Petition — Collis v. United States

FILED

APR 18 1983

SER L. STEVAS,

\- > oe | 6 Q 4 [! Office-Supreme Court, US, |

Jn the Supreme Court of the

Dennis Epwarpb COLtis,

Petitioner,

Vv.

UniTepD States OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

N.C. Depay LARENE

Attorney for Petitioner

2000 Penobscot Building

Detroit, MI 48226

(313) 962-3500

RC EAE SE TO ND TREO

RENAISSANCE PRINTING, INC., 76 W. ADAMS

8TH FLOOR, DETROIT, MICHIGAN 48226 — (313) 964-3185

i

QUESTION PRESENTED

I.

WHETHER A TRIAL COURT’S FINDING

THAT AN AIRPORT ENCOUNTER CONSTI-

TUTED AN UNREASONABLE FOURTH

AMENDMENT ‘‘SEIZURE’’ IS PROPERLY

REVERSED WHERE THE TRIAL JUDGE

FOUND THAT THE PERSON ACCOSTED

BY THE AGENTS REASONABLY BELIEVED

THAT HE WAS NOT FREE TO LEAVE, AND

WHERE THE REVIEWING COURT DID

NOT FIND THE TRIAL JUDGE’S FACTUAL

FINDINGS TO BE ‘‘CLEARLY ERRO-

NEOUS,’”’ BUT HELD THAT ‘‘AS A MAT-

TER OF LAW’’ THE ENCOUNTER “DID

NOT AMOUNT TO A SEIZURE?’’

TABLE OF AUTHORITIES

CASE

Brewer v. Williams, 430 US 387 (1977) .........

Commissioner v. Duberstein, 363 US 278, 289

hele ee peecadssacdne

Florida v. Royer, US, (80-2146, decided,

era

Rhode Island v. Innis, 446 US 291, 303 (1980) ....

Terry v. Ohio, 392 US 1, 13(1968) .............

United States v. Berry, 670 F2d 583, 595

(5th Cir, 1982)... 0... ccc cece cece eevee

United States v. Black, 31 Cr L Reporter, 2113,

tlt, 18 Aj ene

United States v. Kendall, 655 F2d 199, 203

(9th Cir., 1981)... 2... cece ce cece eee eeees

United States v. Mendenhall, 446 US 544,

6668 spk cde Parse sider deanadisess

United States v. Patino, 649 F2d 724, 722,

(9th Cir. 1981)... 0... c cece cee c eee ee ees

PAGE

ili

OPINION BELOW

The opinion of the Trial Court suppressing evidence is at-

tached hereto as appendix A. The opinion of the Sixth Circuit

Court of Appeals is set forth as appendix B.

JURISDICTION

The Opinion of the Sixth Circuit Court of Appeals revers-

ing the Trial Court’s Order suppressing evidence was entered

on February 16, 1983. This Court’s jurisdi?ion to review the

decision of the Court of Appeals by writ of certiorari is

invoked under 28 USC §1254(1).

PROVISIONS OF LAW INVOLVED

The Fourth Amendment to the United States Constitution

provides as follows:

“*The right oi the people to be secure in their per-

sons, houses, papers, and effects, against unreason-

able 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.”’

In the Supreme Court of the Anited States

Dennis Epwarb COoLtts,

Petitioner,

Vv.

Unitep States Or AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

STATEMENT OF THE CASE

On June 4, 1981, the Petitioner was arrested by Drug

Enforcement Agents Anderson and Demmink, at the Detroit

Metropolitan Airport, and charged by way of complaint with

posession with the intent to distribute cocaine. On July 9,

1981, a one count indictment was returned against him, con-

taining this same charge and growing out of the June 4 arrest.

The case was duly assigned to the Honorable Julian Abele

Cook Jr., U.S. District Judge of the Eastern District of

Michigan, and the petitioner filed a pretrial motion to sup-

press the evidence upon which the prosecution was premised,

on the basis that it was acquired by the government through

an unlawful search and seizure of the defendant’s person and

personal effects. The hearing on the motion to suppress was

held on October 14, 1981, and continued on to October 19,

1981. Both of the agents who effected the arrest of the peti-

tioner gave testimony as did the petitioner himself.

Basically, Special Agent Anderson’s testimony reflects that

during the morning of June 4 (a weekday) he and Special

Agent Demmink were, as part of their duties in connection

with the Drug Enforcement Administration’s Drug Inter-

diction Program at Detroit Metropolitan Airport, watching

the passengers arriving on Delta Airlines Flight 1132. (1 TR,

11-12; 2TR 63)* Special Agent Anderson’s attention was, as

he testified, attracted to the petitioner, who was the first pas-

senger to leave the plane, and who proceeded to walk quickly

from the gate carrying a shoulder bag. (1 TR, 17-18). Agent

Anderson followed him up the concourse in a similarly hur-

ried manner, and, according to his testimony, the petitioner

on two or three occasions turned and looked at the following

agent, and continued walking. (1 TR 20)

While Agent Anderson indicated that this behavior, together

with the fact that the petitioner did not, in Anderson’s opin-

ion, appear to be dressed as a ‘‘business man’’ — the assumed

ordinary occupant of a first class seat on an airplane — and

appeared to have been ‘‘up all night,’’ nonetheless Anderson

testified that he did not decide to approach the petitioner until,

in the baggage claim area, he appeared to make eye contact

and to nod to another person who was sitting near the baggage

conveyor. (1 TR 18, 20-21; 2 TR 13-14). After the petitioner

appeared, to the agent, to nod to the second individual, the

two left the baggage claim area by separate doors. (1 TR 21)

Anderson followed the petitioner outside, and to the left, and

saw a second person standing by an automobile, also to the left

of the door through which the petitioner exited, and called out

to the petitioner, showed him his badge and indicated that he

wanted to ask the petitioner some questions. (1 TR 23-24; 2

TR 16)

* References to the evidentiary hearing transcript are designated by the

volume number (1 or 2), followed by the legent ‘“TR’’ and the page

number within the particular volume.

Special Agent Anderson asked the petitioner for identifica-

tion in order to determine, according to his testimony,

whether the petitioner was travelling under his real name, or

under an alias, which would have been of some apparent sig-

nificance to the agent. (1 TR 24; 2 TR 35) The petitioner

showed a Master Charge card in the name of Dennis Collis,

which, according to Special Agent Anderson, was not in itself

suspicious, but Anderson nonetheless asked him if he had a

‘more legitimate’’ form of identification. (1 TR 24; 2 TR 36)

Anderson also asked to see petitioner’s airline ticket, which he

showed to him, and which also bore the name Dennis Collis.

(1 TR 24) Noticing the presence of a baggage claim check in

the petitioner’s ticket envelope, Anderson inquired if the peti-

tioner had any checked baggage; the petitioner indicated that

he did, and that he had come outside of the terminal to look for

his brother, who was to pick him up. (1 TR 25) Special Agent

Anderson then inquired whether the person standing by the

car was his brother, and the petitioner indicated that he had

never seen the person before. (/bid.) Special Agent Anderson

then asked again for a ‘‘better form of identification,’’ and the

defendant indicated that he might have a driver’s license in his

checked luggage. (/bid.)

