Unpublished Disposition, 852 F.2d 572 (9th Cir. 1986)

Appeal from the United States District Court for the District of Hawaii; Honorable Jesse W. Curtis, Senior District Judge, Presiding.

MEMORANDUM^*

Betancur-Bustamonte appeals his convictions for various narcotics-related offenses and for making a false representation of United States citizenship.¹  He contends that because his prolonged detention at Honolulu International Airport constituted a de facto arrest without probable cause in violation of the fourth amendment, the district court erred in refusing to suppress the cocaine seized from his luggage and various statements that he made to federal officers. Because we agree that the prolonged detention of Betancur-Bustamonte ultimately ripened into an unlawful seizure in violation of his fourth amendment rights, he was entitled to the suppression of the evidence seized after his de facto arrest. Accordingly, we reverse his convictions on the narcotics charges. However, because Betancur-Bustamonte made a statement about his citizenship to a federal official before his detention had ripened into an unlawful seizure and this was properly admissible against him, we affirm his conviction for making a false statement of United States citizenship in violation of 18 U.S.C. § 911 (1982).

FACTS

On the morning of September 19, 1984, an off-duty narcotics officer observed two Latin males at Los Angeles International Airport purchase an airline ticket to Honolulu. One of the men was buying the ticket for the other. Both individuals appeared to be nervous and fidgety. When a ticket agent asked the man who would be traveling to Hawaii what was in his suitcase, he looked unsure, had a huddled conversation with the other man, and told the agent "clothes." When the agent asked the traveler to fill out an identification tag for the suitcase, he was somewhat hesitant but subsequently filled out the tag in the name "B. Betancur."

The off-duty officer, who had become suspicious, reported his observations to a detective assigned to the Los Angeles police department's airport detail. The off-duty officer also informed the detective that the traveler was carrying a medium-sized, gray suitcase; that the ticket purchased was one-way; and that no call-back number had been given to the airline, a common practice of narcotics traffickers. The off-duty officer provided a physical description of "B. Betancur," later identified as appellant Betancur-Bustamonte, and his clothing.

The detective telephoned the information to officers Karen Huston and Gary Kim of the Honolulu Narcotics and Airport Detail.²  When a man who fit the description furnished over the telephone deplaned from Los Angeles, the two agents followed him. They observed him walk towards the baggage area, stop several times, and turn around and walk back to the arrival gate. Officer Huston then proceeded to the baggage claim area, where she located the suitcase of "B. Betancur." When no one claimed it after most of the luggage had been received, an airline employee removed it from the carousel. In the baggage area, officer Huston observed two individuals, later identified as German Callejas and his wife Anna Betancur, who appeared to be waiting for someone. Callejas seemed to take a special interest in the suitcase and to be concerned that someone might be watching. The couple eventually left the area.

Shortly thereafter, Betancur-Bustamonte arrived in the baggage area, picked up the suitcase, and went outside to the curb. After some hesitation, he agreed to let a man hail a cab for him. As Betancur-Bustamonte prepared to enter the cab, whose door was being held open, Huston and Kim approached him. They were dressed in street clothes. Huston displayed her credentials, identified herself as a Drug Enforcement Administration ("DEA") agent, and asked Betancur-Bustamonte to step back to the curb. The time was about 12:10 p.m. When Huston asked Betancur-Bustamonte to furnish some identification, he produced his airline ticket. When the agents inquired further about identification, they realized that Betancur-Bustamonte did not understand English.

Huston asked Betancur-Bustamonte to accompany her to the DEA office so that she could get a translator. She interpreted Betancur-Bustamonte's nod to be an indication that he understood what she was saying. She first suspected he might be an illegal alien at about this time. Betancur-Bustamonte picked up his suitcase and followed the agents. He was not handcuffed or restrained in any way. However, he also was not told that he did not have to accompany the agents if he did not want to.

Huston, Kim, and Betancur-Bustamonte walked to the DEA Airport Task Force Office. The office is in the rear of the main terminal building, approximately 100 yards away from the point of initial contact. The three got to the office by walking through the customs area. This involved passing through two sets of locked doors.

