” Likewise, the District

of Columbia Circuit in Judd v. United States, 190 ¥'.2d at

651 said: ““Non-resistance to the orders or suggestions of

the police is not infrequent. .. .”’ True consent, free of fear

or pressure, is not so readily to be found.,”’

F. A citizen has been seized and is therefore entitled to

Fourth Amendment protection when he relinquishes his

driver’s license and airline ticket without any awareness

as to the length or affects of such relinquishment, or any

other such items at the request or suggestions of AP-

PARENT lawful authority.

In United States v. Mendenhall, ——. U.S. at —_, 100

8. Ct. at 1877, 64 L.Ed.2d at 509, Mr. Justice Stewart,

joined by Mr. Justice Rehnquist concluded “a person has

been “‘seized’’ within the meaning of the Fourth Amend-

ment only if in view of all of the circumstances surround-

ing the incident, a reasonable person would have believed

9

that he was not free to leave.” The Justice further stated

that “the Fourth Amendment's requirement that searches

and seizures governs all seizures of the person, ‘including

seizures that involve only a brief detention short of tradi-

tional arrest. Davis v. Mississippi, 349 U.S. 721 (1969);

Terry v. Ohio, 392 U.S. 1, 16-19 (1968).’"’ United States v,

Brignoni-Ponce, 422 U.S, 873, 878.

In a similar case, the Fifth Circuit in construing when

a seizure occurred stated: ‘while we agree with Herbst that

seizure occurred when Agent Markonii asked Herbst to

accompany him to th. Delta office... .”

Petitioner argues that he was seized at the moment

Agent Mathewson asked him to accompany him to the

Delta office. Moreover, the evidence clearly shows that

Special Agent Mathewson removed Petitioner's identifi-

cation and airline ticket from his person and thereafter

maintained possession and control over said items, There

can be no doubt that at this point, Petitioner was seized

within the meaning of the Fourth Amendment as he be-

lieved he was no longer free to leave, (United States v.

Mendenhall) It has been recognized that although in

some circumstances a person may be detained briefly

without probable cause to arrest, any curtailment of a

person’s liberty by the police must be supported at least

by a reasonable and articulable suspicion that the person

seized is engaged in criminal activity. Brown v, Texas, 443

U.S. 47; Delaware v, Provse, 440 U.S, 648,

Petitioner argues that he was entitled to full constitu-

tional protection.

G. Given the situation of having “hundreds’’ of people

present at an airline boarding gate, psychological coercion

is present when a citizen is confronted by one who identi-

10

fies himself as a government agent whose purpose is to

obtain the citizen’s voluntary consent to be searched. Any

consent so obtained is invalid and any submission to the

APPARENT lawful authority constitutes a seizure and

the citizen is therefore entitled to the guarantees of the

United States Constitution.

In United States v. Jones, 475 F.2d at 728(3), it is stated

“the line between an accused’s voluntary consent and his

involuntary submission to police authority is often diffi-

cult to draw.’”’ United States v. Como, 340 F.2d 891 (2nd

Cir., 1965). And, “‘when a prosecutor seeks to rely upon

consent to justify the lawfulness of a search, he has the

burden of proving that the consent was, in fact, freely and

voluntarily given.”” Bumper v. North Carolina, 391 U.S.

543, 548-550, 88 S.Ct. 1788, 1792, 20 L.Ed.2d 797 (1968).

Consent to search cannot be lightly inferred; the govern-

ment must establish by clear and convincing evidence

that the consent was voluntarily given and was not

coerced, either physically or psychologically. Phelper v.

Decker, 401 F.2d (5th Cir., 1968).

The making of a phone call of at least ten minutes in

duration and the lack of possession of any visable baggage

claim ticket does not constitute enough primia facia evi-

dence to establish a reasonable suspicion to conclude that

criminal activity is afoot. It is, however, the kind of be-

havior that could reasonable be expected of anyone

changing planes at an airport. Reid v. Georgia, __. U.S.

——., 65 L.Ed.2d at 894(3), 100 S.Ct. __.

11

CERTIFICATE OF SERVICE

I, PHILIP LOUIS RUPPERT, certify that I duly

mailed copies of the foregoing Petition For A Writ of

Certiorari, postage prepaid, to MR.WILLIAM SUTTON,

Assistant United States Attorney, 1690 Richard B.

Russell Building, 75 Spring Street, 8.W., Atlanta, Georgia.

This 15th day of July, 1981.

/s/ Pattie Louis RuPPertT

PHILIP LOUIS RUPPERT

APPENDICES

APPENDIX A

UNITED STATES of America,

Plaintiff-Appellee,

v.

Paul Edward MOELLER,

Defendant- Appellant.

No. 80-7797

Summary Calendar.

United States Court of Appeals,

Fifth Circuit.

Unit B

May 8, 1981.

