Petition — Black v. United States

[ Office - Supreme Court, U.S.

81-2239 W

ALEXANOER L. STEVAS,

CLERK

NO.

in the

Supreme Court

of the

United States

OCTOBER IERM. 1981

RONALD G. BLACK.

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

Petition for a Writ of Certiorari to

The United Siates Court of Appeals

For the Seventh Circuit

ROY E. BLACK

Law Offices of

ROY E. BLACK, P.A.

Suite 1402

150 S.E. 2nd Avenue

Miami, Florida 33131

(305) 371-6421

Attorney for Respondent

QUESTION PRESENTED

WHETHER A SEIZURE OF THE DEFEN-

DANT OCCURED WHEN UNDERCOVER

POLICE OFFICERS SURROUNDED HIM

AND TOOK AND KEPT HIS DRIVER’S

LICENSE AND PLANE TICKET DURING

THEIR INTERROGATION AND SEARCH OF

HIS LUGGAGE.

TABLE OF CONTENTS

Page

e i

ED fi. da bcnccdacecsessubenuds iv

Opinion of the Court Below .................... 2

r ⁊V ͤ bes 2

Constitutional Provisionn s 2

, bbb 3

Reason for Granting the Petition ............... 7

THE DECISION OF THE CIRCUIT COURT

BELOW WHICH DETERMINED THAT NO

FOURTH AMENDMENT SEIZURE OF THE

PETITIONER OCCURRED WHEN THE

OFFICERS OBTAINED AND RETAINED HIS

DRIVERS LICENSE AND PLANE TICKET

IS IN DIRECT AND SUBSTANTIAL

CONFLICT WITH THE DECISIONS OF

OTHER CIRCUITS REFLECTING A

PARTICULAR NEED FOR A UNIFORM

D A

rr PR Sa a ree rane ee Re

TABLE OF CONTENTS (Continued)

Appendices:

A: United States v. Ronald G. Black,

No. 81-1883 (Seventh Circuit, April

Dh IED 6 occ cdcceesceeeceecnces

TABLE OF AUTHORITIES

Brown v. Illinois,

ä

Bumper u North Carolina.

eee... ccccccsccccces

Royer u State,

389 So. 2d 1007 (Fla. 3rd DCA en banc,

1980), cert. granted 30 CrL 4109

! ˙ ˙ ˙˙B— O br

United States u Berry,

670 F. 2d 583, 593 (5th Cir. 1982)

United States v. Black,

case no. 80-Cr-295

(7th Cir. decided April 6. 1982).

United States v. Elsoffer,

case no. 80-7236

(11th Cir. filed April 1,1982)............

United States v. Mendenhall,

446 U.S. 544 (1980 ̃ f

Wong Sun u United States,

Z v Sv bcccvcevesosavens

iv

NO.

in the

Supreme Court

of the

United States

OCTOBER TERM, 1981

RONALD G. BLACK,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

Petition for a Writ of Certiorari to

The United States Court of Appeals

For the Seventh Circuit

The Petitioner, RONALD G. BLACK, by his

undersigned counsel, respectfully prays that a Writ of

Certiorari issue to review the judgment and opinion of

the United States Court of Appeals for the Seventh

Circuit entered in the proceeding on April 6, 1982.

OPINION OF THE COURT BELOW

The opinion of the Court of Appeals for the Seventh

Circuit is reported at United States v. Black, case no.

81-1883 (7th Cir. decided April 6, 1982).

JURISDICTION

The judgment of the Court of Appeals affirming

the judgment of the United States District Court was

entered on April 6, 1982. The petition is filed pursuant

to Rule 20, Rules of the Supreme Court, as amended.

The jurisdiction of this Court is invoked pursuant to

the provisions of Title 28, United States Code, §1254(1).

CONSTITUTIONAL PROVISIONS

Amendment IV, Constitution of the United States:

“The right of the people to be secure in

their persons, houses, papers, and effects, against

unreasonable searches and seziures, 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.”

STATEMENT OF THE CASE

At noon, on May 14, 1980, Officers Burzinski, Kinsella,

and Boyle, of the Chicago Police Department, Narcotics

Division, were at gate F-2 of the United Airlines terminal

at O’Hare Airport, Chicago. The three officers were

awaiting an incoming flight from Ft. Lauderdale, Florida

(TR. 7). Officer Boyle left the area and played no further

part in this case.

The first passenger to leave the aircraft was the

Petitioner. He came down the jetway “. . . walking at

a rapid pace . he appeared to be disoriented

and. . . he was swearing a little, and also looking

around the concourse.” (TR. 8).

“After he stepped out of the jetway, he stepped

into the waiting area and rapidly walked through that

island to the concourse.” (TR. 8).

“As he stepped out onto the concourse, he appeared

disoriented and was looking in all directions up and

down the concourse and at several people who were

standing there waiting for the flight.” (TR. 47). The

Petitioner stood there for less than a minute (TR. 47).

Then he walked down the concourse towards the United

screen (TR. 80). The officers followed approximately 15

feet behind him, as the Petitioner went towards a

television monitor screen at the junction of F and D

concourse (TR. 48).

“He stood at the screen for approximately thirty

seconds and then he stood in the area of the screen for

several more minutes, looking up and down the

concourse . . . he appeared fairly normal at this point

(TR. 49). He then walked approximately fifty feet over

to Gate F-3. He walked to the rear of the waiting area

where there were several other people seated and took

his seat in the area. After he sat down in a chair, he

looked all around for approximately three or four mintues

just sitting there looking back and forth up and down

the waiting area in the concourse. He then slumped

lower in his seat and looked for another minute or two.

He sat there for a total of about five minutes.” (TR. 50).

The flight leaving from this gate was United Airlines

flight number 3 which is a non-stop flight to Honolulu

(TR. 12). The Petitioner was booked on the United

flight for Honolulu but had arrived over one hour before

departure time. (TR. 76).

Still in the United Airlines waiting area, the

Petitioner got up to go to the bathroom. At this time he

was confronted by the two police officers. (TR. 77).

Officer Burzinski and Kinsella, casually dressed in

blue jeans, showed the Petitioner their identification

and stated they were Chicago police officers (TR. 13).

Officer Kinsella asked the Petitioner if he could talk

with her. The Petitioner said, “Sure.”

Officer Kinsella then asked the Petitioner for his

identification and airline ticket (TR. 14, 52). The Petitioner

removed his wallet from his pocket and took out a

Hawaiian drivers license which he handed to Officer

Kinsella. He also gave Officer Kinsella his United Airlines

ticket (TR. 52). The ticket was in the name of Ronald

“Plack” and the drivers license was in the name of

Ronald “Black” (TR. 53). Officer Kinsella asked the

Petitioner why he was flying under a fictitious name.

Officer Kinsella testified that the Petitioner gave no

response. “He just shrugged his shoulders.” (TR. 53).