At the office, Betancur-Bustamonte sat on a chair by the door. He was not physically restrained, and no Miranda warnings were given to him. The DEA agents decided to contact customs to see if anyone there spoke Spanish. After about 15 or 20 minutes, at about 12:30 p.m., customs inspector Valerie Goo arrived. She questioned Betancur-Bustamonte in Spanish until about 1:00 o'clock. Goo reported to Huston that the man said his name was Byron Betancur and that he was from Puerto Rico. The man initially said that he did not know anybody in Hawaii who could come and get him or confirm his identity. Later he said that he was going to visit an aunt in Hawaii and that a "Mr. Perez" on the mainland would verify who he was.³  No Miranda warnings were given at this stage, and officer Huston did not ask Goo to inform Betancur-Bustamonte that he was free to leave.

At about 12:40 p.m., while Goo was questioning Betancur-Bustamonte, the DEA agents arranged to have his suitcase sniffed by a drug detecting dog. His suitcase was taken outside to be checked. The sniffer dog, "Lady," did not alert to any contraband in the suitcase.

At this point, Huston asked inspector Goo to determine whether Betancur-Bustamonte would consent to a search of his suitcase. However, Goo indicated that her Spanish was not good enough to translate the consent form so that Betancur-Bustamonte would understand. Betancur-Bustamonte testified that he refused permission to open his suitcase when Goo made the request.

At about 1:15 p.m., Betancur-Bustamonte talked on the telephone with a DEA special agent Cayford in Los Angeles who speaks fluent Spanish. After a five-minute conversation, Cayford told Huston that he did not think Betancur-Bustamonte was from Puerto Rico, that his accent sounded Colombian, and that the name "Betancur" appeared to be Colombian. Cayford stated that Betancur-Bustamonte would not consent to the search of his luggage and recommended that Huston call immigration because Betancur-Bustamonte might be an illegal alien. Cayford did not give Betancur-Bustamonte any Miranda warnings or tell him that he could leave the DEA office.

At about 1:30 p.m., Immigration and Naturalization Service investigator Thomas Hampson was contacted. Hampson, who speaks fluent Spanish, arrived around 2:00 p.m. He took Betancur-Bustamonte into a small computer room and questioned him for a short time. Hampson identified himself, and asked Betancur-Bustamonte if he could ask some questions. Betancur-Bustamonte told Hampson that he was a United States citizen born in Puerto Rico. When Betancur-Bustamonte was unable to answer some of Hampson's questions relating to Puerto Rico, Hampson told him that he did not believe that Betancur-Bustamonte was from Puerto Rico or a citizen of the United States, and that it was a federal offense to lie to an immigration officer about one's citizenship. Betancur-Bustamonte then admitted that he was from Colombia. At that point, Hampson says that he advised Betancur-Bustamonte of his Miranda rights and told him that he was putting him under arrest for making a false claim of United States citizenship. Hampson did not mention anything about narcotics charges. Betancur-Bustamonte testified, however, that he was not informed of his Miranda rights. He also testified that he was never told what the officers were investigating.

When Hampson left the computer room, he informed the DEA agents that he had arrested Betancur-Bustamonte for immigration violations. He then asked Betancur-Bustamonte for the key to his luggage. Hampson indicated that he was searching for evidence of citizenship and contraband. Hampson asked officer Huston to help him conduct an inventory search of Betancur-Bustamonte's suitcase. No inventory list was ever made, however.

At about 2:15 p.m., a gift-wrapped package was found in the suitcase. A drug-detecting dog alerted to the package indicating the presence of drugs. The agents were informed at about 2:50 p.m. as to the dog's reaction, and began to prepare a search warrant. The package was later opened pursuant to the warrant and determined to contain approximately one kilogram of cocaine.

After the package was found, Betancur-Bustamonte said he did not know what it contained. He indicated that a "Mr. Perez," whom he had met the previous weekend in a hotel in Hollywood, California, had offered him $1,000 to take the package to Honolulu. He provided Hampson with "Mr. Perez's" phone number and room number at the hotel.