Throughout this interchange, according to Special Agent

Anderson, the petitioner appeared nervous, and repeatedly

inquired as to what the ‘‘problem’’ might be. While petitioner

testified that Special Agent Anderson’s response to these in-

quiries was simply that he wanted petitioner to ‘‘wait for his

partner’’ to arrive, Special Agent Anderson denied making

reference to the imminent arrival of Special Agent Demmink,

but did not specifically indicate what response, if any, he gave

to the inquiry, other than identifying himself as a federal

“*narcotics agent.’’ (1 TR 26; 2 TR 84-85)

Special Agent Anderson asked the petitioner to come inside

the terminal, claim the checked baggage and get his driver’s

license to show to the agents; he did not claim to recall what

the petitioner’s vocal response to this question was, but, in

any event, petitioner did return to the baggage claim area, as

did Special Agent Anderson. (1 TR 26-28; 2 TR 40) After

Anderson and the petitioner returned to the baggage claim

area, Special Agent Demmink arrived, as did the person who

had been standing by the automobile. (1 TR 29) Anderson ex-

plained to Demmink what had transpired, and directed his at-

tention to the second person. (TR 29-30; 2 TR 65-66) While

the petitioner was standing by the baggage claim area, and

Anderson standing next to him, the other person approached

the group. (1 TR 30) Special Agent Demmink asked the other

person who he was, and he replied that he was a friend of the

petitioner; he then took the shoulder bag which petitioner had

been carrying throughout the series of events referred to above

from petitioner’s shoulder, and Demmink, saying ‘‘wait a

minute,’’ took the bag from the other person, telling him that

they had some questions they wanted to ask petitioner; peti-

tioner then took the bag back from Demmink. (Jbid.)

Anderson asked the petitioner whether the other person was

his brother, but received no response. Petitioner began pacing

back and forth by the baggage conveyor. (1 TR 31) Suspicious

that he might attempt to leave, Anderson positioned himself

between the petitioner and the exit door, so as to cut off his

escape route. (/bid.) After walking back and forth by the bag-

gage conveyor several times, the petitioner broke and ran out

the door, with Anderson and Demmink in pursuit. (1 TR

31-32) He ran into a parking lot area and threw the shoulder

bag over a cyclone fence which suparated the parking lot from

the airfield proper. (1 TR 32) The agents caught up with the

petitioner placed him under arrest, and, with the help of Delta

Airlines eniployees retrieved the bag from the airfield. (1 TR

32-22) The bag was later fourd to contain cocaine.

The petitioner’s testimony was basically consistent with

that of the agents, although he testified that when Anderson

first approached him, the agent touched him on the arm as he

showed him his badge and asked for his identification. (2 TR

83-84) (Anderson on the other hand, denied touching him.) (2

TR 21) Petitioner also testified that ‘‘it was obvious’’ that he

did not have a choice as to whether or not he would answer the

agent’s questions, show the agent his identification, or,

ultimately, accompany the agent back inside to the baggage

claim area. (2 TR 85-86) This testimony was apparently

credited by the trial court, because Judge Cook ultimately

held that the petitioner had been ‘‘seized’’ unlawfully when

first approached by Anderson outside the terminal and that

the ‘‘defendant’s belief that he was not free to leave when ap-

proached by Anderson, and that he was not free to refuse to

answer the agent’s questions, were reasonable beliefs which

are held by reasonable citizens under these circumstances.’’

(Slip Opinion, pp. 8-9)

The trial judge wrote:

‘{T]he Court is of the opinion that from the

moment Anderson identified himself with a display

of credentials and began to ask questions of Defen-

dant outside of the terminal, a Terry [v. Ohio, 392

U.S. 1 (1968)] ‘‘stop’’ had been effected. Defen-

dant could have ignored Anderson, or espressed his

belief that he did not have to respond to questions.

As Judge Pratt noted in [United States v.]

Coleman, [450 F.Supp. 433, 439 (E.D. Mich.

1978)|, however, ‘‘such conduct ... would have

been, at the very least, a breach of etiquette, an act

- of discourtesy and incivility which would not be ex-

pected of the ordinary, reasonable person innocent

of crime.”’

The government appealed, and the Sixth Circuit Court of

Appeals in an opinion issued February 16, 1983, reversed (see

Appendix A). The Sixth Circuit held that the ‘‘trial court, in

effect, imposed a per se rule declaring every contact between a

citizen and law enforcement officer a ‘seizure’ .’’ United States

v. Collis, F2d (6th Cir., No.

82-1127, February 16, 1983) Slip Opinion, p. 5. The Court

went on to hold that the initial encounter between petitioner

and Agent Anderson ‘‘as a matter of law’’ did not ‘‘amount to a

seizure.’’ Slip Opinion, p. 6 (emphasis in original)

Petitioner thereupon filed this Petition for Writ of

Certiorari.

REASON FOR GRANTING THE WRIT

The trial court applied a proper legal standard in its decision

of the motion to suppress evidence, and premised its decision

upon essentially factual findings which the Court of Appeals

did not hold clearly erroneous; rather, the Court of Appeals

declaration that the encounter between the petitioner and the

DEA Agents did not amount to a seizure ‘‘as a matter of law’’

flies in the face of clear pronouncements from this Court

regarding the essentially factual nature of the question of

whether a Fourth Amendment “‘seizure’’ has occurred, and

bespeaks a need for guidance from this Court as to the nature

of the concept of a ‘‘seizure’’ and the proper mode and stan-

dard of review of trial court suppression orders.

The question upon which the instant case was resolved in

the court below was whether or not the petitioner was ‘‘seized’’

in a Fourth Amendment sense, when first approached hy

Special Agent Anderson outside the baggage claim area. The

trial judge found that he was. In so doing, he promoted the

standard enunciated by Justice Stewart in United States v.

Mendenhall, 446 US 544, 554-55 (1980):

We conclude that a person has been ‘‘seized’’ within

the meaning of the Fourth Amendment only if, in

view of all of the circumstances surrounding the in-

cident, a reasonable person would have believed

that he was not free to leave. Examples of cir-

cumstances that might indicate a seizure, even

where the person did not attempt to leave, would be

the threatening presence of several officers, the

display of a weapon by an officer, some physical

touching of the person of the citizen, or the use of

language or tone of voice indicating that compliance

with the officer’s request might be compelled. [Cita-

tions and footnote omitted]

The trial judge did not purport to hold that any time an

agent approaches an individual and asks to speak to him, a

Fourth Amendment ‘‘seizure’’ has occurred. Rather, he

found that the petitioner in fact did not believe that he was free

to leave, and that, in light of all the attendant circumstances as

disclosed by the testimony which the trial court heard and

evaluated, such a belief was reasonable. In coming to this con-

clusions, the trial judge heard conflicting testimony, and

engaged in fact finding, and an evaluation of the totality of the

circumstances — a task which it is uniquely the perogative of a

trial court, rather than an appellate court to engage in, and

which a trial judge, having heard and seen the witnesses

testify, rather than being confined to a review of a printed

record, is uniquely in a position to effectively undertake.

The significance of the fact finding component of the trial

court’s determination in the case at bar cannot be gainsaid.