4

The Petitioner testified, “Yes, they asked why there

was a discrepancy with the names and I told him I had

ordered the tickets over the phone, and I didn't notice

it when I picked up the ticket.” (TR. 77).

Officer Kinsella gave the airline ticket to Officer

Burzinski. She kept the Petitioner's drivers license and

airline ticket' and they remained in her hands at all

times, even subsequent to the arrest (TR. 41, 42). It

was at this point that the Petitioner began “shaking,

visibly shaking, and acting very nervous.” (TR. 15).

Officer Kinsella continued to question the Petitioner

as to what he'd been doing in Florida. The Petitioner

stated that he'd been in Florida surfing, and that in

order to earn money for a return trip he had worked

harvesting coconuts (TR. 53).

At that point, Officer Kinsella asked the Petitioner

to step aside and he was ushered over to the wall. The

officers began to question the Petitioner about what he

was carrying in his travel bag and made their initial

request to seach his bag. At this point, the Petitioner

had been herded against the wall with the officers

holding his plane ticket, his drivers license, and physically

standing so as to prevent his exit (TR. 32, 33, 78).

Petitioner testified that at this point he had his back to

the wall. The officers never told him that he did not

have to talk to them or that he could leave (TR. 34, 78).

This fact was confirmed by Officer Kinsella’s testimony

(TR. 66).

Kinsella gave Burzinski the ticket and drivers license in full

view of the Petitioner so that he necessarily understood that they

would not be returned to him until after the questioning by the

officer:.

The Petitioner unzipped his travel bag and the

officers, after first examining some items, searched it

thoroughly (TR. 80). Although the Petitioner at one

point told them, “That’s enough. I don’t want you to

search my bag any further.” (TR. 80), the search continued

and Officer Kinsella told the Petitioner, “You're under

arrest,” (TR. 80, 81). The search revealed a package

containing cocaine.

The Petitioner was charged in a one-count indictment

with violating 21 U.S. C., §841(aX1) by knowingly and

intentionally possessing, with the intent to distribute,

approximately 540 grams of a mixture containing cocaine.

Prior to trial, the Petitioner moved the district

court to suppress all evidence obtained by the Government

as a result of a warrantless search and seizure which

took place on May 14, 1980 at the Chicago O Hare

Airport. On May 13, 1981 the Honorable Nicholas J.

Bua, Judge United States District Court, held a hearing

for the Petitioner's Motion to Suppress. At the close of

the hearing, the Court orally denied the motion to

suppress. On the same day, the Petitioner filed a waiver

of jury trial. A bench trial was held on April 2, 1981.

The parties stipulated to the evidence heard on the

Motion to Suppress. A judgment of guilty was entered

on April 9, 1981 and on May 22, 1981 the Petitioner was

sentenced under the Youth Correction Act. Imposition

of sentence was suspended and the Petitioner was placed

on probation for a period of five years.

The United States Court of Appeals for the Seventh

Circuit affirmed the Petitioner's conviction on April 6,

1982.

REASON FOR GRANTING THE PETITION

THE DECISION OF THE CIRCUIT COURT

BELOW WHICH DETERMINED THAT NO

FOURTH AMENDMENT SEIZURE OF THE

PETITIONER OCCURRED WHEN THE

OFFICERS OBTAINED AND RETAINED HIS

DRIVERS LICENSE AND PLANE TICKET

IS IN DIRECT AND SUBSTANTIAL

CONFLICT WITH THE DECISIONS OF

OTHER CIRCUITS REFLECTING A

PARTICULAR NEED FOR A UNIFORM

STANDARD.

In 1980 Justice Stewart wrote that a seizure occurs

when “in view all the circumstances surrounding the

incident, a reasonable person would have believed that

he was not free to leave.” United States v. Mendenhall,

446 U.S. 544 (1980). This case, simply stated, raises the

question of whether the Petitioner was seized at the

time the Government agents retained his drivers license

and plane ticket and that a reasonable person would

not have believed he was free to leave.

This petition raises a question presently being

considered by the Court in the case of Royer v. State,

389 So.2d 1007 (Fla. 3rd DCA en banc, 1980), cert.

granted, 30 CrL 4109 (1981). In Royer a Florida appellate

court considered facts similar to the ones in the instant

case and found that an unlawful seizure of the person

had occurred and thereby tainted a subsequent consent.’

Brown u Illinois, 422 U.S. 590 (i975); Wong Sun u

United States, 371 U.S. 471 (1963).

The federal appellate courts have wrestled the

question of when a seizure occurs and have thus far

produced a divergence of opinions. The Fifth Circuit,

in noting this problem stated that

“fhjaving found no Supreme Court ruling

that provides definitive guidance in our

examination of whether the stop of appellants

invoked the Fourth Amendment, we turn to

our own cases. There also, however, though

establishing a clearer line of precedence than

we have gleaned from the Supreme Court's

pronouncements, form a confusing thicket of

opinions through which we can wend no

unobstructed path.”

United States u Berry, 670 F.2d 583, 593 (5th

Cir. 1982).

The Fifth Circuit then made an attempt to clarify

and re-evaluate its own position “concerning the interplay

of airport stops and the Fourth Amendment.” Id. at

594. It concluded that

“although we hold that all airport stops need

not be seizures, we take care to note that we

The essence of Royer u State was stated by Judge Barkdull

in his concurring opinion. “I concur in the opinion authored by

Judge Schwartz as it relates to the invalid consent to search only

because of the failure of the law enforcement officers to return

the tickets and their failure to advise Royer that he had a right to

decline the search if he desired.” Id. at 1026. (Emphasis added).

hold only with regard to the very narrow range

of stops conducted in an appropriate manner.

The balance that we find between the interest

of the government and the intrusion on the

individual is extremely delicate. It tips in favor

of holding that a seizure has occurred if there

is an intrusion on the individual by law

enforcement authorities that is greater than

we outlined above.“ Id. at 595.

The Fifth Circuit, relying on Mendenhall, recognized

the uniqueness of air travelers by stating:

“the nervousness that air flight often

engenders, the need to quickly make connections

for continuing one’s journey, the mere surprise

from being accosted in a crowded airport

concourse by a law enforcement officer for no

apparent reason, and the pressure to cooperate

with the police to avoid an untoward scene

before the crowds of people, all make it easy

for implicit threats or subtle coercion to exert

a tremendous pressure on an individual to

acquiesce to the officer's wishes. In such

situations it would be easy to misinterpret

acquiescence to an officer's demands as consent;

acquiescence cannot, of course, substitute for

free consent.” Bumper v. North Carolina, 391

U.S. 543 (1968).

‘It had earlier noted that airport stops of individuals by

police, if of an extremely restrictive scope and conducted in a

completely non-coercive manner, do not invoke the Fourth

Amendment.

The Fifth Circuit concluded that in looking at a

totality of circumstances in an airport stop, a court

should closely scrutinize whether those circumstances

reveal the presence of any coercion. “If such coercion

was present, the court must hold that a reasonable

person would believe that his freedom had been limited.”

