United States v. Woods (720 F.2d 1022, 1983)

ALARCON, Circuit Judge:

Mildred Karen Woods and Cathy Lynn Goldstein appeal from the judgment of conviction of each for conspiracy to possess cocaine with intent to distribute. Goldstein also appeals from the judgment of conviction for possession of cocaine with intent to distribute.

We are asked to reverse the judgment on the ground that the district court erred in denying each appellant’s motion to suppress evidence essential to prove their guilt of each crime. Our independent review of the record has persuaded us that the district court properly denied the motion to suppress.

We must look to the totality of the circumstances known to the officers prior to the challenged searches and seizures in order to decide if their conduct was consistent with the demands of the fourth amendment.

I.

PERTINENT FACTS

Woods and Goldstein were arrested on August 30, 1982 at the San Diego Airport by members of the Narcotics Task Force Unit of the San Diego Sheriff’s Department. Four or five months earlier, Cory Lerner, the district manager of an air force cargo service, voluntarily contacted Larry Lundsford, a deputy sheriff assigned to the Narcotics Task Force. Lerner stated he wanted to give information concerning individuals who were selling cocaine. Deputy Lundsford went to Lerner’s office. Lerner informed Lundsford that he had purchased cocaine from Woods, her husband, and Nancy Graves. Lerner also told Deputy Lunds-ford that he was involved in a drug rehabilitation program to control his use of cocaine. Lerner provided Deputy Lundsford with information concerning the telephone numbers and addresses of narcotics dealers which, upon investigation, proved to be accurate. Lerner also made controlled purchases of narcotics from persons not involved in this matter. These purchases, resulted in the conviction of these individuals. It was deputy Lundsford’s opinion that Lerner was truthful and reliable.

Lerner lived in the same apartment building as did Nancy Graves. Deputy Lunds-ford asked Lerner to assist in the investigation of Nancy Graves and Mildred Woods.

Lerner informed Deputy Lundsford that Mildred Woods was pregnant and was no longer involved in direct sales of cocaine. Instead, she supplied Nancy Graves with cocaine for resale.

Two to three weeks before August 30, 1982, Lerner informed Deputy Lundsford that Nancy Graves had told him that “good stuff would be coming in from back East within a week or two.”

At approximately 11:45 a.m., on August 30,1982, Lerner called Deputy Lundsford to inform him that while in Nancy Graves’ apartment that morning he had overheard a telephone conversation during which Nancy Graves said she could not accompany Woods to the airport that day. Graves told Woods to take her son, Jan along and “to dress down to avoid being conspicuous.” Lerner told Lundsford that Woods was approximately 32 to 33 years old with dark curly hair and was seven to eight months pregnant. Her son was four to five years old. Lerner also reported that Woods was going to meet a plane arriving between 12:00 and 12:30 p.m. The arriving passenger would be a woman in possession of a quantity of cocaine. Woods would be carrying approximately $7,000. The transaction would take place at the airport and the woman delivering the cocaine would take a return flight that same day.

Deputy Lundsford arrived at the San Diego Airport at 12:15 p.m. He was joined by three other officers.

At 12:25, Deputy Lundsford observed two women accompanied by a four or five year old boy. One of the women was 5'2" to 5'3" tall, with curly, black-brown hair who was “very pregnant.” The woman entered the United Airlines ticket line. Both women continually looked around at the people in the line and appeared to be “apprehensive.” According to Deputy Lundsford this behavior is typical of participants in narcotics sales. While they waited in line, Woods removed a red and white box from her purse. She removed the lid from the box and presented it to the other woman who “thumbed through the box looking at the contents.” Based on his experience observing narcotics transactions, Deputy Lunds-ford concluded that this was a “money show.” This term is used to describe the reassuring display of purchase money to a vendor by a customer. As the two women left the ticket line they looked over their shoulder “as if checking for surveillance.”