This was not a case in which, for example, a trial judge made

conclusions based upon a stipulated, or completely agreed-to

set of facts — rather, the trial judge was faced with testimony

that conflicted in a number of regards, and his final determin-

ation that the defendant reasonably felt that he was retained in

his liberty was an obvious product of the resolution of a

number of these conflicts in the testimony. Thus, for example,

while Special Agent Anderson testified that he did not touch

the defendant when he first approached him outside the ter-

minal (2 TR 21), the petitioner testified that he in fact did

touch him (2 TR 83), and the trial judge apparently deter-

mined to credit the petitioner’s testimony and reject the

testimony of the agent, because he found specifically that

Anderson touched the defendant in order to gain his atten-

tion. (Slip Opinion, p. 2) Similarly, the court apparently

credited the petitioner’s testimony that he believed ‘‘that he

was not free to leave when approached by Anderson, and that

he was not free to refuse to answer the agent’s questions,”’

(Slip Opinion, p. 9) also a matter of pure fact finding, based

upon the trial court’s ability to observe and judge the de-

meanor and credibility of the petitioner as witness.

Whether this Court, or any of its members, would have simi-

larly viewed the testimony, had it had the opportunity to hear

it, is of course not the question. Rather, the issue is whether

this Court can accept the government's essentially factual ar-

guments and overturn, on the basis of the record alone, and

absent any suggestion that the trial court did not adequately

understand or follow the governing legal principles, a decision

which ‘‘must be based ultimately on the application of the

fact-finding tribunal’s experience with the mainsprings of

human conduct to the totality of the facts of each case.’’ Com-

missioner v. Duberstein, 363 US 278, 289 (1960).

In concluding and holding that the trial judge ‘‘in effect im-

posed a per se rule’’ the court of Appeals misapprehended

both the nature of the ruling of the trial judge and the nature

of the question of whether a Fourth Amendment seizure has

occurred. The degree of the Court of Appeals’ misapprehen-

sion of the trial court’s opinion is underscored by its later

pronouncement that ‘‘nothing in the lower court’s findings

would indicate that a reasonable person under similar circum-

stances would not have felt free to ignore Anderson and pro-

ceed on his way.’’ (Slip Opinion, p. 7) In fact, the trial judge

expressly held that:

**Defendant’s belief that he was not free to leave

when approached by Anderson, and that he was not

free to refuse to answer the agent’s questions, were

reasonable beliefs which are held by reasonable

citizens under these circumstances.’’ (Slip Opinion,

pp. 8-9) (Emphasis supplied)

But, as noted above, the Court of Appeals did more than

merely misapprehend the nature of the trial court’s decision;

it misapprehended the essentially factual nature of the ques-

tion as to whether a Fourth Amendment seizure has occurred.

No where is this illustrated better than by the panels pro-

nouncement that ‘‘as a matter of law’’ the originai encounter in

the instant case ‘‘did not amount to a seizure.”’ (Slip Opinion,

p- 6)

The essentially factual nature of the inquiry is well estab-

lished in the case law. Thus, as the Seventh Circuit put the

matter in United States v. Black, F2d , 31 Cr L Reporter

2113, 2114 (7th Cir. 1982):

[T]he question is a highly factual one, heavily

dependent upon the circumstances of each case .. .

Our standard of review is accordingly limited to in-

quiry into whether the decision of the district court

is clearly erroneous.

Or, in the words of Ninth Circuit, in United States v. Patino, 649

F2d 724, 727 (9th Cir. 1981):

This is largely a factual inquiry dependent upon the

totality of the circumstances and we will defer to the

10

finding of the district court unless it is clearly er-

roneous.

This appears to have been the standard which was adopted

by the majority of this Court in Florida v. Royer, US

(80-2146, decided March 23, 1983).

The government never argued that the trial judge implied

an improper standard of law in the instant case, and indeed

the Sixth Circuit, in its opinion, noted that Judge Cook

employed ‘‘the appropriate test for determining a ‘seizure’.

(Slip Opinion, p. 4)

The trial judge proceeded to make findings of fact. Initially,

he determined that, notwithstanding Agent Anderson’s

denial, Anderson did in fact initiate an encounter with peti-

tioner by touching him on the arm, and he credited the defen-

dant’s testimony that he did not believe that he was free to

leave, and was not free to refuse to answer questions. Finally,

he held that under all of the circumstances which he found to

exist, the petitioner’s belief that he was not free to leave and

was not free to refuse to answer questions ‘‘were reasonable

beliefs which are held by reasonable citizens under these circum-

stances. ’’ (Opinion of Trial Court, pp. 8-9) (Emphasis added)

The ‘‘circumstances’’ of course, included the totality of cir-

cumstances which the trial court found to have existed, given

the totality of the testimony which the trial court heard and

weighed. The Sixth Circuit, however, held that the trial court

‘*in effect, imposed a per se ruling declaring every contact be-

tween a citizen and law enforcement officer a ‘seizure’.’’ (Slip

Opinion, p. 5) The Sixth Circuit was clearly wrong in this

conclusion.

The Court of Appeals did not hold that any of the trial

judge’s findings were ‘‘clearly erroneous’’ as matters of fact;

indeed, rather than being clearly erroneous, Judge Cook’s

findings in the instant case ure eminently reasonable,

11

eminently well supported by the evidence, and focus on the

kinds of factual information which the developing case law

regarding airport encounters has suggested are appropriately

considered. Thus, for example, the former Fifth Circuit noted

in United States v. Berry, 670 F2d 583, 595 (5th Cir., 1982) the

‘‘display of official authority beyond a statement that the per-

son stopping an individual is a law enforcement officer,’’ and

the fact that the interference with a person’s progress on his

way, both suggest that an airport stop has gone beyond the

stage of being ‘‘non-coercive’’ and has in fact become a

Fourth Amendment “‘seizure.”’

Both of these factors were present in the case at bar, as well

as the fact that the agent was found by the trial judge (notwith-

standing his denials under oath) to have actually touched the

petitioner in order to initiate their conversation. While the

petitioner did not claim that he was pushed, shoved or

physically turned, nonetheless, the fact that the trial court did

find that the agent made physical contact with the petitioner is

not without significance. It certainly requires no stretch of the

imagination to conclude that the presumption of air of

authority which is involved in an agent simultaneously dis-

playing his official credential and placing his hand upon a citi-

zen, who is at the moment walking along in a public place,

suggests an air of purpose or authority which is somewhat

removed from a mere casual encounter, and might when

viewed in the totality of the circumstances, contribute to a rea-

sonable finding that the petitioner felt himself to have been

restrained of his liberty, and that such a belief was reasonable.

Indeed, Justice Stewart himself noted in United States v. Men-

denhall, that ‘‘some physical touching of the person of the citi-

zen’’ is a factor which is appropriately considered in deter-

mining whether ‘‘compliance with the officer’s request might

be compelled’”’ and whether a seizure, in Fourth Amendment

terms, has occurred. 446 US supra at 554.