Betancur-Bustamonte was then asked to cooperate by making a phone call to "Mr. Perez." He was told that he did not have to make the call if he did not want to. He was not informed that he could refuse permission to have the call recorded. The call to "Mr. Perez" was made at 5:30 p.m. Hampson and Kim prepared a script for Betancur-Bustamonte to read, but he only managed to get through the first three or four lines because he was so upset. He told "Mr. Perez" that he was at the Honolulu Airport. In the course of the ensuing telephone conversation, "Mr. Perez" asked Betancur-Bustamonte: "Did they get you?" He also asked: "Did you pick up the suitcase?" "Mr. Perez" instructed Betancur-Bustamonte to go outside and wait with the suitcase.⁴ 

After the phone call, Betancur-Bustamonte was extremely upset. Agent Hampson asked him to stand outside with his suitcase in the baggage claim area. However, when Betancur-Bustamonte got outside, he collapsed from nervousness. He was replaced at curbside by agent Tomaino. The three persons who arrived to pick up Betancur-Bustamonte's suitcase--Callejas, Callejas' wife, and Alejandro Betancur--were all eventually arrested.

DISCUSSION

The basic issue in this case is whether the statements and evidence seized from Betancur-Bustamonte at Honolulu International Airport were inadmissible under the fourth amendment.

On February 26, 1985, a federal magistrate denied Betancur-Bustamonte's motion to suppress the cocaine found in his suitcase, and granted his motion to suppress his taped telephone conversation with Giraldo-Giraldo and certain admissions that he had made. The government appealed to the district court. It challenged the magistrate's grant of the suppression of the taped telephone conversation and the admissions. Betancur-Bustamonte cross-appealed. He argued that all the evidence recovered from him and all the statements made by him at Honolulu Airport should be suppressed. On March 8, 1985, the district considered the magistrate's report and recommendations, heard oral arguments, and denied Betancur-Bustamonte's suppression motion in all respects.

* Standard of Review

Generally, we review motions to suppress de novo. See United States v. Andrade, 784 F.2d 1431, 1433 (9th Cir. 1986). While findings of fact made at a suppression hearing are upheld unless clearly erroneous, the ultimate issue of the lawfulness of a search presents a mixed question of law and fact that is reviewed de novo. See United States v. Feldman, 788 F.2d 544, 550 (9th Cir. 1986). We review de novo whether there was founded suspicion justifying an investigatory stop under the fourth amendment. United States v. Sutton, 794 F.2d 1415, 1425 (9th Cir. 1986); United States v. Maybusher, 735 F.2d 366, 371 (9th Cir. 1984), cert. denied, --- U.S. ----, 105 S. Ct. 790 (1985); but see United States v. Magana, No. 84-3026, slip op. at 4-6 (9th Cir. amended August 19, 1986) (questioning whether the appropriate standard of review of a finding of founded suspicion is de novo or clearly erroneous). The determination of probable cause is a mixed question of law and fact that is reviewed de novo. United States v. Smith, 790 F.2d 789, 791 (9th Cir. 1986).

II

The Initial Stop

Two DEA agents in Honolulu initially approached Betancur-Bustamonte as he was about to enter a taxicab, asked him for identification, and posed a few questions. These initial contacts intruded on no constitutionally protected interest. Not all contacts between the police and members of the general public constitute stops invoking the protection of the fourth amendment. United States v. Patino, 649 F.2d 724, 728 (9th Cir. 1981) (citing Terry v. Ohio, 392 U.S. 1 (1968)). More particularly, law enforcement officials do not violate the fourth amendment merely by approaching an individual in a public place, by asking him if he is willing to answer some questions, or by offering in evidence in a criminal prosecution his voluntary answers to such questions. Florida v. Royer, 460 U.S. 491, 497 (1983) (plurality opinion). The fact that the officers identify themselves as police officers, without more, does not convert the encounter into a seizure requiring some level of objective justification. Id. (citing United States v. Mendenhall, 446 U.S. 544, 555 (1980) (opinion of Stewart, J.)).

III

The Detention

It is a more difficult question whether Betancur-Bustamonte's fourth amendment rights were violated when the agents asked him to accompany them to the DEA office at the airport, escorted him to the office 100 yards away, kept him waiting for about 15 or 20 minutes, and then questioned him. Based in the totality of the circumstances, we conclude that a temporary detention was justified.

