At a pretrial suppression hearing in a Florida trial court where
respondent was charged with possession of cocaine with intent to
distribute, a county police officer, who had special training and
experience in narcotics surveillance and apprehension, testified
that he and another plainclothes officer followed respondent and
his companions after they behaved in an unusual manner while
leaving a ticket counter in the Miami International Airport; that
as they proceeded to the concourse from which flights departed,
respondent and his companions sighted the officers, and he made
strange, evasive movements; that upon confronting respondent, the
officer showed his badge, and respondent agreed to join his
companions and the other officer at a nearby spot in the public
area of the airport and to talk with the officers; that after
respondent and one of his companions made conflicting statements in
identifying themselves, they were informed that the officers were
narcotics agents and were asked for consent to search respondent's
luggage; and that respondent ultimately handed over the key,
cocaine was found, and he and his companions were arrested. The
court granted respondent's motion to suppress the cocaine, holding
that his rights under the Fourth and Fourteenth Amendments had been
violated, and the Florida District Court of Appeal affirmed.
Held: Because of the public interest in suppressing
illegal drug transactions and other serious crimes, a temporary
detention for questioning in the case of an airport search even
though constituting a "seizure" for
Page 469 U. S. 2
Fourth Amendment purposes -- may be justified without a showing
of "probable cause" if there is "articulable suspicion" that a
person has committed or is about to commit a crime. Here,
respondent's initial contact with the officers, where he was asked
to step aside and talk with them, was the sort of consensual
encounter that implicates no Fourth Amendment interest. Assuming,
arguendo, that there was a "seizure" thereafter, any such
seizure was justified by "articulable suspicion," and the trial
court erred in concluding otherwise. Moreover, contrary to the
trial court's ruling, the State need not prove that a defendant
consenting to a search knew that he had the right to withhold his
consent. Thus, it cannot be determined whether the trial court's
holding that the voluntariness of respondent's consent to the
luggage search was tainted by the initial stop would have been the
same if it had correctly applied the governing Fourth Amendment
principles.
Certiorari granted; 443 So. 2d 995, reversed and remanded.
PER CURIAM.
Respondent Damasco Vincente Rodriguez was charged in a Florida
state trial court with possession of cocaine with intent to
distribute. The State claimed that on September 12, 1978, he had
attempted to transport three pounds of cocaine contained in his
luggage through the Miami International Airport. Cocaine seized
from the respondent following an examination of his luggage at the
airport was suppressed by the Florida trial court on the grounds
that respondent's rights under the Fourth and Fourteenth Amendments
to the United States Constitution had been violated by the search.
The Florida District Court of Appeal affirmed the judgment in a per
curiam opinion, citing its earlier decision in
State v.
Battleman, 374 So. 2d 636 (1979).
State v. Rodriguez,
389 So. 2d 4 (1980). This Court originally denied certiorari,
Florida v. Rodriguez, 451 U. S. 1022
(1981), but two years later granted rehearing and remanded the case
to the Florida District Court of Appeal for reconsideration in the
light of our opinions in
Florida v. Royer, 460 U.
S. 491 (1983).
Florida v. Rodriguez, 461 U.S.
940 (1983). The Florida District Court of Appeal again affirmed the
suppression of the evidence in a one-word order, 443 So. 2d 995
(1983), and the State has again petitioned for certiorari. Because
of the
Page 469 U. S. 3
Florida court's suppression of the evidence against him prior to
trial, respondent has never been tried for the drug offense with
which he was charged, and his former attorneys have advised this
Court that he is currently a fugitive from justice.
The only witness to testify at the suppression hearing was
Officer Charles McGee, who was a police officer with the Dade
County Public Safety Department. McGee testified that he had
received about 40 hours of narcotics training in the police academy
and, after being assigned to the Narcotics Squad, a 5-week course
from the Organized Crime Bureau, which included one-and-one-half to
two weeks of training in narcotic surveillance and drug
identification. He had received further training under the auspices
of the Drug Enforcement Administration, and at the time of his
testimony he had 18 months' experience with the airport unit. He
also testified that Miami was a "source city" for narcotics.
McGee testified that he first noticed respondent Rodriguez at
the National Airlines ticket counter in the Miami Airport shortly
after noon on September 12, 1978. McGee's attention was drawn to
respondent by the fact that he and two individuals later identified
as Blanco and Ramirez behaved in an unusual manner while leaving
the National Airlines ticket counter in the Miami Airport. McGee
and Detective Facchiano, who were both in plain clothes, followed
respondent, Ramirez, and Blanco from the ticket counter to the
airport concourse from which National Airlines flights departed.