Defendant was convicted in the United States District

Court for the Northern District of Georgia, at Atlanta,

Orinda D. Evans, J., of possession of cocaine hydrochloride

with intent to disbribute, and he appealed. The Court of

Appeals, Frank M. Johnson Jr., Circuit Judge, held that:

(1) initial stop was valid; (2) record amply supported

district court’s conclusion that defendant voluntarily

consented to be searched; and (3) once defendant volun-

tarily produced vial containing controlled substance,

federal agent had probable cause to arrest defendant and

any search incident to that arrest was valid.

Affirmed.

1, Arrest 63.5(5)

Initial stop of defendant was not illegal, where defen-

dant was not, at that point, restricted in any way, and

was free to talk with federal agent or, if he wished, to

walk away, so that neither probable cause nor reasonable

la

2a

suspicion was required to justify stop. U.S.C.A.Const.

Amend. 4.

2. Arrest 63.5(1)

So long as citizen is not restrained in any way or so long

as his or her cooperation is not obtained by coercion, force,

or other use of authority, mere police-citizen contact is

generally not within protections of Fourth Amendment.

U.8.C.A.Const. Amend. 4.

3. Searches and Seizures 7(27)

District court’s conclusion that defendant voluntarily

consented to be searched was amply supported by record

which revealed that defendant, without undue or illega

compulsion on part of federal agent, agreed to accompany

agent to airline’s office for pat-down search.

4. Arrest 63.4(16), 71.1(3)

Drugs and Narcotics 184

Defendant’s voluntary production of vial containing

controlled substance gave rise to probable cause to search

defendant’s body and his tote bag, and probable cause to

arrest defendant for possession of controlled substance;

once probable cause to arrest was established, any search

of defendant’s person incident to arrest was valid.

Appeal from the United States District Court for the

Northern District of Georgia.

Before RONEY, FRANK M. JOHNSON, Jr., and

HENDERSON, Circuit Judges.

FRANK M. JOHNSON, Jr., Circuit Judge:

3a

Defendant Moeller was convicted of possession of

cocaine hydrochloride with intent to distribute in violation

of 21 U.S.C. § 841(a)(1). He appeals, urging that the trial

court erred by denying his motion to suppress evidence of

the cocaine seized at the time of the arrest. Finding no

Fourth Amendment violation, we affirm.

The facts are undisputed. At approximately 8:55 a. m.

on May 8, 1980, Drug Enforcement Administration Agent

Mathewson observed the deplaning of an incoming com-

mercial airline flight at the Atlanta airport. The flight was

from West Palm Beach, Florida, which Agent Mathewson

knew to be a primary distribution point for cocaine.

Agent Mathewson noticed among the deplaning passen-

gers defendant, who was later identified as Paul Moeller.

Carrying a small totebag, defendant deplaned and walked

toward an airline information agent stationed in the

arrival area. He removed an airline ticket envelope from

his pocket and asked the information attendant for direc-

tions to his connecting flight to Indianapolis, Indiana. The

attendant directed defendant to gate 59. At this time,

Agent Mathewson, who was standing near the attendant,

noticed that defendant’s ticket was a cash ticket and no

baggage claim check stubs were attached to it. Agent

Mathewson decided to keep defendant under surveillance

as he proceeded to gate 59.

On his way to gate 59 defendant stopped in a restroom,

thus allowing Mathewson to reach the gate first. Mathew-

son spoke with the airline ticket agent at gate 59, giving

him defendant’s description and asking him to set defen-

dant’s ticket aside after defendant surrendered it for the

flight. Mathewson then walked in the direction in which

he had last seen defendant. He spotted defendant using a

pay telephone. Defendant completed his call and pro-

4a

ceeded to gate 59 where he checked in with the airline

attendant and sat down in the waiting area. Agent

Mathewson then inspected defendant’s surrendered ticket

coupon and learned that the ticket was issued in the name

of Paul Moeller for one-way travel between West Palm

Beach and Indianapolis via Atlanta. The ticket had been

purchased in cash and bore no claim check stubs for addi-

tional luggage. Mathewson left the ticket with the atten-

dant and went to a nearby airline reservation computer to

check the reservation history for Paul Moeller. The com-

puter check verified the information on the ticket and

additionally indicated that the reservation had been made

about three hours prior to departure and that no local

telephone contact for West Palm Beach had been given

when the reservation was made. From his experience in

enforcing drug laws, Agent Mathewson knew that drug

couriers often purchase their tickets in cash only hours

before departure and often do not provide a local tele-

phone contact.

After checking the reservation history, Agent Mathew-

son returned to gate 59, approached defendant, told de-

fendant he was a police officer, and asked defendant to

speak with him. Because the waiting area was croweded,

Mathewson asked if defendant would mind stepping out

of the gate area to speak with him. Without responding

verbally, defendant walked with Mathewson approxi-

mately twenty to thirty feet to a railing that separated

the waiting area from the adjacent concourse. Mathewson

again identified himself as a police officer by displaying

his credentials and asked if defendant would consent to

speak with him for a few minutes. Without objecting or

questioning the agent’s authority, defendant agreed.

