State v. Ossey

Frederick A. Ossey was charged by bill of information with possession with intent to distribute Pentazocine (Talwin) in violation of La.R.S. 40:967(A). Prior to trial, defendant filed a motion to suppress physical evidence. After a hearing, the trial judge denied the motion to suppress. The court of appeal denied defendant’s application for writs. Upon defendant’s application to this court, we granted a writ and ordered the case remanded to the court of appeal for briefing, argument and opinion in light of Florida v. Royer, — U.S. -, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983), and United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). On remand, the court of appeal again denied defendant’s application for writs, finding that the trial judge correctly denied the motion to suppress. Upon defendant’s application, we granted certiorari to review the correctness of that ruling.

Defendant contends the trial judge erred in denying his motion to suppress drugs seized pursuant to a warrantless search of his luggage at New Orleans International Airport. He argues that he was being detained illegally and that he did not consent to the search; therefore, the evidence obtained as a result of this illegal search is inadmissible.

Evidence adduced at the suppression hearing reveals that defendant arrived at New Orleans International Airport on January 17, 1983 aboard Delta Airlines Flight # 1164 from Los Angeles, California. Upon deplaning, he aroused the attention of Agents Whitehead and Hurley of the Jefferson Parish Sheriff’s Office. These officers were plain clothes narcotics agents who had been assigned to the airport for the past five years and two years, respectively. Their main function was to detect and apprehend drug couriers primarily by the use of a set of characteristics normally displayed by these persons, called the “drug courier profile.” According to Agents Whitehead and Hurley, they became suspicious of defendant soon after he deplaned because his actions were consistent with two elements of the drug courier profile: he arrived from Los Angeles, a source city for the transportation of drugs into New Orleans; and, defendant slowly walked down the concourse, occasionally stopping to look over his shoulder. Agent Hurley described defendant’s actions as follows: “when he got off the aircraft he appeared to act in what I would consider a nervous manner. He was looking around, he was hesitant ... to walk down the concourse towards the baggage area.... [He was l]ooking around, checking to see if someone was looking for him or he was being observed by anybody.” The agents then placed defendant under surveillance and followed him down the concourse. Agent Whitehead testified that defendant stopped several times to look over his shoulder and that, upon reaching the escalator, he looked around again before proceeding downstairs to the baggage claim area.

Defendant retrieved one small blue leather bag from the baggage claim conveyer belt. Agent Whitehead testified that a relatively small amount of luggage for a long distance trip is another characteristic of the drug courier profile. Therefore, according to Agent Whitehead, once he' saw the size of the bag claimed by defendant, “it just strengthened my convictions that he was possibly transporting narcotics.”

While Agent Whitehead was observing defendant inside the baggage claim area, Agent Hurley waited just outside of the exit doors. As defendant left the building carrying the small blue bag, Agent Hurley approached him, displayed his police identification and asked defendant if he would speak to him. According to Agent Hurley, defendant responded by saying, “Sure.” He was asked for identification and a plane ticket. Defendant produced a current California driver’s license in the name of Frederick A. Ossey and a Delta Airlines ticket in the name of James Gibbens. Agent Whitehead arrived, displayed his police identification, and looked at the license and ticket. He noticed the different names and that the ticket was a one-way ticket purchased with cash. Agent Whitehead testified that traveling under an alias and purchasing a one-way ticket with cash are two more characteristics of the drug courier profile.

Defendant was asked by Agent Whitehead about the different names. After hesitating defendant responded that Gib-bens was a cousin who had purchased the ticket for him. Agent Whitehead then advised defendant that they were conducting a narcotics investigation and that they believed that he was transporting narcotics. After informing defendant that he could refuse the request, Agent Whitehead asked him if he would allow them to search his luggage. Defendant responded by asking to see a search warrant. According to Agent Whitehead, he informed defendant that they did not have a search warrant, but if he would accompany them to their airport office, then he would prepare one. They proceeded upstairs to the agents’ third floor office with Agent Hurley carrying defendant’s bag.

