Opinion
Criminal Case No. 1:05-CR-135-1-WSD-JMF.
November 15, 2005
Attached is the Report and Recommendation of the United States Magistrate Judge made in this action in accordance with 28 U.S.C. § 636(b)(1) and this Court's Local Criminal Rule 58.1(A)(3)(a). Let the same be filed and a copy, together with a copy of this Order, be served upon counsel for the parties.
Pursuant to 28 U.S.C. § 636(b)(1), each party may file written objections, if any, to the Report and Recommendation within ten (10) days of the receipt of this Order. In connection therewith, the aforesaid ten-day period, plus three days for mailing, shall be excluded from the Speedy Trial Act ( 18 U.S.C. § 3161, et seq.) computation, regardless of whether such party files any such objection. Should objections be filed, they shall specify with particularity the alleged error or errors made (including reference by page number to the transcript if applicable) and shall be served upon the opposing party. The party filing objections will be responsible for obtaining and filing the transcript of any evidentiary hearing for review by the district court. If no objections are filed, the Report and Recommendation may be adopted as the opinion and order of the district court and any appellate review of factual findings will be limited to a plain error review.United States v. Slay, 714 F.2d 1093 (11th Cir. 1983), cert. denied 464 U.S. 1050, 104 S.Ct. 729, 79 L.Ed.2d 189 (1984).
The Clerk is directed to submit the Report and Recommendation with objections, if any, to the district court after expiration of the above time period.
IT IS SO ORDERED.
MAGISTRATE JUDGE'S REPORT, RECOMMENDATION AND ORDER
Part One History of the CaseOn or about May 11, 2005, the Grand Jury returned the instant two-count superseding criminal indictment [Doc. 45] charging that, in or about January 2004, and continuing until on or about March 3, 2005, defendants Thomas Broome and Nathan Grier knowingly and intentionally conspired to possess, with the intent to distribute, in excess of five kilograms of cocaine, a Schedule II controlled substance, in violation of 21 U.S.C. §§ 841 (a) (1) and 846.
On March 22, 2005, the Grand Jury returned a two-count indictment against the defendants [Doc. 20]. This first indictment charged that the defendants began conspiring together beginning on or about September 1, 2005, as opposed to January 2004.
On March 31, 2005, defendant Thomas Broome (hereafter "Broome") was arraigned and pled not guilty [Doc. 30]. On June 29, 2005, the District Court held a hearing to consider Broome's change of plea to guilty as to Count I of the superseding indictment [Doc. 69]. The District Court, however, did not accept the guilty plea, finding that Broome did not have enough knowledge of the facts for the Court to accept his plea. Id.
On August 10, 2005, Broome filed the instant Motion to Suppress [Doc. 79]. On September 14, 2005, this Court conducted a hearing to consider Broome's Motion to Suppress Evidence [Doc. 84]. In connection therewith, it received testimony from Special Agent Christopher Kuzma, an investigator with the U.S. Department of Homeland Security, Bureau of Immigration and Customs Enforcement ("BICE") at Los Angeles International Airport, and Special Agent Stephen Wells, a criminal investigator and pilot with the U.S. Department of Homeland Security, Customs and Border Protection ("Customs"). The hearing was taken down by a Court Reporter and the transcript of said hearing will be referred to hereafter as "Tr."
Although no motions have been filed, Broome also contends that any incriminating statements by Broome were unlawfully obtained in violation of Miranda, and therefore, should be suppressed. As stated by this Court during the evidentiary hearing on the instant motion, the District Court will make the determination of whether such statements were lawfully obtained at trial. Tr. 130-131; See Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964).
At the hearing, numerous exhibits were also submitted by the parties, and will hereafter be referred to as "GX-" for the Government's exhibits and "DX-" for the Defendant's exhibits.
Thereafter, on October 14, 2005, Broome filed a post-hearing brief in support of his Motion to Suppress [Doc. 94]. On October 28, 2005, the Government filed its Response to Broome's Motion to Suppress [Doc. 98]. Subsequently, Broome filed his Reply Brief in support of his Motion to Suppress on November 10, 2005 [Doc. 100].
Presently pending before this Court are Broome's Motion to Suppress filed on August 10, 2005 [Doc. 79]; Broome's post-hearing brief in support of Motion to Suppress filed on October 14, 2005 [Doc. 94], the Government's post-hearing brief in Response to Broome's Motion to Suppress filed on October 28, 2005 [Doc. 98], and Broome's Reply Brief in support of his Motion to Suppress filed on November 10, 2005 [Doc. 100]. Part Two The Issues
I. Whether Special Agent Wells conducted a constitutional Terry v. Ohio stop of Broome.
II. Whether the agents' reasonable suspicion ripened into probable cause to support the warrantless arrest of Broome.
III. Whether Broome knowingly and voluntarily consented to a search of the aircraft he was operating.
IV. Whether the agents were authorized to search the aircraft's interior lockers and compartments and Broome's personal belongings incident to Broome's arrest.
V. Whether an agent may search a moveable vehicle such as a car or an airplane, without a warrant, when the agent has probable cause to believe the vehicle is transporting contraband.
