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October 26, 1993


The opinion of the court was delivered by: BY THE COURT; STEWART DALZELL

 Dalzell, J. October 26, 1993

 On July 13, 1993, defendant Jose Ortiz was disembarking Delta flight 904 at the Philadelphia International Airport when three airport police officers stopped him, frisked and handcuffed him, and took him to the police station at the airport. At the station, they ultimately found fourteen kilograms of cocaine in his carry-on bag. The Government charged Ortiz with possession with intent to distribute in excess of five kilograms of cocaine, in violation of 21 U.S.C. ยง 1841(a)(1).

 Ortiz has filed a motion to suppress the drugs and other physical evidence seized from him that day, contending that the seizure violated his rights under the Fourth Amendment of the United States Constitution. We received two rounds of briefing and then held a hearing on the motion on October 21, 1993. After careful consideration of the briefs as well as the testimony and arguments at the hearing, we will grant Ortiz's motion based upon the following Fed.R.Crim.P. 12(e) findings of fact and legal analysis.

 Factual Background

 On July 19, 1993, David King, a drug interdiction officer in the San Diego Port District Police Department, received a telephone tip from an unidentified airline employee who stated that a man named Raoul Ramos would be arriving in Philadelphia at 3:24 p.m. on a Delta Airlines flight from Atlanta, sitting in seat 38C. The flight originated in San Juan, Puerto Rico. Moreover, the informant, who was not from San Juan, reported that he or she had learned from a centralized computer system that Ramos had purchased the one-way ticket in cash *fn1" on the day of the flight, had not checked any bags and had not given a "callback number" to the purchasing agent.

 King, believing this information raised suspicion that Ramos was a drug courier, telephoned the Philadelphia Police Department. The Police Department eventually connected him with Philadelphia Police Detective Peter Kosmalski, who is assigned to duty at the Philadelphia airport. King relayed all of the informant's information to Kosmalski. *fn2" He also informed Kosmalski that there was a drug organization based in Puerto Rico that had been transporting drugs from San Juan to cities on the Eastern seaboard. King advised Kosmalski that there had been several arrests recently at New York City airports, and stated that the couriers might well be diverting their operations to Philadelphia and other cities away from New York. He also told Kosmalski, who had no experience with airport drug interdiction, that couriers often carry their contraband in body packs. *fn3" Upon receiving the call from King, Detective Kosmalski called the Delta manager and asked that a stewardess point out the passenger in seat 38C as he exited Delta flight 904. Kosmalski also telephoned for a patrol car to meet him at the gate in order to drive Ramos to the police station at the airport.

 As the exiting passengers walked through the jetway, a stewardess pointed to a man dressed in a white shirt and black pants who was carrying two small duffel bags, indicating that he was the man Kosmalski sought. Kosmalski and his colleagues approached the man in the jetway. Kosmalski flashed his badge and asked the man if he was Raoul Ramos. The man answered "yes". Kosmalski then told Ramos that he was "under investigation", set Ramos's bags aside and asked him to put his hands up on the jetway wall. According to Kosmalski, Ramos appeared "surprised" but did as Kosmalski directed, never in any way resisting. Kosmalski's patdown revealed neither weapons nor contraband on Ramos's body. Kosmalski then handcuffed Ramos's hands behind his back, and took him down the flight of stairs from the jetway to the tarmac where the patrol car was waiting. The three officers drove Ramos the short distance from Terminal E to an entrance to the police station between Terminals C and D for questioning. When they arrived at the station, Kosmalski removed the handcuffs. *fn4" Ramos then admitted to the officers that his real name was Jose Ortiz and reported that he lived on Mutter Street in Philadelphia. Kosmalski ran a security check using this information, and found that there were three open warrants for Ortiz's arrest, all for drug-related offenses. Kosmalski then said he placed Ortiz under arrest and telephoned for a dog handler to bring a drug sniffing dog to the station.