Ramirez and Blanco stood side by side on an escalator, and
respondent stood directly behind them. The detectives observed
Ramirez and Blanco converse with one another, although neither
spoke to respondent. At the top of the escalator stairs, Blanco
looked back and saw the detectives; he then spoke in a lower voice
to Ramirez. Ramirez turned around and looked directly at the
detectives, then turned his head back very quickly and spoke to
Blanco.
As the three cohorts left the escalator single file, Blanco
turned, looked directly at respondent, and said, "Let's get out of
here." He then repeated in a much lower voice, "Get
Page 469 U. S. 4
out of here." Respondent turned around and caught sight of the
detectives. He attempted to move away, in the words of Officer
McGee, "His legs were pumping up and down very fast and not
covering much ground, but the legs were as if the person were
running in place." App. to Pet. for Cert. 49. Finding his efforts
at flight unsuccessful, respondent confronted Officer McGee and
uttered a vulgar exclamation.
McGee then showed his badge and asked respondent if they might
talk. Respondent agreed, and McGee suggested that they move
approximately 15 feet to where Blanco and Ramirez were standing
with Facchiano, who now also had identified himself as a police
officer.
They remained in the public area of the airport. McGee asked
respondent if he had some identification and an airline ticket.
Respondent said that he did not, but Ramirez then handed McGee a
cash ticket with three names on it -- Martinez, Perez, and
Rodriguez. In the ensuing discussion, McGee asked respondent what
his name was and he replied "Rodriguez"; McGee then asked Blanco
what his name was and he, too, answered "Rodriguez." Blanco later
identified himself correctly. At this point, the officers informed
the suspects that they were narcotics officers, and they asked for
consent to search respondent's luggage. Respondent answered that he
did not have the key, but Ramirez told respondent that he should
let the officers look in the luggage, which prompted respondent to
hand McGee the key. McGee found three bags of cocaine in the suit
bag, and arrested the three men. McGee testified that until he
found the cocaine, the three men were free to leave. He also
testified that he did not advise respondent that he could refuse
consent to the search.
The order of the Florida trial court granting the motion to
suppress the cocaine reads as follows:
"1. There was no reason to stop the defendant, Damasco Vincente
Rodriguez. The Defendant did nothing which would arouse an
articulable suspicion in the eyes of Detective McGee and Detective
Facchiano. "
Page 469 U. S. 5
"2. Due to the lack of telling the Defendant he had a right to
leave, and the lack of telling the Defendant he had a right to
refuse to consent to a search, there was an insufficient showing
that the consent herein was completely untainted due to the lack of
the two things previously mentioned."
"3. The statement made by the Defendant's companion did not
overcome the taint from the initial illegal stop of the
Defendant."
App. to Pet. for Cert. 89-90.
We think that the trial court's order as affirmed by the
District Court of Appeal reflects a misapprehension of the
controlling principles of law governing airport stops enunciated by
this Court in
United States v. Mendenhall, 446 U.
S. 544 (1980), and
Florida v. Royer,
460 U. S. 491
(1983). Because its ruling was made in May 1979, the trial court
obviously cannot be faulted for lack of familiarity with these
opinions, but the District Court of Appeal's final affirmance of
the suppression order on remand from this Court occurred on
November 15, 1983, after these opinions had been issued. We think
the trial court's order also reflects a misapprehension of legal
principles enunciated in
Schneckloth v. Bustamonte,
412 U. S. 218
(1973).
Certain constraints on personal liberty that constitute
"seizures" for purposes of the Fourth Amendment may nonetheless be
justified even though there is no showing of "probable cause" if
"there is articulable suspicion that a person has committed or is
about to commit a crime."
Florida v. Royer, supra, at
460 U. S. 498
(opinion of WHITE, J.). Such a temporary detention for questioning
in the case of an airport search is reviewed under the lesser
standard enunciated in
Terry v. Ohio, 392 U. S.
1 (1968), and is permissible because of the "public
interest involved in the suppression of illegal transactions in
drugs or of any other serious crime."
Royer, supra, at
460 U. S.
498-499.