VI. Whether the agents had the right to search Broome's person incident to his arrest.Part Three Findings of Fact
Also pending before this Court is the Government's July 11, 2005 Motion in Limine to permit it to admit extrinsic-act evidence at trial [Doc. 72]. Broome filed his Response in Opposition to United States' Motion in Limine on July 22, 2005 [Doc. 75]. It is hereby ORDERED that the Government's Motion In Limine [Doc. 72] be DEFERRED to the District Judge to be considered at trial.
1. On or about June 25, 1994, Broome and Alejandro Maciel (hereafter "Maciel") were stopped in an aircraft at a small airport in Midland, Texas by U.S. Customs Special Agent Stephen Wells, a pilot on routine patrol that day. Tr. 11, 31, 48.
2. At the time of 1994 incident, Agent Wells had been employed as a pilot with Customs for approximately seven years. Tr. 48. The fuel tanks on the aircraft occupied by Broome and Maciel appeared suspicious, thereby, causing Special Agent Wells to stop and briefly question Broome and Maciel. Tr. 48-49.
3. During this questioning, Broome informed Special Agent Wells that he was a flight instructor and Maciel was his student. Tr. 50. Special Agent Wells searched the aircraft after obtaining Maciel and Broome's consent, and found approximately $150,000 in currency. Tr. 11, 49. Maciel and Broome denied any knowledge of the currency. Tr. 12, 49, 52. Agent Wells seized the aircraft and currency and turned the currency over to the Drug Enforcement Agency ("DEA"). Tr. 49, 52.
4. Subsequently, he released both Maciel and Broome and they were never charged with any alleged criminal violation. Tr. 49. The aircraft was also returned to its owner Maciel. Tr. 52.
5. In February 2004, Broome contacted BICE regarding U.S. Customs' refusal to grant him an overflight exemption. Tr. 8-9.
Agent Kuzma testified that an overflight exemption allows a person entering the United States to bypass the first port of entry when entering the country and to land at a subsequent port. Tr. 8. Absent the exemption, the aircraft must land at the first port of entry upon entering U.S. airspace. Id.
6. On February 10, 2004, Broome met with Special Agent Christopher Kuzma and his supervisor, Special Agent William Hays, at the Custom's office in El Segundo, California to discuss the agency's denial of his overflight exemption. Tr. 10.
7. One of the major factors that caused Customs to deny Broome the overflight exemption was the 1994 incident involving Broome and Maciel. Tr. 10.
8. During the meeting, Broome discussed the 1994 incident with Special Agents Kuzma and Hays and advised them that he had no knowledge that the money was in the aircraft; and, in any event, had "cut all ties" with Maciel after the incident. Tr. 12, 23, 41.
9. Following the meeting, Special Agent Kuzma prepared a report, and Customs subsequently approved Broome's request for the overflight exemption. Tr. 13, 545-5.
10. Approximately one year later in February 2005, Bob Keller, an intelligence analyst with Customs, contacted Special Agent Kuzma and informed him that Broome had allegedly lied to Special Agent Kuzma about his relationship with Maciel during their meeting in February 2004. Tr. 14-16.
11. Keller was investigating drug trafficking involving small aircrafts traveling from Los Angeles to Atlanta. Tr. 14. Keller informed Special Agent Kuzma that his research tracked Broome as making regular private flights between Los Angeles and Atlanta in an aircraft owned by Maciel as late as 2004. Tr. 15-16, 54.
12. During their discussion, Special Agent Kuzma and Keller decided to further investigate Broome by tracking his flight patterns and movements, and possibly even making contact with him during one of his trips in order to dispel any suspicions of drug trafficking. Tr. 16-17.
13. Keller also contacted Special Agent Wells in late February 2005 regarding Broome and the discrepancy between Broome's statement to Special Agents Kuzma and Hays on February 10, 2004 that he had broken all ties with Maciel after the 1994 incident, and Customs records showing that Broome was regularly flying Maciel's aircraft as late as 2004. Tr. 53-54.
14. After their discussion, Special Agent Wells contacted Special Agent Kuzma to discuss Broome and compare notes. Tr. 17, 55. About one week after this conversation, on March 2, 2005, at approximately 3:00 a.m., Special Agent Kuzma received a telephone call informing him that Broome had requested permission to fly out of Hawthorne Airport in California to Albuquerque, New Mexico. Tr. 18, 56.
15. Special Agent Kuzma then contacted Special Agent Wells to relay the information. Tr. 19, 37, 56. Indeed, Broome was again piloting an aircraft owned by Maciel. Tr. 56. At this time, Special Agents Kuzma and Wells decided to track Broome during his flight, and make contact with him on this flight. Tr. 19, 37, 59.
16. In due course, Special Agent Wells tracked Broome as he flew through air traffic controllers. Tr. 59. However, an hour before Broome was scheduled to land in Albuquerque, New Mexico, he changed his destination to Tucumcari, New Mexico, approximately eighty miles east of Albuquerque. Id. Broome landed in Tucumcari, refueled, and took off again after sitting on the ground approximately thirty minutes. Tr. 60. Broome did not file a flight plan after landing at Tucumcari so his destination from this point was unknown. Id.
17. At this point, Special Agent Wells and his crew took over surveillance and continued to trail Broome in a Customs aircraft as he flew east. Tr. 60.
