STATE OF FLORIDA, PETITIONER V. MARK ROYER

   No. 80-2146

   In the Supreme Court of the United States

   October Term, 1981

   On Writ of Certiorari to the District Court of Appeal of Florida,
Third District

   Brief for the United States as Amicus Curiae

            TABLE OF CONTENTS
   Interest of the United States
   Statement
   Summary of argument
   Argument
      I. Respondent had not been arrested at the time he
      consented to the search of his suitcases
      II. Respondent was not unlawfully seized by the Dade
      County police officers
      A. Respondent was not seized within the contemplation of
      the Fourth Amendment when Dade County police officers
      approached him and asked if he would show them his airline
      ticket and identification
      B. Even if the initial encounter with respondent constituted
      a Fourth Amendment seizure of his person, it was justified
      by reasonable suspicion of criminal activity
   Conclusion

                          QUESTIONS PRESENTED

   The United States will discuss the following questions:

      1. Whether respondent had been effectively arrested when he
      accompanied county narcotics officers from an airline terminal
      concourse to a near office where he agreed to a search of his
      luggage.  2. Whether respondent was illegally seized when the
      officers first approached him and asked to speak to him, or
      during the course of the interview which followed.

                     INTEREST OF THE UNITED STATES

   This case presents questions concerning the legality of procedures
utilized by local police officers in an airport surveillance program
designed to intercept couriers transporting narcotics through Miami
International Airport.  That surveillance program is similar to the
nationwide airport surveillance program operated by the federal Drug
Enforcement Administration (DEA) in order to intercept domestic
couriers transporting narcotics between major drug source and
distribution centers in the United States.  See United States v.
Mendenhall, 446 U.S. 544, 562 (1980 (opinion of Powell, J.).  The DEA
program is now in operation at more than 20 airports throughout the
nation, and is an important and highly successful part of DEA's total
drug enforcement effort.

   Under the DEA program, trained agents scrutinize arriving and
departing passengers on certain flights, looking for characteristics
and behavioral traits that, in their collective experience, tend to
distinguish drug couriers from ordinary passengers.  The DEA and its
agents in the field have also developed relatively standard procedures
for approaching and questioning individuals suspected of being drug
couriers.  These procedures generally involve a pattern of
investigation similar to that in the present case.  Accordingly, the
outcome of this case will have a significant impact upon the viability
of DEA's important airport surveillance program and the federal
program for enforcement of laws against drug trafficking.  /1/

                               STATEMENT

   1. The evidence adduced at the suppression hearing in this case
showed at approximately 12:30 p.m. on January 3, 1978, Dade County
plainclothes police officers Johnson and Magdalena were working on
narcotics detail at Miami International Airport.  Officer Johnson
noticed respondent as he waited in line at the ticket counter of
National Airlines.  The officers observed respondent over a period of
15 to 20 minutes (Tr. 6-7, 9, 11-13, 18).  /2/ Respondent was pale and
appeared to be extremely nervous (Tr. 14-15, 18-19).  He kept a close
watch on two large and seemingly heavy American Tourister suitcases
that he had set down underneath a rope in front of the ticket counter,
and continually glanced around as if looking to see whether anyone was
paying particular attention to him (ibid.).  After respondent paid for
his ticket in cash from a large roll of bills, he was given two
adhesive labels to attach to his suitcases (Tr. 18-21).  Respondent
wrote the words "Holt" and "La Guardia" on the labels, but did not
fill in either an address or phone number in the spaces provided (Tr.
21-22).  After checking his two suitcases, respondent proceeded to the
concourse leading to the boarding area (Tr. 22-23).

   Based on the foregoing observations, which had aroused their
suspicions, the two officers approached respondent, identified
themselves as police officers, and asked him if he had a moment to
talk to them (Tr. 23-24;  38-39).  When respondent replied that he
did, Officer Johnson asked to see his airline ticket.  Respondent
produced a one-way ticket to New York in the name "Holt" (Tr. 24).
Johnson then asked to see some identification, and respondent produced
a New Jersey driver's license bearing the name "Mark Royer" (Tr.
24-25).  When asked to explain the discrepancy, respondent stated that
a friend had made the reservation for him in the name of "Holt" (Tr.
25).  By this time respondent was extremely nervous;  his face was
pale, his hands were shaking, and he was visibly sweating (ibid.).