Id. at 597.

Among the factors that the Fifth Circuit listed in

which a court “should place great weight in evaluating

the totality of the circumstances involving a stop” it

included the “implicit constraints on an individual's

freedom as would be caused by retaining an individual's

ticket for more than a minimal amount of time . . .”

Id. at 597. In Berry the Fifth Circuit found that there had

been no seizure until Berry “complied with the request,

showed Marconi his drivers license. . Id. at 653.

Unlike the instant case, at this time the officers already

had reasonable suspicion to support the limited intrusion

caused by this stop.

The Seventh Circuit’s opinion in the instant case

is divergent with that of the Fifth Circuit in that they

concluded that a seizure of the Petitioner did not occur

when Government agents took and retained both the

Petitioner’s drivers license and plane ticket, or even

when “Kinsella suggested they move to the side of the

concourse .. .” United States u Black, (Appendix, A.

p. 11) Though the Seventh Circuit recognized that “the

retaining may constitute a ‘watershed point’ in the

seizure question”, they failed to find that a seizure had

occurred in the instant case until much later. Counter

to Fifth and Eleventh Circuit opinions, the Seventh

Circuit has moved the point of seizure forward in time

and circumstance, allowing a person to be detained for

a period after the agents obtain his drivers license and

10

plane ticket so that they may obtain additional information

on which to base an articulable suspicion. Id. at p. 14.

A clear divergence of opinion between the circuits

is illustrated by the Eleventh Cireuit's holding in United

States v. Elsoffer, case no. 80-7236 (11th Cir., filed April

1, 1982) “that a seizure occurred when Agent Matheson

retained the ticket while asking for further identification.”

In Elsoffer the Eleventh Circuit found that “[t]he bulge

of unusual size and shape that Matheson observed on

Elsoffer's body provide a sufficient specific and articulable

basis for justifying the seizure.” Id. at 720. This bulge

was seen prior to the stop. In the instant case, at the

time the Government agents retained the Petitioner's

drivers license and airline ticket the Seventh Circuit

found the agents did not have sufficient facts to form a

reasonable suspicion as it was not until they asked

additional questions concerning the Petitioner's recent

past that they obtained sufficient additional information

with which to justify a seizure. If this Court adapts the

Fifth or Eleventh Circuit standard, the seizure of the

Petitioner occurred prior to his responding to these

questions, and prior to the agents obtaining sufficient

articulable susdbieion to justify the seizure.

Without a clear Supreme Court ruling which

“provides definitive guidance in our examination of

whether the stop of appellants invoked the Fourth

Amendment”, United States v. Berry, 670 F.2d 583, 593

(5th Cir. 1982), a divergence of opinion between the

circuits will continue to result. This case, like the case

of Royer v. State, 389 So.2d 1007 (Fla. 3rd DCA en banc,

1980), cert. denied 30 CrL 4109 (1981), provides the

vehicle by which this Court may formulate a clear and

concise standard to guide the lower courts in considering

this important constitutional issue.

11

CONCLUSION

For the reasons stated, the Petitioner prays this

Court issue a Writ of Certiorari.

Respectfully submitted,

SL Roy E. Black, Esq.

ROY E. BLACK, P. A.

Suite 1402

150 S. E. 2nd Avenue

Miami, Florida 33131

Attorney for Petitioner

12

Appendix

Appendix A

IN THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

No. 81-1883

UNITED STATES OF AMERICA,

Plaintiff-A ppellee,

U.

RONALD G. BLACK.

Defendant-A ppellant.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 80 CR 295— Nicholas J. Bua, Judge.

ARGUED NOVEMBER 13, 1981 — DECIDED APRIL 6, 1982

Before SWYGERT, Senior Circuit Judge, PELL, Circuit

Judge, and GRANT, Senior District Judge.“

PELL, Circuit Judge. The defendant-appellant

Ronald Black was charged with possession with intent

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

The defendant moved to suppress the introduction of

the cocaine as evidence against him on the ground that

*Robert A. Grant, Senior District Judge of the Northern

District of Indiana, is sitting by designation.

App. 1

it had been obtained from him through an unlawful

search and seizure by Chicago Police Department Officers.

The district court denied the motion, and the defendant

was convicted following a trial on stipulated testimony.

The defendant appeals on the ground that the trial

court erred in not granting his motion to suppress. The

defendant contends first, that he was seized within the

meaning of the Fourth Amendment; second, that the

seizure was unreasonable; and third, that he withdrew

his consent to a search of his luggage before cocaine

was discovered by the arresting officers.

I.

The testimony of the defendant and the two police

officers at the hearing on the motion to suppress

established how the police had obtained the evidence.

Although the thorough opinion of the district court, set

out at 510 F. Supp. 989 (N.D. III. 1981), lays out the facts

in detail, we repeat them here at some length because

the resolution of cases of this type is heavily dependent

on their particular facts. On May 14, 1980, Chicago

Police Officers Burzinski and Kinsella were engaged in

surveillance of flights arriving at Chicago’s O’Hare

Airport from the Miami-Fort Lauderdale area. The

officers had been assigned to assist the Drug Enforcement

Agency (DEA) in conducting narcotics investigations

at the airport. Because the DEA has determined that

the southern Florida area is the main source of cocaine

distribution in the United States, police officers were

trying to monitor as many flights as possible arriving

from that area.

Burzinski, a Chicago Police Officer for eight years,

had been assigned to narcotics investigations for eighteen

App. 2

months at the time of the trial, and had been on the

O Hare detail for two months at the time of the defendant's

arrest. Prior to Black's arrest, she had participated in

approximately fifty stops and ten seizures of narcotics

at the airport. Kinsella, a Chicago Police Officer for

seventeen years, had been engaged in narcotics

investigations for nine years at the time of the trial,

and had been assigned to O Hare for one year full-time,

and two years part-time, prior to the defendant's arrest.

Kinsella has participated in over a thousand seizures of

narcotics, including approximately fifty seizures of

narcotics at O Hare, and seventy-five investigatory stops

there of suspected drug couriers.

At around noon on May 14, the officers were

monitoring United Airlines Flight 965 from Fort

Lauderdale. The first passenger to disembark was the

defendant. The officers observed his leaving the jetway

alone, walking rapidly or jogging to the waiting area of

the gate. The defendant, who was carrying a black

Continental Airlines travel bag, appeared to both officers

to be disoriented. As he reached the concourse, he

stopped to look around, and after several minutes

proceeded down the concourse in the direction of the

terminal. Kinsella determined, based on the defendant's

apparent nervousness, disorientation, and rapid exit

from the plane, that it would be appropriate to follow

the defendant.