The initial contact between the officers and respondent, where
they simply asked if he would step aside and talk with them, was
clearly the sort of consensual encounter that implicates
Page 469 U. S. 6
no Fourth Amendment interest.
United States v. Mendenhall,
supra, at
446 U. S. 554
(opinion of Stewart, J.);
Florida v. Royer, supra, at
460 U. S. 497
(opinion of WHITE, J.). Assuming, without deciding, that after
respondent agreed to talk with the police, moved over to where his
cohorts and the other detective were standing, and ultimately
granted permission to search his baggage, there was a "seizure" for
purposes of the Fourth Amendment, we hold that any such seizure was
justified by "articulable suspicion."
Before the officers even spoke to the three confederates, one by
one they had sighted the plainclothes officers and had spoken
furtively to one another. One was twice overheard urging the others
to "get out of here." Respondent's strange movements in his attempt
to evade the officers aroused further justifiable suspicion, and so
did the contradictory statements concerning the identities of
Blanco and respondent. Officer McGee had special training in
narcotics surveillance and apprehension; like members of the Drug
Enforcement Administration, the Narcotics Squad of the Dade County
Public Safety Department is "carrying out a highly specialized law
enforcement operation designed to combat the serious societal
threat posed by narcotics distribution. "
United States v.
Mendenhall, supra, at
446 U. S. 562 (POWELL, J., concurring in part and
concurring in judgment). Respondent
"was approached in a major international airport where, due in
part to extensive antihijacking surveillance and equipment,
reasonable privacy expectations are of significantly lesser
magnitude. . . ."
Florida v. Royer, supra, at
460 U. S. 515
(BLACKMUN, J., dissenting).
We hold, therefore, that the trial court was incorrect both in
its conclusion that there was no articulable basis for detaining
respondent and in its conclusion that there was "taint" resulting
from this initial stop. In
Schneckloth v. Bustamonte,
supra, we held that the State need not prove that a defendant
consenting to a search knew that he had the right to withhold his
consent, although we also held that
Page 469 U. S. 7
knowledge of the right to refuse consent could be taken into
account in determining whether or not a consent was "voluntary." We
are unable to determine from the trial court's opinion whether its
conclusion with respect to the voluntariness of the consent to
search the luggage would have been the same had it correctly
applied the governing legal principles embodied in the Fourth
Amendment.
The petition for writ of certiorari is therefore granted, the
judgment of the Florida Court of Appeal is reversed, and the cause
is remanded for further proceedings not inconsistent with this
opinion.
It is so ordered.
JUSTICE MARSHALL dissents.
JUSTICE STEVENS, with whom JUSTICE BRENNAN joins,
dissenting.
With increasing frequency this Court seems prone to disregard
important differences between cases that come to us from state
tribunals and those that arise in the federal system.
See
Secretary of State of Maryland v. Joseph H. Munson Co.,
467 U. S. 947,
467 U. S. 970
(1984) (STEVENS, J., concurring). As the Court of last resort in
the federal system, we have supervisory authority and therefore
must occasionally perform a pure error-correcting function in
federal litigation. We do not have comparable supervisory
responsibility to correct mistakes that are bound to occur in the
thousands of state tribunals throughout the land. The unusual
action the Court takes today illustrates how far the Court may
depart from its principal mission when it becomes transfixed by the
specter of a drug courier escaping the punishment that is his
due.
I
Some five years ago a Florida trial judge conducted the
suppression hearing in this case and a county narcotics officer
testified at some length. The transcript contains a somewhat
improbable account of the respondent either running in place or
frantically running in circles in the presence of the
Page 469 U. S. 8
agent, [
Footnote 1] and the
agent identifying himself to the respondent as a police officer in
order to be sure he would not be mistaken for a member of the Hare
Krishna. [
Footnote 2]
Page 469 U. S. 9
After hearing all of the officer's testimony, the trial judge
stated:
"Counsel, I am going to rule as a matter of fact that they did
nothing wrong, that there was no reason to stop these men for
contact or for any other reason at that point in time. The whole
case hinges on whether or not there was consent given subsequent to
that time. Let me hear your argument to that."
Tr. 104. After hearing argument, the judge ruled that respondent
had not voluntarily consented to a search of his luggage. In making
that ruling, the judge relied, in part, on the fact that the
narcotics agent had not advised the respondent that he had a right
to refuse to consent to the search.