A temporary detention or seizure is "justifiable under the fourth amendment if there is articulable suspicion that a person has committed or is about to commit a crime." United States v. Woods, 720 F.2d 1022, 1026 (9th Cir. 1983) (quoting Royer, 460 U.S. at 498). The detaining officers, taking into account the totality of the circumstances, must have a particularized and objective basis for suspecting the particular person of criminal activity. See United States v. Cortez, 449 U.S. 411, 417-18 (1981); see also Sutton, 794 F.2d at 1426. During a temporary detention or seizure based upon a reasonable suspicion of criminal activity, officers may ask questions of a suspect which are limited to the purpose of the stop in order to verify or dispel such suspicion. Woods, 720 F.2d at 1026 (citing Royer, 460 U.S. at 498). In determining whether at the time of the seizure the requisite degree of suspicion existed, courts should take into account that trained law enforcement officers may be "able to perceive and articulate meaning in a given conduct which would be wholly innocent to the untrained observer." United States v. Gooding, 695 F.2d 78, 82 (4th Cir. 1982) (quoting Brown v. Texas, 443 U.S. 47, 52 n. 2 (1979)).

In this case, a trained, off-duty narcotics officer at Los Angeles airport observed Betancur-Bustamonte and another individual purchasing a ticket to Honolulu; the men had purchased the ticket in cash; the ticket was one-way; and the trip involved a short turnaround. Also, Betancur-Bustamonte appeared to be nervous; he had hesitated before filling out his name tag on his suitcase; and he had provided no call-back number, characteristic conduct of narcotics traffickers. Based on his professional expertise about drug dealing, the off-duty narcotics officer developed a suspicion that Betancur-Bustamonte was involved in illegal narcotics activities. He communicated his observations to a fellow Los Angeles narcotics officer who, in turn, transmitted this information to drug agents at Honolulu Airport. The agents in Honolulu placed Betancur-Bustamonte under surveillance when he deplaned. They observed that, after he arrived, Betancur-Bustamonte did not immediately proceed to the baggage claim area. Instead, he walked back and forth around the airport. He appeared nervous. At the baggage claim area, two unknown individuals appeared interested in his suitcase. They seemed to be wary of being watched. Later, when the DEA agents stopped Betancur-Bustamonte as he entered a taxicab, he did not produce any identification besides his ticket. He was also unable to communicate with the agents in English.

Based on the preceding facts, we conclude that the DEA agents in Honolulu possessed a reasonable suspicion that Betancur-Bustamonte had committed or was about to commit a crime. Specifically, the circumstances known to the officers provided them with a sufficient basis to support their suspicion that Betancur-Bustamonte might be a drug courier. Accordingly, the agents were justified in temporarily detaining him and asking him a limited set of questions.

IV

The De Facto Arrest

Betancur-Bustamonte was not just detained briefly and asked a short set of questions to verify or dispel suspicion, however. After accompanying the DEA agents to their office, he waited for 15 to 20 minutes before a Spanish-speaking customs agent arrived. He was then questioned for approximately half an hour. Meanwhile, his suitcase was taken outside and checked by a drug detecting dog, "Lady." When the sniffer dog failed to alert to any contraband, Betancur-Bustamonte was not told he was free to leave. Instead, he was asked for permission to search his suitcase, which he refused. He was then detained at the DEA office for further questioning by various government officials.

Betancur-Bustamonte contends that after he had been moved through two locked doors into the DEA office, and held for a considerable period of time, the initial investigative detention had ripened into a de facto arrest. He further contends that, after the initial questioning at the office disclosed no evidence of criminal activity and the drug-detecting dog failed to alert to any contraband, he should have been released because there was no probable cause. We find these arguments persuasive.

The Supreme Court has considered an airport detention case raising the question of when a lawful detention may ripen into an unlawful de facto arrest. Florida v. Royer, 460 U.S. 491 (1983). In Royer, the Court (plurality opinion by White, J.) stated: " [A]n investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop. Similarly, the investigative methods should be the least intrusive means reasonably available to verify or dispel the officer's suspicion in a short period of time." Id. at 500; see also United States v. Brignoni-Ponce, 422 U.S. 873, 881-82 (1975) (an officer may question individuals about their citizenship and immigration status, and may ask them to explain suspicious circumstances, but any further detention or search must be based on consent or probable cause); Terry v. Ohio, 392 U.S. 1, 29 (1968) (the stop and inquiry must be "reasonably related in scope to the justification for their initiation").

