DOROTHY ANN KNOX AND KIMBERLY LAWANDA WARE, PETITIONERS V. UNITED STATES OF AMERICA No. 87-1927 In the Supreme Court of the United States October Term, 1988 On Petition for a Writ of Certiorari to the United States Court of Appeals for the Sixth Circuit Brief for the United States TABLE OF CONTENTS Questions Presented Opinions below Jurisdiction Statement Argument Conclusion OPINIONS BELOW The opinion of the court of appeals (Pet. App. A1-A72) is reported at 839 F.2d 285. The opinion of the district court denying petitioners' motion to suppress evidence (Pet. App. C1-C12) is unreported. JURISDICTION The judgment of the court of appeals was entered on February 12, 1988. A petition for rehearing was denied on March 30, 1988. The petition for a writ of certiorari was filed on May 23, 1988. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(l). QUESTIONS PRESENTED 1. Whether the stop of petitioners in the Memphis airport was supported by reasonable suspicion that they were involved in narcotics trafficking. 2. Whether petitioners were arrested, rather than detained, when they accompanied a DEA agent to an airport security office for questioning. 3. Whether petitioners should have received Miranda warnings prior to questioning. STATEMENT Following the denial of a motion to suppress evidence, petitioner Knox entered a conditional guilty plea in the United States District Court for the Western District of Tennessee to the possession of cocaine with the intent to distribute it, in violation of 21 U.S.C. 841(a)(1). Petitioner Ware was tried and convicted of that offense. Petitioner Knox was sentenced to three years' imprisonment, to be followed by a three-year parole term. The court of appeals affirmed. 1. On June 14, 1985, Paul Markonni, an agent of the Drug Enforcement Agency, was patrolling the Atlanta airport. He saw petitioners and their co-defendant Altamont Champegnie get off a flight from Miami, Florida. Petitioner Ware ran toward the bathroom with one arm over her stomach. When she emerged from the bathroom, she was no longer holding her stomach. The three confederates initially acted as if they did not know each other, but they appeared to be together. Agent Markonni watched them throughout their stay in the Atlanta airport. After they boarded a flight for Memphis, Agent Markonni checked their reservations. He found that all three had made their reservations at the same time the previous day and that they had paid for their tickets in cash. He telephoned the callback number that the three had provided the airline. The person who answered the telephone did not recognize any of the names in which the tickets were purchased. Agent Markonni relayed this information to DEA Agent Richard Holmes in Memphis. C.A. App. 47-51, 63. Agent Holmes watched petitioners and Champegnie as they got off the plane in Memphis. Petitioner Ware was carrying a blue bag, which she later handed to petitioner Knox. Agent Holmes approached the group and said that he would like to speak to them. Petitioners and Champegnie agreed, but they said that they would first like to get their luggage. After retrieving their luggage, petitioners and Champegnie accompanied Agent Holmes to police interviewing rooms at the terminal. Agent Holmes told petitioners that they were not under arrest. When he individually asked Ware and Champegnie if he could see their airline tickets, each one denied having a ticket. Also, they both denied that they knew each other or Knox. When Agent Holmes asked Knox if he could see her ticket, she opened her handbag, revealing three tickets. Knox also initially denied knowing her traveling companions, but when the tickets were discovered, Knox admitted that she knew Ware and Champegnie. Both Ware and Knox denied owning the blue bag that they had taken turns carrying when they landed in Memphis; each one said that the bag was owned by the other. Petitioners and Champegnie then signed forms consenting to a search of their luggage; including the blue bag. A trained narcotics detection dog alerted to all of the luggage. Agent Holmes searched the blue bag and found two and one-half pounds of cocaine. He then arrested petitioners and Champegnie. C.A. App. 53-61, 64-83. 