12

It should be noted that no one fact or factor, or the absence

of any fact or factor, can be held to be dispositive of the ques-

tion of whether or not a ‘‘seizure’’ has occurred. It is, rather,

the totality of the circumstances which must control. It is not

the fact that Anderson touched the petitioner on his arm, or

the fact that he immediately asked for identification, or the

fact that he refused to answer the petitioner’s repeated in-

quiries regarding what the ‘‘problem’’ was (see Trial Court’s

Opinion, p. 2), which, taken individually renders the contact

between Anw, 30n and Collis a ‘‘seizure’’ or supports the trial

court’s determination that the petitioner did not reasonably

believe himself free to leave. Rather, it is the totality of cir-

cumstances upon which the trial court’s findings rest, and it is

for this reason, and the trial court’s superior ability to evaluate

the totality of circumstances based upon its opportunity to

hear and see the witnesses testify, that the Court of Appeals

holding that no seizure occured ‘‘as a matter of law’’ must be

reversed.

As this Court noted in Terry v. Ohio, 392 US 1, 13 (1968):

“street encounters between citizens and police officers are in-

credibly rich in diversity,’’ and, in recognizing what is essen-

tially a factual test based upon the totality of the circumstances

in an individual case for whether or not such an encounter

constitutes a Fourth Amendment “‘seizure,’’ the courts have

manifestly eschewed a ‘‘bright line’’ determination. Judge

Cook did not, in the instant case, adopt an impermissible per se

rule; rather, he made precisely the kind of factual determina-

tion which the case law requires, and that determination is en-

titled to precisely the same kind of deference that any essen-

tially factual finding by a trial judge is. E.G. United States v.

Kendall, , 655 F2d 199, 203 (9th Cir. 1981).

The Court of Appeals indeed gave lip service to the ‘‘clearly

erroneous’’ standard, (Slip Opinion, p. 6), but did not apply

it. Rather, it mischaracterized the trial court’s conclusions

13

and itself concluded that the trial court formed ‘‘its conclu-

sions on its perception of the subjective and leisurely attitude

of the average citizen confronted by an authority of the law.”’

(Slip Opinion, p. 5) This is simply not the case. It is true that

Judge Cook noted the social pressures which were at work in

the encounter, but he did not hold or even intimate that a

citizen who was accosted by an agent ‘‘will never feel free to

leave.’’ But he did hold, and find, as a matter fact was that the

petitioner actually believed that he was not free to leave, and

that based on the totality of circumstances which he found

(both expressedly and impliedly) that such a belief was

reasonable, such as would be held by a reasonable person

under the circumstances. The trial judge’s remarks were ac-

curate and appropriate in the context of his holding as a

whole, and when that holding as a whole is examined it is clear

that he applied the proper legal standard to facts which he

found in the context of the particular case.

Nonetheless, it seems appropriate to note that implicit in

the agents’ conduct is an awareness that most citizens when

approached, would stop, respond and ‘‘cooperate,’’ and that

if the defendant, or any person so approached ignored them,

or declined to cooperation, that act alone would justify further

pursuit or continued intervention; indeed, that was Special

Agent Anderson’s testimony in the trial court. (2 TR 33-34) It

seems clear enough that law enforcement officers are

chargeable with knowledge of the inevitable tendency of their

activities, and, it seems proper to suggest that if an agent relies

upon ‘‘socialization and psychological makeup”’ in order to

effect a desired result, that common understanding regarding

social conditioning and the like can properly be taken into ac-

count when attempting to assess not only the intent, but the ef-

fect of law enforcement conduct. Thus, for example, this

Court has noted in the context of confession cases that police —

conduct which was designed to elicit responses based upon

14

social conditioning and the like would constitute ‘‘interroga-

tion.’’ See, Rhode Island v. Innis, 446 US 291, 303 (1980);

Brewer v. Williams, 430 US 387 (1977) (the ‘‘Christian burial

speech’’ case),

The point, however, is that the Court of Appeals simply

misapprehended the nature of the trial court’s ruling. The

Court of Appeals was not merely wrong, however, but rather,

gave insufficient weight to the essentially factual nature of the

question of whether a Fourth Amendment seizure had oc-

curred. This Court should grant certiorari in the case at bar

not only to remedy the wrong done to the defendant in this

particular case, but to clarify the nature of the proper inquiry

with respect to the question of Fourth Amendment seizures

and the proper standard of review of suppression orders such

as that entered by the trial court in the instant case. The area

of airport encounters is one which is currently engendering a

great deal of litigation, and guidance in the area is appropri-

ate. Additionally, because of the fact that the factual pattern in

the case at bar is one which contains elements which frequent-

ly reoccur in airport cases, the case at bar is an appropriate

vehicle for such rulings.

15

CONCLUSION

The trial court judge in finding that Agent Anderson’s ini-

tial contact with petitioner constituted an investigatory stop,

rather than a mere casual encounter, and was a ‘‘seizure’’

within the meaning of the Fourth Amendment was based

upon the application of the correct legal standard to a unique-

ly factual finding. The factual findings of the trial judge were

not clearly erroneous and were not found to be by the Court of

Appeals. Rather, the Court of Appeals’ decision represents a

fundamental misconception of the nature of the trial court’s

ruling and of the proper standard of review of the essentially

factual question of whether a seizure has occurred under the

totality of the circumstances found in each case.

This Court should grant certiorari and reverse the decision

of the Court of Appeals, and, in reversing, should make clear

both the essentially factual nature of the question of whether a

Fourth Amendment seizure has occurred and the limited

nature of review of trial court findings with regard to that

question.

Respectfully submitted,

N.C. Deday LaRene

Attorney for Petitioner

2000 Penobscot Building

Detroit, Michigan 48226

(313) 962-3500

la

APPENDIX A

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

Unitep States Or AMERICA,

Plaintiff Criminal Action

Vv. No. 81-80317

Dennis Epwarpb COLtis,

Defendant

MEMORANDUM OPINION

Defendant, Dennis Edward Collis, is charged with posses-

sion of approximately 594.18 grams (net) of cocaine with intent

to distribute, a violation of Title 22, Section 841 (a)(1), United

States Code. He brings this Motion to Suppress Evidence

which was seized at the time of his arrest. Specifically, Defen-

dant seeks to. suppress approximately 654.86 grams (gross

weight) of cocaine which was seized during a warrantless

search of a shoulder bag that he was carrying at the Detroit

(Michigan) Metropolitan Airport [Airport] on June 4, 1981.

Evidentiary Hearings were held before this Court on Oc-

tober 14, 1981 and October 19, 1981.

On June 4, 1981, Special Agents, Thomas Anderson

[Anderson] and Gregory Demmink [Demmink] of the Drug

Enforcement Administration [DEA] were on duty at the Air-

port, observing passengers deplaning from Delta Airlines

Flight 1132. One of the first passengers to disembark was

2a

Defendant who was carrying a shoulder bag. He walked in a

rapid manner from the gate area and down the concourse in

the direction of the baggage claim area. Anderson followed

Defendant, leaving Demmink at the gate to watch other

passengers disembark. As Anderson followed him at a

distance of thirty (30) feet, Defendant turned and looked at

Anderson two or three times. Anderson follwed him through

the concourse and down to the Delta Airlines baggage claim

area. Defendant, upon reaching the baggage claim area,

made eye contact with, and nodded in the direction of, a man,

who shortly thereafter stood up and left through one door,

while Defendant exited through another door. Anderson

observed Defendant on the sidewalk outside of the terminal

and observed the ‘‘other’’ man standing near a parked car.

Anderson then decided that he would question Defendant.

He approached Defendant, touched him lightly to gain his at-

tention, and identified himself orally and by a display of his

credentials. Anderson asked Defendant if he could ask him

some question. Defendant consented.

