United States v. Andrew Sokolow

831 F.2d 1413 UNITED STATES of America, Plaintiff-Appellee, v. Andrew SOKOLOW, Defendant-Appellant. No. 85-1021. United States Court of Appeals, Ninth Circuit. Argued and Submitted July 12, 1985. Remanded for Additional Findings, July 31, 1986. Resubmitted Oct. 31, 1986. Decided Jan. 28, 1987. Amended March 10, 1987. Second Amended Opinion Filed Nov. 4, 1987. Robert P. Goldberg, Honolulu, Hawaii, for defendant-appellant. Michael A. Santoki, Honolulu, Hawaii, for plaintiff-appellee. Appeal from the United States District Court for the District of Hawaii. Before FERGUSON, NORRIS and WIGGINS, Circuit Judges. SECOND AMENDED OPINION FERGUSON, Circuit Judge: 1 On appeal from his conviction for possessing cocaine with intent to distribute in violation of 21 U.S.C. Sec. 841 (a)(1), Andrew Sokolow challenges the district court's ruling denying his motion to suppress evidence obtained during the retention of himself and his luggage at the Honolulu airport. The evidence he moved to suppress included 1,000 grams of cocaine. Exercising appellate jurisdiction under 28 U.S.C. Sec. 1291 , we initially reversed his conviction on the ground that agents of the Drug Enforcement Agency had violated…

SECOND AMENDED OPINION

On appeal from his conviction for possessing cocaine with intent to distribute in violation of 21 U.S.C. § 841 (a)(1), Andrew Sokolow challenges the district court’s ruling denying his motion to suppress evidence obtained during the retention of himself and his luggage at the Honolulu airport. The evidence he moved to suppress included 1,000 grams of cocaine. Exercising appellate jurisdiction under 28 U.S.C. § 1291 , we initially reversed his conviction on the ground that agents of the Drug Enforcement Agency had violated the Fourth Amendment in detaining Sokolow and searching his luggage. 808 F.2d 1366 (9th Cir.1987). On petition for rehearing, the government draws our attention to additional evidence that it believes should change our original conclusion that the Fourth Amendment had been violated. We disagree, and thus deny the government’s petition for rehearing, vacate our previous disposition, and file this amended opinion.

I.

On Sunday, July 22, 1984, Sokolow purchased two roundtrip tickets to Miami at the United Airlines counter at Honolulu Airport. Sokolow paid for the $2100 tickets in cash with approximately half of a large wad of $20 bills he…

dissenting:

If the present opinion becomes the law of this circuit, I conclude that many, and perhaps all, Terry stops that rely upon drug courier profile characteristics may fail on constitutional grounds. Because I believe such an unfortunate result is not mandated by the law, I respectfully dissent.

The fourth amendment prohibits unreasonable searches and seizures. Courts determine the reasonableness of a search or seizure by “balancing the need to search against the invasion which the search entails.” Camara v. Municipal Ct., 387 U.S. 523, 536-37 , 87 S.Ct. 1727, 1734-35 , 18 L.Ed.2d 930 (1967). In determining whether a particular search or seizure is reasonable, the Supreme Court has developed a three-tier structure of fourth amendment jurisprudence. The first category includes consensual police-citizen encounters, such as brief stops for questioning. Here no seizure occurs and the fourth amendment is not implicated. See Florida v. Royer, 460 U.S. 491, 497 , 103 S.Ct. 1319, 1323 , 75 L.Ed.2d 229 (1983); Terry v. Ohio, 392 U.S. 1 , 19 n. 16, 88 S.Ct. 1868 , 1879 n. 16, 20 L.Ed.2d 889 (1968). The second level consists of brief investigative detentions and pat downs of outer…