Appeal from a final judgment of the United States District Court for the Eastern District of New York (Platt, Judge), after a jury trial, convicting appellant of possession with intent to distribute cocaine, 21 U.S.C. § 841(a)(1)(1976), on the grounds that the District Court erred in denying appellant's motion to suppress certain statements made to law enforcement officers, certain items taken from his person, and cocaine seized from his luggage.
Oakes, Cardamone and Winter, Circuit Judges. Oakes, Circuit Judge, concurring.
David I. Waltzer appeals from a judgment of conviction of the United States District Court, 528 F. Supp. 646, for the Eastern District of New York, Platt, Judge, after a jury trial, for violation of 21 U.S.C. § 841(a) (1) (1976) (possession with intent to distribute cocaine). He asserts as error Judge Platt's denial of a motion to suppress as evidence both his statements to Drug Enforcement Agency (DEA) officers and claim checks, airline tickets and money taken from his person as well as cocaine taken from his luggage. He argues in the alternative that the initial DEA investigatory stop should have triggered the warnings required under Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966).
The sequence of events leading to Waltzer's arrest began in the Ft. Lauderdale Airport. Waltzer was observed waiting at the Delta Airline Terminal by Broward County Sheriff James Carl. Carl noted behavior on Waltzer's part which drug investigators believe is common to drug couriers -- extreme nervousness, fidgeting, and shaking -- and which they say constitutes a reliable "profile."*fn1 Sheriff Carl approached the Delta ticket counter and overheard Waltzer identify himself as Walker and observed him purchase a one-way ticket to New York City on Delta flight 1052. After Waltzer left the ticket counter, Carl noted the claim numbers and identification labels of defendant's two pieces of luggage. He then contacted DEA officials at Kennedy International Airport in New York and informed them of his observations. Waltzer was neither questioned nor detained in Ft. Lauderdale.
DEA investigation and observation began as soon as Delta flight 1052 landed. A specially-trained dog named Kane was dispatched to the Delta package area to "sniff" the baggage as it was unloaded. According to the testimony,*fn2 Kane was capable of determining whether a particular piece of luggage contained narcotics and of alerting agents to the presence of drugs by biting and gnawing at the luggage. Kane had a perfect record -- on each occasion his alerting of agents to a particular bag had led to the discovery of narcotics. Kane alerted the agents to the luggage described by Sheriff Carl.
Meanwhile, DEA Agent Terry Valentine was observing Waltzer. Upon disembarking, Waltzer left the gate area quickly, abruptly slowed his pace, looked left and right and then entered an adjoining men's room. After approximately two minutes, Waltzer left the men's room and walked at a normal pace toward a stairway leading to the baggage claim area. Immediately before the stairway, Waltzer made a sharp left turn and walked toward an exit. He passed through it and made a quick right back toward the stairway and the baggage claim area, but on the other side of a glass partition. He repeatedly looked to his right through the partition, at one point looking directly at Agent Valentine. Upon reaching the stairway, he looked to his left, walked slowly down the stairs, hesitated at the first baggage carousel, and then proceeded to the next. Again hesitating, he walked across the claim area to a public phone, looked at Valentine, then appeared to place a call.
Shortly thereafter, Waltzer made his way back toward the stairway from which he had come. He darted to the right of the stairway, ducked around a corner, returned to stare at Valentine for a third time and then went to make another phone call. After that call, he walked to the stairway for the third time and went up an adjacent escalator. Waltzer proceeded through the upper corridor away from the Delta terminal. Midway through the corridor, he abruptly turned around and again confronted Valentine who was only a short distance away. Waltzer turned and continued away from Delta toward the adjacent Northwest Airlines terminal area. Valentine gave up his observation of Waltzer and returned to the Delta baggage area.
Waltzer returned to the Delta baggage carousel. He retrieved the two bags which had been identified by the dog, and the trio of agents asked to speak to him. He agreed and the group walked over to a wall to avoid the flow of passengers.
A somewhat bizarre conversation ensued in response to the agents' questions. Waltzer denied having a baggage claim although he was holding one in his hand. He purported not to know why he was traveling under an assumed name. He stated that he was carrying $1,000 on his person so as to entertain relatives in Ft. Lauderdale with whom he had stayed. Finally, Waltzer indicated he was traveling alone and denied there were drugs in his bags. The agents asked Waltzer if he would consent to a search of his bags. He refused and, following that refusal, was arrested and given his Miranda rights. The entire conversation took about 10 minutes.
Subsequently, a search warrant was issued, and cocaine was discovered inside Waltzer's luggage. The claim check, airline tickets, cash, cocaine and his statements to ...