18. As Broome flew through Amarillo, Texas airspace, he contacted air traffic control and identified himself and his aircraft utilizing a different tail number for an aircraft assigned to and different from the one he was piloting. Tr. 60, 62. The tail number he gave was previously assigned to another airplane owned by Maciel, which he had sold, and was allegedly crashed by its new owner several years prior thereto. Tr. 62-63. Broome had previously been calling the correct tail number up to this point in the trip. Tr. 63, 124.
A tail number is similar to a license plate on a car. It identifies the aircraft and is visibly located on the aircraft. Tr. 56, 61; GX-1; GX-2.
19. After flying through Amarillo, Texas, Broome asked for and received clearance to land his aircraft in Greenville, Mississippi. Tr. 65. However, as he was flying through Hot Springs, Arkansas airspace, Broome changed his destination, and requested and received clearance to land in Hot Springs, and did so. Tr. 66.
20. Shortly thereafter, Special Agent Wells also landed his aircraft in Hot Springs and parked behind Broome's aircraft. Tr. 66. After exiting his aircraft and entering the fixed base operator building ("FBO"), Special Agent Wells and his two crew members, Customs Special Agents Jackson and Summers, encountered Broome as he was exiting the men's bathroom. Tr. 66-67. Special Agent Wells and his crew were wearing flight suits with raid jackets over them and bulletproof vests. Id. Special Agent Wells was armed with his pistol in its holster. Tr. 66, 75. Special Agent Summers was armed with a shotgun in a sling over his shoulder in a "ready, point, and fire position." Tr. 90, 105-106, 111. Special Agent Jackson was also armed with an M16 long rifle held in the same "ready, point, and fire position." Id.
21. Special Agent Wells identified himself and asked Broome if he owned the aircraft outside. Tr. 66. Broome responded that he was not the owner, but refused to reveal the identity of the owner of the aircraft. Tr. 68, 132. Special Agent Wells then examined Broome's pilot license and other documentation. Tr. 76.
22. Broome explained to Special Agent Wells that he was a contract pilot and was taking the aircraft to Atlanta, Georgia for a "pre-buy inspection." Tr. 68. However, Broome did not know whom he was meeting in Atlanta. Tr. 68-69. Special Agent Wells also noticed that the interior of the aircraft was "messy." Tr. 69.
23. Broome then explained to the agents that he had been hired by a man whose last name was Maciel, but that he did not know the first name. Tr. 69. Broome also stated that he had met Maciel about two years ago, and this was only the second time he had flown for him. Tr. 70-71.
24. Special Agent Wells then asked Broome for permission to search the aircraft. Tr. 71. Broome responded that he did not have the keys to the lockers in the fore and aft of the aircraft.Id. Special Agent Wells then asked Broome if he could look in the cabin, to which Broome responded that he didn't know what all was in it. Id.
25. Special Agent Wells asked Broome to identify all of his personal belongings, and he then removed Broome's laptop, duffle bag, and all other personal belongings from the cabin and placed them on the wing tip. Tr. 71-72. Special Agent Wells then looked in the cabin, but did not find anything illegal. Tr. 72. He then asked Broome if he could search his personal belongings, and Broome responded by asking Special Agent Wells whether he had a search warrant. Tr. 72, 108-109. Special Agent Wells responded that he did not have a search warrant. Id.
26. Special Agent Wells then suggested that they all go inside the FBO building to continue their discussion as it was starting to rain. At this point, Broome was not in custody or otherwise being detained. Tr. 73, 107, 111.
27. Broome, without saying anything, picked up his personal belongings and followed Special Agent Wells into a conference room in the FBO building. Tr. 73, 111-112. Special Agent Summers also followed them into the conference room, while Special Agent Jackson remained outside. Tr. 74, 112. Broome was not handcuffed or threatened in any way. Tr. 74-75. As they were entering the conference room, Special Agent Wells instructed Special Agent Jackson to call for a drug detection dog. Tr. 74, 115.
28. In the meantime, Special Agent Wells asked Broome to explain his trip to Atlanta, Georgia. Tr. 76, 115. Broome explained that he was not going to meet anyone in Atlanta, but was going to "lock up" the aircraft at Peachtree-Dekalb Airport, stay in a hotel, and then take a Delta flight back to Los Angeles. Id.
29. After questioning Broome about his story, Special Agent Wells exited the building and met the handler and the drug detection dog who had arrived at the airport. Tr. 80. The handler led the dog on a free-air "walk-around" of the aircraft. Id. The dog alerted to the presence of the odor of narcotics by sitting near the fore and aft compartments of the aircraft. Tr. 80, 116-117, 134. Special Agent Wells observed the dog alert to those specific areas. Id.
30. Special Agent Wells then returned to the conference room and informed Broome that the dog had alerted to the aircraft. Tr. 80-81. He then asked Broome to stand, and he placed Broome under arrest, handcuffed him and read him his Miranda rights by reading a Miranda rights card to him, and explaining to him the meaning of these rights. Tr. 81-82, 136; GX-6. Broome replied that he understood his rights, waived them, and proceeded to speak with the agents. Tr. 82, 119-120, 145. Approximately thirty minutes had elapsed from the agents' first encounter with Broome until the time they arrested him. Tr. 126-127.
