United States v. Goodwin, Dennis ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-1809
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DENNIS S. GOODWIN,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 04 CR 270—John F. Grady, Judge.
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ARGUED JANUARY 17, 2006—DECIDED MAY 24, 2006
____________
Before CUDAHY, POSNER, and WOOD, Circuit Judges.
POSNER, Circuit Judge. The defendant pleaded guilty to
possession of the illegal drug Ecstasy with intent to dis-
tribute it and was sentenced to 60 months in prison. He
reserved the right to appeal the denial of his motion to
suppress the drugs seized from him in the course of what
the parties inexactly describe as a “Terry stop.”
He had reserved a one-way train ticket from Chicago to
Denver the day before, and bought the ticket with cash only
an hour before, the train’s scheduled departure from Union
Station. This pattern—last-minute cash purchase of a one-
2 No. 05-1809
way ticket—is deemed by enforcers of the drug laws to be
the profile of a drug courier, United States v. Johnson, 910
F.2d 1506, 1507 (7th Cir. 1990), though not to establish
probable cause or even reasonable suspicion to believe
that someone who fits the profile is a drug courier. The
profile is used merely as a basis for deciding whom to
investigate further.
Three members of a drug task force assigned to Union
Station, having learned from the passenger manifest that the
defendant fitted the profile, decided to try to interview him.
They boarded the train at 2:30 p.m., five minutes before it
was scheduled to depart, and found the defendant sitting in
his sleeping compartment. Standing in the corridor they
asked him whether he was willing to answer some ques-
tions, and he said yes. One of the officers asked him for his
ticket and identification, and the defendant handed the
documents to him. The officer asked him whether he was
carrying weapons, narcotics, or large amounts of money,
and he answered no. The officer noticed that the defendant
had two pieces of luggage with him, and asked him whether
he’d let him look inside the bags. The defendant refused.
The officer asked him whether there was any money in the
luggage. The defendant said there was and the officer again
asked whether he could look inside, to which the reply was
that the bags were locked and the defendant had lost the
key. The officer offered to open the bags without damaging
them but the defendant refused. A couple of minutes had
passed since the officers had first approached him. The
officer who had been questioning him was still holding the
defendant’s ticket and ID.The officers’ suspicions, founded initially on the defen-
dant’s fitting the profile of a drug courier, were heightened
by the improbable story of the lost key—had the defendant
No. 05-1809 3
indeed lost the key and had nothing incriminating in his
bags, he would have welcomed the offer to open them
without damaging them. The officers decided to seize the
bags. They didn’t arrest the defendant—indeed they assured
him he wasn’t under arrest—but they did ask him to
accompany them to the police office so that they could give
him a receipt for his luggage, and he agreed. (He didn’t ask
them why they couldn’t give him a receipt on the spot.)
While they were walking to the office, the train left. There
is only one train daily from Chicago to Denver.
When they arrived at the police office, the officers told the
defendant that they were going to summon a dog to sniff
the luggage and if the dog “alerted” they would then get a
warrant to search the luggage. At this point, knowing the jig
was up, the defendant gave the officers the key. They
opened the luggage and in one of the bags found a large
amount of money and some Ecstasy. They arrested the
defendant and put the money and the drugs back in the bag
and closed it. The dog arrived (it’s unclear when he had
been sent for or how long it had taken him to arrive) and
went wild when he smelled the bag. The purpose of the dog
test, after the police knew what the bag contained, was to
set the stage for an “inevitable discovery” argument in the
event a judge found that the defendant’s consent to the
search of the bag had not been voluntary. Segura v. United
States, 468 U.S. 796, 813-14 (1984); Nix v. Williams, 467 U.S.
431, 444 (1984); United States v. Blackwell, 416 F.3d 631,
633 (7th Cir. 2005). We shall not have to reach the issue of
consent.
The government argues and the district judge agreed
that the initial questioning of the defendant was not a
“seizure” within the meaning of the Fourth Amendment,
and that is undoubtedly correct. Seizure of a person implies
4 No. 05-1809
restricting his freedom of movement. That didn’t happen
until the officers and the defendant left the sleeping com-
partment. Until then he was where he wanted to be. It was
as if he’d been walking down the street and the police had
fallen in step with him and asked him questions without
causing him to alter his pace or his path. Such encounters
are not pleasant, but they are not seizures until they impede
the individual’s freedom of motion.