When asked about his ticket, defendant handed it to

Mathewson. Mathewson asked defendant for his name

5a

and defendant replied ‘Paul Moeller.’’ Mathewson asked

for identification and defendant produced a driver's

license issued to Paul Moeller. At this time, Mathewson

noticed that defendant’s breathing was becoming more

rapid and his hands were trembling. Mathewson examined

the license briefly. In response to a question, defendant

told Mathewson that he had been visiting relatives in

West Palm Beach for about a week. Mathewson advised

defendant that he was a federal narcotics agent looking

for drugs passing through the airport and asked if defen-

dant would cooperate by allowing a search to be con-

ducted of his person and totebag. Defendant .sserted that

he was carrying no drugs and stated that he was “not

sure” about the search. Mathewson explained that he

only wanted to pat defendant down and look in his tote-

bag. Defendant agreed. Following DEA _ procedure,

Mathewson asked if defendant would prefer to have the

search conducted at their present location or in a more

private area. Defendant, after being assured that he

would not miss his flight if no drugs were found, stated

that he would prefer to move to a more private area. They

then proceeded to a Delta airline office.

As they entered the Delta office, defendant placed his

bag on a table, pulled a prescription-type vial from the

bag, and said, “I do have a little bit of speed but that is

all I have.’’ Mathewson, who recognized that some of the

contents of the vial were controlled substances, asked if

the drugs had been prescribed by a physician. Defendant

smiled and replied, “I just picked them up.” Because

defendant revealed this information almost as soon as

they reached the office, Mathewson had not advised him

of his right to refuse to be searched or his right to consult

with an attorney. After examining the contents of the

via], Mathewson searched the totebag, finding a brown

6a

paper bag containing a quantity of white powder sub-

stance wrapped in a clear plastic bag. Defendant identi-

fied this substance as mannite, a substance Mathewson

knew was commonly used as a cutting agent for narcotics.

Mathewson also found a variety of items of drug parapher-

nalia. Mathewson then conducted a pat down search, and

he felt what he suspected to be concealed drugs. Mathew-

son then placed defendant under arrest and continued the

search. A plastic bag of suspected cocaine was found on

defendant’s person. Defendant was then taken to the

DEA airport office where he was processed and thorough

searches of his person and bag were conducted. In the

bag Mathewson found a Johnson’s Baby Powder con-

tainer, in which was concealed a second quantity of sus-

pected cocaine.

Defendant filed a motion to suppress evidence of the

contraband, contending that the initial stop was illegal.

Defendant further urged that, even if the initial stop was

legal, the later seizure was violative of the Fourth Amend-

ment because it was not based on probable cause. After a

hearing, the magistrate concluded that the initial stop

was constitutionally valid and that defendant had con-

sented to be searched. The magistrate further reasoned,

once defendant voluntarily revealed that he was carrying

controlled substances in the prescription vial, Agent

Mathewson had probable cause to arrest defendant and

therefore any search incident to that arrest was legal.

Indicating that it was troubled over the issue of consent,

the district court heard additional testimony. At the

conclusion of the testimony, the district court opined that

defendant consented to the search and thus the evidence

was admissible. On appeal, defendant adheres to his

position that both the initial stop and the later seizure

7a

were illegal.

[1, 2] We find no merit to the argument that the initial

stop of defendant by Agent Mathewson was illegal, for

the record is clear that defendant was not, at that point,

restricted in any way. He was free to talk with Mathew-

son or, if he wished, to walk away. So long as a citizen is

not restrained in any way or so long as his or her coopera-

tion is not obtained by coercion, force, or other use of au-

thority, a mere police-citizen contact is generally not

within the protections of the Fourth Amendment. United

States v. Berd, 634 F.2d 979 (5th Cir. 1981); United States

v. Pulvano, 629 F.2d 1151 (5th Cir. 1980); United States v.

Elmore, 595 F.2d 1036 (5th Cir. 1979), cert. denied, 447

U.S. 910, 100 S.Ct. 2998, 64 L.Ed.2d 861 (1980). Thus,

neither probable cause nor reasonable suspicion is required

to justify the stop.