In Royer, the Court held that Royer was effectively "seized" for the purposes of the fourth amendment when two detectives identified themselves as narcotics agents, told Royer that he was suspected of transporting narcotics, and asked him to accompany them to a small room approximately 40 feet from the concourse, while retaining his airline ticket and driver's license and not indicating in any way that he was free to leave. 460 U.S. at 501-07. The Court stated: "What had begun as a consensual inquiry in a public place had escalated into an investigatory procedure in the police interrogation room, where the police, unsatisfied with previous explanations, sought to confirm their suspicions." Id. at 503.

We are convinced that, under the circumstances present in this case, the detention of Betancur-Bustamonte also ripened into a "seizure" within the meaning of the fourth amendment. The determination whether or not there was a seizure "depends on the facts and circumstances of each case." Patino, 649 F.2d at 728.⁵  Here, the totality of the circumstances clearly support the conclusion that Betancur-Bustamonte was "seized."

First, at Honolulu Airport he was approached by two officers who identified themselves as DEA agents. They asked him to accompany them to their office, which was located 100 yards away through two locked doors; this move involved a much more substantial intrusion than the 40-foot move in Royer. Betancur-Bustamonte was then detained for a prolonged period; again this detention was much more extensive than the fifteen minute detention in Royer. Also Betancur-Bustamonte, like Royer, was never told that he was free to leave.

This case is unlike Royer insofar as the officers in that case retained Royer's driver's license and airline ticket, which prevented him from continuing his travels. Here, the agents returned Betancur-Bustamonte's ticket which, being one-way to Hawaii, was no longer of any practical use to him. This difference does show that there was a factor unique to Royer, i.e., the detectives' retention of his ticket and license, which tended to show that the defendant there was "seized." Nonetheless, there are several special factors in the present case, absent in Royer, which support the conclusion that Betancur-Bustamonte also was "seized."

For one thing, Betancur-Bustamonte had a language problem which may have made it difficult for him to understand what the DEA agents were asking him to do. For another, he was a foreigner who may have had a greater compulsion to abide by the requests of the police. The courts have recognized that such considerations may be taken into account in determining whether a seizure has occurred for the purposes of the fourth amendment. See United States v. Moreno, 742 F.2d 532, 535 (9th Cir. 1984); Patino, 649 F.2d at 727 (9th Cir. 1981); see also Mendenhall, 446 U.S. at 558.

Even more fundamental is the fact that, while Betancur-Bustamonte was being questioned for a half-hour by a Spanish-speaking customs agent, his suitcase was taken outside, and checked by the drug-detecting dog, "Lady." After this drug test proved negative, Betancur-Bustamonte was not released. Instead, he was retained for further questioning and a search of his suitcase by several federal agents. The Supreme Court has stated that there is no "bright line" test for determining when detention has become excessive. United States v. Sharpe, --- U.S. ----, 105 S. Ct. 1568, 1575 (1985). But the Court in Sharpe also indicated that it was "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. In the present case, once the drug-detecting dog had found no drugs and a half-hour interview had proven fruitless, the continued detention of Betancur-Bustamonte was no longer justified. His continued detention without probable cause constituted an unlawful arrest.

We conclude that, under the circumstances in this case, Betancur-Bustamonte's detention ripened into a de facto arrest without probable cause when, after being questioned for over half an hour by federal agents and having had his suitcase checked for drugs, he was detained further instead of being told that he was free to leave.

V

The Suppression Of Evidence

The district court refused to suppress the cocaine found in Betancur-Bustamonte's suitcase or the statements that he made to government officials. Because Betancur-Bustamonte was unlawfully seized within the meaning of the fourth amendment, we conclude that the district court erred in refusing to suppress the evidence obtained against the defendant after his de facto arrest. All his subsequent statements and the cocaine seized from his suitcase should have been suppressed because they were tainted by the illegal seizure. See Taylor v. Alabama, 457 U.S. 687, 690, 694 (1982); Dunaway v. New York, 442 U.S. 200, 218-19 (1979); United States v. Prim, 698 F.2d 972, 977 (9th Cir. 1983). However, because Betancur-Bustamonte made at least one false statement--telling customs agent Valerie Goo that he was from Puerto Rico--before his lawful detention had ripened into a de facto arrest, this statement was properly admitted into evidence against him.

Accordingly, Betancur-Bustamonte's conviction for making a false statement of United States citizenship in violation of 18 U.S.C. § 911 is AFFIRMED; his convictions on all other counts are REVERSED.