 When the dog, Ben, arrived and smelled Ortiz's bags, he reacted strongly to a black carry-on travel bag. Ben seized the bag in his teeth and shook it violently, causing one of the zippers to open part way. The dog handler could then see through the six inch aperture that the bag contained white, brick-shaped objects wrapped in pink cellophane. Kosmalski opened the bag and found fourteen kilo-size bricks, with the word "LOBO" written on each of them.

 Legal Analysis

 We agree with both parties that the focus of our inquiry should be on what took place at the Delta Airlines jetway and earlier. The Government has conceded that "Detective Kosmalski clearly did not have probable cause to arrest Ortiz at the plane," but argues that "he did have sufficient information for an investigatory stop." Government's Response to the Defendant's Motion to Suppress Evidence ("Government's Response") at 4. The Government contends that this "investigatory stop" satisfied the standards the Supreme Court set for airport interdictions in United States v. Sokolow, 490 U.S. 1, 9, 109 S. Ct. 1581, 1586-7, 104 L. Ed. 2d 1 (1989).

 By the time of oral argument at the conclusion of the suppression hearing, however, the Government's position was further refined, and may be summarized as contending that (1) the handcuffing in the jetway was a permissible "investigatory stop" under Sokolow, but that, if we believe otherwise, (2) to the extent we believe there was not sufficient "reasonable suspicion" to make the "investigatory stop", that gap was filled by Detective Kosmalski's good faith belief that he did have sufficient reason to make the "stop". The Government further argues that the handcuffing in the jetway constituted an "investigatory stop" and not an "arrest".

 Both parties have proffered no decisions from either the Supreme Court or our Court of Appeals that address the issue of a "good faith" exception to the rule of Terry v. Ohio, 392 U.S. 1, 20, 88 S. Ct. 1868, 1879, 20 L. Ed. 2d 889 (1968), that an officer must have "a reasonable suspicion" that the defendant had engaged in criminal activity before stopping him. Given the novelty of this question in this Circuit, as well as the obvious importance of the question given the seizure of fourteen kilograms of cocaine, we will analyze the Government's contentions in some detail, beginning with its argument that no arrest took place in the jetway.

 (a) Did the handcuffing in the jetway constitute an "arrest"?

 The Supreme Court in United States v. Sharpe, 470 U.S. 675, 105 S. Ct. 1568, 84 L. Ed. 2d 605 (1985), analyzed at length its prior precedents to elucidate the "difficult line-drawing problems in distinguishing an investigative stop from a de facto arrest." 470 U.S. at 685, 105 S. Ct. at 1575. While admitting that it would be desirable for law enforcement officers to be given a "bright line" to help make this distinction, the Court held that "Much as a 'bright line' rule would be desirable, in evaluating whether an investigative detention is unreasonable, common sense and other human experience must govern over rigid criteria." Id.

 In Sharpe, a twenty minute stop of a vehicle was held not to constitute an arrest. Notably, no one was handcuffed in Sharpe, but the detention was manifestly necessary given the evasive action the vehicles in question took when the police were following them, as well as the fact that the officers believed one of the vehicles to be carrying contraband. Indeed, the Government has not called our attention to any Supreme Court decision, or any from this Circuit, where a handcuffing was held to constitute an "investigative stop."

 The Government's citations to Court of Appeals' decisions from other Circuits do not support its contention that the handcuffing of Ortiz constituted, using "common sense and ordinary human experience", an investigative stop. For example, in Tom v. Voida, 963 F.2d 952, 958 (7th Cir. 1992), the detainee attempted to escape and therefore was handcuffed. The Court held this to be a "measured use of force ... [which] was appropriate to accomplish the purposes of an investigatory stop." Id. By contrast, the Government here does not contend, nor did any witness, that Ortiz made the slightest move suggesting an escape.

 The Government also cites United States v. Jones, 759 F.2d 633, 639 (8th Cir. 1985), as establishing circumstances that justify the use of handcuffing during an investigatory stop:

the number of officers and police cars involved, the nature of the crime and whether there is reason to believe the suspect might be armed, the strength of the officers' articulable, objective suspicions, the erratic behavior of or suspicious movements by the persons under observation, and the need for immediate action ... and lack of opportunity for them to have made the stop in less threatening circumstances.