31. After Broome's arrest, Special Agent Wells asked Broome if he had the keys to the fore and aft lockers of the aircraft. Tr. 119, 136. Broome responded that the keys were in his briefcase, which was on the conference table. Tr. 119-120, 136-137. Special Agent Wells asked Broome if he could get the keys out of his briefcase. Broome did not object either verbally or by body language, although he did not verbally consent. Tr. 119-120, 136-137, 143.
32. Special Agent Wells retrieved the keys from Broome's briefcase, left the conference room, unlocked the lockers aboard the aircraft, and retrieved therefrom four pieces of luggage, which he brought back to the conference room. Tr. 120, 122-123, 139. Local police officers were also present, unlocked the luggage, and discovered approximately 65 kilograms of cocaine stored in the luggage. Tr. 121-123, 140.
33. On March 22, 2005, a federal grand jury in this District returned the instant indictment against Broome and co-defendant Nathan Grier on the charge of knowingly and intentionally conspiring to possess with the intent to distribute in excess of five kilograms of cocaine, a Schedule II controlled substance, in violation of 21 U.S.C. §§ 841 (a) (1) and 846. [Doc. 20]. Part Four Conclusions of Law
As previously noted, on May 11, 2005, the Grand Jury returned a two count superseding indictment against Broome and Grier [Doc. 45]. The superseding indictment differs from the first indictment only in that it identifies a different beginning date of the conspiracy, to wit, January 2004. Id.
I. The officers conducted a constitutional Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), stop of Broome.
In United States v. Berry, 670 F.2d 583, 591 (5th Cir. (Ga) 1982) (en banc), the Court of Appeals concluded ". . . that Supreme Court holdings sculpt out, at least theoretically, three tiers of police-citizen encounters: communication between police and citizens involving no coercion or detention and therefore without the compass of the Fourth Amendment, brief `seizures' that must be supported by reasonable suspicion, and full-scale arrests that must be supported by probable cause."See also United States v. Fields, 909 F.2d 470, 473 (11th Cir. 1990), reh'g denied, 919 F.2d 742 (11th Cir. 1990).
This is referred to as a "stop and frisk" or Terry stop, and must be supported by "reasonable suspicion," a lesser evidentiary standard than "probable cause."
In support of his motion to suppress, Broome argues that the agents lacked reasonable suspicion to warrant a Terry stop, and therefore, any evidence they seized, and any statements attributed to him from the stop should be suppressed as obtained in violation of the Fourth Amendment. This Court is compelled to disagree.
It is well-settled that agents "may, consistent with the Fourth Amendment, conduct a brief, investigatory stop (and frisk [for safety]) when the [agent] has a reasonable, articulable suspicion that criminal activity is afoot." Illinois v. Wardlow, 528 U.S. 119, 123, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000); United States v. Sharpe, 470 U.S. 675, 682, 105 S. Ct. 1568, 1573, 854 L. Ed. 2d 605 (1985); Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968);United States v. Franklin, 323 F.2d 1298, 1301 (11th Cir. 2003). Courts evaluate the reasonableness of such investigative detentions by determining whether the officers' actions were justified at their inception, and "whether it was reasonably related in scope to the circumstances which justified the interference in the first place." Terry, 392 U.S. at 20, 88 S. Ct. at 1879. An officer is initially justified in conducting an investigative detention when the officer has a reasonable suspicion, grounded in specific, articulable facts, that the citizen is, has been, or is about to be involved in criminal activity. Terry, 392 U.S. at 1, 88 S. Ct. at 1868; United States v. Brignoni-Ponce, 422 U.S. 873, 881-882, 95 S. Ct. 2574, 2580-2581, 45 L.Ed.2d 607 (1975).
While reasonable suspicion requires a lower threshold of certainty of wrongdoing than a probable cause showing, courts still evaluate an officer's suspicion by viewing the totality of the circumstances. United States v. Sokolow, 490 U.S. 1, 7-9, 109 S. Ct. 1581, 104 L. Ed. 2d 1, 10-11 (1989). To be reasonable in scope, an investigative "detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop." Florida v. Royer, 460 U.S. 491, 500, 103 S. Ct. 1319, 1325, 75 L. Ed. 2d 229 (1983); see Sharpe, 470 U.S. at 683-685, 105 S. Ct. at 1574-1575. This circuit also recognizes that officers may ask questions during such an encounter that are unrelated to the initial justification of the stop as long as the questions do not unreasonably prolong the detention. United States v. Purcell, 236 F.3d 1274, 1280 (11th Cir. 2001).
In order to determine whether the agents had reasonable suspicion at the time they encountered Broome, this Court must evaluate whether "the facts available to the [agents] at the moment of the seizure or the search [would] warrant a[n] . . . [agent] of reasonable caution [to believe] that the action taken was appropriate[.]" Terry, 392 U.S. at 21-22 (citation and quotation omitted); Franklin, 323 F.2d at 1301 (stating that "[r]easonable suspicion is a less demanding standard than probable cause, but requires `at least a minimal level of objective justification for making the stop'") (quotingWardlow, 528 U.S. at 123)). Thus, reasonable suspicion is determined from the totality of the circumstances. United States v. Sokolow, 490 U.S. 1, 8, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989).