[3, 4] We similarly have no trouble disposing of defen-

dant’s argument that the seizure was illegal. Although the

conclusion to be drawn from the evidence is disputed, the

record amply supports the district court’s conclusion that

defendant voluntarily consented to be searched. Without

undue or illegal compulsion on the part of Agent Mathew-

son, defendant agreed to accompany Mathewson to the

Delta office for a pat-down search. Before the pat-down

could commence, defendant voluntarily produced the vial

containing controlled substances. We observe that even

in the absence of consent, this admitted possession of con-

trolled substances gave rise to probable cause to search

defendant’s body and his totebag. United States v. Herbst,

641 F.2d 1161, 1167-68 (5th Cir., April 8, 1981). In the

alternative, the production of the controlled substances

gave rise to probable cause to arrest defendant for posses-

sion of controlled substances; once probable cause to

8a

arrest was established, any search of the person incident

to the arrest was valid. United States v. Herbst, supra, 641

F.2d 1161 (5th Cir., April 8, 1981); United States v.

Pulvano, 629 F.2d 1151 (5th Cir. 1980).

The motion to suppress was properly denied.

We AFFIRM.

APPENDIX B

[U.S. Court of Appeals, Filed June 8, 1981,

Gilbert F, Ganucheau, Clerk.]

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

UNIT B

NO, 80-7797

UNITED STATES OF AMERICA,

Plaintiff-A ppellee,

versus

PAUL EDWARD MOELLER,

Defendant-A ppellant,

Appeal from the United States District Court for the

Northern District of Georgia

ON PETITION FOR REHEARING

Before RONEY, FRANK M, JOHNSON and HENDER-

SON, Circuit Judges.

PER CURIAM:

IT IS ORDERED that the petition for rehearing filed

Ib

2b

jn the above entitled and numbered cause be and the same

is hereby denied.

ENTERED FOR THE COURT:

/s/ Frank M., JouNson Jr.

United States Circuit Judge

CLERK’S NOTE:

SEE RULE 41 FRAP AND LOCAL

RULE 17 FOR STAY OF THE

MANDATE

APPENDIX C

\Filed in Clerk’s Office, U.S.D.C, —Atlanta, July 24, 1980,

Ben H. Carter, Clerk; By: /s/P. Montgomery.|

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

UNITED STATES OF AMERICA =) CRIMINAL

vs. } INDICTMENT

PAUL EDWARD MOELLER 80-128A

MAGISTRATE’S REPORT,

RECOMMENDATION AND ORDER

On May 21, 1980 a federal grand jury sitting in the

United States Courthouse in Atlanta, Georgia returned a

one-count indictment against the above-named defendant,

charging him with unlawfully and knowingly possessing

with the intent to distribute a Schedule II controlled sub-

stance, cocaine, in violation of 21 U.S.C, § 841 (a)(1),

On June 9, 1980 the defendant filed a Motion to Sup-

press evidence which was allegedly illegally seized from

him pursuant to an investigatory stop conducted at the

Atlanta Hartsfield International Airport. This court con-

ducted an evidentiary hearing to inquire into this motion

on June 16, 1980, The transcripts of said hearing have now

been received, enabling this court to make the following

“Findings of Fact” and “Conclusions of Law.”

FINDINGS OF FACT

1, On May 8, 1980 at approximately 8:55 a.m., Special

Agent Terry Matheson of the Drug Enforcement Admin-

istration was on duty at the Atlanta Airport observing

passengers at Gate 67, Delta Concourse F, which was the

le

2c

arrival gate of Delta Flight 412, a non-stop flight from

West Palm Beach, Florida.! (Tr. 4).

2. At approximately 8:55-9:00 a.m., Agent Matheson

first observed the defendant, Paul Edward Moeller,

deplane from the above-mentioned flight. (Tr. 6).

3. Matheson observed Moeller approach and speak with

a Delta gate agent, who was giving connecting flight in-

formation. Moeller removed his ticket from his ticket

envelope and asked the agent for directions to Delta

Flight 530 bound for Indianapolis, Indiana. Matheson,

who was standing to the right of the gate agent, saw that

Moeller’s ticket was paid for in cash and that there was no

baggage claim check stubs attached to the ticket envelope.

Matheson also noticed that Moeller was carrying one

small tote bag.2 The gate agent advised Moeller that his

connecting flight to Indianapolis departed from Gate 59.

At that point, Moeller turned away from the gate agent

and walked up Concourse F toward Gate 59. (Tr. 6-7).

4. Matheson maintained surveillance of Moeller as the

latter proceeded up Concourse F. Matheson saw Moeller

enter a restroom across from Gate 64. Matheson then

proceeded to Gate 59, where he spoke with the Delta

agent checking in passengers for Flight 530 to India-

napolis. Matheson gave a detailed description of Moeller to

the agent, and asked the agent to set aside Moeller’s

ticket when it was in fact presented, and to verify that

there were no baggage claim checks attached to Moeller’s

ticket envelope. (Tr. 8-9).

! Matheson testified that flights arriving from South Florida were

routinely surveilled since that area is known as a primary distribution

area for cocaine (Tr. 4-5).

? It was apparent to Matheson that the bag contained little con-

tents since it appeared “collapsed inward” (Tr. 7).