Anderson initially asked for identification from Defendant,

who thereupon produced a Master Charge Card in his own

name, When Anderson asked for an alternative form of iden-

tification, Defendant produced the Master Charge Card for a

second time. Anderson, while retaining the charge card, then

asked Defendant for his airline ticket. Defendant produced an

airline ticket in his own name. Anderson, after noticing that

Defendant had baggage claim stubs in his airline ticket

envelope, asked Defendant whether he had checked any bag-

gage. Defendant responded affirmatively, but explained that

he had walked through the baggage claim area and outside the

terminal to determine if his brother, who was to meet him,

was waiting. Anderson asked Defendant whether the uniden-

tified man, whom he had seen in the baggage claim area, was

his brother. Defendant denied any knowledge of the uniden-

tified man. Anderson again asked Defendant for additional

3a

identification. Defendant told Anderson that his driver’s

license was in one of his checked bags. Anderson returned the

Master Charge Card and the ticket envelope to Defendant.

At that point, Anderson noticed Defendant glancing

towards the unidentified man, Defendant periodically asked

Anderson ‘‘What’s the problem?’’ However, other than iden-

tifying himself as a DEA Agent, Anderson did not explain the

reason for his interest in Defendant. Throughout the

exchange, Defendant appeared to be very nervous. Anderson

asked Defendant whether he (Defendant) would accompany

him (Anderson) to the baggage claim area so that an examina-

tion of the driver’s license could be made. Defendant walked

with Anderson to the baggage claim area, where they were

met by Demmink. Anderson briefed Demmink of the events

that had transpired and told him of his interest in Defendant,

as well as in the unidentified man, who by that time, had

returned to the baggage claim area.

While Anderson and Demmink stood by the baggage con-

veyor, waiting for Defendant’s baggage to emerge, the

unidentified man approached the group, and identified

himself as a friend of Defendant. The second man took the

shoulder bag from Defendant’s shoulder. However, Demmink

retrieved it and returned the shoulder bag to Defendant.

When Anderson asked Defendant if the unidentified man was

his brother, Defendant did not respond.

Defendant began to pace back and forth before the baggage

conveyor belt. Anderson, anticipating that Defendant might

attempt to leave the area, positioned himself between Defen-

dant and the terminal doors. Nevertheless, Defendant bolted

and ran for the terminal doors, with Anderson and Demmink

in pursuit. Anderson observed Defendant turn left and run

toward an adjacent parking lot which was surrounded by a

cyclone fence, which ultimately blocked his path. Defendant

threw his shoulder bag over the fence. He was then placed

4a

under arrest. Defendant’s shoulder bag was retrieved by a

passing airlines employee, who placed it in the possession of

Anderson and Demmink. Defendant and the retrieved

shoulder bag were taken to the DEA Airport Office by Ander-

son and Demmink who searched the bag and found three or

four plastic bags of white powder which field tested positive for

cocaine, The white powder was later positively analyzed as co-

caine by the DEA Regional Laboratory in Chicago. Defen-

dant was then charged with violating the provisions of 21

U.S.C. § 841(a)(1).

Defendant argues that the evidence must be suppressed for

two reasons. First, he argues that the confrontation with

Anderson and Demmink at the Airport was a ‘‘stop’’ which

was not predicated upon reasonable suspicion, see, ¢.g., Terry

v. Ohio, 392 U.S. 1, 21-22 (1968), and that the evidence as a

‘‘fruit’’ of this stop, see, ¢.g., Wong Sun v. United States, 371

U.S. 471, 484-87 (1963). The Government maintains that no

Fourth Amendment “‘stop’’ occurred at the Airport, or, alter-

natively, that the ‘‘stop’’ was justified by reasonable suspi-

cion,

Second, Defendant argues that even if the first ‘‘stop’’ was

proper, the evidence must be suppressed because the search of

the luggage without a warrant violated his Fourth Amend-

ment rights. See, e.g., Arkansas v. Sanders, 422 U.S. 753, 757-61

(1979); United States v. Chadwick, 433 U.S. 1, 11 (1977). The

Government responds by asserting that, even though Ander-

son and Demmink conducted a search of the shoulder bag

without a warrant, no right of Defendant was violated because

he had ‘‘abandoned”’ the bag, Hester v. United States, 265 U.S.

57 (1924). The respective positions of the parties will be

outlined in greater detail in the paragraphs that follow.

Defendant contends that he was ‘‘seized,’’ within the

meaning of the Fourth Amendment, when Anderson

approached him, touched him lightly to gain his attention,

5a

and asked him if he would answer some questions. Defendant

believes that he did not have a choice as to whether he should

or should not answer Anderson’s questions or comply with his

wishes, because it was ‘‘obvious’’ that he was not free to con-

tinue on his way. Defendant argues that no clearer show of

authority can be imagined than a display of credentials by a

law enforcement official, coupled with a request to question a

citizen. Defendant further asserts that a ‘‘great segment’’ of

the population shares his belief that if a law enforcement offi-

cial asks to talk with a citizen, the individual will not be per-

mitted to leave until the questions have been answered.

Defendant asserts that the fact that Anderson and Demmink

never specifically informed him that he could decline to speak

with them not only underscores his testimony about Ander-

son’s intentions, but it is significant in determining the nature

of the assertion of authority involved.

Defendant asserts that ‘‘(i)t is clear that if this initial contact

constituted a ‘seizure,’ and if that seizure was improper, then

nothing which occurred thereafter is untainted by the initial

impropriety, because all of the information gained thereafter

— the Defendant’s apparent nervousness, the conduct of the

other person, the attempt to divert the shoulder bag and the

Defendant’s flight — all flowed from the initial seizure.’’

Defendant also argues that ‘‘it is clear that ... Anderson

did not have a sufficient basis to effect a Terry stop of the

Defendant when he did.’’ Defendant notes that such a seizure

is justified only on the basis of a ‘‘reasonable and articulable

suspicion that the person seized is engaged in criminal activ-

ity,’’ and not an “inchoate and unparticularized suspicion or

‘hunch,’”’ citing Reid v. Georgia, 448 U.S. 439, 440-41 (1080).

Defendant contends that Anderson’s decision to approach

him was based on six distinct facts and circumstances; to wit,

(1) Defendant exited a flight which originated in Miami, a

**source’’ city; (2) Defendant was one of the first people to

6a

disembark from the plane, presumably after traveling first

class; (3) Defendant walked from the gate area and down the

concourse in a rapid fashion; (4) Defendant was not dressed

like a business man, and appeared to have been up all night;

(5) Defendant turned around and looked at Anderson, who

was following him on two or three occasions; and (6) in the

baggage area, Defendant made eye contact with, and nodded

to, an unidentified man, who left his seat and exited through a

door which was different from that which Defendant exited.

Defendant asserts that common sense and the case law

makes it clear that none of these circumstances, taken

separately or collectively, justify Anderson’s actions. Defen-

dant argues that the objective facts which Anderson observed

at the Airport were neutral on their face, and were not sug-

gestive of criminality. Defendant further asserts that it would

be a dangerous precedent to permit a law enforcement official

to interrupt citizens in their comings and goings on the basis of

that agent’s suspicions regarding such subtleties of human

interaction as eye contact and nodding.

