W.D.La.: Stop, arrest, and search on anonymous tip was insufficient

The stop of defendant’s airplane in Louisiana was without probable cause, and the search was suppressed. A local police officer told an operator at a small airport to be on the look out for suspicious airplanes and conduct. An anonymous tip to some other officer from the operate led to innocuous conduct being parlayed into suspicion of crime, and it wasn’t. Officers “met Morgan’s plane with weapons drawn threatening to shoot. They ordered the occupants out, placed them face down on the tarmac and handcuffed them. After they were handcuffed they were allowed to sit on the tarmac separated from each other, immediately adjacent to an armed law enforcement officer until the air interdiction agents arrived.” Understatement of the month: “This show of force would make any reasonable person believe that he was not free to leave.” United States v. Morgan, 2011 U.S. Dist. LEXIS 142065 (W.D. La. December 8, 2011)*:

The totality of the circumstances reveals that the officers of the St. Landry Parish Sheriff’s Department did not have probable cause to arrest Morgan and the passengers on his plane. Agent Evans testified that all she informed the Air and Marine Operations Center was that she needed a K-9 and personnel assistance to detain the occupants in Opelousas until they arrived. She also advised them that a source contacted her and said individuals at the Victoria airport were acting strangely, smelled like marijuana, that there were “possibly two illegal aliens” (which she surmised from the report of the two Hispanic males) and they needed to make sure everything was “on the up and up.” Although nobody from the Sheriff’s Department who participated in the actual arrest testified, according to Agent Evans this was the only information that would have been in the possession of the Sheriff’s Department at the time of the arrest. However, even if all of the information in the possession of Agent Evans is imputed to the Sheriff’s Department, it still does not rise to the level of probable cause as she candidly admitted.

The evidence presented was that Agent Evans received an anonymous tip from someone at the Victoria, Texas airport whose reliability she could not verify other than to verify the itinerary. This source reported that the passengers on Morgan’s airplane were “acting strangely,” but neither Agent Evans nor the source clarified what actions constituted “acting strangely,” what that description meant or to whom this observation applied. The source said the plane occupants smelled of marijuana, however, Agent Evans did not know on which day the occupants allegedly smelled of marijuana, the day they arrived, the day they left or both. The source said the pilot purchased gasoline with cash which Agent Evans testified was a “red flag” that the pilot was trying to avoid a paper trail. However, the amount of gasoline purchased with cash was a relatively small amount — $155.20 — and there is no evidence that any effort was made by Morgan to destroy the paper trail for the purchase. On the contrary, the receipt introduced into evidence identified the tail number of the plane, the amount of the purchase, and the date and time it was purchased. From this information, the owner of the plane could be readily identified. Yet Agent Evans did not identify the owner until she got to the airport in Opelousas. The source said Morgan dropped off the two women passengers in Victoria, flew to McAllen, then returned with two additional men who appeared to be Hispanic. Agent Catalan confirmed that there is an Hispanic population in McAllen that is legally in this country.