3c

5. Matheson proceeded back to the area where Moeller

entered the restroom, and observed the defendant talking

on a public telephone near Gate 61. After a conversation

lasting about ten minutes,? Moeller left the phone area

and proceeded to Gate 59. (Tr. 8-9).

6. After reaching Gate 59, Moeller checked in with the

Delta agent for the flight to Indianapolis. After checking

in, Moeller went behind the Delta counter to the passen-

ger seating area and sat down near other passengers who

were waiting to board various flights. Matheson examined

Moeller’s ticket coupon, which was set aside by the Delta

agent. Matheson noted that the ticket was issued in the

name “Paul Moeller,” was paid for in cash, and was a

one-way ticket from West Palm Beach, Florida to India-

napolis, Indiana via .itlanta, Georgia. The Delta agent

verified that no baggage claim checks were attached to

Moeller’s envelope. (Tr. 9-10).

7. Immediately after obtaining this information,

Matheson proceeded to the Delta ‘reservation computer”

to check the reservation history for ‘‘Paul Moeller.”’ The

computer verified the information on the ticket and, in

addition, indicated that the reservation had been made

on May 8, 1980 at 3:56 a.m. (some three hours prior to

departure) and that no local telephone contact had been

given in West Palm Beach (Tr. 10-11).

8. After retrieving Moeller’s reservation history,

Matheson returned to Gate 59 and observed the defendant

still seated in the passenger waiting area. Matheson ap-

proached Moeller, leaned over, and whispered in Moeller’s

* Moeller later testified that he called his wife to inform her of his

pending arrival in Indianapolis (Tr. 55). Matheson also agreed that

this call’s duration was longer than that associated with the typical

drug courier’s call. See United States v. Elmore, infra. at 1039.

4c

ear that he was a police officer and asked Moeller if the

defendant would step outside to talk with him.4 Moeller

got up and accompanied Matheson over to the side of the

waiting area. Matheson again i Jentified himself as a police

officer, displayed his credentials, and asked if he could

speak with Moeller, who agreed thereto (Tr. 13-15).

9. Matheson asked Moeller if he could see the defen-

dant’s airline ticket. Moeller handed Matheson his ticket,

which was issued in the name of ‘‘Paul Moeller.”’ Mathe-

son asked the defendant if his name was ‘“‘Paul Moeller,”

and the defendant replied that it was. Matheson asked

Moeller if he had any identification, and Moeller handed

Matheson an Indiana driver’s license 5 which was issued

in his name and had his photograph. At this time Mathe-

son noticed that Moeller appeared very nervous (his

hands were in fact trembling), but the defendant ex-

pressed no objections to complying with Matheson’s

requests (Tr. 15-16).

10. After looking at Moeller’s driver’s license, Mathe-

son asked the defendant what the purpose of his trip to

West Palm Beach was. Moeller stated that he went there

to visit relatives and stayed for one week. Moeller also

told Matheson that the tote bag was the only piece of

luggage he was carrying and that he used his cousin’s

clothing while in West Palm Beach. This total conversa-

* Matheson testified he “whispered’’ into Moeller’s ear requesting

that Moeller accompany him outside the seating area so as not to

embarrass the defendant, since there were “hundreds’’ of people in

= Gate 59 seating area waiting to board verious flights (Tr. 13-14,

42).

® Matheson first testified that Moeller showed him an Ohio driver's

license, but later identified Moeller’s Indiana driver's license as the

one he probably saw (Tr. 46-47). The defendant testified he has never

been licensed to drive in Ohio (Tr. 60).

5e

tion between Moeller and Matheson lasted about 2-3

minutes (Tr. 17).

11. Matheson then advised Moeller that he was a

federal narcotics agent looking for drugs coming into the

airport; and asked Moeller if he (Moeller) was carrying

any drugs. Moeller asserted that he was not. Matheson

then asked the defendant if he would consent to a brief

search of his person and tote bag. Moeller then stated,

“I’m not sure—what do you want to do?” Matheson

then explained that he wanted to ‘pat him down” ana

look in Moeller’s tote bag. After expressing concern about

missing his flight to Indianapolis, and being assured by

Matheson that the search would only take five minutes

and that Moeller’s flight did not depart until 30 minutes

later, Moeller consented to the search. Matheson asked

the defendant whether Moeller preferred to have the

search conducted outside the Gate 59 waiting area (where

they were standing) or in an adjacent private room,

Moeller indicated he would prefer to be searched in the

adjacent room. The two then proceeded to the nearby

Delta office (which was about 75-100 feet away).7 (Tr.

18-20).