   The officers informed respondent that they were narcotics
investigators and that they had reason to suspect he was transporting
narcotics (Tr. 26).  They asked him to accompany them to a room
approximately 40 feet away in order to get out of the general
population of the airport (Tr. 26-27).  /3/ Respondent followed
without protest.  The officers led respondent to an airline
stewardesses' lounge, where a large storage closet along one wall had
been converted into a small office used by the police, outfitted with
a desk and two chairs (Tr. 27).

   Inside the office, one of the officers requested respondent's
consent to a search of his suitcase, explaining that he was suspected
of carrying narcotics and that a search would either dispel or confirm
that suspicion (Tr. 28).  /4/ Respondent produced a key from his
pants' pocket and unlocked one of the suitcases, which Officer Johnson
then opened (Tr. 29).  As for the second suitcase, which appeared
brand new, respondent claimed not to know the combination (Tr 29, 45).
 Officer Johnson asked him if he had any objection to their opening
that suitcase, and respondent replied, "No, go ahead" (Tr. 29).  When
Johnson explained that he might have to break the suitcase, respondent
stated he had no objection (ibid.).  Officer Johnson then opened the
suitcase with a screwdriver (Tr. 30).  Respondent's luggage contained
what was later determined to be 65 pounds of marijuana (Tr. 29-30).
Respondent was placed under arrest and given Miranda warnings (Tr.
33).

   Respondent was the only witness besides Officer Johnson to testify
at the suppression hearing.  Respondent claimed that he had agreed to
talk to the officers, had shown them his airline ticket and driver's
license, and had accompanied them to their airport office because he
felt he had no choice (Tr. 52-54).  He explained his cooperation,
stating "(T)hey were police officers and I felt that's what I had to
do" (Tr. 52).  /5/ Respondent further testified that when he entered
the office the officers asked him to empty his pockets and later
"told" him to open up the suitcase with the key he had removed from
his pockets.  /6/ In each instance he complied.  He explained that he
made no attempt to leave because he "didn't think that was a
possibility" (Tr. 57).

   2. Respondent argued that he had been placed under arrest because
he reasonably believed his Liberty constrained, that there was no
probable cause to support an arrest, and that his consent to the
search was accordingly ineffective (Tr. 66-70).  The State argued that
the original contact was not even a stop requiring reasonable
suspicion (Tr. 71-72), and in the alternative that the officers had a
founded suspicion that respondent was engaged in criminal activity
sufficient to support a minimally intrusive investigative detention of
limited duration under Terry v. Ohio, 392 U.S. 1 (1968) (Tr. 72-74).

   The trial court denied the motion to suppress from the bench,
finding the search conducted to have been reasonable (Tr. 78-79).  The
court stated (ibid.):

      (T)he Court believes that the consent was freely and voluntarily
      given the same token, I think under circumstances such as this
      where the police officers are in the airport and are
      surveilling, as testified to by the officer, with a specific
      profile that they are following, that the officer doesn't have
      the time to run out and get a search warrant because the plane
      is going to take off.  If there is going to be anything
      occurring it's going to occur long before they can take any type
      of action.  So it's a denial on dual grounds.  Might as well get
      it tested whether it's reasonable or unreasonable because, I
      assume you are taking an appeal.  /7/

   3. A panel of the District Court of Appeal of Florida, Third
District, one judge dissenting, affirmed (Pet. Supp. App. 1-35).  On
rehearing, the en banc court reversed the denial of the suppression
motion (id. at 36-7g) and directed dismissal of the charges against
respondent (id. at 56).

   The en banc court held (Pet. Supp. App. 47-50) that respondent had
been arrested at the time he consented to the search of his suitcases
because he "was 'under (the) reasonable impression that he (was) not
free to leave * * *'" (id. at 49;  citations omitted).  In support of
the arrest characterization, the court noted that respondent was
placed in confined quarters with two policemen, that he had been told
of the officers' suspicions, that his plane ticket and luggage had
been taken from him, /8/ and that the State had conceded at oral
argument that respondent would not have been allowed to leave the
police office had he attempted to do so (id. at 47-48).