It is true that the police officer to whom the defendant had
handed his identification and ticket was still holding these
items when the defendant’s fishy “lost key” story carried
the suspicion that had been aroused by his fitting the drug
profile over the line that separates bare suspicion from
reasonable suspicion. But the interval was too brief
to amount to a seizure of the defendant (compare United
States v. Lambert, 46 F.3d 1064, 1068 (10th Cir. 1995)) and
anyway it is not a seizure to prevent a person from moving
who doesn’t want to move. This was well explained in
Florida v. Bostick, 501 U.S. 429, 435-36 (1991): “When police
attempt to question a person who is walking down the street
or through an airport lobby, it makes sense to inquire
whether a reasonable person would feel free to continue
walking. But when the person is seated on a bus and has no
desire to leave, the degree to which a reasonable person
would feel that he or she could leave is not an accurate
measure of the coercive effect of the encounter. Here, for
example, the mere fact that Bostick did not feel free to leave
the bus does not mean that the police seized him. Bostick
was a passenger on a bus that was scheduled to depart. He
would not have felt free to leave the bus even if the police
had not been present. Bostick’s movements were ‘confined’
in a sense, but this was the natural result of his decision to
take the bus; it says nothing about whether or not the police
No. 05-1809 5
conduct at issue was coercive.” See also United States v.
Childs, 277 F.3d 947, 951 (7th Cir. 2002) (en banc).
The combination of fitting the drug profile and giving
a suspicious answer to the question about looking inside his
luggage created a reasonable suspicion that the defendant’s
luggage contained contraband. United States v. Sterling, 909
F.2d 1078, 1083-84 (7th Cir. 1990); United States v. Bayless,
201 F.3d 116, 132-34 (2d Cir. 2000). The police also
“stopped” the defendant: By telling him to accompany them
to their office to get a receipt for the luggage while holding
on to his ticket and identification they forced him out of the
train and, given the proximity of its departure, marooned
him in Chicago for 24 hours. If the “stop” of the luggage
was lawful, doubtless so was the stop of him, as there was
no reason to think him an unwitting courier of contraband;
his conduct was all against that inference. But even if
stopping him was unlawful and might therefore support a
damages suit, it had no consequences for the criminal
proceeding against him. For once the police had the luggage
and submitted it to a dog sniff, they had what they needed.
If the luggage was lawfully seized and retained for the time
it took to do the sniff, there was no basis for excluding it as
evidence of a drug crime.
Terry v. Ohio, 392 U.S. 1 (1968), authorized the common
police practice of stopping a person who is behaving in a
suspicious manner to question him briefly and, if the
officers are worried that he may be armed, patting him
down. So: “stop and frisk.” All that is required is that the
officers’ suspicion be “reasonable.” To “stop” a piece of
luggage and interrogate it with a dog’s nose fits the princi-
ple though not the facts of Terry, and was held to be a
proper application of the underlying principle in United
States v. Place, 462 U.S. 696, 703-06 (1983). That principle is
6 No. 05-1809
that the less protracted and intrusive a search or seizure
is, the less suspicion the police need in order to be allowed
to conduct it. United States v. Burton, 441 F.3d 509, 511 (7th
Cir. 2006). “It does not follow that because an officer may
lawfully arrest a person only when he is apprised of facts
sufficient to warrant a belief that the person has committed
or is committing a crime, the officer is equally unjustified,
absent that kind of evidence, in making any intrusions short
of an arrest.” Terry v. Ohio, supra, 392 U.S. at 27. When the
officers in the present case removed the defendant’s luggage
from the train they “stopped” the luggage from going to
Denver, but they had a reasonable suspicion that the
luggage contained contraband and that is all that is required
for a Terry stop or its luggage equivalent. But we cannot end
our analysis here. We shall have to explore further the
principle that underlies the Terry and Place decisions.
To begin with, the amount of permissible intrusion is a
function not only of the likelihood of turning up contraband
or evidence of crime but also of the magnitude of the crime
being investigated. In City of Indianapolis v. Edmond, 531 U.S.
32, 44 (2000), the Supreme Court remarked that “the Fourth
Amendment would almost certainly permit an appropri-
ately tailored roadblock set up to thwart an imminent
terrorist attack.” And in Florida v. J.L., 529 U.S. 266, 273-74
(2000), it said that “we do not say, for example, that a report
of a person carrying a bomb need bear the indicia of
reliability we demand for a report of a person carrying a
firearm before the police can constitutionally conduct a
frisk.” In other words, if the crime being investigated is
grave enough, the police can stop and frisk without as much
suspicion as would be required in a less serious criminal
case.