Defendant denies that he abandoned his shoulder bag by

throwing it over the parking lot fence: Defendant contends

that, by this action, he did not evince an attempt to relinquish

his interest in the property, as would be required for a finding

that he ‘‘abandoned”’ the property, United States v. Colbert, 474

F.2d 174 (5th Cir. 1973). Rather, he argues, his acts

represented a futile attempt to do whatever he could in order

to maintain whatever privacy interests that he may have had

in the bag. Defendant concludes that since he did not ‘‘aban-

don’’ the bag, and if the Court finds that Anderson did not

‘*seize’’ or ‘‘stop’’ Defendant, or that the ‘‘seizure’’ or

‘*stop’’ was unlawful in the first instance, the subsequent

retrieval and search of the bag must be deemed to have been

an unlawful warrantless search and the evidence found in the

bag must be suppressed. Defendant notes that since the

7a

shoulder bag was clearly the kind of luggage or repository for

personal property which is entitled to protection under the

warrant requirement of the Fourth Amendment, under the

cases of United States v. Chadwick, 433 U.S. 1 (1977) and Arkan-

sas v. Sanders, 442 U.S. 753 (1979), the Court must hold that

the subsequent warrantless search of the bag was unlawful,

and the evidence which was discovered under that search

must be suppressed.

The Government notes that the question of when an inves-

tigative stop amounts to a seizure was addressed in United

States v. Jefferson, 650 F.2d 854 (6th Cir. 1981). In that case,

the United States Court of Appeals for the Sixth Circuit ap-

plied the test, which had been set forth in United States v.

Mendenhall, 446 U.S. 554 (1980) in determining whether a law

enforcement official had ‘‘seized’’ the Defendant. That test,

according to Justice Stewart, was that ‘‘a person has been

seized within the meaning of the Fourth Amendment only if,

in veiw of all the circumstances surrounding the incident, a

reasonable person would have believed that he was not free to

leave.’’ The Government asserts that the instant case is distin-

guishable from Jefferson, supra, where the Defendant was

accosted, ordered to accompany law enforcement officials to

their office, and told that while he could refuse to consent to a

search of his bags, the official would obtain a warrant if he did

so, and proceed with the search. The Government concedes

that the confrontation in Jefferson, supra, was a ‘‘seizure,”’

because the Defendant was not given any choice in whether to

accede to the officials’ requests.

The Government notes that Anderson returned the Masier

Charge Card and the airline ticket envelope to Defendant

after viewing them, which suggested that ‘‘there was not a

problem immediately apparent.’’ Anderson used no physical

force to gain Defendant’s attention, or to persuade Defendant

to accompany him into the terminal. Anderson displayed no

8a

weapon, and spoke to Defendant in a normal tone of voice at

all times. The Government submits that Defendant was not

**seized’’ by Anderson, because his freedom of movement was

not restricted by Anderson and he accompanied Anderson in-

side the building ‘‘in a cooperative frame of mind.”’

The Government submits that Anderson’s contact with

Defendant was justified as a permissible investigative stop on

the basis of Defendant’s suspicious behavior. The Govern-

ment says that, in Terry v. Ohio, 392 U.S. 1 (1968), the

Supreme Court held that a ‘‘stop and frisk’’ amounts to a

*‘seizure,’’ and that there must be specific articulable facts

that lead to rational inferences of criminal activity before the

seizure is reasonable. In Terry, supra, the Court determined

that the observations of the officer coupled with his many

years of experience made his activities reasonable. The

Government contends that the instant case is similar to Terry,

supra, in that Anderson, an experienced law enforcement offi-

cial in spotting suspects at the Airport, observed behavior that

he believed to be indicative of drug transporting. The Govern-

ment concedes that, at the time of Anderson’s observation of

Defendant’s contact with the unidentified man, he did not

have probable cause to arrest Defendant. However, the

Government argues that Anderson, at that time, did have suf-

ficient cause to justify stopping the Defendant to verify his

identity. The Government asserts that the investigative stop

involved in the instant case was reasonable under the cir-

cumstances.

The threshold question is under what circumstances may it

be concluded that the actions of the agents constituted a

“‘seizure’’ of Defendant. As the Supreme Court noted in Terry

v. Ohio, supra, ‘‘obviously, not all personal intercourse be-

tween policemen and citizens involves ‘seizures’ of persons.

Only when the officer, by means of physical force or show of

authority, has in some way restrained the liberty of a citizen

2

9a

may we conclude that a ‘seizure’ has occurred.’’ Terry, supra at

19. Judge Pratt of this Court determined, in United States v.

Coleman, 450 F. Supp. 433 (E.D. Mich. 1978), ‘‘police officers

are not called upon to discard all vestiges of courtesy and

friendliness, of civility and humanity, nor are they to be pro-

hibited from addressing inquiries to private nonsuspect per-

sons in the course of normal investigations.’’ At a certain

point, however, the line which separates mere contact from an

investigative stop is crossed and, at that point, the protective

operation of the Fourth Amendment is triggered. Whether a

person’s liberty has been restrained or not is to be judged not

according to ‘‘what the Defendant himself ... thought, but

what a resonable man, innocent of any crime, would have

thought had he been in the Defendant’s shoes.’’ Coates v.

United States, 413 F.2d 371 (D.C. Cir. 1969), citing United States

v. McKethan, 247 F. Supp. 324 (D. D.C. 1965).

While the restraint exercised against Defendant in the in-

stant case was not as forcible as that to which the appellant had

been subjected in Terry, supra, the Court is of the opinion that

from the moment Anderson identified himself with a display

of credentials and began to ask questions of Defendant outside

of the terminal, a Terry, supra, ‘‘stop’’ had been effected.

Defendant could have ignored Anderson, or expressed his

belief that he did not have to respond to questions. As Judge

Pratt noted in Coleman, supra, however, ‘‘such conduct ...

would have been, at the very least, a breach of etiquette, an

act of discourtesy and incivility which would not be expected

of the ordinary, reasonable person innocent of crime,’’ Cole-

man, supra, at 439. This Court determines that, as a matter of

law, Defendant’s belief that he was not free to leave when

approached by Anderson, and that he was not free to refuse to

answer the agent’s questions, were reasonable beliefs which

are held by reasonable citizens under these circumstances.

Within the meaning of the Fourth Amendment, Anderson did

10a

‘*seize’’ Defendant outside of the terminal. The Court must

now determine whether the ‘‘seizure’’ of Defendant’s person

was “‘reasonable,’’ within the meaning of the Fourth Amend-

ment.

This case arises out of the efforts of law enforcement

officials to effectively stem the tide of narcotics and other con-

trolled substances which flow into Michigan through the Air-

port. Although Anderson and Demmink eschewed reliance on

the so-called ‘‘drug courier profile’’ which had been utilized

in earlier cases, the issues presented in this case are similar to

those presented in any case involving reliance by the DEA on

such a profile.

The Fourth Amendment provides that ‘‘the right of the

people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures, shall not

be violated ...’’ Their is no question that Defendant, in this

case, possessed this constitutional right of personal security as

he walked through the Airport, as ‘‘the Fourth Amendment

protects people, not places,’’ Katz v. United States, 389 U.S.

347, 351.