   The en banc court held the arrest unlawful for lack of probable
cause (Pet. Supp. App. 50-53).  /9/ Respondent's consent to the search
was held to be an unattenuated fruit of the unlawful arrest and
therefore to have been involuntary and invalid (id. at 53-55).
Finally, turning to the trial court's alternate holding, the en banc
court declined to decide "whether 'exigent circumstances' are involved
in departing airline passenger cases like this one," noting that such
circumstances could excuse only the absence of a warrant and not the
absence of probable cause to support a search (id. at 55-56). /10/

                          SUMMARY OF ARGUMENT

                                   I

   The issue actually decided by the court below is whether respondent
was effectively under arrest at the time he consented to the search of
his luggage.  The decision that he was rests upon the mistaken
application to that issue of the test for distinguishing seizures
subject to the Fourth Amendment from consensual police-citizen
contacts that do not implicate the Fourth Amendment at all.  The test
used, which turns on whether a reasonable person in respondent's place
would have thought himself free to leave, plainly cannot be applied to
distinguish investigative detentions from arrests, for both are
seizures having that characteristic.  Yet an investigative detention
is a less intrusive encounter justifiable on the basis of reasonable
suspicion falling short of the traditional probable cause standard for
arrest.

   An investigative detention is distinguishable from an arrest
requiring probable cause by reference to the limited duration and
purpose of the detention.  Here, the involuntary detention of
respondent, if any there was, was limited to a period of not more than
15 minutes (Tr. 31) and was rigidly circumscribed by the officers'
objective to seek respondent's consent to search respondent's luggage.
 Whether or not consent would be secured, and the results of any
search that might be authorized, were matters that would assuredly
become known within a short period of time.  Thus, respondent's
detention falls well within the bounds of a permissible investigative
detention, and, unlike the situation in Dunaway v. New York, 442 U.S.
200 (1979), was entirely different in character from an arrest.  None
of the factors cited by the court below in support of the arrest
characterization justify a contrary conclusion.

                                  II

   If this Court finds error in the holding that respondent had been
arrested, it may simply remand for consideration of the remaining
issues, which were not decided by the court below.  The Court may,
however, deem it appropriate instead to decide, or afford guidance
respecting, the questions whether respondent was unlawfully seized
when he was first approached by the police or at some time thereafter.

   A. It is our submission, consistent with the views expressed by
Justices Stewart and Rehnquist in United States v. Mendenhall, 446
U.S. 544, 551-557 (1980), that respondent was not seized when he was
approached by police and asked for his ticket and identification.
Whatever may have been the social or psychological wellsprings of
respondent's decision to cooperate with the officers' inquiry, the
question whether there was a Fourth Amendment seizure turns not upon
those factors but upon the objective behavior of the officers.  There
is no evidence here of any conduct by the officers that created an
objective basis for believing that respondent was not free to
terminate the encounter at will.

   Alternatively, if the Court concludes that this contact amounted to
a seizure, we submit that in light of the important governmental
interest in interdicting interstate commerce in dangerous drugs and
the very nominal intrusion involved, the facts known to the officers
at the time they approached respondent were sufficient to justify
their action.

   B. Assuming that respondent was not unlawfully seized in the
initial phase of the encounter, there can be no question that strong
reasonable suspicion amply justifying an investigative detention
quickly developed, for the initial interview alerted police to the
fact that respondent was traveling under a false name and that he had
lied to them in explaining this conduct.  These circumstances plainly
sufficed to establish reasonable grounds for the officers' ensuing
effort to secure respondent's consent to a search of his luggage.
/11/

                               ARGUMENT

 I. RESPONDENT HAD NOT BEEN ARRESTED AT THE TIME HE CONSENTED TO THE
SEARCH OF HIS SUITCASES

   Because it concluded that respondent's consent was tainted by an
unlawful arrest, the court below failed to consider whether or not
respondent's consent to the search of his suitcases had correctly been
found to be voluntary by the trial court.  The en banc appellate
court's decision, however, rests upon application of an erroneous
standard for determining whether an arrest has occurred.  The test
employed was whether respondent "was 'under (the) reasonable
impression that he (was) not free to leave the officer's presence'"
(Pet. Supp. App. 49;  citations omitted).  However, this standard
governs only the preliminary question whether respondent had been
seized at all for Fourth Amendment purposes and does not serve to
distinguish an arrest from a less intrusive seizure that need not rest
on probable cause.  Application of a proper standard looking to the
character and purpose of the detention shows that it was not of such a
nature as to require probable cause.