This “sliding scale” approach is further illustrated by
Illinois v. Lidster, 540 U.S. 419 (2004), where the Court
No. 05-1809 7
upheld a roadblock that the police had set up to stop cars so
that the drivers could be asked for information about a
recent hit-and-run accident. Not only was there no individu-
alized suspicion, reasonable or otherwise, of the persons
stopped; there was no group suspicion, as there had been in
Edmond. The purpose of the roadblock in Lidster was not to
stop the hit-and-run driver but to obtain information that
might lead to his being apprehended elsewhere. Yet the
roadblock did not violate the Fourth Amendment. One
factor the Court emphasized was that the stop was much
less intrusive than an arrest or a conventional search.
Ordinarily the detention of a piece of luggage merely to
permit a dog to sniff it is even less of an intrusion than a
stop and frisk or being stopped at a roadblock—the only
information that the sniff reveals is the presence of contra-
band, in which the possessor has no legally protected
interest. Illinois v. Caballes, 543 U.S. 405, 408-09 (2005); see
also United States v. Jacobsen, 466 U.S. 109, 122-23 (1984);
United States v. Place, supra, 462 U.S. at 707. But the intrusion
in this case was greater than in a standard stop and frisk. If
you ask the average person whether he would rather be
stopped for five minutes, questioned, and frisked, or be
delayed in a journey to another city by 24 hours, he will
probably, unless extremely squeamish, choose the former.
Yet there could be cases in which even a brief stop and frisk
caused someone to miss a plane or train, and would such a
consequence invalidate the Terry stop? Is more than reason-
able suspicion, which as we said was present here, required
in such a case because the interference with the defendant’s
freedom of movement is so much greater than in the typical
Terry stop or its luggage equivalent?
An argument that more suspicion is required might
point to a study of Terry stops in New York City which
found that only one in nine had resulted in an arrest.
8 No. 05-1809
William J. Stuntz, “O.J. Simpson, Bill Clinton, and the
Transsubstantive Fourth Amendment,” 114 Harv. L. Rev.
842, 873 and n. 99 (2001). Doubtless some of the people
stopped were not arrested simply because the police had
better uses of their time, but others were not arrested
because they had been stopped by mistake. If a stop,
whether of the individual or of his luggage, results in
stranding an innocent person for hours, considerable
hardship will have been inflicted without any countervail-
ing benefit to the community. The sliding-scale approach
implies, and our decision in United States v. Chaidez, 919 F.2d
1193, 1197-98 (7th Cir. 1990), holds, that the more costly the
stop to the person stopped, the greater must be the expected
benefits of the stop to law enforcement for the stop to be
reasonable.
In other words, the scale slides in both directions. A
stop as unintrusive as the one in Lidster, or as brief as when
a police officer by “approaching a person on the street (or at
work, or on a bus) to ask him a question causes him to stop
for at least the time needed to hear the question and answer
(or refuse to answer),” United States v. Childs, supra, 277 F.3d
at 950, requires no suspicion to be lawful. But as empha-
sized in Chaidez, if the stop is more oppressive than the
standard Terry stop, more suspicion may be required than
is required for such a stop. And that may seem to make the
case for the defendant—for being marooned for 24 hours
can be a considerable hardship. But two other factors in this
case cut against him: the lack of feasible alternatives to the
stop, and the fact that the risk of delay and consequent
hardship was created by the defendant himself.
The suspicion required to justify a search is relative to
alternative means of investigation. Officers who encounter
a person who is behaving in a suspicious manner, but
who do not have enough suspicion to justify a stop, may
No. 05-1809 9
be able to take further steps to confirm or allay their suspi-
cion, perhaps by following the suspect. So we must consider
whether the police in this case might have conducted a
further investigation of the defendant that would not have
entailed delaying his trip by 24 hours. They could have
brought the sniffer dog onto the train with them or let the
defendant and his luggage continue to the next station but
call ahead and have a dog waiting there. However, these
would not have been satisfactory alternatives to seizing the
luggage. A sniffer dog might not do his stuff in the unfamil-
iar setting of a train’s interior. And apparently there aren’t
enough of these highly trained dogs to have one tethered at
every bus station, train station, and airport in Chicago. As
for the officers’ calling ahead, the defendant could have
dumped the incriminating contents of his luggage out of the
window of his compartment between Chicago and the
train’s next stop. And there is no suggestion that the police
deliberately delayed bearding the defendant in his den until
the last minute so that he would miss his train. They got
there as soon as they could—for remember that the defen-
dant had bought his ticket only an hour before the train was
to leave. They could have had a receipt for the luggage with
them and given it to the defendant on the train and let him
proceed on his way without his luggage, but few people
would be willing to continue an out-of-town trip without
any of their luggage.
