Appeal by defendant from Thornburg, Judge. Order entered 9 October 1980 in Superior Court, Mecklenburg County. Heard in the Court of Appeals 12 October 1981.
Becton, Judge. Chief Judge Morris and Judge Arnold concur.
We must determine (1) whether Grimmett was seized within the meaning of the Fourth Amendment; (2) if a seizure occurred, whether a reasonable and articulable suspicion of criminality existed at the time of the seizure; (3) whether Grimmett voluntarily consented (a) to accompany the law enforcement officers inside the terminal, and (b) to the search of his belongings; and (4) if Grimmett gave his consent after he was illegally seized, whether the search of his belongings was the tainted product of the illegal seizure and rendered inadmissible the cocaine seized from his person.
Grimmett contends (1) that the profile traits he allegedly exhibited provided neither probable cause to arrest him nor a reasonable and articulable suspicion that he was engaged in criminal activity; and (2) that even if the initial stop by the officers was justifiable, the officers, nevertheless, deepened the intrusion and effectively took him into custody by requesting that he accompany them to their basement office so as to render illegal the subsequent search of his belongings and person. We reject these contentions, and affirm the order of the trial court.
Grimmett was first observed by Special Agent J. A. Davis of the State Bureau of Investigation, and Officer D. R. Harkey of the Charlotte Police Department on 4 February 1980 at the Eastern Airlines ticket counter at Douglas Municipal Airport. Grimmett and his companion, Randy Huss, appeared to be "in a big hurry"
to catch their flight. An Eastern Airline ticket agent informed Davis that Grimmett and Huss had purchased their tickets with cash, that they were travelling to Daytona Beach, Florida, and that they were ticketed to return on 5 February 1980.
Grimmett did not return to Charlotte until 7 February 1980. On this occasion he was observed by Davis and Harkey leaving Eastern Airlines' baggage pick-up area. The officers had not seen Grimmett deplane, nor had they observed him as he moved from the concourse to the baggage area. When first observed, Grimmett was approximately five to eight feet behind Huss and a female friend of Huss' who had met Huss in the baggage pick-up area. As Huss and his female friend exited the terminal building, Huss was stopped by Davis. Simultaneously, Grimmett was stopped by Harkey.
Upon approaching Grimmett, Harkey identified himself and informed Grimmett that he was conducting a narcotics investigation. Grimmett appeared extremely nervous. Harkey then requested, first, to talk with Grimmett; second, that Grimmett give him some identification; and third, that Grimmett accompany him inside the terminal to continue their conversation. Grimmett assented to all requests and was first led to the airport police office about twenty feet away. Because that office was crowded, Grimmett was then led downstairs, approximately 150 feet, to a hallway outside a room the officers were using as an office. There, Grimmett opened the suitcase that the officers had taken from Huss and produced identification. When asked by Officer Harkey if he were carrying contraband, Grimmett said, "No, go ahead and search the suitcase if you want to." In the suitcase a tinfoil package was discovered, and Grimmett was asked what it contained. He replied, "Crystal Meth," (a street name for a controlled substance). Grimmett was then placed under arrest and searched. Two bags of cocaine were found in his boot.
Two cases involving the "drug courier profile" have reached the United States Supreme Court. The facts in United States v. Mendenhall, 446 U.S. 544, 64 L. Ed. 2d 497, 100 S. Ct. 1870 (1980)
are strikingly similar to the facts in the case sub judice.*fn2 Ms. Mendenhall's alleged behavior pattern fell within the "drug courier profile," and she was, therefore, stopped and asked if she would talk to Drug Enforcement Administration (DEA) agents. She agreed to talk with the agents and was then taken to a DEA office and questioned. She later consented to a search. Grimmett's actions so closely parallel those of Ms. Mendenhall that one might think United States v. Mendenhall is totally dispositive of the issues we now address. A more thorough analysis of Mendenhall, however, convinces us that it is only dispositive of the consent issue which we address in Part V, infra ; it does not resolve the "seizure" and "reasonable and articulable suspicion" issues.
United States v. Mendenhall is inapposite for two reasons. First, the "seizure" issue in United States v. Mendenhall was not raised until the case reached the Supreme Court, and, consequently, a majority of the Members of the Court assumed Ms. Mendenhall was "seized."*fn3
Second, the suggestion in United States v. Mendenhall that behavior consistent with the "drug courier profile" provides DEA
agents with a reasonable and articulable suspicion of criminality has been substantially undermined by Reid v. Georgia, 448 U.S. 438, 65 L. Ed. 2d 890, 100 S. Ct. 2752 (1980). Significantly, thirty-four days after its decision in United States v. Nendenhall, the Supreme Court considered an almost identical factual situation in Reid v. Georgia and determined, with only Justice Rehnquist dissenting, that the DEA ...