Black walked slowly down the concourse. He

appeared to be unsure of his footing, and stumbled at

least once. The officers followed Black to the intersection

of the F and E concourses where Black viewed a United

information television monitor screen for thirty seconds

or so. Black then surveyed the area, looking continually

App. 3

around and behind him for several minutes, in a manner

that suggested to Burzinski that he was not looking for

anyone or anything in particular, but rather was surveying

the people in the area. Black then proceeded, with the

officers still following, to Gate F-3. It was then about

12:15 p.m. The next scheduled flight was a 1:15 p.m.

non-stop flight to Honolulu. The check-in counter was

open, and passengers were checking in for the Honolulu

flight. The defendant entered the waiting area without

checking in, and sat down. The officers noted that

Black continued to scan the waiting area and concourse

while seated.

After remaining seated for some five minutes, the

defendant picked up his bag and walked into the concourse.

As he reentered the concourse, the two officers, who

had been standing in the concourse just outside the

waiting area, approached him. Neither officer was in

uniform. They identified themselves as Chicago Police

Officers by showing their badges and I.D. cards, and

Kinsella asked Black in “an average everyday” tone of

voice if he could talk to him for a moment. The defendant

responded, “Sure.”

Kinsella then asked Black if he had identification

and an airline ticket. Black, who now appeared very

nervous and visibly shaken, presented a Hawaii driver's

license and a first-class one-way ticket to Honolulu.

The ticket was in the name of R. Plack, and had been

purchased for cash at a travel agency in Hollywood,

Florida. Kinsella asked Black why he was traveling

under a fictitious name. Black offered no explanation,

but merely shrugged his shoulders in response. Kinsella

then asked what Black had been doing in Florida. Black

responded that he had gone to Florida three months

App. 4

earlier to go surfing, had run out of money, and had

worked picking coconuts to earn money for his return

ticket to Hawaii.

At about this point, Kinsella suggested the group

step to the side of the concourse to avoid blocking

traffic, and the three of them moved a few feet away

from the area of the initial encounter. Kinsella then

asked Black what was in the travel bag. Black said it

contained books, clothes, and toilet articles. Kinsella

asked if Black would consent to a search of the bag.

Black said yes. Kinsella informed Black that he need

not consent to the search of the bag. Without responding

further, Black immediately knelt down, unzipped the

bag, took out a book and handed it to Kinsella. At

about this time Kinsella handed Black's license and

ticket to Burzinski. Kinsella inspected the book, placed

it on the floor next to the bag, and took out a shaving

kit. He opened the kit, inspected its contents, and

placed it on the floor next to the bag.

Kinsella then reached again into the bag, and grasped

a shirt. As he did so, he could feel a harder object

through the shirt. As he began to withdraw the shirt,

Burzinski, who was standing across from Kinsella as he

knelt beside the bag, could see a clear plastic bag

containing a white powder inside a torn paper bag,

wrapped in the shirt. As Kinsella’s hand, holding the

shirt, reached the top of the travel bag, Black grabbed

Kinsella's wrist, and while pulling Kinsella's hand out

of the bag, told Kinsella not to search any further. As

Black pulled Kinsella's hand free of the travel bag, the

plastic bag fell out of the shirt to the bottom of the

travel bag. Kinsella saw the plastic bag containing

App. 5

white powder in plain view at the bottom of the travel

bag. At that point, Kinsella placed Black under arrest.

At no time during the entire incident, which lasted

no more than a few minutes, did the officers display

their weapons or raise their voices. The entire incident

took place in a well-lit and spacious public concourse

with other travelers present.

Based on the above evidence, the trial court denied

the motion to suppress. The court first determined

that the officers’ initial request to speak to Black did

not constitute a seizure under the standard of United

States v. Mendenhall, 446 U.S. 544, 552-54 (1980), and

Terry v. Ohio, 392 U.S. 1, 21 (1968). The court noted

that the officers merely identified themselves in a

conversational tone as Black walked past, and asked if

they could speak with him. The court concluded, in

light of all the circumstances surrounding the initial

contact, that no reasonable person would have believed

that he was not free to disregard the request, and walk

away. The court further ruled that even if Burzinski's

failure to return the defendant's ticket and license

turned the incident into an investigatory stop, the stop

was justified by reasonable suspicion based on the

facts in the officers’ initial interview with Black.

Finally, the court concluded that Black consented

to the search of his bag; that by the time Black sought

to revoke that consent Burzinski had already seen the

cocaine; and that Black's attempt to remove Kinsella's

hand from the bag caused the cocaine to come into

Kinsella’s view as well.

App. 6

II

The primary issue raised on appeal is whether the

defendant was unlawfully seized before the search of

his travel bag. Analysis of this issue further breaks

down into two questions: was the defendant seized.

and if so at what point; and, if the defendant was

seized, was there objective justification sufficient to

create reasonable suspicion that the defendant was

engaging in criminal activity.

A. Did a Seizure Occur, and, If So, When?

The issue of when a seizure has occurred is a

somewhat unsettled one. As a preliminary matter, we

note that the case law has developed three tiers or

categories of police-citizen encounters. The first, an

arrest, is characterized by highly intrusive or lengthy

search or detention; the Fourth Amendment requires

that such an arrest be justified by probable cause to

believe that a person committed or is committing a

crime. See, e.g., Dunaway v. New York, 442 U.S. 200

(1979); Beck u Ohio, 379 U.S. 89 (1964). The second category,

the investigatory stop, is limited to brief, non-intrusive

detention during a frisk for weapons or preliminary

questioning; this type of encounter is also considered a

“seizure” sufficient to invoke Fourth Amendment

safeguards, but because of its less intrusive character

requires only that the stopping officer have specific

and articulable facts sufficient to give rise to reasonable

suspicion that a person has committed or is committing

a crime. United States v. Brignoni-Ponce, 422 U.S. 873,

881-82 (1975); Terry v Ohio, 392 U.S. 1 (1968). The third

category of police-citizen encounter is that in which no

App. 7

restraint of the liberty of the citizen is implicated, but

the voluntary cooperation of the citizen is elicited through

non-coercive questioning; this type of contact does not

rise to the level of a seizure. United States u Mendenhall,

446 U.S. 544, 553-55 (1980) (Stewart, J.) (with Rehnquist,

J., concurring); Terry, 392 U.S. at 19. n.16

The proper test for determining whether a given

police-citizen contact rises to the level of a Fourth

Amendment seizure was the focus of inquiry in the

recent case of United States v. Mendenhall, supra. In

Mendenhall, two federal DEA agents observed the

defendant arrive at the Detroit Airport from Los Angeles,

and determined that her conduct was characteristic of

drug couriers. After following Mendenhall briefly, the

agents identified themselves and asked to see her

identification and ticket. On observing that the names

on the two items were not the same, the agents questioned

Mendenhall on the discrepancy and on her stay in

California. The agents returned her ticket and license,

and asked her to accompany them to the DEA's airport

office. The defendant did so, and consented to a search

of her person in the office. Heroin was found, and

Mendenhall was arrested.