Indeed, "[s]uch facts may be derived from `various observations, information from police reports, if such are available, and consideration of the modes or patterns of operation of certain kinds of lawbreakers.'" United States v. Williams, 876 F.2d 1521, 1524 (11th Cir. 1989) (quoting United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981)). The agent can also utilize his or her own experiences and knowledge. United States v. Arvizu, 534 U.S. 266, 122 S.Ct. 744, 750-51, 151 L.Ed.2d 740 (2002) ("This process allows [agents] to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that `might well elude an untrained person.' "(citation omitted)).
Here, when Special Agent Wells first approached Broome at the Hot Springs Airport and spoke with him inside the FBO building, Special Agent Wells was engaged in a police-citizen encounter that did not involve any coercion or detention, and therefore did not implicate the Fourth Amendment. See Florida v. Bostick, 501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991); Florida v. Roger, 460 U.S. 491 103, S.Ct. 1319, 75 L.Ed.2d 229 (1983). This Court is also compelled to conclude that a reasonable innocent person in Broome's position would have believed that he was free to leave. See United States v. De La Rosa, 922 F.2d 675 (11th Cir. 1991); United States v. Hastamorir, 881 F.2d 1551, 1556 (11th Cir. 1989). Additionally, no Fourth Amendment rights were invoked when Special Agent Wells asked Broome if he would accompany the agents to a nearby building and into a conference room, absent any indication that he was not free to leave.United States v. Waksal, 709 F.2d 653 (11th Cir. 1983).
In response to Special Agent Wells' questions, Broome initially refused to identify the owner of the aircraft, but later identified him by his last name only (Maciel) responding that he did not know Maciel's first name. Tr. 68-69, 132. However, Special Agent Wells knew that during the 1994 incident, Broome was well aware of Maciel's first name. Tr. 11-12, 68-69. Special Agent Wells also knew that Broome also lied to him about his relationship with Maciel, stating that he only met Maciel two years ago, and this was only the second time he had flown for him. Tr. 70-71. Special Agent Wells knew this was a lie because he had stopped Broome and Maciel in 1994. Tr. 50, 70-71. Special Agent Wells also noted that Broome's explanation as the reason for his trip to Atlanta not only contained many inconsistencies, but also made no sense factually. Tr. 79. Thus, Special Agent Wells was authorized to conclude that Broome was continuing to lie to him.
These lies, combined with Special Agent Wells' knowledge (1) that drug traffickers regularly use small airports and airplanes to smuggle narcotics, and the pattern of smuggling from Los Angeles to Atlanta (Tr. 6, 15, 54); (2) that Broome was making frequent private airplane trips to Atlanta from Los Angeles in Maciel's aircraft (Tr. 53-54, 59); (3) of the 1994 incident involving Broome, Maciel, and several hundred thousand dollars (Tr. 11-12, 48-50); (4) of Broome's February 10, 2004 untruthful statement to Special Agent Kuzma that he had "cut all ties" with Maciel after the 1994 incident, but Special Agent Wells later learned that Broome lied to him and he was still flying Maciel's aircraft as late as 2004 (Tr. 12, 15-16, 53-54); and (5) that, while en route, Broome changed his destination a few times, and while flying through Amarillo, Texas, misidentified his aircraft by using a different tail number, which had been registered to a different aircraft, also owned by Maciel at one time, than the one he was piloting consistent with Special Agent Wells' knowledge that drug smugglers typically misidentify their aircraft while in flight in order to hide their movements, identity, and avoid detection (Tr. 59-60, 62-64, 124), created at least a reasonable suspicion in Special Agent Wells' mind sufficient to authorize the agents to stop Broome, detain him, and question him further to ascertain if he was indeed involved in smuggling narcotics. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1869, 20 L.Ed.2d 889 (1968) (setting out an objective test for probable cause to stop, to wit: whether a person of ordinary caution [can] be justified in believing [such] action was appropriate). This stop enabled the agents to obtain more information about the possibility that Broome was involved in drug smuggling. Adams v. Williams, 407 U.S. 143, 145-146, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972).
Given the evidence that the entire encounter, including the time necessary to effectuate the stop, review Broome's pilot license and documentation, question Broome, and call a drug detection dog took no more than thirty minutes (Tr. 126-127), this Court is compelled to conclude that none of the agents' actions or questions unreasonably extended the stop or fell outside the scope permissible under the Fourth Amendment. See United States v. Hardy, 855 F.2d 753, 761 (11th Cir. 1988) (finding fifty minute detention to conduct canine sniff after state trooper issued traffic citation constitutional).
While these circumstances fall short of a probable cause showing until the drug detection dog alerted, they set forth a set of objective circumstances sufficient to justify the agents' reasonable suspicion that criminal activity was afoot, and that further investigation was warranted. Viewing the totality of the circumstances here, this Court is compelled to conclude that Special Agent Wells had reasonable suspicion to briefly detain Broome in order to verify or dispel his well-founded suspicions that Broome was, or was about to be, engaged in criminal activity.
II. The agents' reasonable suspicion ripened into probable cause to support the warrantless arrest of Broome
Broome contends that the agents illegally detained, seized and subsequently arrested him without probable cause on March 2, 2005. Law enforcement officers may arrest a suspect without a warrant in a public place if the officers have probable cause to believe the suspect has committed or is committing a felony.United States v. Watson, 423 U.S. 411, 423-24, 96 S. Ct. 820, 827-828, 46 L. Ed. 2d 598 (1976). An arrest is unlawful if it is not supported by probable cause. Lowe v. Aldridge, 958 F.2d 1565, 1570 (11th Cir. 1992).