2. Petitioners moved to suppress the cocaine and their statements to Agent Holmes, and the district court denied the motion. The court found that Agent Holmes detained petitioners when he first approached them in Memphis and asked them to accompany him to the interview room for questioning. Pet. App. C6-C7. The court ruled, however, that the stop was supported by reasonable suspicion that petitioners were in possession of narcotics. Thereafter, the court held, each petitioner abandoned the blue bag by denying that it was hers. That denial, the court held, extinguished any privacy interest petitioners might have had in the bag. Id. at C10-C12. 3. The court of appeals affirmed by a divided vote. Pet. App. A1-A58. The court first held that petitioners were seized when they were approached by Agent Holmes (id. at A12-A13), but that the detention was not equivalent to an arrest because (1) the detention lasted no longer than was necessary to complete its purpose; (2) Agent Holmes did not retain petitioners' airline tickets; (3) he told petitioners that they were not under arrest; and (4) he helped petitioners retrieve their luggage at their request. Id. at A21-A22, A31-A33. For that reason, the court held, Agent Holmes was not required to give petitioners Miranda warnings before questioning them. Id. at A31. Finally, the court ruled that petitioners had abandoned any reasonable expectation of privacy they might have in the blue bag by denying that they owned it. Id. at A22-A36. /1/ Judge Edwards dissented on the question whether petitioners' statements should have been suppressed under Miranda; he did not address any of the Fourth Amendment issues in the case. In his view, placing petitioners in separate rooms at the airport terminal was tantamount to taking them to a police station, and petitioners therefore should have been given Miranda warnings before they were questioned. Pet. App. A70-A72. ARGUMENT Petitioners challenge the legality of their detention at the airport on several grounds. They argue that their initial detention was not supported by reasonable suspicion; that the detention was unduly long; that their movement to security offices at the terminal was tantamount to an arrest that was not supported by probable cause; and that they should have received Miranda warnings before being questioned in the offices. 1. A law enforcement officer may stop and briefly detain a person for investigative purposes if the officer observes suspicious conduct that leads him reasonably to believe in light of his experience that a suspect may be in possession of narcotics, even if the officer lacks probable cause to arrest the suspect for that crime. See, e.g., Florida v. Rodriguez, 469 U.S. 1 (1984); Florida v. Royer, 460 U.S. 491, 502 (1983) (plurality opinion). In this case, Agent Holmes, who was experienced in detecting narcotics traffickers (C.A. App. 47), had reasonable grounds to believe that petitioners may have been in possession of narcotics when they were detained at the Memphis airport. /2/ At that time, Agent Holmes knew the following: (1) petitioners were traveling to Memphis from Miami, a known source city for narcotics; (2) petitioners purchased their tickets with cash 24 hours before their departure; (3) they gave the airline a false callback number; during the stopover in Atlanta, petitioner Ware exited the plane with one arm covering her stomach as if she was attempting to conceal something; and (5) petitioners and Champegnie sought to conceal the fact that they were traveling together. This Court and the courts of appeals have recognized that factors such as those are indicative of drug trafficking. See, e.g., Florida v. Royer, 460 U.S. at 502 (plurality opinion); United States v. Mendenhall, 446 U.S. 544, 564-565 (1980) (opinion of Powell, J); United States v. Whitehead, No. 87-5093 (4th Cir. May 24, 1988), slip op. 20; United States v. Espinosa-Guerra, 805 F.2d 1502, 1508 (11th Cir. 1986); United States v. Hanson, 801 F.2d 757, 761-763 (5th Cir. 1986); United States v. Berd, 634 F.2d 979, 986 (5th Cir. 1981). The facts of this case differ from those in Reid v. Georgia, 448 U.S. 438 (1980), on which petitioners rely (see Pet. 14-16) and in which this Court found that the stop of two travelers in an airport was not supported by reasonable suspicion. In Reid, when the narcotics officers stopped the defendant, they knew only that (1) he and a companion had arrived in Atlanta from Fort Lauderdale, a source city for cocaine; (2) they arrived early in the morning, when law enforcement activity is