   1. In a series of decisions commencing with Terry v. Ohio, 392 U.S.
1 (1968), and including most recently Michigan v. Summers, No. 79-1794
(June 22, 1981), this Court has affirmed that particular kinds of
police conduct of an investigative nature may constitute a "seizure"
subject to the constraints of the Fourth Amendment and yet be
permissible under the general reasonableness standard dictated by that
provision, even in the absence of probable cause.  See also United
States v. Martinez-Fuerte, 428 U.S. 543 (1976);  United States v.
Brignoni-Ponce, 422 U.S. 873, 882-884 (1975);  Adams v. Williams, 407
U.S. 143 (1972).  At the same time, the Court has recognized that

      (N)ot all personal intercourse between policemen and citizens
      involves "seizures" of persons.  Only when the officer, by means
      of physical force or show of authority, has in some way
      restrained the liberty of a citizen may we conclude that a
      "seizure" has occurred.

Terry v. Ohio, supra, 392 U.S. at 19 n.16.  The test that has
generally been applied to distinguish consensual encounters from
seizures subject to the Fourth Amendment is whether "in view of all of
the circumstances surrounding the incident, a reasonable person would
have believed that he was not free to leave." United States v.
Mendenhall, 446 U.S. 554, 554 (1980) (opinion of Stewart, J.);  United
States v. West, 651 F.2d 71, 72 (1st Cir. 1981), petition for cert.
pending No. 81-307 (filed Aug. 14, 1981);  United States v. Patino,
649 F.2d 724, 726-727 (9th Cir. 1981);  United States v. Elmore, 595
F.2d 1036, 1041-1042 (5th Cir. 1979), cert. denied, 447 U.S. 910
(1980);  United States v. Wylie, 569 F.2d 62, 68 (D.C. Cir. 1977),
cert. denied, 435 U.S. 944 (1978);  State v. Reid, 276 S.E.2d 617, 621
(Ga.), cert. denied, No. 81-180 (Oct. 5, 1981), on remand from 448
U.S. 438 (1980);  see also United States v. Harrison No. 81-5042 (4th
Cir. Jan. 7, 1982), slip op. 5-6.  United States v. Price, 599 F.2d
494, 498 (2d Cir. 1979).  This is essentially the test invoked by the
court below to distinguish an arrest from a more limited seizure.  By
misapplying this test, the court below effectively rejected this
Court's repeated holding that not all seizures require a showing of
probable cause.

   Plainly, probable cause is not required to justify a police-citizen
encounter whenever a reasonable person in the citizen's position would
think himself not free to leave, for if there exists no objective
basis for believing that there has been a forcible detention, there
would be no seizure subject to the Fourth Amendment at all.  Rather,
an arrest requiring probable cause is to be distinguished from an
investigative detention by reference to the purpose and duration of
the detention as well as the procedures which accompany the detention.
 In Michigan v. Summers, supra, slip op. 8, the Court recognized the
"general rule that every arrest, and every seizure having the
essential attributes of a formal arrest, is unreasonable unless it is
supported by probable cause." Yet the Court upheld the detention of an
individual -- who was indisputably not free to leave -- during the
lawful search of his home, stating (ibid.):

      (T)he exception for limited intrusions that may be justified by
      special law enforcement interests is not confined to the
      momentary, on-the-street detention accompanied by a frisk for
      weapons involved in Terry (v. Ohio, 392 U.S. 1 (1968)) and Adams
      (v. Williams, 407 U.S. 143 (1972)).

   The Court explained (slip op. 8, n.12):

      If the purpose underlying a Terry stop -- investigating possible
      criminal activity -- is to be served, the police must under
      certain circumstances be able to detain the individual for
      longer than the brief time period involved in Terry and Adams.

   And the Court distinguished between searches and seizures requiring
a probable cause predicate and other lesser intrusions by reference to
"the character of the official intrusion and its justification." Slip
op. 9.

   The Court also quoted with approval Professor La Fave's recitation
of examples of investigative techniques that may justifiably be
carried out under the rubric of an investigative detention based upon
founded suspicion.  Ibid., quoting 3 W. La Fave, Search and Seizure
Section 9.2, at 36-37 (1978).  Professor La Fave's summary of the
governing principle concludes that the permissibility of extending a
Terry stop should turn on "(w)hether the police are diligently
pursuing a means of investigation which is likely to resolve the
matter one way or another very soon and whether it is rather essential
to the investigation that the suspect's presence be continued during
that interval." Id. at 40.

   The criteria for a valid investigative detention are fully
satisfied on the present record.  Once Officers Johnson and Magdalena
had observed that respondent was traveling under a false name and
recognized that respondent had lied in explaining the discrepancy in
names, /12/ they reasonably decided to seek respondent's consent to a
search of his suitcases.  Examination of respondent's luggage was
calculated to resolve promptly the accuracy of the suspicion and to
precipitate either his release or his arrest, for if respondent's
luggage had not contained contraband it seems clear that he would have
been free to go.  /13/ The entire encounter between the police and
respondent from their first approach until respondent's arrest lasted
no more than 10 to 15 minutes (Tr. 31).  And precisely because
respondent's consent to a search of the luggage was to be sought, his
presence was obviously essential to the investigation.

