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United States v. Clark

decided as corrected: December 12, 1989.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE
v.
JERRY WINSLOW CLARK, DEFENDANT-APPELLANT



Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Robert G. Doumar, District Judge. CR-88-121-N.

Russell and Phillips, Circuit Judges, and Haynsworth,*fn* Senior Circuit Judge.

Author: Per Curiam

Per Curiam:

Jerry Clark was convicted of one count of possession of cocaine with intent to distribute and one count of possession of heroin with intent to distribute, both in violation of 21 U.S.C. ยง 841(a)(1). On appeal, Clark challenges the denial of a pretrial motion to suppress evidence allegedly gained in violation of his fourth amendment rights. Finding no error in the district court's ruling on the suppression motion, we affirm the convictions.

I

On October 17, 1988, Clark arrived in Norfolk International Airport from New York's LaGuardia Airport. Two Virginia police officers, who were also deputized agents of the Drug Enforcement Agency, Charles Mills (14 years police experience) and Thomas Downing (10 years), were at the Norfolk airport conducting surveillance for drug couriers who might be arriving on the flight from LaGuardia. Detectives Mills and Downing saw Clark deplane at approximately 8:00 P.M. and observed several features of his appearance and conduct that fit the profile of a drug courier: Clark was the third person to deplane, walked rapidly up the jetway overtaking the two passengers who had deplaned ahead of him, was wearing a bulky jacket, and was carrying a shoulder bag that appeared to be empty.

Detectives Mills and Downing trailed Clark as he walked rapidly through the long airport corridors and then more slowly when he reached the lobby area. Although he had just flown into Norfolk, Clark headed toward the escalator marked "Departure" -- not toward the "Arrival" area where the baggage claim was located -- and then out of the terminal. Just outside the terminal, Detective Mills caught up with Clark and asked if he could talk to him. Clark said, "Sure." Mills asked Clark if he had just flown into Norfolk, and Clark said he had not. Mills then identified himself and Downing, who was standing some distance away, as DEA agents and again asked Clark whether he had just arrived on a flight; Clark again denied that he had. Upon request for identification, Clark handed the agents a Virginia driver's license, issued in the name of Jerry Winslow Clark. At this point, Clark's hands were shaking noticeably, and he had bitten his lip so sharply that it appeared to be bleeding.

Detectives Mills and Downing next asked Clark if they could search him and his shoulder bag. Clark consented and even raised his arms aloft, a gesture he was told was unnecessary. The search of the bag uncovered some jewelry and a receipt indicating that the jewelry had been purchased in New York that day. More significantly, the bag contained a first-class one-way airline ticket, paid for in cash, for the flight from which Clark had just deplaned. The ticket, which had been issued in the name of Brian Smith, had attached to it a baggage claim stub. Clark denied any knowledge of the ticket and of the claim stub, insisting that he had come to the airport to see his girlfriend off on a flight to Newark and that she had handed him the shoulder bag just before she left.

The agents next asked Clark if he would walk with them to the baggage claim. Clark agreed to do so, and followed the agents to the carousel. As they were waiting for the suitcase, Detective Mills noticed that Clark kept glancing towards the exit doors, causing Mills to suspect that Clark might try to flee. Eventually, the agents removed the suitcase that matched the stub from the carousel. Questioned then about the suitcase, Clark twice denied any knowledge of it.

At this point, 8:25 P.M., Mills told Clark that he was not free to leave and that he and the suitcase would be detained until a drug-sniffing dog could come to check the suitcase. The agents called around to the Newport News and Virginia state police, but had difficulty locating a dog. Meanwhile Clark waited in the DEA airport office, a large room with some desks, but no holding cell. At 9:43 P.M., the agents contacted George Ball of the Virginia Beach police, who brought over a Virginia State Police certified drug-sniffing dog. Out of Ball's sight, the agents put the suspicious suitcase in a room with about five other items of luggage. Ball and the dog went into the room, and at approximately 10:15 P.M, the dog alerted to the suitcase. Detective Downing obtained a search warrant. Because Clark again denied ownership of the locked suitcase, and therefore would not produce any key, Mills and Downing had to force the suitcase open with a knife. Inside were two bricks of cocaine and 300 packets of heroin. A later search uncovered 200 more packets of cocaine hidden in a shoe.

On November 22, 1988, a pretrial hearing was held on Clark's motion to suppress the evidence seized from the suitcase. The essence of Clark's claim was that the evidence was the fruit of unconstitutional "seizure" of his person. Clark argued first that during the initial questioning outside the terminal he was "seized," within the meaning of the fourth amendment, and that the agents lacked the reasonable suspicion that would have justified this investigative stop. He argued further that after the removal of the suitcase from the baggage carousel he was detained for such a prolonged period that he was de facto arrested, and that probable cause for that arrest was lacking. The district court denied the motion to suppress. Clark now appeals the resulting criminal convictions, challenging the ruling on the suppression motion.

II

Clark first contends that the DEA agents' initial questioning of him outside the airport terminal was an unreasonable "seizure" within the meaning of the fourth amendment which tainted all that ensued leading to eventual discovery of the evidence. The applicable fourth amendment principles are well established. If, during an encounter with law enforcement officials, a reasonable person would not believe that he was free to leave under the circumstances, a fourth amendment "seizure" has occurred. Florida v. Royer, 460 U.S. 491, 75 L. Ed. 2d 229, 103 S. Ct. 1319 (1983); United States v. Mendenhall, 446 U.S. 544, 64 L. Ed. 2d 497, 100 S. Ct. 1870 (1980). At a minimum, such a stop must be founded on a "reasonable and articulable suspicion that the person seized is engaged in criminal activity." United States v. Gooding, 695 F.2d 78, 82 (4th Cir. 1982) (quoting Reid v. Georgia, 448 U.S. 438, 440, 65 L. Ed. 2d 890, 100 S. Ct. 2752 (1980) (per curiam)); see also Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). If, on the other hand, a reasonable person would have believed that he was free to leave given the circumstances of the encounter, the law enforcement officials need not justify their actions with any articulable suspicion; such an encounter is thought to be consensual, no different in kind from normal, everyday meetings between citizens, and consequently outside of the scope of the fourth amendment. See Mendenhall, 446 U.S. at 553-54; Terry, 392 U.S. at 34 (White, J., concurring).

The district court's finding that Clark had not been "seized" during the initial encounter with Agents Mills and Downing must stand unless it is clearly erroneous. See United States v. Aguiar, 825 F.2d 39, 40 (4th Cir. 1987). At the suppression hearing, Detective Mills testified that he first approached Clark in an open area just outside the terminal, while Detective Downing stood some distance away. Mills asked Clark if he could speak to him, and Clark responded, "Sure." Mills then identified himself and Downing as DEA agents, in an effort, so Mills testified, to allay any fear that Clark might have had ...


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