Probable cause exists where the totality of "`the facts and circumstances within [the agents'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that' an offense has been or is being committed." Brinegar v. United States, 338 U.S. 160, 175-176, 69 S. Ct. 1302, 93 L.Ed. 1879 (1949) (quoting Carroll v. United States, 267 U.S. 132, 162, 45 S. Ct. 280, 69 L.Ed. 543 (1925)); see also Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983);Williamson v. Mills, 65 F.3d 155, 158 (11th Cir. 1995). "Probable cause requires more than mere suspicion, but does not require convincing proof." Bailey v. Board of County Com'rs of Alachua County, Fla., 956 F.2d 1112, 1120 (11th Cir. 1992). "In determining whether probable cause exists, we deal with probabilities which are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." Rankin v. Evans, 133 F.3d 1425, 1435 (11th Cir. 1998) (citation and quotation omitted); Illinois v. Gates, 462 U.S. 213, 299-31, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).
At the time of Broome's arrest, Special Agent Wells had probable cause to believe that the aircraft was transporting illegal drugs, and, he also had probable cause to believe that Broome was in the process of smuggling drugs. Special Agent Wells' belief was based on information he received from (1) Bob Keller (Tr. 53-55, 59); (2) Special Agent Kuzma (Tr. 55); (3) his investigations of Broome leading up to the incident in question, (4) his knowledge that Broome had called out a different tail number associated with a different aircraft than the one he was piloting consistent with Special Agent Wells' knowledge that drug smugglers typically use such evasive maneuvers while in flight in order to hide their movements, identity, and avoid detection (Tr. 59-60, 62-64, 124), and (5) the drug detection dog's alert to the presence of the odor of narcotics near the fore and aft lockers on the aircraft (Tr. 80, 116-117, 134).
Specifically, the evidence shows that Special Agent Wells called for a drug detection dog to conduct a free-air sniff of the exterior of the aircraft. Tr. 74, 115. The handler led the drug detection dog on a free-air "walk-around" of the aircraft. Tr. 80. The dog alerted to the presence of the odor of narcotics by sitting near the fore and aft compartments of the aircraft. Tr. 80, 116-117, 134. Special Agent Wells testified that the handler informed him that the drug detection dog was trained to sit near the presence of the odor of narcotics. Tr. 116-117, 134. When the dog alerted to the presence of the odor of narcotics near the fore and aft lockers of the aircraft, the agents' reasonable suspicion ripened into probable cause to believe that the aircraft contained narcotics, and that Broome was using the aircraft to transport such narcotics. Tr. 117, 134;See United States v. Banks, 3F.3d 399, 402 (11th Cir. 1993);United States v. Goldstein, 635 F.2d 356, 362 (5th Cir. 1981);see also Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). Based on Special Agent Wells' knowledge and experience from, inter alia, his eighteen years of experience with Customs and Border Protection, he had probable cause to believe that Broome was committing or was about to commit an illegal drug transaction and that his aircraft was probably carrying the drugs that were the subject of that transaction. Thus, Special Agent Wells was authorized to arrest Broome without a warrant.
For purposes of the Fourth Amendment, automobiles and airplanes are substantially identical. See United States v. Johnson, 588 F.2d 147, 152 n. 7 (5th Cir. 1979) (citing United States v. Brennan, 538 F.2d 711, 721 (5th Cir. 1976). In addition, a canine sniff of the exterior of an aircraft, is not a search within the meaning of the Fourth Amendment, and hence does not implicate Broome's Fourth Amendment rights. See United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983).
This Court is compelled to conclude that the agents had probable cause to arrest Broome. Based upon the facts within the agents' knowledge, of which they had "reasonably trustworthy information," this Court concludes that "a reasonably prudent person [would] believe, under the circumstances shown, that the suspect . . . committed . . . an offense." Williamson, 65 F.3d at 158. Accordingly, there was probable cause to arrest Broome in a public place (the airfield) without an arrest warrant.
Although Broome contends that he was under arrest at the moment that the agents confronted him and asked him to accompany them into the conference room in the FBO building, this Court disagrees. The agents only seized (i.e., arrested Broome, vis-a-vis detain) after the drug detection dog alerted to the fore and aft lockers of the aircraft.
This Court observes that the agents' reasonable suspicion ripened into probable cause when the drug detection dog alerted to the presence of odor of narcotics in the fore and aft lockers of the aircraft. At that point, the agents had sufficient information to lead a reasonably prudent person to believe (probable cause) that Broome committed a crime — the illegal possession with intent to distribute cocaine. Consequently, this Court finds that the agents had probable cause to arrest Broome.
III. Broome knowingly and voluntarily consented to a search of the aircraft.
Broome also contends that he did not freely and voluntarily consent to the search of the aircraft. A warrantless search pursuant to consent is constitutionally permissible, and a relinquishment of Fourth Amendment rights. Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Where the validity of a search rests on consent, the government has the burden of proving that it obtained the necessary consent, and that it was freely and voluntarily given, a burden that is not satisfied by showing a mere submission to a claim of official authority. Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 514, 19 L. Ed. 2d 576 (1967);Schneckloth, 412 U.S. at 233-34; Bumper v. North Carolina, 391 U.S. 543, 548-549, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968);United States v. Ramirez-Chilel, 289 F.3d 744, 751 (11th Cir. 2002).