Deputy Lundsford was told by the United Airlines ticket agent that the taller woman [Goldstein] wanted to buy a ticket to New York for that afternoon. The ticket agent referred her to another airline in the west terminal.

Goldstein was next observed purchasing a ticket from an American Airlines ticket agent. After Goldstein left the area one of the officers was told that she had arrived at 12:18 p.m. on a round trip flight from New York with a return flight scheduled two days later.

She purchased a ticket to New York on a flight leaving at 2:00 p.m. that day. She told the agent she had to return that day because of an illness or injury to a member of her family.

The women were followed to a cocktail lounge in the west terminal.

Deputy Lundsford decided to “contact the ladies” because he believed that all the information given to him by Lerner had been corroborated.

Deputy Lundsford, accompanied by two officers, walked up to Woods and Goldstein who were seated in the cocktail lounge, and identified themselves as police officers. Each of the officers was in plain clothes. At this time it was Deputy Lundsford’s intention to “detain them for identification purposes.” It was his undisclosed state of mind that they were not free to leave, had they attempted to do so, until the completion of the investigation. Woods and Gold-stein were told that they were narcotics officers who were investigating a possible narcotics transaction. Goldstein became “visibly shaken and upset.” Woods appeared “somewhat nervous.”

The women were asked for identification. Woods produced a California driver’s license bearing the name Mildred Woods. Gold-stein had a Colorado driver’s license with the name Cathy Goldstein.

Goldstein was asked for her airline ticket. The airline ticket was made out to Mrs. James Winston. The ticket was not returned to Goldstein.

Goldstein was asked when she had arrived in San Diego and how long she intended to stay. She told the officers that she had arrived at 12:15 and was going to stay with Woods for a few days. Woods and Goldstein were not admonished as to the requirements of the fifth and sixth amendments while in the cocktail lounge.'

Deputy Lundsford testified that after observing the driver’s license and Goldstein’s airline ticket and receiving the false answer from Goldstein as to her travel plans, the women were taken to the Harbor Police office to “continue the investigation.”

In the Harbor Police station the women were separated. Woods was asked what was in the red and white box which was sticking out of her purse. She replied, “about $6,000.”

Goldstein was asked “about her staying a few days with Mrs. Woods.” Goldstein replied that she had not made up her mind and might be going home that afternoon. Deputy Lundsford asked her if she had any luggage. She stated she had already placed it in Mrs. Woods car.

After making these statements in response to the officer’s questions, both women were formally arrested. No Miranda warnings were given prior to the arrest.

A search was conducted of the red and white box and $6,143.00 was seized.

Goldstein was also searched. Two plastic baggies containing cocaine were located tied around each ankle.

II.

The trial judge, after reciting the facts which influenced his decision, concluded that (1) Lerner was a reliable informant; (2) the information Lerner related to Deputy Lundsford concerning the narcotics transaction discussed over the telephone was corroborated by Deputy Lundsford’s observations and the investigation he conducted at the airport prior to speaking to Woods and Goldstein in the cocktail lounge, the information gathered in the cocktail lounge, and the statement made by Woods in the Harbor Police station constituted “founded suspicion which ripened into probable cause.” The district court also declared that “the agent’s conduct was reasonable and the arrest lawful.”

After the denial of the motion to suppress in this matter the Supreme Court decided Florida v. Royer, — U.S. —, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983). The government has forthrightly conceded in its brief before this court that under Royer these appellants were “effectively under arrest” when they were taken from the cocktail lounge to the Harbor Police station. Accordingly, the government suggests that this court must restrict its determination of the existence of probable cause to those facts known to the arresting officers prior to the removal of the appellants from the cocktail lounge. We accept the government’s concession and limit our review of the legality of the arrests and seizures, and the fruits thereof, to those facts known to the officers prior to the time appellants were taken from the cocktail lounge to the Harbor Police station.

III.