 Again, none of these circumstances obtained in Ortiz's case.

 The only case the Government cites from this Circuit at all analogous to the present case is United States v. Frost, 999 F.2d 737 (3d. Cir. 1993). Frost, however, stands in contrast to what occurred here.

 David Lauren Frost disembarked from a Ft. Lauderdale, Florida flight to Greater Pittsburgh International Airport. At about 5:00 p.m., interdiction officers noticed bulges in the pockets of Frost's jeans, and that Frost carried no luggage, and followed Frost as he entered and exited a restroom in fifteen seconds. After following him for about twenty minutes, and observing Frost's "attempt to conceal something on his person", the officers approached Frost, and after identifying themselves asked, "Is it okay if we talk with you for a few minutes?" Frost agreed, and after seven minutes' questioning, was asked "if it would be okay with him, if he could show us what was in his pockets". Frost produced rolls of ten and twenty dollar bills from each pocket, totalling $ 3,035, and a sky pager (which he turned off, thereby erasing the telephone numbers recorded). The detectives asked Frost to accompany them to the airport police station, to which Frost consented. Another officer obtained Frost's suitcase at approximately 5:40 p.m. The suitcase was padlocked. Fifteen minutes later, Frost refused a request to search his suitcase, and at 6:55 left the station with receipts for his cash, luggage and pager, and boarded a flight to Lansing, Michigan. The delayed dog sniff minutes later resulted in the dog's "alert" to Frost's cash, but not to the suitcase. Based on the dog's alert, a district justice issued a search warrant at 7:55 p.m. and the suitcase was opened to reveal ten one-kilogram packages of cocaine. Frost was then arrested on the plane still waiting at the gate.

 It will be noted that at no time before his arrest was Frost physically restrained, much less handcuffed. The Court of Appeals therefore unsurprisingly affirmed the denial of Frost's motion to suppress. *fn5"

 By contrast, Ortiz was handcuffed immediately after his patdown, and in the presence of three armed police officers. Ben's Pavlovian reaction to the carry-on luggage occurred long after the handcuffing. "Common sense and ordinary human experience", especially as educated with reference to Frost, can only describe this jetway handcuffing by three armed police officers as an "arrest".

 The Government cites a Philadelphia Police Department Directive 34, dated July 16, 1982, as authority for Detective Kosmalski's handcuffing of Ortiz, even though Ortiz was only a "suspect". Paragraph III.D is cited as the justification for Detective Kosmalski's handcuffing. This part of the Directive provides, in full:

Prisoners being transported between police facilities, e.g., Police District to Detention Unit, shall be handcuffed. Handcuffs shall be removed upon arrival to facilitate searching and normal prisoner processing.

 The "common sense and ordinary human experience" understanding of the word prisoner is " 1 : a person held under restraint: as a : a person held under arrest or in prison", Webster's Third New International Dictionary 1804 (1986); " 1.a one who is kept in prison or in custody, spec. one who is in custody as the result of legal process, either as having been condemned to imprisonment, or as waiting trial for some offense", XII The Oxford English Dictionary 513 (2d. ed. 1989). The only time the Directive permits handcuffing of "persons suspected of committing a crime" is when they "are returned to the scene for identification". Directive 34, P III.E. *fn6" It is undisputed that Ortiz was not being returned to the scene for identification.

 If, therefore, we are to take as authority the Philadelphia Police Department Directive the Government has proffered to us, Detective Kosmalski and his two colleagues necessarily regarded Ortiz as a "prisoner". They therefore saw Ortiz as we do, one who has been arrested, "awaiting trial for some offense."

 We therefore hold that the immediate handcuffing of Ortiz constituted an arrest. Since the Government has conceded it was made without probable cause, it was an unlawful one. The fruits of that unlawful arrest must, under the law, be suppressed. *fn7" ...

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