The voluntariness of consent is a question of a fact to be measured by the totality of the circumstances. United States v. Tovar-Rico, 61 F.3d 1529, 1535 (11th Cir. 1995). In assessing the voluntariness of a defendant's consent, this Court will consider
whether the defendant was free to leave, whether there was coercive police procedure, the extent of the defendant's cooperation or awareness of a right to refuse to consent, whether the defendant could refuse to consent, the extent of the defendant's education and intelligence, and the defendant's belief that no incriminating evidence would be found.Ramirez-Chilel, 289 F.3d at 752 (internal quotations omitted);Schneckloth, 412 U.S. at 226-27.
Here, while in the conference room in the FBO building, incident to Broome's arrest, and after he had been read hisMiranda rights and chose to waive them, Special Agent Wells asked Broome whether he had the keys to the fore and aft lockers on the aircraft. Tr. 81-82, 119, 136. Broome responded that they were in the bottom of his briefcase. Tr. 119-120, 136-137. Special Agent Wells then asked Broome for permission to retrieve the keys from his briefcase. Tr. 119-120, 136-137, 143. Broome did not object, although he did not verbally consent. Id. In fact, Broome never objected or voiced any concern regarding the retrieval of the keys and the search of the aircraft. Tr. 120;Robinson v. United States, 325 F.2d 880 (5th Cir. 1964). Indeed, the record establishes that Broome was entirely cooperative with the agents when they searched the aircraft. Tr. 141-143.
The arrest of Broome was based on probable cause, and there is no indication in the record that the agents used tactics that would augment the degree of coercion that is inherent in any arrest. There is simply no evidence in the record of any intimidation, physical or psychological abuse, or threats tending to invalidate the consent. In fact, when Broome expressed discomfort from the handcuffs, the agents handcuffed his hands in the front instead of behind him in order to make him more comfortable. Tr. 86. Likewise, there is no evidence in the record that the agents had their weapons drawn while they were attempting to obtain Broome's consent to search the aircraft. Tr. 84-85, 129; United States v. Espinoza-Orlando, 704 F.2d 507 (11th Cir. 1983) (finding voluntariness where defendant gave consent while lying on the ground with four agents surrounding him, one with his weapon drawn). Under the circumstances presented here, this Court is compelled to conclude that the totality of the circumstances establish that Broome freely and voluntarily consented to the search of the aircraft.
IV. The agents were authorized to search the aircraft's interior lockers and compartments incident to Broome's arrest.
Even if Broome had not consented to a search of the aircraft or his belongings, the search was still lawful. Generally, the Fourth Amendment to the Constitution requires that searches and seizures be supported by probable cause when it provides that "the right of the people to be secure . . . against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause. . . ." U.S. Const., Amend. IV. When law enforcement officers conduct a search without a warrant, this Court must presume that such search is unreasonable, and violates the Fourth Amendment unless it falls within one of the specifically established exceptions to the warrant requirement. Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 514, 19 L. Ed. 2d 576 (1967). A search incident to arrest is one such exception. See Chimel v. California, 395 U.S. 752, 755-763, 89 S. Ct. 2034, 2035-2040, 23 L. Ed. 2d 685 (1969).
Specifically, officers may, incident to the arrest of an individual, search his person and the area within his immediate presence, including a vehicle from which he just exited.Petersen v. United States, 419 U.S. 831, 95 S.Ct. 55, 42 L.Ed.2d 57 (1974); United States v. Diaz-Lizaraza, 981 F.2d 1216, 1222 (11th Cir. 1993); United States v. Cravero, 545 F.2d 406, 417 (5th Cir. 1977), cert. denied. See also United State v. Gonzalez, 71 F.3d 819, 826 (11th Cir. 1996). As the Supreme Court has often reiterated, there are "two historical rationales for the `search incident to arrest' exception: (1) the need to disarm the suspect in order to take [him] into custody, and (2) the need to preserve evidence for later use at trial."Knowles v. Iowa, 525 U.S. 113, 116, 119 S.Ct. 484, 142 L.Ed.2d 492 (1998); United States v. Robinson, 414 U.S. 218, 234, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973). Therefore, when making a lawful arrest, the law allows the arresting officer to conduct a warrantless search of the area immediately surrounding the arrestee, and "into which an arrestee might reach in order to grab a weapon or evidentiary items." Id. at 763, 89 S.Ct. at 2034; United States v. Robinson, 414 U.S. 218, 226, 234-35, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); Holmes v. Kucynda, 321 F.3d 1069, 1082 (11th Cir. 2003).
A search incident to a lawful arrest must have as one or more of its purposes, the discovery of (1) the fruits of a crime; (2) the instrumentalities used to commit the crime; (3) weapons or like material which put the arresting officer in danger or might facilitate escape; (4) contraband, the possession of which is a crime; and (5) material which constitutes evidence of the crime or evidence that the person arrested has committed the crime. See Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967); New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981);Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); United States v. Watson, 669 F.2d 1374, 1384 (11th Cir. 1982). See also Fed.R. Cr. P. 41.
V. An agent may search a moveable vehicle such as a car or an airplane, without a warrant, when the agent has probable cause to believe the vehicle is transporting contraband.