If the defendant had bought his ticket a week in advance
and the police had known then that he fit the profile of a
drug courier, they could have arranged for Dusty (the
sniffer dog) to be at Union Station when the train was
scheduled to depart. But because the defendant bought his
ticket only an hour before the scheduled departure, the
police had until then no ground for suspicion. Their only
options at that point were to risk causing the defendant to
10 No. 05-1809
miss his train or abandon the investigation. To say that
it was unreasonable for them to choose the former course of
action would make last-minute ticket purchases a foolproof
way for drug couriers to frustrate profiling. As the court
said in United States v. Sharpe, 470 U.S. 675, 686-88 (1985),
if “the police are acting in a swiftly developing situa-
tion, . . . the court should not indulge in unrealistic second-
guessing. . . . The delay in this case was attributable almost
entirely to the evasive actions of Savage, who sought to
elude the police as [the defendant] moved his Pontiac to the
side of the road.” See also United States v. Van Leeuwen, 397
U.S. 249, 252-53 (1970), upholding a 29-hour retention of a
seized package. Compare Florida v. Royer, 460 U.S. 491, 504-
06 (1983) (plurality opinion).
This case is an illustration of how “the need for a stop
depends on factors such as the seriousness of the offense
suspected, the consequences of delay on the part of the officers,
and the likelihood of the detainee’s involvement in the
offense suspected . . . . [T]he need for a stop increases if the
departure of a suspect from the area reasonably appears to
be imminent.” United States v. Price, 599 F.2d 494, 500 (2d
Cir. 1979) (emphasis added); see also United States v. Tehrani,
49 F.3d 54, 61 (2d Cir. 1995). As the Supreme Court ex-
plained in United States v. Place, supra, 462 U.S. at 705-06, one
thing that makes a stop less costly to the person stopped
than an arrest is the stop’s brevity, and one thing that makes
prolonging the stop more difficult to justify is the existence
of a feasible alternative. Since the police knew Place’s
scheduled time of arrival at the airport they could have
arranged to have a sniffer dog there when Place arrived.
Having failed to make such an arrangement they detained
his luggage for an hour and a half before the sniff. The
Court held that that was too long, no excuse for the delay
having been offered. Here there was a good excuse, as we
No. 05-1809 11
have seen, and though the delay was longer than in Place,
the Court had been explicit in “declin[ing]” to adopt any
outside time limitation for a permissible Terry stop.” Id. at
709. Ninety minutes was merely too long “on the facts
presented by th[e] case,” where the police “had ample time
to arrange for their additional investigation at [the airport],
and thereby could have minimized the intrusion on [Place’s]
Fourth Amendment interests.” Id. at 709-10. They didn’t
here.
The detention (as distinct from the delay that resulted
from the defendant’s missing his train) was shorter in the
present case than in Place, though it is unclear how much
shorter. The interval between the seizure of the luggage and
the sniffing by the dog must have been at least 20 minutes.
The government’s lawyer at argument said the interval was
“half an hour” and he was not contradicted. But the defen-
dant’s lawyer had no rebuttal time left (though he could
have asked leave to file a supplemental brief or memo, and
did not), and we cannot find any support in the record for
the half-hour estimate. But these are details; for even if the
interval could have been compressed to 10 minutes, the
damage would have been done; the defendant would have
missed his train, and it is the resulting 24-hour delay that he
is complaining about.
We do not think that such a consequence, if as a practical
matter it is unavoidable because of a decision by the
defendant himself (to buy his ticket at the last minute),
invalidates an investigative stop. It is not as if the police had
locked him up for 24 hours. By buying his ticket at the last
minute he created a situation in which even a brief
stop would cause him to miss his train, because the stop was
bound to occur at the last minute—the police could not fit
him to the profile until he bought his ticket. He was there-
12 No. 05-1809
fore the co-author of the prolongation that is the fulcrum of
his Fourth Amendment claim. If his missing his train
invalidated the seizure of his luggage, drug couriers have
discovered an infallible means of defeating law enforce-
ment—buy your ticket at the last minute. The thinking
behind the profile would have been vindicated, but at the
cost of making drug-courier profiling next to useless to the
police.
It is not as if the defendant had bought a one-way ticket
with cash a full week before the train’s departure, but had
boarded it (and met the police) only 10 minutes before
departure. The purchase of a one-way ticket for cash might
have alerted the police to the possibility that the defendant
was a drug courier, and then, as we noted earlier, they could
have arranged for Dusty to meet him on the platform, as it
were. By delaying his purchase to the last minute, the
defendant created suspicion at a time when a police investi-
gation was bound to delay his departure. It is in that sense
that he is the author of the delay of which he complains.
AFFIRMED.
No. 05-1809 13
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-24-06