light; (3) both persons carried only shoulder bags; and (4) the defendant and his companion attempted to conceal the fact that they were traveling together. In this case, Agent Holmes had additional information that the officers lacked in Reid. Agent Holmes knew that petitioners had purchased their tickets with cash only one day before their flight and that they had given the airline a false callback telephone number. Those factors are significant. Purchasing airline tickets in cash and giving the airline a false callback telephone number are devices commonly used by drug couriers to avoid revealing their true identity in order to hamper police investigation. /3/ Thus, this case more closely resembles Florida v. Royer, supra, in which eight Members of the Court agreed that the following evidence was sufficient to establish reasonable suspicion that the suspect possessed narcotics: the suspect was traveling under an alias; he had paid cash for his ticket; he had put only a name and not an address on his checked luggage; he was young and casually dressed; and he seemed nervous while walking through the Miami airport. See 460 U.S. at 502 (plurality opinion); id. at 515-516 (Blackmun, J., dissenting); id. at 523-524 (Rehnquist, J., dissenting). Here, petitioners (and Champegnie) had paid for their tickets in cash, they gave the airline false information, and they acted in a suspicious manner while in the Atlanta terminal. In light of those similiarities, the facts of this case, like those in Royer, suggested that petitioners may have been bringing narcotics back to their destination from Miami. Although we believe that the court of appeals' ruling was correct, this Court may nonetheless wish to hold this case pending its decision in United States v. Sokolow, cert. granted, No. 87-1295 (June 6, 1988). In that case, the Ninth Circuit adopted a new two-part test for determining reasonable suspicion in the airport context. Under that test, before a law enforcement officer may make a Terry stop of a suspected drug courier traveling through an airport, the officer must be able to point to direct evidence that the suspect is involved in narcotics trafficking, and the officer must be able to supply empirical or statistical proof that the circumstantial evidence on which he relies does not characterize a large number of innocent travelers. Some of the facts in this case are similar to those in Sokolow, but there are also some differences as well. /4/ For instance, petitioner Ware acted as if she was attempting to conceal something on her person, and all three confederates attempted to conceal the fact that they were traveling together. Those facts appear to be the type of direct proof of narcotics smuggling that the Ninth Circuit found critical to the reasonable suspicion determination in Sokolow. The judgment in this case therefore may survive even if this Court in Sokolow were to endorse the Ninth Circuit's two-part reasonable suspicion test. Nevertheless, this Court's decision in Sokolow could potentially affect the disposition of this case, and it therefore may be appropriate to hold the petition in this case pending the decision in Sokolow. 2. Petitioners also argue (Pet. 16-21) that their detention blossomed into a full-scale arrest when they accompanied Agent Holmes to the airport security offices. To support their claim, petitioners focus on the length and location of their detention, but neither factor transformed their detention into an arrest. In United States v. Sharpe, 470 U.S. 675 (1985), this Court rejected the per se rule adopted by the court of appeals that "a 20-minute detention is too long to be justified under the Terry doctrine." Id. at 687. After noting that "our cases impose no rigid time limitation on Terry stops" (id. at 685), the Court explained that, "(i)n assessing whether a detention is too long in duration to be justified as an investigative stop, we consider it appropriate to examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant." Id. at 686. Under that standard, the delay in this case, which Agent Holmes estimated to have been no more than 10 to 30 minutes (C.A. App. 55, 70, 79), did not render the detention of petitioners unreasonable. Perhaps half the delay in this case stemmed from petitioners' request to retrieve their luggage before accompanying Agent Holmes to the airport security offices. See C.A. App. 55 (Agent Holmes estimated that it may have taken 10 to 15 minutes for petitioners to reach the interview rooms, counting the detour to the baggage claim area). Once Agent Holmes had escorted petitioners and Champegnie to the offices, he placed each one in a separate office and questioned each briefly about his or her travel arrangements and ownership of the luggage. Agent Holmes asked only a few questions of each person before moving on to the next. Agent Holmes then asked each person for consent to a search of the luggage. After obtaining their consent, the agent had a narcotics detection dog, which was ready and waiting (see C.A. App. 51-53, 61), examine the blue carry-on bag. Agent Holmes therefore diligent pursued a means of investigation that confirmed his suspicion that petitioners were transporting drugs. The fact that his investigation, including the detour to pick up petitioner's luggage, may have taken up to 30 minutes therefore did not transform the detention into an arrest. Compare United States v. Davies, 768 F.2d 893, 900-902 (7th Cir.), cert. denied, 474 U.S. 1008 (1985) (45-minute detention of a suspect not unreasonable under Sharpe); United States v. Borys, 766 F.2d 304, 312-314 (7th Cir. 1985), cert. denied, 474 U.S. 1082 (1986) (75-minute detention of luggage not unreasonable under Sharpe); see Michigan v. Summers, 452 U.S. 692, 700 n.12 (1981) ("If the purpose underlying a Terry stop -- investigating possible criminal activity -- is to be served, the police must under certain circumstances be able to detain the individual for longer than the brief time period involved in Terry (v. Ohio, 392 U.S. 1 (1968)) and Adams (v. Williams, 407 U.S. 143 (1972))."). Petitioners also rely on the fact that they were questioned in security offices at the airport. That fact did not convert the detention into a custodial arrest, because the circumstances under which petitioners were questioned did not amount to custody of the type necessary to constitute a formal arrest. For instance, Agent Holmes did not use or threaten to use force, and he told petitioners that they were not under arrest. Petitioners asked to retrieve their luggage from the baggage claim area prior to the interviews, which indicates that petitioners were not so intimidated by Agent Holmes as to believe that their freedom of movement had been severely curtailed. Agent Holmes offered to assist petitioners in carrying their luggage to the offices, thereby fostering an atomosphere of cooperation rather than domination. Finally, Agent Holmes asked petitioners only a few questions before formally placing petitioners under arrest. Under these circumstances, the fact that petitioners were questioned in an airport security office was not enough to render the questioning custodial in nature. See California v. Beheler, 463 U.S. 1121 (1983), and Oregon v. Mathiason, 429 U.S. 492 (1977) (both holding that Miranda warnings were not required during a stationhouse interview when the suspect was told that he was not under arrest); United States v. Espinosa-Guerra, 805 F.2d at 1509-1510 (taking the suspect to an airline office for questioning does not necessarily transform the detention into an arrest). The facts of this case contrast sharply with those in Florida v. Royer, in which the Court held that moving the suspect from the concourse to an airport office was equivalent to a formal arrest. 460 U.S. at 501-507 (plurality opinion). Royer was waiting to board a flight to New York when he was approached by the agents. Royer never agreed to accompany the agents to the interview room, and the agents retained Royer's airplane tickets, thereby preventing him from boarding his flight to New York. Without Royer's consent, the agents then used his ticket stubs to retrieve his checked baggage, which had been en route to the plane. Finally, the agents never told Royer that he was free to depart or that he was not under arrest. The encounter between Royer and the police was thus far more coercive than the encounter between petitioners and Agent Holmes. The encounter in this case was characterized by mutual cooperation, not confrontation, and the agent's actions could not have led petitioners to believe that they were under arrest. The encounter therefore did not rise to the level of an arrest, even though petitioners were questioned at an airport security office. 