A majority of the Court concluded that no

constitutional violation had occurred. The Court could

not, however, reach consensus on the rationale. Justice

Stewart, in an opinion joined only by Justice Rehnquist,

concluded

that a person has been “seized” within the

meaning of the Fourth Amendment only if, in

view of all the circumstances surrounding the

App. 8

incident, a reasonable person would have

believed that he was not free to leave.

446 U.S. at 554. Justice Stewart determined that under

the facts before the Court, no s, zure of the defendant

had occurred:

The events took place in the public concourse.

The agents wore no uniforms and displayed

no weapons. They did not summon the

respondent to their presence, but instead

approached her and identified themselves as

federal agents. They requested, but did not

demand to see the respondent's identification

and ticket. Such conduct, without more, did

not amount to an intrusion upon any

constitutionally protected interest. The

respondent was not seized simply by reason of

the fact that the agents approached her, asked

her if she would show them her ticket and

identification, and posed to her a few questions.

Nor was it enough to establish a seizure that

the person asking the questions was a law

enforcement official. See Terry v. Ohio, 392

U.S. at 31, 32-33 (Harlan, J., concurring). See

also ALI, Model Code of Pre-Arraignment

Procedure §110.1(1) and commentary, at 257-61

(1975). In short, nothing in the record suggests

that the respondent had any objective reason

to believe that she was not free to end the

conversation in the concourse and proceed on

her way, and for that reason we conclude that

the agents’ initial approach to her was not a

seizure.

446 U.S. at 555.

App. 9

Justice Powell, joined by the Chief Justice and

Justice Blackmun, concurred in the judgment, but declined

to join in that portion of Justice Stewart's opinion

which found that no seizure had occurred. While

specifically noting that he did not necessarily disagree

with that conclusion, 446 U.S. at 560 n.1., Justice Powell

declined to reach the issue of whether a seizure had

occurred on the ground that that question had not been

decided below, but ruled that any seizure was justified

by the requisite suspicion.

Several circuits have adopted Justice Stewart's

“reasonable person” test for determining whether seizures

have occurred in airport surveillance cases such as the

one before us now. See e.g., United States v. Viegas,

639 F.2d 42, 44 (Ist Cir. 1981), cert. denied, 451 U.S. 970;

United States v. Allen, 644 F.2d 749 (9th Cir. 1980);

United States v. Elmore, 595 F.2d 1036 (5th Cir. 1979),

cert. denied, 447 U.S. 910 (1980); see United States u

Jefferson, 650 F.2d 854 (6th Cir. 1981). We are similarly

persuaded that this is the appropriate standard under

which the seizure question should be resolved. As long

as a person remains at liberty to disregard a police

officer’s request for information, no constitutional interest

is implicated. Imposition of an objective standard requiring

the presence of circumstances which indicate that that

freedom to disregard has been obumbrated properly

provides a reliable basis on which the court may determine

whether valuable liberty interests have been infringed,

without hamstringing the ability of the police to engage

in some modicum of legitimate contact with the citizenry.

Before determining whether the encounter between

Black and the officers rose to the level of a seizure

under this test, we point out that the question is a

App. 10

highly factual one, heavily dependent on the circumstances

of each case. See Mendenhall, 446 U.S. at 554. Our

standard of review is accordingly limited to inquiry into

whether the decision of the district court is clearly

erroneous, and requires that particular deference be

given to the district judge who had the opportunity to

observe the testimony and demeanor of both the officers

and the defendant. United States v. Patino, 649 F.2d

724, 728 (9th Cir. 1981) (affirming trial court’s finding

that a seizure had occurred).

In determining whether a given police-citizen

encounter constitutes a seizure in the context of airport

surveillance, courts have looked at a variety of factors.

The inquiry has focused on three major areas: (1) the

conduct of the police; (2) the person of the individual

citizen; and (3) the physical surroundings of the encounter.

In examining the conduct of the police officer, courts

have sought to determine whether “the officer, by means

of physical force or show of authority, has in some way

restrained the liberty of a citizen such that he is not

free to walk away.” United States v. Viegas, 639 F.2d 42,

45 (Ist Cir. 1981), cert. denied, 451 U.S. 970 (quoting

Terry, 392 U.S. at 19 n.16). The district court here

found that no physical force was used to detain the

defendant. Although the defendant contended at the

suppression hearing that he had in fact been “surrounded”

by the two officers, and prevented from leaving, the

trial court rejected that testimony, and found that nothing

about the encounter was coercive, and specifically noted,

after reviewing the defendant and the manner in which

he testified, that the court did not believe that the

defendant could reasonably have felt coerced.

App. 11

An individual need not be held at gunpoint or in

bonds, however, before a restraint will be found: “any

restraint of movement will do.” United States u Elmore,

595 F.2d 1036, 1041 (5th Cir. 1979), cert. denied, 447

U.S. 910 (1980). Thus, if officers have intimidated an

individual through the use of a show of authority sufficient

to make it apparent that the individual is not free to

ignore the officer and proceed on his way, a seizure will

be found. The determination of precisely when an officer’s

polite request for an interview rises to the level of a

show of authority sufficient to constitute an investigative

stop is not always an easy one,” Viegas, 639 F. 2d at 44,

may be “extremely close” Mendenhall, 446 U.S. at 560

n.1 (Powell, J., concurring), and calls for a “refined

judgment” by the trial court, Elmore, 595 F.2d at 1041-42

(quoting United States v. Wylie, 569 F.2d 62, 68 (D.C.

Cir. 1977), cert. denied, 435 U.S. 944 (1978)). We are not

persuaded that the findings of the district judge on

this close question of fact are clearly erroneous. He

noted that the officers were casually dressed, did not

display any weapons, did not raise their voices above a

conversational level, and did not threaten Black. We

find no error with the district court's findings vis-a-vis

the conduct of the officers and agree with its finding

that Black’s freedom was not restrained by an overbearing

show of authority.

Courts have also looked to the characteristics of

the defendant in seeking to determine whether even a

facially innocuous encounter might, in the circumstances,

have overborne the citizen’s freedom to walk away.

For example, in United States v. Patino, 649 F.2d 724

(9th cir. 1981), the court affirmed a trial court’s finding

that an individual had been restrained by a request for

an interview when she had problems understanding

App. 12

the English language, and was an alien who might

therefore have felt a greater compulsion to comply

with the request of the police. In contrast to Patino, the

trial court here found the defendant, “an articulate,

intelligent young man,” and noted that he was a college

graduate. We concur that the defendant was not so

naive or vulnerable to coercion that special protection

from police contacts was required by the Fourth

Amendment.

The final element courts have examined in

determining whether a police-citizen encounter was

voluntary or coerced is the physical setting in which

the encounter took place. For example, in United States

u Lara, 638 F.2d 892, 894, 899 (5th Cir. 1981), the court

noted that the encounter took place in an area of the

airport which was characterized as relatively private,

and pointed out that the defendant might have felt

isolated from others. Similarly, in United States v.