Upon arriving at the office, Agent Hurley began to type out a request for a search warrant when defendant said that “he didn’t have any drugs in the bag. You can go ahead and look.” Agent Whitehead prepared a written consent form, read it to defendant and then gave it to him to sign. According to Agent Whitehead, defendant appeared to sign the form. It was not until after the search that the agents discovered that defendant did not in fact sign the consent form. Noticing that defendant’s bag was locked, Agent Hurley located the key to the bag among the items that he had previously removed from defendant’s pockets. According to Agent Hurley, the agents checked defendant’s pockets for their own protection because they were concerned that he might have a weapon. The agents opened the bag, discovered 6500 sets of T’s and Blues, and placed defendant under arrest.

Defendant’s narrative is different in several respects from the events as described by the agents. He testified that he did not hesitantly or nervously walk down the concourse and that as he tried to leave the airport, two officers stopped him. After refusing to allow the officers to search his bag without a search warrant, they told him that they could get a warrant and then said, “Let’s go.” Once upstairs in the agents’ office, Agent Hurley filled out a search warrant and Agent Whitehead prepared a consent to search form. Defendant refused to sign the consent form and denied that he pretended to do so. According to defendant, after he refused to consent to the search, Agent Hurley became exasperated and opened the bag anyway.

The trial judge accepted the testimony of the agents, finding that defendant’s statements were “self-serving.” According to the judge, the initial encounter was a permissible Terry-type investigatory stop. Further, the judge found that defendant was not “placed under arrest or otherwise detained” when asked to accompany the agents to their office; he went along “voluntarily, that is he appeared to cooperate in order to convince the officers of his innocence.” Finally, the judge found that the consent to search was given “freely and voluntarily.” Therefore, since defendant was not illegally detained when he consented to the search, the motion to suppress was denied.

The validity of an airport search on facts very similar to those in the instant case has been addressed recently by the U.S. Supreme Court in Florida v. Royer, supra, and United States v. Mendenhall, supra. In Mendenhall, two DEA agents observed Mendenhall at Detroit Metropolitan Airport. After observing Mendenhall’s conduct, the agents determined that her behavior fit the drug courier profile in several respects: (1) Mendenhall arrived on a flight from Los Angeles, a source city for the transportation of drugs into Detroit; (2) she was the last person to leave the plane, appeared very nervous, and scanned the area; (3) she proceeded past the baggage area without claiming any luggage; and (4) she changed airlines for her flight out of Detroit. The agents approached Menden-hall, identified themselves as federal agents, and asked to see her identification and airline ticket. This revealed that Men-denhall was traveling under an alias. She became visibly more nervous when the agents identified themselves as federal narcotics agents.

After returning the ticket and driver's license, the agents asked her if she would accompany them to the airport DEA office for further questioning. She did so, although the record does not indicate a verbal response to the request. At the office the agents asked her if she would consent to a search. She responded, “Go ahead.” A small package of heroin was found in the search.

The opinion initially focused on whether a seizure had occurred. It stated that a person is “ ‘seized’ within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” The Court concluded that no seizure in fact occurred. Next, agreeing with the findings of fact of the trial judge, the Court found that Mendenhall accompanied the agents to the office voluntarily in a spirit of apparent cooperation and that she freely and voluntarily consented to the search. Since Men-denhall was not being illegally detained when she consented to the search, the resulting seizure of the drugs was permissible.

In Royer, unlike Mendenhall, the Court held that the drugs should have been suppressed. Because Royer’s appearance, mannerisms, luggage and actions fit the drug courier profile, he was placed under surveillance by two Dade County plain clothes detectives. After he had purchased a one way ticket to New York and checked his two suitcases, the two detectives approached him, identified themselves as policemen, and asked if Royer had a moment to speak with them; he said “Yes.” Upon request, Royer produced a driver’s license in the name of Royer and an airline ticket in the name of Holt. Royer explained that a friend had made the reservations for him. The detectives informed him that they were conducting a narcotics investigation and suspected him of transporting drugs. Roy-er was now visibly nervous.

While still retaining Royer’s ticket and license, the detectives asked him to accompany them to a room off of the concourse. Royer said nothing in response but went with them as he had been asked to do. Without Royer’s consent, one of the detectives retrieved Royer’s luggage, which bore the name Holt, from the airline and brought it to the room. When asked if he would consent to a search of his luggage, Royer produced a key and unlocked one of the suitcases. Marijuana was found in both bags and Royer was then placed under arrest.