12. Matheson and Moeller entered the office and

Moeller put his tote bag on a desk. Before Matheson was

able to advise the defendant of his right to refuse consent

to search as per normal DEA practice (i.e., to read to

Moeller the standard warnings from a card Matheson

uses to advise suspects of their right to refuse consent)

Moeller reached into his pocket, removed a small brown

7 At no time either before or during the walk to the Delta office did

Matheson have any physical contact with Moeller. During the walk to

the Delta office, Moeller maintained possession of his ticket, driver's

license, and tote bag (Moeller’s testimony to the contrary being

deemed unworthy of belief.)

6c

plastic prescription vial, open it, and showed Matheson

its contents, stating simultaneously therewith that he

was only carrying a little “‘speed”’ (i.e., the street term for

methamphetamine, a controlled substance). Matheson

recognized the contents to be several different kinds of

controlled substances, notwithstanding defendant’s as-

sertions. Matheson asked if Moeller had been prescribed

such drugs by a physician or just “picked them up some-

where?” Moeller smiled and replied, “I just picked them

up.” (Tr. 21-24).

13. After setting the prescription vial on a table,

Matheson conducted a quick search of the tote bag. The

agent found a brown paper bag in the inside pocket of the

tote, which contained a clear plastic bag consisting of a

white powdery substance. Moeller told Matheson, “That

stuff is just Manite I picked up for a friend.”” Matheson

knew Manite was a substance regularly used to cut illegal

drugs. Matheson also observed another glass vial, and

other drug paraphernalia.’ (Tr. 24-25).

14. Matheson then conducted a “pat down”’ search of

Moeller’s person. Upon reaching the defendant’s crotch

area, Matheson felt a hard substance which felt and

“crinkled” like a plastic bag. Matheson then placed

Moeller under arrest, handcuffed Moeller, reached into

Moeller’s pants and pulled out the plastic bag of sus-

pected cocaine (Tr. 25-26).

15. After the arrest, Moeller was transported by

Matheson and an Atlanta police officer to the DEA Office.

A more thorough search of the tote bag was conducted by

Matheson and revealed a Johnson’s Baby Powder con-

* Moeller testified that he did not remove the prescription vial

from his pocket until Matheson found the Manite (Tr. 61-62). Again,

this court deems this testimony not credible.

7c

tainer with a white, powdery substance of suspected

cocaine concealed within the baby powder. Other items

found in the tote bag included approximately $1,000 in

cash and a Vick’s inhaler with its interior removed. A

piece of yellow lined paper with notations of four names

and amounts of money was also found in Moeller’s pocket

or wallet (Tr. 26-27).

CONCLUSIONS OF LAW

1. The Motion to Suppress should be denied.

A. The approach and stop of the defendant were

constitutionally valid.

Police officers may approach citizens for the purpose of

investigating possible criminal behavior even though

sufficient probable cause to arrest is lacking. Terry v.

Ohio, 392 U.S. 1, 88 8. Ct. 1866, 20 L. Ed. 2d 889 (1969).

The Terry rationale has been further expanded and re-

fined to permit a brief investigatory stop to investigate

suspicious behavior, but requires that the officer conduct-

ing the stop point to some specific, articulable fact to

warrant the suspicion. United States v. Brignoni-Ponce,

422 U.S. 873, 95 8. Ct. 2574, 45 L. Ed. 2d 607 (1975).

However, a police officer may constitutionally attempt

to “interview” a citizen without having either probable

cause or reasonable suspicion; and a person so confronted

is not arrested or “seized’”’ within the meaning of the

Fourth Amendment if he is free to choose whether to

enter or continue an encounter with police and elects to

do so. United States v. Elmore, 595 F.2d 1036 (Sth Cir.

1979), cert. denied, __. U.S. , 48 U.S. L.W. 3803

* Matheson testified that such a converted inhaler is another type

of “drug paraphernalia” used to transport illegal drugs (Tr. 27).

8c

(No. 78-6884, June 10, 1980); United States v. Brunson.

549 F.2d 348 (5th Cir. 1977).

As long as the person to whom questions are put

remains free to disregard the questions and walk

away, there has been no intrusion upon that person’s

liberty or privacy as would under the Constitution

require some partivularized and objective justifica-

tion. United States v. Mendenhall, —.. U.S. ____, 48

U.S. L.W. 4575, 4578 (No. 78-1821, May 27, 1980).

Applying the aforementioned standards to the facts of

the instant case, this court concludes that the initial ap-

proach of the defendant by Agent Matheson amounted to

no more than an authorized ‘‘contact.’”’ Matheson ap-

proached Moeller, identified himself, and asked whether

or not he could talk with him. Matheson did not threaten,

force, or coerce Moeller into talking with him, nor did he

imply at the time that Moeller’s freedom of movement

was being impeded.

The initial encounter was not precipitated by force.

There was no physical contact. The only show of au-

thority occurred when the [agent] initially approached

[defendant] and identified [himself] as [a] federal law

enforcement [officer]. Such identification is insuffi-

cient to convert an encounter, otherwise regarded as

outside the purview of the Fourth Amendment, into

Terry stop. Elmore, supra at 1042.

