Plaintiff was stopped, allegedly after being profiled, in the Minneapolis-St. Paul airport, after getting her bags and being cornered alone in an elevator. She sued, and the government moved for summary judgment which was denied. The District Court found questions for trial on consent and justification for the stop. Berg v. United States, 2007 U.S. Dist. LEXIS 7837 (D. Minn. February 2, 2007):
Fact questions remain as to whether Berg voluntarily consented to the search. Key and Toyen stopped Berg in an area that was secluded due to the time of day. Key’s attention was first drawn to Berg while she deplaned. However, Key then followed Berg through the airport to baggage claim. Key could have stopped Berg before she was in a secluded location where Berg would be outnumbered two to one. This fact, when coupled with the fact that Key and Toyen ran to get into the elevator with Berg, may be enough for a reasonable juror to doubt that Berg voluntary consented to be searched, and was instead coerced into submitting to a search because she felt she was not free to leave.
Moreover, Toyen demanded that Berg not become “indignant.” The manner in which Toyen spoke to Berg, when viewed in a light most favorable to Berg, does not support Defendants’ argument that Berg voluntarily consented to be searched. A reasonable juror could find that Toyen’s statement created an environment wherein a reasonable person would not feel free to leave and wherein she must submit to the authority of the officer or suffer the consequences, especially in light of the fact that neither Key nor Toyen told Berg that she was free to leave. See Escobar, 389 F.3d at 786 (finding that under a totality analysis, failure to inform citizens that they were free to refuse consent was one factor supporting a finding that the search was not voluntary). A reasonable juror could find that Berg’s invitation to “go for it” was not a clear declaration of consent under these circumstances, but rather submission in the face of no other alternative.
In addition, when Berg asked why she was being stopped, she was told that Key’s and Toyen’s job was to stop people who brought in drugs and laundered money. Although this statement, standing alone, did not create a seizure situation, when considered along with all the other evidence, including the fact that Key wrote down Berg’s personal information, a reasonable juror could find that Berg was not free to refuse consent to Key’s requests.
A fact question remains as to whether Berg voluntarily consented to Key’s search of her luggage, and therefore summary judgment is denied on this basis.
. . .
Fact questions remain as to whether Key’s actions were supported by reasonable suspicion.
Key testified that she stopped Berg because Berg’s bag looked too heavy. (Def. Ex. 3.) The DEA manual does not list having a heavy bag as a characteristic of a drug courier. A fact question remains as to whether Berg’s behavior and demeanor gave Key and Toyen reasonable suspicion that Berg was engaged in criminal activity. If Key’s criterion was whether an individual arrived from a source city carrying heavy luggage, many individuals would have been stopped on February 26, 2001.
Key further asserts that Berg’s behavior was similar to that of a drug currier she had observed “walking stiffed legged.” Key argues that this similarity gave her reasonable suspicion to stop Berg. However, there is nothing in the facts indicating that Key’s attention was drawn to Berg because she was walking with stiff legs. Key did not even search Berg’s person. Key is unable to point to any reasonable articulable rationale that amounts to more than a hunch for initiating contact with Berg and searching Berg’s carry-on bag.
Moreover, Toyen admitted that when Berg was looking out the windows, she was not doing anything unusual. Thus, this behavior did not provide reasonable articulable suspicion to search Berg’s bag.
Accordingly, fact questions remain as to whether Key had reasonable articulable suspicion to stop and search Berg. Thus, summary judgment is also denied on this basis.
Comment: The worm turns. (“To revolt is a natural tendency of life. Even a worm turns against the foot that crushes it.” Mikhail Bakunin in Bakunin on Anarchism (1980 ed. Sam Dolgoff).) Airport stop cases seemed to have disappeared from the reported cases. Here, a woman was targeted for a stop and search in the MSP airport, potentially racially profiled, nothing was found, and she sued the DEA.
Defendant was a passenger in a vehicle and he disclaimed ownership in the contents. Therefore, as a mere passenger, under Rakas he could not challenge the search of the vehicle. He was only charged with possession of a gun found in a common area and not any of the marijuana found in the vehicle. United States v. Samuels, 2007 U.S. Dist. LEXIS 8012 (S.D. Ga. February 5, 2007).*
