# Petition — Moeller v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1981
- **Citation:** 454 U.S. 1097

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_2529%3A1. Public record. Not legal advice.