The Court determined that the initial encounter in which the detectives asked for and examined Royer’s license and ticket was a permissible consensual encounter. But Royer was “seized” for fourth amendment purposes when the officers told him that he was suspected of transporting drugs, retained his ticket and license and asked him to accompany them to another room. Adopting the objective standard from Mendenhall, these circumstances amounted to a “show of official authority such that 'a reasonable person would have believed he was not free to leave.’ ” Next, the Court found that even though a seizure occurred, there existed reasonable, articula-ble suspicion to justify a Terry -type temporary detention. The circumstances that led to this finding were that (1) Royer was traveling under an alias; (2) he paid cash for a one-way ticket; (3) the two bags checked to New York bore a fictitious name and no address; and (4) Royer’s “appearance and conduct in general.” Finally, the Court held that the limits of a permissible temporary detention had been exceeded at the time Royer consented to the search. According to the Court, “what had begun as a consensual inquiry in a public place had escalated into an investigatory procedure in a police interrogation room.... As a practical matter, Royer was under arrest.”

In the instant case, the two crucial issues are whether defendant was being illegally detained at the time of his consent to the search and whether he freely and voluntarily consented to the search. The initial encounter between defendant and Agent Hurley just outside of the baggage claim area exit doors was not a “seizure” for fourth amendment purposes. The purpose of the fourth amendment is not to eliminate all contact between the police and the citizenry. As long as a reasonable person would feel free to disregard the encounter and walk away, there has been no “seizure.” Florida v. Royer, supra; State v. Belton, 441 So.2d 1195 (La.1983). Defendant was approached in a public area by a person dressed in plain clothes who asked defendant if the agent could speak to him; his response was, “Sure.” The mere fact that the agent displayed his police identification did not convert this otherwise consensual affair into a “seizure.”

Defendant did not become “seized” within the meaning of the fourth amendment until Agent Whitehead informed defendant that they were conducting a narcotics investigation and that they believed he was transporting drugs. By this time, defendant had been confronted by two agents, both of whom identified themselves as narcotics agents; he had been dispossessed of his driver’s license and plane ticket; he had been questioned about the name discrepancy; and, most importantly, he was told that he was the focus of an investigation. Taken together, these circumstances “amount to a show of official authority such that a ‘reasonable person would have believed he was not free to leave.’ ” Florida v. Royer, supra (quoting United States v. Mendenhall, supra).

However, the right of law enforcement officers to stop and interrogate one reasonably suspected of criminal conduct is recognized by La.Code Crim.P. art. 215.1, as well as by both state and federal jurisprudence. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Belton, supra. We have held that reasonable cause for an investigatory detention is something less than probable cause and must be determined under the facts of each case by whether the officer had sufficient knowledge of facts and circumstances to justify an infringement on the individual’s right to be free from governmental interference. The right to make an investigatory stop and question the particular individual detained must be based upon reasonable cause to believe that he has been, is, or is about to be engaged in criminal conduct. State v. Belton, supra.

When the “seizure” occurred, there existed sufficient articulable facts to justify a Tbrry-type stop based on a reasonable belief that defendant was transporting drugs. The agents knew that defendant arrived from a source city for the transportation of drugs into New Orleans; he was visibly nervous, occasionally stopping to look over his shoulder; he claimed a relatively small piece of luggage compared to the length of his flight; he was traveling under an alias; and, he purchased a one-way ticket with cash. Since these were adequate grounds for a reasonable belief that defendant was carrying drugs, the “seizure” was a permissible Terry -type investigatory detention.

The agents’ conduct during this “seizure” did not exceed the scope of a lawful Terry stop. First, Agent Whitehead requested defendant’s consent to a war-rantless search of his bag; defendant refused. Next, Agent Whitehead asked him to accompany them to their office; defendant agreed. The trial judge found that defendant voluntarily accompanied the agents in a spirit of apparent cooperation. Since defendant was not being illegally detained at this time, whether consent to accompany the agents was in fact voluntary is to be determined by a review of the totality of the circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Voluntariness is a question of fact to be determined by the trial judge under the facts and circumstances of each case. The factual determinations of the trial judge are entitled to great weight on appellate review. State v. Edwards, 434 So.2d 395 (La.1983); State v. Bourgeois, 388 So.2d 359 (La.1980). Upon a review of the surrounding circumstances, we cannot say that the trial judge’s finding of voluntariness was in error. The request to accompany the agents was made in a public place by agents dressed in plain clothes. There was no threat, show of force, or physical touching. The agent’s statement to defendant was phrased in the form of a request instead of a demand. Finally, the request was not so overbearingly coercive to defendant as to render his consent involuntarily; he had already refused to allow a search of his bag, thereby demonstrating his knowledge of and ability to exercise his right to decline the agent’s requests. Therefore, since defendant voluntarily accompanied the agents, he was not being illegally detained when he consented to the search in the agents’ office,