Woods seeks a ruling from this court suppressing her statements in the cocktail lounge and in the police station, and the box and its contents under the exclusionary rules emanating from the fourth, fifth, and sixth amendment.

Goldstein challenges the admissibility of her statements, the information derived from the airline ticket, and the cocaine for the same reasons advanced by Woods.

IV.

A. Fourth Amendment Analysis

We first consider whether the statements and the physical evidence seized were inadmissible under the fourth amendment.

1. Predetention Statements

When the officers approached Woods and Goldstein in the airport’s cocktail lounge, the women were asked to identify themselves. Each produced a driver’s license which gave her name. Law enforcement officers do not violate the fourth amendment by approaching an individual in a public place and putting questions to him or her. The person so questioned need not answer any questions and is legally free to ignore the officer, or to walk away. His or her voluntary answers to the officer’s questions are admissible in a criminal prosecution. The fact that the officer identifies himself as a police officer does not “convert the encounter into a seizure requiring some level of objective justification.” Florida v. Royer, — U.S. —, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229 (1983).

Thus, under Florida v. Royer, the driver’s license identification and the initial responses given by Woods and Goldstein in the cocktail lounge were admissible because they were voluntary responses to permissible and limited questions prior to any physical detention or seizure of their persons. There being no seizure within the fourth amendment, no constitutional rights were infringed. Id. at 1324.

Appellants argue that the fact the officers intended to detain them if they had attempted to leave made their responses inadmissible. In Williams v. United States, 381 F.2d 20 (9th Cir.1967) we disposed of the same contention as follows: “The fact that the officers had entertained an unexpressed intention to detain appellants had they compounded suspicion by refusing to answer and attempting to run away does not amount to detention.” Id. at 22.

2. Statements Given During a Valid Detention

A temporary detention or seizure of a person is “justifiable under the fourth amendment if there is articulable suspicion that a person has committed or is about to commit a crime.” Florida v. Royer, 103 S.Ct. 1319 at 1324. Furthermore, during such a temporary seizure of the person based upon a reasonable suspicion of criminal activity, the officers may ask questions of the suspect which are limited to the purpose of the stop in order to verify or dispel such suspicion. Id. at 1324.

In the instant matter, the officers asked Goldstein for her airline ticket and questioned her as to the length of her stay in San Diego. The taking of Goldstein’s, airline ticket was a clear objective indication that she was being temporarily detained. We are satisfied that the facts known to the officers prior to examining Goldstein’s ticket created a reasonable suspicion that Woods and Goldstein were involved in a narcotics transaction. The officers had received information from an informant that a pregnant woman accompanied by a small child was going to meet a woman who would be arriving at the San Diego airport carrying cocaine. The informer’s tip was verified by the officer’s personal observations. See Adams v. WilUf ílp1’ 1923-1924, 32 L.Ed.2d 612 (1972). They saw a pregnant woman accompanied by a small child at the airport show the contents of a box to another woman. To the eyes of an experienced narcotics officer this conduct indicated that a purchaser of narcotics was proving to his supplier that he had the required amount of money to consummate a sale. A police officer’s special training and experience may enable him reasonably to suspect that criminal activity is afoot from observing what might appear innocuous to the uninitiated. The officers were also aware that Goldstein was going to return to New York after staying approximately two hours m the San Diego Airport. The mformant had told the officers that the person delivering the narcotics would return the same -day. As we will discuss below, the facts known to the officer at the time they approached the cocktail lounge were sufficient to establish probable cause to arrest. They were clearly enough to raise a reasonable suspicion.

The questioning of Goldstein in the cocktail lounge after her tickets were handed to the officer were limited to the purpose of the stop, i.e., to verify or dispel the suspicion that she was engaged in the illegal transportation of drugs to San Diego and having accomplished her purpose would return to her home as soon as possible. Goldstein’s statements in response to this limited interrogation were admissible.