The Fourth Amendment requirement that searches and

seizures must be founded upon an objective justification,

governs all seizures of the person, ‘‘including seizures that

involve only a brief detention short of traditional arrest.’’

Davis v. Mississippi, 394 U.S. 721 (1969); Terry v. Ohio, 392

U.S. 1, 16-19 (1968); United States v. Brigoni-Ponce, 422 U.S. at

878. Accordingly, if the Defendant was ‘‘seized’’ when

Anderson approached and asked questions of him, the agent’s

conduct was constitutional only if he had reason to suspect

Defendant of wrongdoing.

The case of Terry v. Ohio, 392 U.S. 1(1967) established that

a stop may be justified on less than full probable cause if it does

not violate the general proscription against unreasonable sear-

ches and seizures, 392 U.S. at 20. The Court went on, in

lla

Terry, supra, to define ‘‘reasonableness’’ in the context of an

‘fon the scene stop’’:

In justifying the particular instrusion the police offi-

cer must be able to point to specific and articulable

facts which taken together with rational inferences

from those facts reasonably warrant that intrusion.

The scheme of the Fourth Amendment becomes

meaningful only when it is assured that at some

point the conduct of those charged with enforcing

the laws can be subjected to the more detached,

neutral scrutiny of a judge who must evaluate the

reasonableness of a particular search or seizure in

light of the particular circumstances. And in making

that assessment it is imperative that the facts be

judged against an objective standard: would the

facts available to the cfficer at the moment of the

seizure or the search ‘‘warrant a man of reasonable

caution in the belief’ that the action taken was

appropriate? ... Anything less would invite intru-

sions upon constitutionally guaranteed rights based

on nothing more substantial than inarticulate

hunchs, a result this Court has consistently refused

to sanction.

392 U.S. at 22-23.

In Adams v. Williams, 407 U.S. 143 (1971), the Court

expanded somewhat on the parameters of police activity

justified by Terry, supra. In upholding a stop and frisk on the

basis of an informant’s tip, the Court stated:

The Fourth Amendment does not require a

policeman who lacks the precise level of information

necessary for probable cause to arrest to simply

shrug his shoulders and allow a crime to occur or a

criminal to escape. On the contrary, Terry recog-

nizes that it may be the essence of good police work

12a

to adopt an intermediate response ... A brief stop

of a suspicious individual, in order to determine his

identity or to maintain the status quo momentarily

while obtaining more information, may be most

reasonable in light of the facts known to the officer at

the time.

407 U.S. at 145-46.

Both Terry, supra, and Adams, supra, involved instances in

which the police had reason to suspect that the person stopped

was armed and contemplating criminal activity. The ‘‘reason-

ableness’’ approach, however, has been extended to instances

in which the public safety demands some minimal intrusion,

such as the use of an airport magneometer. Both the Fifth and

the Second Circuits have considered a series of cases in which

airport security officers conducted warrantless searches of

suspected skyjackers. In United States v. Moreno, 475 F.2d 44

(5th Cir. 1973), the Fifth Circuit applied the rationale of Terry,

supra, to uphold an airport stop of an individual who had been

observed for several hours behaving in a suspicious manner.

In United States v. Skipworth, 482 F.2d 1272 (Sth Cir. 1973), the

Court expanded on the balancing of interests underlying

Moreno, supra, and went on to emphasize that the intrusion of

the airport search is somewhat mitigated by (1) the option of

the passenger to avoid the search by choosing not to board the

plane and (2) the conduct of the search in the public view.

The Second Circuit has similarly upheld a number of air-

port searches and seizures under the reasonableness clause of

the Fourth Amendment. United States v. Bell, 464 F.2d 667

(2d Cir. 1972); United States v. Riggs, 474 F.2d 699 (2d Cir.

1973). In United States v. Ruiz-Estrella, 481 F.2d 723 (2d Cir.

1973), however, the Court agreed to suppress the evidence

which had been gleaned from the search of a suspect who fit

the skyjacking profile and had produced a marginally ques-

tionable identification. The Court stated that these facts did

13a

not constitute ‘‘compelling circumstances’’ to justify the

search of the passenger’s bag, 481 F.2d at 729. Furthermore,

if one of the mitigating factors, which support airport searches

is the passenger’s awareness that he can avoid the search by

choosing not to board the aircraft, then this Defendant’s

awareness of such an option further tainted the search.

However, the airport searches do warrant a cautionary

note. While public safety demands some intrusion into the

privacy of air passengers, some reasonable suspicion of illegal

activity is required before a passenger may be lawfully sub-

jected to a search. Moreover, the drug enforcement program

at the Airport is not supported by the same concerns for public

safety which underlie the anti-skyjacking measures. In an

Opinion involving the airport program, Judge Joiner of this

Court observed:

As damnable as drug traffic is, its regulation

involves the protection of no special public interests

like those at play in airport security. Regulation of

drug traffic is achieved through enforcement of laws

adopted by Congress which are similar to laws pro-

hibiting bank robbery, bribery, or conspiracy.

Thus, the court perceives no fundamental public

interest at stake in routine enforcement of the drug

laws which calls for the development of rules unique

to airport drug searches. Accordingly, the govern-

ment’s rights in these cases must be tested against

basic Fourth Amendment principles rather than by

rules derived from an air pracy context.

United States v. Van Lewis, 409 F. Supp. 535, 542 (E.D. Mich.

1976).

The border search cases present another area which bears

upon the reasonableness of the stop and search program of

drug enforcement officials. While a number of courts have

l4a

considered the problems that have been raised in border

searches in recent years, those issues were most cogently

resolved in United States v. Brigoni-Ponce, supra.

While section 287(a)(1) of the Immigration and Nationality

Act, 8 U.S.C. § 1357(a)(1) authorizes warrantless interroga-

tions of ‘‘any alien or person believed to be an alien as to his

right to be or remain in the United States,’’ the Court held in

Brigoni-Ponce, supra, that the Fourth Amendment does not

allow a roving patrol to stop a vehicle near the Mexican border

and question its occupants about their citizenship and immi-

gration status when the only ground for suspicion is that the

occupants appeared to be of Mexican ancestry. The Court

discussed at length the potential intrusion on normal traffic

which would accompany a program of random steps:

We are unwilling to let the Border Patrol dispense

entirely with the requirement that officers must

have a reasonable suspicion to justify roving patrol

stops. In the context of border area stops, the

reasonableness requirement of the Fourth Amend-

ment demands something more than the broad and

unlimited discretion sought by the government.

Roads near the border carry not only aliens seeking

to enter the country illegally, but a large volume of

legitimate traffic as well. San Diego, with a

metropolitan population of 1.4 million is located on

the border. Texas has two fairly large metropolitan

areas directly on the border: El Paso, with a popula-

tion of 360,000, and the Brownsville-McAllen area,

with a combined population of 320,000. We are

confident that substantially all of the traffic in these

cities is lawful and that relatively few of their

residents have any connection with the illegal entry

and transportation of aliens. To approve roving

patrol stops of all vehicles in the border area,

. 15a

without any suspicion that a particular vehicle is

carrying illegal immigrants, would subject the

residents of these and other areas to potentially

unlimited interference with their use of the

highways, solely at the discretion of Border Patrol

officers.