3. Petitioners' final claim /5/ is (Pet. 21-27) that their statements to Agent Holmes should have been suppressed because the agent did not give petitioners Miranda warnings before asking them whether they were traveling together and whether they would consent to a search of the blue carry-on bag. That claim lacks merit. /6/ The Miranda warnings must be given before questioning only if the suspect is "in custody," and a person is not "in custody" under Miranda unless he is subjected to a "'formal arrest or restraint on (his) freedom of movement' of the degree associated with a formal arrest." California v. Beheler, 463 U.S. at 1125 (quoting Oregon v. Mathiason, 429 U.S. at 495). Accord Berkemer v. McCarty, 468 U.S. 420, 440 (1984); New York v. Quarles, 467 U.S. 649, 655 (1984); Minnesota v. Murphy, 465 U.S. 420, 430-431 (1984). Moreover, in Berkemer v. McCarty, supra, this Court held that a person need not be given Miranda warnings during a Terry stop when a suspect is briefly detained for investigative purposes. Berkemer v. McCarty, 468 U.S. at 440. Petitioners do not deny that, during an investigative detention, a police officer may ask a suspect a few questions that are related to the purpose of the detention without first giving a suspect Miranda warnings. Rather, petitioners' claim is essentially that their detention went beyond a Terry stop and was tantamount to an arrest. As we have explained above, however, petitioners were not formally arrested until the narcotics detection dog alerted to the odor of drugs in the blue carry-on bag, and the detention of petitioners prior to that point did not amount to a restraint that was equivalent to a formal arrest. The fact that the questioning took place in an airport security office did not require that Miranda warnings be given, because a person who is questioned at a police station is not necessarily "in custody" for Miranda purposes. California v. Beheler, supra; Oregon v. Mathiason, supra; cf. United States v. Mendenhall, 446 U.S. 544, 557-558 1980). /7/ Accordingly, Agent Holmes did not have to give petitioners Miranda warnings before asking them whether they were traveling together and whether they would consent to a search of their luggage. CONCLUSION With respect to the issue raised in Question I(a) of the petition, the petition should be held pending the decision in United States v. Sokolow, cert. granted, No. 87-1295 (June 6, 1988), and then disposed of as appropriate in light of that decision. In all other respect, the petition should be denied. Respectfully submitted. CHARLES FRIED Solicitor General EDWARD S. G. DENNIS, JR. Acting Assistant Attorney General PATTY MERKAMP STEMLER Attorney JULY 1988 /1/ In a concurring opinion, Judge Jones stated that the petitioners not "in custody" when they were questioned by Agent Holmes in separate rooms, and Miranda warnings were therefore not necessary. Pet. App. A57. Judge Jones also concluded that petitioners' statements were voluntarily given. Id. at A58. /2/ Both courts below found that petitioners were detained when they were first approached by Agent Holmes, but the record would also support a contrary conclusion. Only Agent Holmes testified at the suppression hearing; petitioners did not testify or offer any evidence. According to Agent Holmes, when he approached petitioners he did not display a weapon, he told petitioners that he would like to talk to them, and he asked them to accompany him to a police interview room. Petitioners agreed to accompany Agent Holmes, but stated that they first wanted to obtain their luggage from the baggage claim area. Agent Holmes offered to help them with their luggage, and he carried it for them. Agent Holmes also told petitioners that they were not under arrest. C.A. App. 54, 65, 67-69. On this record, petitioners were not coerced into going to the security offices. /3/ The cash purchase of airline tickets is commonly cited to support a finding of reasonable suspicion. See, e.g., United States v. Whitehead, slip op. 20 ("Whitehead paid for his $403 ticket in cash, thus avoiding the need to present identification"); United States v. Espinosa-Guerra, 805 F.2d at 1508; United States v. Hanson, 801 F.2d at 761-763; United States v. Williams, 726 F.2d 661, 663 (10th Cir.), cert. denied, 467 U.S. 1245 (1984); United States v. Jodoin, 672 F.2d 232, 234 (1st Cir. 1982). An alias helps to avoid detection and drug couriers, like