Jefferson, 650 F.2d 854, 858 (6th Cir. 1981), the court

found a seizure had occurred when the citizen was

immediately hustled from the public concourse to a

private office, where he was interrogated. In the instant

case, the district court found that “[t]he incident took

place entirely in a well-lit and spacious public concourse

with other travelers present.” 510 F. Supp. at 992. This

is patently inconsistent with the contention that Black’s

liberty was restrained by a sort of quasi-imprisonment.

Nor are we persuaded that the officers seized the

defendant when they suggested moving to the side of

the corridor to avoid the flow of traffic. This request,

readily acquiesced to by the defendant, did not result

in his isolation or restraint, and was therefore of no

legal significance. See United States u Allen, 644 F.2d

749, 751 n.3 (9th Cir. 1980).

App. 13

We conclude, therefore, that the trial court correctly

ruled that the officers’ initial contact with Black, up to

and including the point where Kinsella suggested they

move to the side of the concourse, was lawful, and did

not constitute a seizure triggering the protections of

the Fourth Amendment. Dunaway v. New York, 442

U.S. 200 (1979), relied upon by the defendant to establish

that probable cause was required for the initial contact

is inapposite here. Dunaway was picked up in a police

car, brought to police headquarters, given his Miranda

warnings, and questioned in the station's interrogation

room. This highly intrusive and lengthy detention falls

into the first tier of Fourth Amendment analysis, and

is clearly distinguishable from the facts of the instant

case.

The defendant also contends that even if the initial

encounter was valid, Black was seized for Fourth

Amendment purposes when the officers took and kept

his driver's license and airline ticket. Under our reasoning

above, we believe it is clear that the mere request for

and voluntary production of such documents does not

constitute a seizure, but rather falls into the category

of a non-coercive police-citizen encounter. As several

courts have realized, however, the retaining of the

documents beyond the interval required for the

appropriate brief scrutiny, may constitute a “watershed

point” in the seizure question. United States v. Viegas,

639 F.2d 42, 44 n.3 (Ist Cir. 1981), cert. denied, 451 U.S.

970; United States v. Elmore, 595 F.2d 1036, 1042 (5th

Cir. 1979), cert. denied, 447 U.S. 910 (1980); see Mendenhall,

446 US. at 570 n.3 (White, J., dissenting). The question

whether a reasonable person would have felt free to

leave when Kinsella handed his ticket and driver's

license to another officer while kneeling to look into

App. 14

the travel bag is extremely close. In Elmore, where a

seizure was found, the agents did not merely hold on to

the ticket; they actually carried it to the airline ticket

counter, away from the physical presence and sight of

the defendant. Here the ticket remained in plain view

at all times. There is no intimation in the record that

Kinsella handed the ticket to Burzinski in a manner

that implied he was removing it from Black’s grasp or

otherwise prohibiting access to it. Rather the fair inference

from the testimony is that Kinsella did so simply to

free his hands for searching the travel bag, pursuant to

Black’s consent.

The trial court resolved the question whether the

retention of the ticket constituted a search by finding

that

in light of all the circumstances, even if

Burzinski's failure to immediately and

independently return Black's ticket and driver's

license turned what had been, up to this time,

mere “personal intercourse” into an investigatory

stop or detention, this stop was justified by

what was now the clearly reasonable suspicion

of the officers ....

510 F. Supp. at 993. If such reasonable suspicion was

present, there would be no Fourth Amendment problem

with retention of the documents even if that rises to

the level of a seizure. Reid v. Georgia, 448 U.S. 438, 440

(1980); Mendenhall, 446 U.S. at 560 (Powell, J., concurring);

Viegas, 639 F.2d at 44. We therefore turn our attention

to the question whether the officers had sufficient

articulable facts to give rise to a reasonable suspicion

App. 15

that Black had committed or was committing a crime

at the time Kinsella handed the documents to Burzinski.

B. Was There Reasonable Suspicion Sufficient to

Warrant Retention of the Defendant's Driver's

License and Airline Ticket?

In Reid v. Georgia, 448 U.S. 438 (1980), the Supreme

Court examined the circumstances surrounding a “Terry”

stop of a suspected drug courier by DEA agents in the

Atlanta airport, in order to determine whether they

gave rise to a reasonable suspicion of criminal activity

sufficient to justify the stop. The trial court had ruled

that the defendant had been seized without the necessary

“articulable suspicion.” The appellate court reversed,

concluding that because the defendant appeared to the

agents to fit a “drug courier profile,” there was reasonable

suspicion. The drug courier characteristcs listed by the

appellate court were

(1) the petitioner had arrived from Fort

Lauderdale, which the agent testified is a

principal place of origin of cocaine sold elsewhere

in the country, (2) the petitioner arrived in the

early morning, when law enforcement activity

is diminished, (3) he and his companion appeared

to the agent to be trying to conceal the fact

that they were traveling together, and (4) they

apparently had no luggage other than their

shoulder bags.

448 U.S. at 441. The Supreme Court rejected these

grounds as a sufficient basis for reasonable suspicion,

and pointed out that

App. 16

only the fact that the petitioner preceded another

person and occasionally looked backward at

him as they proceeded through the concourse

relates to their particular conduct. The other

circumstances describe a very large category

of presumably innocent travelers who would

be subject to virtually random seizures were

the Court to conclude that as little foundation

as there was in this case could justify a seizure.

Id.

Kinsella and Burzinski articulated the following

grounds for their decision to make the initial contact

with Black:

(1) Black had arrived on a flight from

Fort Lauderdale;

(2) Black was the first passenger off the

plane;

(3) He exited the plane in a speedy fashion

and was in a disoriented state;

(4) He appeared to be nervous as he

walked through the concourse and viewed the

flight information screen.’

'The officers were not relying on the DEA drug courier

profile discussed in Reid and Mendenhall, but rather on the basis

ide experience of drug enforcement personnel at O'Hare. Although

the homemade profile based on this experience was not highly

formalized, there is some indication in the record that the officers

relied not only on their personal experience, but on a booklet“

listing characteristics of drug couriers traveling through O'Hare.

App. 17

Despite the Supreme Court's recognition that “a trained

officer draws inferences and makes deductions . . . that

might well elude an untrained person,” United ‘States

v. Cortez, 449 U.S. 411, 418 (1981); see Mendenhall, 446

U.S. at 563 (Poweil, J., concurring) (quoting Brown u

Texas, 443 U.S. 47, 52 n.2 (1979)), it is clear that under

the Reid standard, these factors alone would not justify a

Terry stop.

In the instant case, however, the officers had several

additional facts to consider at the earliest point at

which a seizure could be said to have occurred, i.e.,

when Kinsella passed the documents on to Burzinski.