422 U.S. at 882.

Furthermore, the Court declined to approve even a limited

identification stop unless the Border Patrol could point to

specific factors indicating that the person in question might be

an alien:

The Government also contends that the public

interest in enforcing conditions on legal alien entry

justifies stopping persons who may be aliens for

questioning about their citizenship and immigra-

tion status. Although we may assume for purposes

of this case that the broad congressional power over

immigration ... authorizes Congress to admit

aliens on condition that they will submit to

reasonable questioning about their eight to be and

remain in the country, this power cannot diminish

the Fourth Amendment rights of citizens who may

be mistaken for aliens. For the same reasons that the

Fourth Amendment forbids stopping vehicles at

random to inquire if they are carrying aliens who

are illegally in the country, it also forbids stopping

or detaining persons for questioning about their

citizenship on less than reasonable suspicion that

they may be aliens.

422 U.S. at 883-84.

Even at an international border, the Fourth Amendment

prohibits identification stops by roving patrols which are not

based upon ar articulable suspicion of illegal activity. Even

16a

the very serious nature of illicit drug traffic cannot justify an

identification stop in the absence of reasonable grounds to

believe that the person in question is a drug courier.

The Supreme Court recently stated that such a seizure is

justified only on the basis of ‘‘a reasonable and articulable

suspicion that the person seized is engaged in criminal activ-

ity,’’ and not an ‘‘inchoate and unparticularized suspicion or

‘hunch,’’’ Reid v. Georgia, 448 U.S. 438, 440-41 (1980).

According to Anderson’s testimony, his decision to stop

Defendarit was based upon a number of supposed facts and

circumstances, see, Memorandum Opinion, supra, at 1-2. This

Court believes that none of these factors provide a legitimate

basis for ‘‘reasonable suspicion’ which is sufficient to justify

the seizure of Defendant outside the terminal building.

As an example, the fact that the plane from which Defen-

dant disembarked came from .Miami, a ‘‘source’’ city, is of

little moment. In United States v. Andrews, 600 F.2d 563, 566-67

(6th Cir. 1979), where the ‘‘source’’ city was Los Angeles, the

Court noted that ‘‘such a flimsy factor should not be allowed

to justify — or help justify — the stopping of travelers from

the nation’s third largest city.’’

That Defendant was among the first to disembark is also of

little importance, especially in light of the fact that DEA

agents, in other cases, have considered (1) the last passenger

to disembark as an indicia of criminal conduct, United States v.

Vasquez, 612 F.2d 1338 (2d Cir. 1980), (2) one of the middle of

a line of deplaning passengers, United States v. Buena Ventura-

Airza, 615 F.2d 29 (2d Cir. 1980) or (3) a passenger who

disembarked after three quarters of the other passengers.

17a

All of the factors, which were relied upon by Anderson,

were neutral. However, none of these factors were indicative

of criminology or independently significant. See United States v.

Prince, 548 F.2d 164 (6th Cir. 1977), where the United States

Court of Appeals for the Sixth Circuit determined that certain

facts, when evaluated collectively, warranted the belief that

the Defendant had committed or was committing the offense

of possessing narcotics. This record if barren of any facts

which are essential to a determination of a ‘‘reasonable suspi-

cion’’ which is a prerequisite to a valid Terry, supra, stop.

Law enforcement officials cannot satisfy the ‘‘reasonable

suspicion’’ test of Terry, supra, by relying upon neutral factors

as was done in the instant case. This Court is of the opinion

that any number of factors might support a determinaton of

‘freasonable suspicion’’ that would justify the type of investi-

gative stop involved in this case. However, the Court is also

aware of the need to protect the rights of innocent persons

from the unwarranted intrusion by governmental officials.

Those factors, upon which law enforcement officials may rely

in order to justify an investigative stop, must be: (1) sufficient-

ly specific so that they are not susceptible to manipulation by

law enforcement officials, and (2) sufficiently probative of

criminal activity so that they will not ensnare innocent citizens

and subject them to unwarranted investigative stops.

Accordingly, this Court is of the opinion that Anderson did

not have a sufficient legal basis upon which to effect a Terry,

supra, stop of Defendant. Furthermore, cocaine, which was

confiscated by Anderson and Demmink at the Airport must

be suppressed under the exclusionary rule, as set forth in

Mapp v. Ohio, 367 U.S. 643 (1961) because the discovery of the

contraband was a ‘“‘fruit’’ of the unlawful stop effected by

18a

Anderson and Demmink, Wong Sun v. United States, 371 U.S.

471 (1963).

So Ordered.

/s/ JULIAN ABELE Cook, JR.

JULIAN ABELE COOK, JR.

United States District Judge

I hereby certify that the foregoing

is a true copy of the original on file in

this Office.

U.S. DISTRICT COURT

EASTERN DISTRICT

OF MICHIGAN

By/s/ Patricia A. Funni

Dated: December 23, 1981

Detroit, Michigan

lb

APPENDIX B

No. 82-1127

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Decided and Filed February 16, 1983

Before: Lavery and Kxupanscr, Circuit Judges and Czcun,

Senior Circuit Judge*

Kxvransxy, Circuit Judge. This is an appeal from an Order

of the District Court for the Eastern District of Michigan

suppressing 654.86 grams (gross weight) of cocaine relating

to the criminal prosecution of Dennis Edward Collis (Collis)

for possession with intent to distribute a controlled substance.

21 U.S.C. §841(a)(1). The matter is properly before this

Court pursuant to 18 U.S.C. § 3731."

*The Honorable Lester L. Cecil died prior to fina) resolution of

this matter.

118 USC. § 38731 provides, in pertinent part:

An appeal by the United States shall lie to a court of

aun tals & alr fe at coe ee

2b

No. 82-1127

United States v. Collis

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male who had also returned to the baggage claim area.

As Anderson, Demmink and Collis were waiting for defen-

dant’s baggage, the unidentified man approached and identi-

fied himself as a friend of Collis. He thereupon removed the

shoulder bag from Collis which was retrieved by Demmink

and immediately returned to defendant.

with Anderson and Demmink in pursuit, ran into an adjacent

parking lot. The parking lot was enclosed by a cyclone fence

which blocked Collis’ escape. Before Anderson and Demmink

could reach him, Collis heaved the shoulder bag over the

fence and onto a concrete ramp. Thereafter, Collis was placed

4b

United States v. Collis

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(citations and footnote omitted). See Unted States v. Tolbert

No. 81-1485 (6th Cir. Nov. 11, 1982); United States v. Moore,

675 F.2d 802 (6th Cir. 1982); United States v. Jefferson, 650

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United States v. Collis No. 82-1127

loss of life” Terry v. Ohio, supra, at 13. Each encounter

be considered within its factual parameters as impacted

by the Mendenhall pronouncements. It necessarily follows

that generally this determination is a factual finding which

will not be disturbed unless clearly erroneous. United States

v. Black, 675 F.2d 129 (7th Cir. 1962); United States v.

Patino, 649 F 2d 724 (9th Cir. 1981). The Court would hasten

to add, however, that unless some objective fact discloses that

responded to the questions and also consented to a search of

his briefcase. The inquiry and search of the briefcase de-

veloped probable cause for the agents to

7b

United States v. Collis

legality of the agents’ conduct. See also United States v.

No. 82-1127

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