other criminals, frequently use an alias or a false callback number. See, e.g., Florida v. Royer, 460 U.S. at 502 (plurality opinion); United States v. Espinosa-Guerra, 805 F.2d at 1508; United States v. Hanson, 801 F.2d at 763; United States v. Palen, 793 F.2d 779, 789 (11th Cir. 1984); United States v. Ehlebracht, 693 F.2d at 333, 336 (5th Cir. 1982); United States v. Jodoin, 672 F.2d 233; United States v. Berd, 634 F.2d at 986 (traveling under an alias is "a practice common to drug couriers"; also stating that the use of a false callback number is "a practice commonly used by narcotics couriers to prevent later detection"); United States v. Lewis, 556 F.2d 385, 389 (6th Cir. 1977), cert. denied, 434 U.S. 1011 (1978) (use of an alias when purchasing an airline ticket "indicated the likelihood of an illicit purpose in the trip"). /4/ There are some similiarities between this case and Sokolow: (1) like petitioners, Sokolow was traveling from Miami, and the nation's primary source city for cocaine; (2) like petitioners, Sokolow made his return reservation the day before his trip and he paid for this tickets in cash; and (3) although Sokolow did not give a false callback number (his voice was on the recording machine), the name in which his callback number was listed differed from the name in which he purchased his tickets. In addition to those facts, the agents in Sokolow knew that Sokolow's stay in Miami was brief, that he was nervous when he purchased the airline tickets, that he carried a large roll of $20 bills to Miami, that he nervously scanned the terminal during his stopover in Los Angeles, the he was casually dressed, an that he checked no luggage on either leg of his journey. Unlike petitioners, however, Sokolow and his companion did not attempt to conceal the fact that they were traveling together; nor did Sokolow give the agents reason to believe that he might be concealing drugs on his person, as Ware did when she ran off the plane with one covering her stomach. /5/ Petitioners have also presented the question (Pet. ii) whether the district court erred in finding that they abandoned any reasonable expectation of privacy that they might have had in the blue carry-on bag by disclaiming that they owned it, but petitioners have not elaborated on that claim in their petition. In any event, the district court's finding (Pet. App. C11-C12) that petitioners abandoned any privacy interest they may have had in the bag does not warrant further review. Disclaiming ownership of an item of property, such as luggage, amounts to a waiver of any privacy interest in its contents. See, e.g., United States v. Veatch, 674 F.2d 1217, 1221 (9th Cir. 1981); United States v. Tolbert, 692 F.2d 1041, 1044-1045 (6th Cir. 1982), cert. denied, 464 U.S. 933 (1983); United States v. Kendall, 655 F.2d 199, 202 (9th Cir. 1981), cert. denied, 455 U.S. 941 (1982); United States v. Berd, 634 F.2d at 987; United States v. Miller, 589 F.2d 1117, 1131 (1st Cir. 1978), cert. denied, 440 U.S. 958 (1979). In any event, even if petitioners retained some privacy interest in the blue carry-on bag, the search of the bag was valid pursuant to petitioners' voluntary consent to the search of all their luggage. /6/ Petitioners' err in suggesting (Pet. ii, 27) that the cocaine found in the blue carry-on bag also should be suppressed on this ground. Although this Court has not conclusively resolved the issue, we submit that a violation of Miranda does not require the suppression of physical evidence, rather than a suspect's statements. See New York v. Quarles, 467 U.S. 649, 665-672 (1984) (opinion of O'Connor, J.). /7/ The decision below does not conflict with United States v. Beraun-Panez, 812 F.2d 578 (9th Cir. 1987), on which petitioners rely (Pet. 25-26). The difference between the result in that case and this one is attributable to a difference in facts, not a disagreement on principle. The Ninth Circuit applied the same standard in that case that the Sixth Circuit applied in this one (see 812 F.2d at 580) to facts that the court of appeals viewed as highly coercive. Id. at 579 (suspect questioned for 30-90 minutes; he was asked whether he committed the crime under investigation; he was told that he could be deported if he was convicted; "the officials resorted to a good guy/bad guy routine" during questioning; the suspect not told that he was not under arrest).