There was the unexplained discrepancy between the

names on the ticket and the driver's license; the substantial

cash price of the first-class ticket, and the defendant's

heightened nervousness (Burzinski testified that at this

point Black was “shaking, visibly shaking, and acting

very nervous”). Finally, there was the coconut story,

implausible on its face, and highly consistent with

Black's expensive first-class ticket. These additional

factors, gleaned during the constitutionally permissible

initial encounter, provided the officers with reasonable

suspicion to detain Black further and seek his consent

to search his travel bag. United States v. Herbst, 641

F.2d 1161, 1167 (5th Cir. 1981), cert, denied, 102 S.Ct.

292; United States u Berd, 634 F.2d 979, 986 (5th Cir.

1981); United States v. Elmore, 595 F.2d at 1041.

We are unmoved by the defendant's assertion that

all of his actions and responses were consistent with

wholly innocent behavior, and could not therefore give

rise to reasonable suspicion without subjecting every

airport passenger to potential police seizure. As other

courts confronted with similar situations have noted,

App. 18

it must be rare indeed that an officer observes behavior

consistent only with guilt and incapable of innocent

interpretation.” United States u Price, 599 F.2d 494,

502 (2d Cir. 1979), quoted in United States v. Viegas, 639

F.2d at 45. It is for that reason that the applicable

standard in determining the propriety of a Terry stop

is not whether the defendant's acts can be construed as

innocent through the exercise of exegetical speculation,

but rather whether they give rise to an articulable,

reasonable suspicion of criminal activity. We conclude

that in this case the trial court did not err in determining

that even if the retention of the documents constituted

a seizure, it was justified at that point by objective and

articulable factors giving rise to a reasonable suspicion

that a crime had been or was being committed. We

need not determine with precision therefore whether

such a seizure actually occurred on the facts of this

case when Kinsella turned the license and ticket over

to Burzinski, and now turn our attention to the officers’

search of Black's travel bag.

III.

The defendant's final contention is that even if the

seizure was not unreasonable and his consent to search

his bag valid, he withdrew all consent to the search

before the observation and seizure of the cocaine. He

relies on Mason v. Pulliam, 557 F.2d 426 (5th Cir. 1977),

for the proposition that consent to a search can be

limited or withdrawn, and that such withdrawal must

be honored by the police. We do not quarrel with that

proposition as an abstract formulation of the law. It

flies in the face of the facts found by the district court,

however, to assert that consent was withdrawn in this

case before the officers observed the cocaine.

App. 19

Kinsella testified that subsequent to the grant of

consent he reached into the bag, grasped a shirt and

was about to remove it from the bag, when the defendant

grabbed his arm, requested him to stop the search, and

pulled his arm and the shirt out of the bag, whereupon

the plastic bag of cocaine fell into plain view at the

bottom of the bag. Burzinski testified that she was

standing next to Kinsella and Black, who were kneeling

next to the bag, and that she could see what appeared

to be a bag of cocaine in the travel bag when Kinsella

raised the shirt, shortly before Black attempted to pull

Kinsella’s hand from the bag. While Black testified that

he had not pulled Kinsella’s hand or the shirt from the

bag, the court explicitly resolved whatever issue of

fact the two accounts created against the defendant. It

ruled that the discovery of the cocaine was the result

of the defendant's initial consent, and his clumsy attempt

to revoke that consent. We are not persuaded that

these findings, based as they are on the demeanor and

credibility of the witnesses, are clearly erroneous. In

light of these facts, we hold the district court correctly

applied the law of consent pursuant to the standards of

Schneckloth v. Bustamonte, 412 U.S. 218 (1973), and of

plain view, United States v. Schire, 586 F.2d 15 (7th Cir.

1978); United States v. Cooks, 493 F.2d 668 (7th Cir.

1974).

In accordance with the foregoing reasons, the

judgment of the district court is

AFFIRMED.

App. 20

SWYGERT, Senior Circuit Judge, dissenting. The

case presents two crucial questions. First, when was

the defendant Black seized within the meaning of the

Fourth Amendment; and, second, at that point, did the

police know “specific and articulable facts” sufficient

to give rise to a reasonable belief that Black had committed

a crime? Terry u Ohio, 392 U.S. 1, 21-22 (1968). I believe

that the majority has incorrectly analyzed both issues.

I make two preliminary observations. First, I note

that the Supreme Court has never definitely articulated

the concept of a Fourth Amendinent seizure. The majority

here adopts Justice Stewart's Mendenhall-test that a

person has been seized within the meaning of the Fourth

Amendment only if, in view of all the circumstances

surrounding the incident, a reasonable person would

have believed that he was not free to leave. United

States v. Mendenhall, 446 U.S. 544, 554 (1980). Only two

Justices in Mendenhall explicitly accepted that test.

An overly-restrictive definition of a seizure isolates

police-citizen contacts from constitutional safeguards

by removing them from judicial scrutiny. It, therefore,

eliminates the only effective deterrent to police

misconduct. Terry v. Ohio, 392 U.S. 1, 12 (1968).

Nonetheless, even accepting the Mendenhall standard,

I believe that the majority incorrectly analyzes the

seizure issue.

Second, the majority is incorrect in using the “clearly

erroneous” standard of review. The majority employs

this standard of review because it believes that whether

the encounter between the police and Black amounted

to a seizure is a factual matter. Majority opinion at 11.

The factual findings, however, are not in dispute. The

only issue is whether these facts constitute a Fourth

App. 21

Amendment seizure. This is a question of law and the

standard of review, therefore, is not clearly erroneous.

United States v. Parke, Davis & Co., 362 U.S. 29, 44

(1960); Murphy v. Turner, 426 F.2d 422, 423 (10th Cir.

1970); 2 Fed. Proc., L. Ed. §3:652. The court’s use of the

incorrect standard of review contributes crucially to

its erroneous result. The majority admits that it is a

close question whether the initial contact between the

police and Black was a seizure. Majority opinion at 13.

The majority defers to the district court’s legal conclusion

because it finds no clear error in the factual findings.

But the issue is a legal one and so the deference is

inappropriate.

I

The majority holds that the initial encounter between

the police and Black was neither an arrest nor an

investigative stop. The police’s conduct, therefore, is

completely outside the reach of the Fourth Amendment

and is not open to judicial scrutiny. I believe that a

realistic analysis of the facts of this case cannot support

this position.

Black left the plane, walked to the flight information

screen, and then walked to another gate and sat down

to wait for his connecting flight. After five minutes he

got up to go to the washroom. Two people stopped him,

identified themselves as Chicago police officers, and

said that they wanted to ask him some questions. I

believe that a reasonable person would not think that

under these circumstances he could freely ignore the

police and walk away. Police encounters that involve

investigative questioning that focuses on the person

being stopped are inherently coercive. Police are authority

App. 22

figures. A person naturally feels compelled to stay pu.

when the police stop him and say that they want to ask

him some questions that involve him. The situation

would have been quite different if the police were not

investigating Black or were simply engaged in ordinary

conversation. Here it is undisputed that the police

stopped Black specifically to investigate him. I think it

is clear that Black was seized under the Fourth

Amendment. See Brown u Texas, 443 U.S. 47, 50 (1979);

United States v. Palmer, 603 F.2d 1286, 1288 (8th Cir.