By seeking Moeller’s permission to speak with him,

Matheson suggested, at least by implication, that he was

free to leave, if he so desired.

When Matheson first approached the defendant, it was

known that: (1) the defendant had just deplaned from a

flight from a ‘‘source”’ area for cocaine; (2) the defendant

was carrying little luggage; (3) the defendant’s ticket had

been bought with cash for his one-way trip shortly before

9¢

departure; (4) no local telephone contact was given when

the reservations were made; and (5) the defendant had

made a phone call shortly after arriving. During the

course of his interview of Moeller, Matheson also learned

that: (6) the defendant alleged that he had visited rela-

tives for one week in Florida, although he was only carry-

ing a small tote bag (Moeller claimed he wore his cousin’s

clothes while in Florida), and (7) the defendant appeared

nervous. Thus, once Matheson “asked” the defendant

for his consent to be searched and accompanied the defen-

dant to the adjacent Delta office, it is arguable that a full

investigatory stop based on “specific articulable facts”

occurred.! See Mendenhall, supra, at 4580-4581,"

1° Defendant’s contention that he wes in fact “seized’’ when he

voluntarily gave Matheson his airline ticket end driver's license is

unsupported. In Elmore, supra, the ccurt concluded a “seizure” of the

defendant occurred when the agent took the defendant's ticket from

Elmore’s immediate vicinity to a Delta check-out counter. However,

in the instant case, Matheson never removed Moeller’s ticket or

driver's license from the area in which the “interview” took place,

and, as previously mentioned, Moeller retained possession of his

ticket and driver's license when he walked to the Delta office.

"In an amendment to his Motion to Suppress filed July 22, 1980,

the defendant asserts that the Supreme Court's recent decision in

Reid v, Georgia, _. US. , 27 Crim. L. Rptr. 4123 (June 30,

1980) supports his position that Matheson’s “seizure” of defendant

was unconstitutional. In Reid, supra, the defendant was approached

by a DEA agent after leaving an airport terminal building with

another passenger. Prior to his approach, the DEA agent observed

that Reid arrived from a “source” city for cocaine, arrived in the

early morning, carried no luggage other than a shoulder bag, and

tried to disassociate himself from his companion. The Georgia Court

of Appeals, assuming that the stop for identification questioning con-

stituted a “seizure,” held that the agent’s actions were justified by

reasonable and articulable suspicion. The Supreme Court vacated

this decision, and remanded the case back to the Georgia Court of

Appeals, holding that “the judgment of the appellate court cannot be

sustained insofar as it rests on the determination that the DEA agent

lawfully seized the [defendant] when he approached him outside the

airline terminal.”’ While the Court found that the agent could not, as

10¢

B. The defendant’s consent to the search of his person

and tote bag was constitutionally valid.

Notwithstanding this court’s characterization of the

events preceding the search of the defendant, the search

which was conducted was lawful if conducted pursuant

to the defendant’s free and voluntary consent, as deter-

mined from the circumstances surrounding the case.

Schneckloth v. Bustamonte, 412 U.S. 218, 93 8S. Ct. 204,

36 L. Ed. 2d 854 (1972); Mendenhall, supra at 4579. The

fact that a person may be in police custody does not auto-

matically mandate a finding that consent was involuntary.

United States v. Smith, 543 F. 2d 1141 (Sth Cir. 1976),

cert. denied, 429 U.S. 1110 (1977). In addition, although

“proof of knowledge of a right to refuse’? consent is

“highly relevant” to the determination of whether con-

sent has been given,*Mendenhall, supra at 4579, Miranda-

type warnings are not absolutely required to validate a

consent search where no official coercion is found. United

States v. Garcia, 496 F.2d 670 (5th Cir. 1974), cert. denied,

420 U.S. 960 (1975); United States v. Hall, 565 F.2d 917

(5th Cir. 1978).

In the instant case, Matheson asked the defendant if

the defendant was carrying any drugs. After Moeller

a matter of law, have reasonably suspected Reid of criminal activity

on the basis of the above-mentioned circumstances, it did not rule

that a “seizure’’ in fact took place. See Powell, J. concurring. The

Reid Court remanded the case to the Georgia appellate court for a

consideration of whether, in its opinion, the defendant had actually

been “seized” at the time he was approached and questioned by the

DEA agent. The Reid case, therefore, does not support defendant's

contention since (1) Moeller was not “seized’’ when initially ap-

proached by Agent Matheson, and (2) assuming arguendo that an

illegal “seizure’’ eventually occurred, the defendant subsequently

a to the search of his person and tote bag (see Section B,

infra.

lle

replied in the negative, Matheson asked Moeller if he

would consent to a search of his person and tote bag.