In addition to the foregoing exception, another exception to the search warrant requirement is also implicated here: where agents have probable cause to believe a vehicle is being used to transport contraband such as illegal drugs, they may search it without a warrant. Florida v. White, 526 U.S. 559, 119 S.Ct. 1555, 143 L.Ed.2d 748 (1999); Michigan v. Thomas, 458 U.S. 259, 102 S.Ct. 3079, 73 L.Ed.2d 750 (1982); Carroll v. United States, supra; United States v. Watts, 329 F.3d 1282 (11th Cir. 2003). Courts determine the existence of probable cause by evaluating the totality of the facts and circumstances. Illinois v. Gates, 462 U.S. 213, 243, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983). When evaluating probable cause, this Court examines the totality of the circumstances in a common sense rather than a hypertechnical manner. Gates, 462 U.S. at 243; United States v. Ventresca, 380 U.S. 102, 85 S. Ct. 741, 13 L. Ed. 2d 684 (1965).
In this case, the same probable cause authorizing the agents to arrest Broome without a warrant furnished the agents with probable cause to believe he was then using the aircraft to transport illegal drugs. As a consequence, they had the right to search the airplane without a search warrant. Under the "vehicle exception" to the warrant clause, law enforcement officers may stop and conduct a warrantless search of a vehicle if (1) they have probable cause to believe that it contains contraband or other evidence of a crime which is subject to seizure under the law, and (2) exigent circumstances necessitate a search. United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 2163, 72 L.Ed.2d 572 (1982); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); United States v. Forker, 928 F.2d 365 (11th Cir. 1991), reh'g, en banc, denied, 936 F.2d 587 (1991);United States v. Alexander, 835 F.2d 1406 (11th Cir. 1988).
Under this exception, agents may conduct a warrantless search of the aircraft where they have probable cause to believe that it contains illegal drugs or other contraband or other evidence of a crime; the vehicle's transportability suffices to create the only required exigency without the need for additional exigent circumstances. See Maryland v. Dyson, 527 U.S. 465, 119 S. Ct. 2013, 144 L. Ed. 2d 442 (1999). See also United States v. Ross, 456 U.S. 798, 102 S. Ct. 2157, 2163, 72 L. Ed. 2d 572 (1982); Carroll v. United States, 267 U.S. 132, 45 S. Ct. 280, 69 L. Ed. 543 (1925); United States v. Forker, supra; United States v. Nixon, 918 F.2d 895, 903 (11th Cir. 1990) (the requirement of exigent circumstances is satisfied by the "ready mobility" inherent in all vehicles that reasonably appear to be capable of functioning). Such a search may extend to any compartment of the [aircraft] and any containers found therein in which the objects of the search can be found. United States v. Ross, supra, 456 U.S. at 825.
This Court is compelled to conclude that at the time the agents questioned Broome, the aircraft he had been operating was a readily mobile vehicle. The evidence also shows that at the time the agents searched the aircraft and seized the kilogram blocks of cocaine, they had probable cause to believe that the aircraft contained illegal narcotics based on the drug detection dog's alert to the fore and aft lockers of the aircraft. Accordingly, pursuant to the vehicle exception to the warrant clause, they were authorized to immediately conduct a warrantless search of any compartment of the aircraft where illegal drugs could be stored.
This Court is compelled to conclude that viewing the totality of the circumstances, the agents had probable cause to believe that the aircraft contained cocaine, thereby establishing their right to enter the aircraft without a search warrant and seize the cocaine.
VI. The agents had the right to search Broome's person incident to his arrest.
Broome also contends the Government's warrantless search of his person and belongings incident to his arrest was unconstitutional, which argument rests on the lawfulness of his arrest. Where, as here, this Court has concluded that the agents had probable cause to arrest Broome, and did so, their search of his person incident thereto was constitutional. Id.
In addition, where, as in the present case, the agents had probable cause to arrest Broome without a warrant, they were also authorized to search the area within his immediate presence — his person and his personal belongings. Thus the agents had three permissible bases supporting their search of his personal belongings: (1) to search for any weapons or items that could be used to injure the officers, (2) to search for additional contraband, and (3) to collect and preserve evidence of the crime. United States v. Diaz-Lizaraza, 981 F.2d 1216, 1222 (11th Cir. 1993). As discussed herein, Broome's warrantless arrest was lawful. As such, the warrantless search of Broome's person, personal belongings, and the aircraft were also clearly lawful searches incident his arrest. Robinson, 414 U.S. at 236 (stating that "[i]t is the fact of the lawful arrest which establishes the authority to search. . . ."). They also had independent probable cause to search the airplane without a warrant because of its mobility.
This Court is therefore compelled to conclude that the warrantless arrest and the subsequent search of Broome's person, personal belongings, and the aircraft were constitutional. Consequently, his Motion to Suppress the items seized during its search should be DENIED.
IT IS THEREFORE RECOMMENDED that Broome's Motion to Suppress the Evidence [Doc. 79] be DENIED.
ORDER AND CERTIFICATE
All other motions having been disposed of,
IT IS HEREBY ORDERED that this case be, and is hereby Certified Ready for Trial.
Let a copy of this Order be served by mail upon counsel for the parties.
IT IS SO RECOMMENDED, ORDERED AND CERTIFIED.