1979).

The majority contends that Black was an intelligent

and well educated person and would not be coerced in

this situation. I agree that a defendant’s lack of education

or inability to speak English requires special sensitivity.

It does not follow, as the majority seems to conclude,

that college graduates are fair game for police

interrogation without Fourth Amendment protections.

The majority also notes that the incident took place in

a well-lighted and spacious public concourse with other

travelers present. I do not find this fact at all persuasive.

O’Hare International Airport is neither a hospitable

nor a comfortable environment. Being stopped there

by police hardly diminishes the coercive atmosphere; if

anything, it increases it.

The majority admits that prior to the initial encounter

the police lacked justification for an investigative stop.

Majority opinion at 18. Because I believe that the initial

encounter was a seizure, the search that followed was

illegal and its fruit should be suppressed.

App. 23

II

Even if the initial contact were not a seizure, I still

cannot accept the result. The majority admits that at a

certain point the police's encounter with Black became

a seizu ; they never say, however, exactly when this

seizure occurred. They do contend that, whenever it

occurred, it was justified. I disagree.

The majority's unwillingness to state exactly when

the seizure occurred produces its incorrect result. A

court must determine when a seizure occurred because

it is at that point that the court must evaluate the

police officer's knowledge to see whether the seizure

was justified. Because the majority never directly answers

the seizure question, it errs on the issue of justification.

I think that it is beyond doubt that Black was

seized when the police officers took his driver's license

and airline ticket. I find entirely fanciful the majority's

statement that whether a reasonable person would

feel free to leave under these circumstances is “extremely

close.” How could Black reasonably feel free to leave

when the police had in their possession his airline

ticket and his driver's license? Where was he to go?

How was he to get there? He could not get on a plane,

and he could not rent a car. He had just arrived from

another city. He was alone in a large international

airport, and the police had taken his travel documents.

The issue is not at all close. When the officers took

Black's travel documents, he was seized under the

Fourth Amendment. See Brown u Texas, 443 U.S. 47,

50 (1979); United States u Palmer, 603 F.2d 1286, 1288

(8th Cir. 1979).

App. 24

The crucial question, therefore, is whether at that

point the police had knowledge of specific and articulable

facts that gave rise to a reasonable belief that Black

had committed a crime. Brown u Texas, 443 U.S. 47, 51

(1979); United States v. Brigoni-Ponce, 422 U.S. 873,

881-82 (1975); Terry v. Ohio, 392 U.S. 1, 21-22 (1968).

What specific and articulable facts did the police know?

Did these facts meet the standard for investigative

stops?

The majority states that the police knew that: (1)

Black was the first passenger off a plane that had

arrived from Ft. Lauderdale, (2) Black exited the plane

speedily, and (3) Black appeared disoriented and nervous.

These facts fail to meet the standard for investigative

stops. It is a logical truth that every plane from Ft.

Lauderdale will have a first person leave it. This fact

lacks specificity and carries no weight. (“The demand

for specificity . . . is the central teaching of this court's

Fourth Amendment jurisprudence.” 392 U.S. at 21, n.18.)

The judgment of Black’s psychological state is entirely

subjective. A reviewing court must, of course, give due

consideration to inferences an experienced agent

reasonably draws from his observations. Brown v. Texas,

443 U.S. 47, 52 n.2 (1979). Nonetheless, the mere fact

that an officer is experienced does not turn his suspicions

into specific and articulable facts. Suspicions justify

continued surveillance; they do not justify stopping

and seizing citizens. United States v. Buenaventura-

Ariza, 615 F.2d 29, 36 (2d Cir. 1980); United States u

Price, 599 F.2d 494, 500 n.7 (2d Cir. 1979).

Indeed, the majority admits that the foregoing

facts would not justify the seizure of Black. It asserts,

however, that the police knew three additional facts

App. 25

that justified the seizure. Majority opinion at 18-19.

This assertion is incorrect because the police obtained

the knowledge of these facts after Black was seized.

This illustrates the critical importance of determining

exactly when the seizure took place. The police officer's

knowledge must be evaluated at that point. Knowledge

acquired after a seizure has occurred cannot be used a

posteriori to justify it. See Beck v. Ohio, 379 U.S. 89, 96

(1964). Cf. Bumper u State of North Carolina, 391 US.

543, 548 n.10 (1968) (search not justified by what it

turns up).

In Reid v. Georgia, 448 U.S. 438 (1980), the defendant

arrived at the Atlanta airport early in the morning

from Ft. Lauderdale (the same city from which Black

arrived in Chicago). He left the plane alone. He appeared

nervous and to be concealing that he was traveling

with a companion. His only luggage was a shoulder

bag. He looked backwards several times in the Jirection

of the second man. The police approached him, identified

themselves as agents, and asked to see his airline tickets

and identification. The Court held, as a matter of law,

that the agents could not have reasonably suspected

the defendant of criminal activity on the basis of these

observations. 448 U.S. at 441. I believe that Reid is

dispositive of our case. As a matter of law, the police

lacked knowledge of specific and articulable facts about

Black that justified a reasonable belief that he had

committed a crime. The agent's beliefs were mere

suspicions and “too slender a reed to support the seizure

in this case.” Id.

Cases from other circuits support this analysis. In

United States v. Buenaventura-Ariza, 615 F.2d 29 (2d

Cir. 1980), the defendants arrived from a source city,

App. 26

appeared nervous, and travelled separately in the airport

although they had talked to each other when deplaning.

The court held that the facts “strike us as wholly

insufficient to constitute ‘specific and articulable’ facts

supporting a reasonable suspicion that they were involved

in drug trafficking.” 615 F.2d at 36. The court noted

that, “There must be other objective facts which when

viewed in conjunction with nervous behavior and arrival

from a source city raise the complex of conduct to a

level justifying reasonable suspicion of criminal activity.”

Id. (emphasis added). In United States v. Jefferson, 650

F.2d 854 (6th Cir. 1981), the defendant arrived from a

source city, walked quickly through the terminal, appeared

extremely nervous, matched a tip from an informant,

and did not claim his luggage until he was picked up by

someone. The court held that these facts did not justify

an investigative stop. 650 F.2d at 856-57. See also Brown

u Texas, 443 U.S. 47 (1979); United States u McCaleb,

552 F.2d 717 (6th Cir. 1977).

When the officers stopped Black, questioned him,

and took his travel documents, he was seized. At that

point the police lacked knowledge of specific and

articulable facts that justified the seizure. Because the

seizure was illegal, the fruits of the search that followed

should be suppressed.

I dissent.

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit

App. 27