Today this Court holds (1) that the officer did have an
"articulable suspicion" that justified a temporary seizure of
respondent's person; and (2) that the trial judge did not
articulate a legally sufficient basis for his conclusion that
respondent did not voluntarily consent to the search of his bag.
Accordingly, the Court remands the case to the Florida District
Court of Appeal for further proceedings.
To understand the unusual nature of this disposition, it is
necessary to comment on some of the events that have transpired in
this litigation during the past five years.
II
On September 23, 1980, after full argument, the District Court
of Appeal of Florida for the Third District filed an opinion which
reads in its entirety as follows:
"PER CURIAM."
"Affirmed on the authority of
State v. Battleman, 374
So. 2d 636 (Fla. 3d DCA 1979)."
State v. Rodriguez, 389 So. 2d 4.
The Florida Attorney General did not ask the Florida Supreme
Court to review that decision. He did not do so because the Florida
appellate system has been carefully structured to enable the
State's highest court to concentrate
Page 469 U. S. 10
on matters of greater public importance than the possibility
that a trial judge's error might not have been corrected by the
intermediate court of appeal. As the Florida Supreme Court
explained in a 1958 opinion:
"We have heretofore pointed out that under the constitutional
plan the powers of this Court to review decisions of the district
courts of appeal are limited and strictly prescribed. . . . The
revision and modernization of the Florida judicial system at the
appellate level was prompted by the great volume of cases reaching
the Supreme Court and the consequent delay in the administration of
justice. The new article embodies throughout its terms the idea of
a Supreme Court which functions as a supervisory body in the
judicial system for the State, exercising appellate power in
certain specified areas essential to the settlement of issues of
public importance and the preservation of uniformity of principle
and practice, with review by the district courts in most instances
being final and absolute."
Ansin v. Thurston, 101 So. 2d
808, 810,
quoted with approval in Jenkins v.
State, 385 So. 2d
1356, 1357 (Fla.1980).
Recognizing that the Florida Supreme Court does not provide a
forum for error-correcting review of lower court judgments in that
State's judicial system, the Florida Attorney General instead filed
a petition for writ of certiorari in this Court. Because the
petition did not present any question of general significance, on
May 26, 1981, this Court wisely denied certiorari.
Florida v.
Rodriguez, 451 U. S. 1022.
Presumably because they were convinced that error had been
committed, three Members of the Court dissented from that
disposition and stated that they "would grant certiorari and
reverse the judgment."
Ibid. [
Footnote 3] The Attorney General of Florida then filed a
timely petition for rehearing.
Page 469 U. S. 11
Rule 51.2 of this Court's Rules requires that the grounds set
forth in a petition for rehearing "must be limited to intervening
circumstances of substantial or controlling effect or to other
substantial grounds not previously presented." The principal ground
advanced by Florida in its petition for rehearing was that a
succession of clearly erroneous per curiam decisions of the State
District Court of Appeal was having a devastating effect on its
prosecutions. As an "intervening circumstance," it noted that the
State had filed a petition for certiorari in
Florida v.
Royer, 460 U. S. 491
(1983). In my opinion neither of these grounds satisfied the terms
of our Rule. In any event, the petition for a rehearing remained on
the Court's docket for the next two years.
Rule 51.3 provides that no petition for a rehearing will be
granted without an opportunity to submit a response. In 1983, when
respondent was at long last asked to respond to the State's
petition, we learned that he was a fugitive from justice and no
longer was represented by counsel. On May 23, 1983, the Court
entered an order granting the petition for rehearing, vacating the
judgment of the District Court of Appeal and remanding the case to
that court for reconsideration in the light of our opinions in
Florida v. Royer. Florida v. Rodriguez, 461 U.S.
940.
IV
On November 15, 1983, the District Court of Appeal of Florida
filed an order which reads, in its entirety, as follows:
"PER CURIAM. Affirmed."
The Attorney General thereafter filed another petition for
certiorari in this Court, [
Footnote
4] and today the Court rewards him
Page 469 U. S. 12
for this effort. I continue to believe, however, that this case
does not present any legal issue warranting review in this
Court.
At the time the District Court of Appeal's opinion was filed,
every decision cited in the Court's opinion today had already been
decided. Presumably, the petitioner called all of those cases to
the attention of the Florida District Court of Appeal. Since the
Court does not purport to announce any new principle of law, it is
also fair to presume that the Florida District Court of Appeal was
already familiar with the legal principles discussed by the Court
today. Thus, the Court performs the error-correcting function that
the Florida Supreme Court has refused to perform, and reverses the
state court's judgment by applying settled principles to the facts
of this case.