The sole remaining issue is whether defendant freely and voluntarily consented to the search. One of the specifically established exceptions to the requirements of both a warrant and probable cause is a search conducted pursuant to consent. When the state seeks to rely upon consent to justify the lawfulness of a search, it has the burden of proving that the consent was given freely and voluntarily. Voluntariness is a question of fact to be determined by the trial judge under the facts and circumstances surrounding each case. The factual determinations of the trial judge are entitled to great weight on appellate review. State v. Edwards, supra; State v. Smith, 433 So.2d 688 (La.1983); State v. Bourgeois, supra. The trial judge found that defendant freely and voluntarily consented to the search. Defendant told the agents to open his bag. This statement was made by defendant on his own initiative and without provocation. We find the trial judge did not err in finding this oral consent was given freely and voluntarily. Therefore, the consent search was permissible. Hence, the trial judge correctly denied the motion to suppress the drugs seized pursuant to the search of defendant’s bag.

DECREE

For the reasons assigned, the ruling of the trial judge denying the motion to suppress is affirmed and the case is remanded to the district court for further proceedings.

CALOGERO, J., dissents.

DIXON, C.J., and DENNIS, J., dissent with reasons.

. 433 So.2d 171 (La.1983).

. 435 So.2d 1039 (La.App. 5th Cir.1983).

. 436 So.2d 1167 (La.1983).

. One of the surrounding circumstances remains unresolved. It is unclear when defendant’s ticket and license were returned to him. It is significant that defendant did not testify that the agents kept these items when they asked him to accompany them. Even if the agents had possession of the ticket and license When the request was made, this would not affect the finding of voluntariness. Due to the appropriate weight entitled to the trial judge’s finding of fact and our independent review of the totality of circumstances, we still could not say that the trial judge’s finding of voluntariness was in error.

An additional surrounding circumstance, the fact that Agent Hurley carried defendant’s bag to the office, is of no moment. This does not affect the voluntariness of defendant’s consent to go with the agents. Moreover, it should be noted that since the agents reasonably believed the bag contained narcotics they could have briefly detained the luggage to investigate the circumstances that aroused the suspicion by means that are properly limited in scope, such as an exposure to a narcotics detection dog. See United States v. Place, — U.S. -, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983).

. This is the point at which this case differs factually from Florida v. Royer, supra. Royer implicitly found that the accused did not voluntarily accompany the Dade County detectives to the room off of the concourse. The issue then became whether, within the scope of a temporary detention, the detectives could compel Roy-er to follow them and to be subjected to interrogation in a small private room. The Court held that this exceeded the bounds of a permissible stop. Whereas, in the instant case, defendant voluntarily went with the agents. Therefore, due to the different factual findings on voluntar-iness, the holding in Royer is inapposite. This case is more closely analogous to United States v. Mendenhall, supra, in which the Court found that Mendenhall voluntarily accompanied the agents to an airport office.

. An oral consent to search is sufficient; a written consent is not required. Cf. State v. West, 408 So.2d 1114 (La.1982); State v. Turnbull, 377 So.2d 72 (La.1979) (written waiver form not required for a valid waiver of Miranda rights). Therefore, defendant’s ruse whereby he pretended to sign the consent form did not affect the validity of his prior oral consent.

. The method by which the agents obtained the key used to unlock defendant’s bag is unclear. However, even assuming that the key was unlawfully obtained, the drugs would not be suppressible. The alleged illegal seizure of the key did not affect the validity of defendant’s consent to the search. It only facilitated the opening of the bag. Hence, the search of the bag pursuant to defendant’s valid consent was not sufficiently affected by the alleged illegal seizure of the key to justify suppression of the evidence.