Further, asking for and examining her airline ticket was permissible as part of an investigative detention. See Florida v. Royer, 103 S.Ct. 1319 at 1325.

B. Statements Made After an Arrest

Physical evidence and statements obtained after a person is under formal arrest or who has been removed from a place of temporary detention to custodial surroundings are inadmissible unless probable cause existed for such arrest. Id. at 1325; Dunaway v. New York, 442 U.S. 200, 212-216, 99 S.Ct. 2248, 2256-2258, 60 L.Ed.2d 824 (1979).

It is clear to ug that Woods an(J Goldstein were under arrest as of the time they were moved from the cocktail lounge to the Harbor Police station. The fact that th were not told th were under arregt untfl later ig not relevant Dunaway v. New York, 442 U.S. at 212, 99 S.Ct. at 2256.

An examination of the facts known to the officers at the time Woods and Gold-stein were removed from a public place to custodial surroundings shows that probable cause existed for their arrest at that time, These facts can be summarized as follows:

1. The officers had received information from a known informer whoSe prior tips had proved accurate ¿ independent verification

2. The informant had participated in the Purchase of narcotics from Perso?s he had Piously identified as engaged m drug traffic.

3. Four or five months before the August 30, 1982 arrest at the airport, the informant identified Woods and Nancy Graves as Persons who sold COCaine to him'

4. Two to three weeks before August 30, 1982, the informer had advised the police that Nancy Graves had told him that “good stuff” would be coming in from the east within a week or two.

5. The informant told the police that Woods was pregnant and no longer making direct sales. Instead she was now supplying cocaine to Nancy Graves.

6. On August 30, 1982, the informant told the police he had just overheard his cocaine supplier talking to Woods on the telephone. In this conversation, Lerner overheard Graves aiding, abetting, and encouraging Woods in planning the purchase of narcotics from someone who would be flying into the San Diego airport that same day.

7. The informant told the police that the cocaine courier would take a return flight on the same date.

8. The informer gave a complete physical description of Woods including the fact that she was seven or eight months pregnant and would be accompanied by a four or five year old boy.

Every fact contained in the informer’s tip proved to be accurate. ■

... ,, ., 1. The officers were able to identity . ,, Woods at the San Diego airport from the . . , , ... . , ' physical description given by Lerner.

2. She was accompanied by a four or five year old boy.

3. Woods was observed making a “money show” to a woman who had just arrived from the east (Goldstein).

4. Goldstein changed her reservation to a return flight for the same date.

. ttt i , , . „ . 5. Woods, when questioned m the cock- , , .. .... . . .. ..... . tail lounge identified herself as Mildred . .. , . , T Woods, the name furnished by Lerner as ... . . . , one of his cocaine dealers and the pregnant . . , . . person who was going to purchase cocaine r , . , a e airpor .

6. Goldstein, when questioned about the length of her stay in San Diego gave a false answer.

In deciding whether a given set of facts establishes probable cause for an arrest without a warrant, we are required to assess the totality of the facts and circumstances known to the officer prior to the seizure of the person of the accused. Brinegar v. United States, 338 U.S. 160, 175-76, 69 S.Ct. 1302, 1310-1311, 93 L.Ed. 1879 (1949). In Brinegar, the court stated: “In dealing with probable cause, ... as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” Id. at 175, 69 S.Ct. at 1310. Thus, in reviewing the district court’s conclusion that probable cause existed to arrest appellants, we must decide whether, based on the totality of the circumstances known to the officers, including the veracity and the basis of knowledge of their informant, there was a fair probability that appellants had committed a crime. In assessing the totality of the cireumstances, we must take into consideration whether the details of the informer’s rePort have been independently verified by the police.

In Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959), the court illustrated the value it places on police verification in the following passage:

, The information given to narcotic agent Marsh by special employee Hereford may have been hearsay to Marsh, but coming from one employed for that purpose and whose information had always been found to be accurate and reliable, it is clear that Marsh would have been dereb