V
The Court's opinion today is flawed in at least two respects. It
is highly unusual for this Court to undertake
de novo
review of the factual findings of a state court on the "articulable
suspicion" issue. My colleagues did not hear the witness testify;
they have insufficient time to study the transcript with the care
that is appropriate to credibility determinations; and, indeed,
collectively they have only minimal experience in the factfinding
profession.
Moreover, the Court's disposition of the consent issue
implicitly assumes that the Florida District Court of Appeal has a
duty to explain its reasons for affirming the trial court's
judgment. If that court, upon remand, simply enters another
one-word order affirming the trial court's judgment, I would
suppose that this Court would have to interpret the ruling as a
determination on the existing record that the respondent did not
voluntarily consent to the search of his luggage. A petition for
certiorari on that question would present "a fact-bound issue of
little importance."
Massachusetts v. Sheppard,
468 U. S. 981,
468 U. S. 988,
n. 5 (1984). If we presume, as I think we should, that the judges
of that court
Page 469 U. S. 13
were already familiar with the cases discussed in this Court's
opinion, I do not understand why we should not make the same
assumption on the record as it presently exists.
VI
There is a certain irony in the fact that respondent is a
fugitive from justice. If he is apprehended, he probably will be
punished for his flight from justice even if the suppression order
is ultimately upheld. Perhaps this Court's tireless efforts to
bring this one man to justice will result in convictions on both
counts. In either event, I believe this Court should abandon its
error-correcting role in cases on direct review from state courts.
Instead, the Court ought to take a lesson from the Supreme Court of
Florida and focus its attention on issues of overriding importance
to the administration of justice. The single-minded achievement of
results in individual cases is not a virtue that should
characterize the work of this Court.
I respectfully dissent.
[
Footnote 1]
"THE WITNESS: He was moving in a direction to the left. His legs
were pumping up and down very fast and not covering much ground,
but the legs were as if the person were running in place. You might
say moving slightly to the left. There's a wall or partition there.
He ran through that partition and in the area just enclosed
off."
"THE COURT: Did he run or walk?"
"THE WITNESS: Neither. He was pumping up and down."
"THE COURT: You said he ran up a minute ago. Did he go from a
walk to pumping to a run?"
"THE WITNESS: Well, Your Honor, I don't know what the right word
would be, but his feet are running up and down but he ain't going
nowhere except a little at a time."
"Do you understand what I'm saying?"
"[THE PROSECUTOR:] Detective McGee, can you come down from the
witness stand and show us."
"THE COURT: Like running in place?"
"THE WITNESS: Sort of like this (indicating)."
"To demonstrate, he was stamping with his suitcase and shoulder
bag when the guy told him in a strained tone to get out of here. He
turned and looked at me. He was going like that. He didn't know
what to do. He was just going crazy. His feet was going up and down
and he was moving, but -- "
"THE COURT: All right. Have a seat."
"
* * * *"
"[THE WITNESS:] He then turned and came back out and passed me
again still in the same pumping fashion and went to the other side
of the escalator to my right. I am standing there just watching the
guy running around in circles."
"THE COURT: Maybe that's the way he walks."
Tr. 52-54.
[
Footnote 2]
"[THE WITNESS:] I identified myself as a police officer for a
couple of purposes: Because the observations I had made, number
one; number two, so that at the airport when we do in fact ask
someone to talk to us, we properly identify ourselves so they do
not think we are Hare Krishnas or someone trying to rip them off or
something in that manner."
"We identify ourselves as a police officer. I do so to show my
respectability of the person and in fact that I would just like to
hold some conversation with him."
"THE COURT: Don't Hare Krishnas usually have their heads
shaved?"
Id. at 64-65.
[
Footnote 3]
The suggestion of summary reversal by the three Justices
underscores the point that no one has ever considered this case
worthy of plenary review by this Court.
[
Footnote 4]
Because the District Court of Appeal's decision in this case was
rendered without any statement of reasons, it does not "expressly"
decide a constitutional question or "expressly" conflict with other
authority as the jurisdictional provision in the Florida
Constitution requires for discretionary review in the Florida
Supreme Court. Fla.Const., Art. V, ยง 3(b)(3).
See Jekills v.
state, 385 So. 2d
1356, 1357 (Fla.1980).