When Moeller asked Matheson what suciia search would

entail, Matheson carefully explained that he wanted to

“pat down” Moeller and look inside Moeller’s tote bag,

to which Moeller readily agreed, and elected to have the

search conducted in the nearby Delta office.!2 Although

Matheson intended to advise Moeller of his right to refuse

consent once they entered the Delta office, as Matheson

started to do so Moeller voluntarily handed over a pre-

scription vial from his pocket and showed its contents to

the agent.

Thus, the conversations between the defendant and

Agent Matheson were devoid of any hint of coercion or

intimidation in seeking to obtain consent. Hence, even

assuming arguendo that the defendant had been illegally

stopped, or arrested, his subsequent voluntary consent to

be searched would have vitiated the taint of any prior

illegality, thus making the discovery of the contraband

lawful, as a product of a consensual search. See United

States v. Troutman, 590 F.2d 604 (5th Cir. 1979); United

States v. Berry, CR 79-22A (N.D. Ga. May 14, 1979,

Henderson, J.).

Having voluntarily consented to a search of his person,

none of defendant’s Fourth Amendment rights were vio-

lated.

12 Although Moeller expressed concern about missing his flight, he

was assv.- by Matheson that the search would only take five

minutes. “ee Wendenhall, supra at 4579.

12¢

C. Matheson had probable cause to arrest the defen-

dant after defendant voluntarily handed over the pre-

scription vial containing illegally obtained controlled

substances, and could have searched the defendant and

the tote bag incident to that arrest.

Probable cause to make an arrest is formulated ‘when

reasonably trustworthy facts and circumstances are

within the knowledge of the arresting officer to warrant a

man of reasonable caution in the belief that an offense

has been or is being committed.”’ United States v. Agostino,

608 F.2d 1035, 1037 (5th Cir. 1979); see also United

States v. Perkins, 608 F.2d 1064 (5th Cir. 1979). When

Moeller voluntarily removed the prescription vial from

his pocket, opened the vial, and showed Matheson its

contents (stating, “I do have a little speed’’), Matheson

had probable cause to arrest the defendant. Thus, even

assuming arguendo that valid consent to search Moeller or

his tote bag had not been obtained, Matheson was au-

thorized in searching the defendant incident to his valid

arrest for possession of a controlled substance. See Chimel

v. California, 395 U.S. 752, 89 8. Ct. 2034, 23 L. Ed. 2d 685

(1969) ; Fixel v. Wainwright, 492 F.2d 480 (5th Cir. 1974);

United States v. Jones, 475 F.2d 723 (5th Cir. 1973).

RECOMMENDATION

Accordingly, for the reasons set forth above, it is hereby

recommended that the defendant’s Motion to Suppress

be denied.

ORDER

Counsel for the parties having reported to the Magis-

trate that they have met regarding discovery and no

motion for additional discovery will be filed; and this

court having disposed of all pretrial motions filed; and

13ec

that there are no problems relating to the scheduling of

the trial other than review of this court’s Report and

Recommendation, it is

ORDERED that this action be and the same is hereby

declared ready for trial.

Let a copy of this Order by served by mail upon counsel

for the parties.

AND IT ISSO ORDERED, this 24th day of July, 1980.

/s/ Jory M. FELDMAN

JOEL M. FELDMAN

UNITED STATES MAGISTRATE

APPENDIX D

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

UNIT B

U.S. COURT OF APPEALS RECEIVED

June 22, 1981, Atlanta, Ga.

NO. 80-7797

[U.S. Court of Appeals, Filed June 22, 1981,

Gilbert F. Ganucheau, Clerk.]

UNITED STATES OF AMERICA,

Plaintiff-A ppellee,

versus

PAUL EDWARD MOELLER,

Defendant-A ppellant.

Appeal from the United States District Court for the

Northern District of Georgia

ORDER:

( ) The motion of appellant for stay of the issuance of

the mandate pending petition for writ of certiorari

is DENIED.

(X) The motion of appellant for stay of the issuance of

the mandate pending petition for writ of certiorari

is GRANTED to and including July 17, 1981 the

stay to continue in force until the final disposition

of the case by the Supreme Court, provided that

within the period above mentioned there shall be

filed with the Clerk of this Court the certificate of

the Clerk of the Supreme Court that the certiorari

ld

2d

petition has been tiled. The Clerk shall issue the

mandate upon the filing of a copy of an order of the

Supreme Court denying the writ, or upon the ex-

piration of the stay granted herein, unless the above

mentioned certificate shall be filed with the Clerk of

this Court within that time.

( ) The motion of

for a further stay of the issuance of the mandate is

GRANTED to and including

under the same conditions as set forth in the pre-

ceding paragraph.

( ) IT IS ORDERED that the motion of

for a further stay of the issuance of the mandate is

DENIED.

/s/ Frank M. Jounson, JR.

UNITED STATES CIRCUIT JUDGE