ON APPEAL from the United States District Court for the Eastern District of Kentucky.
Martin, Jones and Milburn, Circuit Judges.
BOYCE F. MARTIN, Jr., Circuit Judge.
Anthony Jerome Clardy was arrested in April 1986 for possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1). Clardy moved to suppress the admission of the cocaine found in his luggage, arguing that he and the luggage had been seized in violation of the fourth amendment. After the district court denied his motion, Clardy entered a conditional guilty plea pursuant to Rule 11(a)(2) of the Federal Rules of Criminal Procedure. We find that Clardy was seized in violation of the fourth amendment.
In July 1985, Clardy and another man later identified as Stephen Spencer arrived in the Atlanta airport following a flight from Miami. A Drug Enforcement Administration agent who was monitoring flights from South Florida became suspicious of Spencer who was wearing a lot of jewelry and sunglasses at 6:15 a.m. He observed Spencer ask about connecting flights to Cincinnati and noticed his boarding pass carried the name "Williams." Spencer then walked across the concourse, waited against the wall, and was shortly joined by a man later identified as Clardy. They walked down the hallway together.
The agent checked the airline computer for ticket information for the flight and learned that two tickets were bought with cash just prior to departure in the names of "Mark and Jason Williams." The computer also showed the Williamses seated next to one another on the flight. When the agent telephoned the call-back number on the reservation, the person who answered was unfamiliar with Mark or Jason Williams.
The agent decided to question the two men but their flight to Cincinnati had departed. He called Cincinnati Airport Police and relayed the information he had gathered and his observations to Sergeant Allen Curry. Lieutenant Joe Weil arranged to conduct surveillance of the two men. When they arrived at the airport they were observed leaving the airplane last, walking together to the carrousel to retrieve luggage, and going to the curbside to hail a taxi.
Curry stationed himself in a police cruiser in the taxi area and observed the two men for the first time as they emerged from the terminal. While they waited for their taxi Curry moved his cruiser to a space a little beyond the taxi area, got out, and began checking cars in an effort to be inconspicuous. He testified that Spencer stared at him "like he was real nervous." When the men's taxi arrived Curry backed his cruiser until it was directly in front of it. Curry and a Lieutenant Denser, both in uniform, approached Clardy and Spencer, identified themselves as airport police conducting a narcotics investigation, and frisked the two men while they placed their hands on the taxi.
When asked for identification, Clardy produced an Ohio driver's license in the name of Anthony J. Clardy. Curry asked for permission to search his bags and Clardy initially consented but then retracted. Curry read Clardy his Miranda rights. Neither Spencer nor Clardy were able to produce airline tickets or baggage claim checks.
Meanwhile Lieutenant Weil had arrived in plainclothes. The officers asked the two men to accompany them to the airport police station approximately 75 yards away. Their three pieces of luggage and a newspaper lying in the back seat with the airline tickets and baggage claim checks folded inside were taken from the cab to the station.
At the station, the men were placed in separate rooms and questioned. Clardy claimed ownership of a green bag and consented to its being searched. He withdrew consent for a brown soft-sided bag which he explained he shared with his companion. After verifying the identity of the two men, the officers said they were free to go but that the bags would be held until a search warrant was obtained. As they were leaving, each man disclaimed ownership of the brown soft-sided bag. About two and one-half hours later, ...