   2. Contrary to the District Court of Appeal's suggestion (Pet.
Supp. App. 50), Dunaway v. New York, 442 U.S. 200 (1979), provides no
support for the conclusion that the events that transpired here
amounted to an arrest requiring probable cause.  In Dunaway, police,
acting on information (not amounting to probable cause) that
implicated Dunaway in a murder, went looking for him and, after
locating him at a neighbor's house, placed him in a police car and
brought him to a police station without his consent.  There, after
being given Miranda warnings, Dunaway was interrogated in a custodial
situation for a period of an hour, at which point he confessed to the
crime.  Although Dunaway had not been formally arrested and charged
with a crime, the Court held that his detention without probable cause
was unlawful because it was "in important respects indistinguishable
from a traditional arrest." 442 U.S.at 212.  In support of this
characterization the Court noted the extended interrogation to which
Dunaway was subjected, the involuntary transfer to the police station,
and the use of an interrogation room, as well as the fact that he was
not told he was free to go and in fact would not have been allowed to
depart had he attempted to do so.  Mr. Justice White concurred (442
U.S.at 219-220) noting that the Court's opinion should not be read to
limit investigative detentions on less than probable cause to the
facts of Terry v. Ohio and stressing that the similarity between the
procedures used and a traditional arrest explained the result.

   This case is readily distinguishable.  First, the trial court in
this case apparently found that, unlike Dunaway, respondent consented
to the initial contace with police and to the ensuing move to the
"office" in the stewardesses' lounge.  In holding that the consent to
search was tainted by an illegal arrest, the en banc appellate court
never addressed the trial court's finding that the entire course of
conduct leading up to the search was consensual.  /14/ This consent
undercuts any claim that the respondent had been arrested by the time
he consented to the search of his luggage.  United States v.
Mendenhall, supra, 446 U.S.at 557-558.  But even if the move to the
office is assumed to have been non-consensual, there was nothing like
an arrest here.  First, the duration of the interview in this case was
much briefer than that in Dunaway.  Moreover, while the interrogation
in Dunaway ended after an hour with Dunaway's confession, there was
every indication that it would have continued indefinitely had Dunaway
not incriminated himself.  Nor did the interview here resemble a
custodial interrogation.  Indeed the officers' purpose in walking with
respondent to their airport quarters was not to secure information
from him but simply, if he agreed to it, to carry out a consent search
of his luggage under conditions that would spare respondent
unnecessary embarrassment.

   The setting here, too, was less suggestive of an arrest -- a
makeshift facility close to public areas of the airport with none of
the provisions for security commonly associated with a police station.
 In sum, the shift of location from the airport concourse to the
nearby lounge here carried no suggestion of arrest.  Respondent could
not reasonably have believed that, absent some further developments,
he was going to be charged with a crime or even detained for any
extended period of time.  By contrast, the involuntary transfer of
Dunaway in a police car from a neighbor's home to a police station had
all the earmarks of an arrest.  /15/

   3. Finally, we turn to the factual considerations noted below in
support of the conclusion that respondent had been arrested.  The
court first noted the confined quarters to which respondent was
removed in the company of two police officers (Pet. Supp. App. 47-48).
 /16/ But it is readily apparent that these makeshift quarters in no
respect resembled a cell or interrogation room and were devoid of any
equipment other than that which might be found in any office (TR. 27).
 Officer Johnson explained the absence of "police paraphernalia,"
noting that "it wasn't an area we could really secure very well"
(ibid.).  The most striking quality of these quarters was their lack
of resemblance to a police station;  plainly they were adopted purely
for convenience.  In short, there was nothing about this setting that
served to transmute into an arrest what was otherwise at most an
investigative detention.

   The second factor cited by the District Court of Appeal -- that the
officers told respondent of their suspicions -- is equally inadequate
to justify the arrest label applied.  This fact does nothing to
distinguish the encounter from an investigative detention.  Indeed,
contrary to the inference drawn by the court, by identifying the
nature of his suspicion Officer Johnson made it plain that it was
merely a suspicion that he entertained, that no charges were being
lodged in any formal sense, and that by consenting to a search the
respondent might have the opportunity to dispel that suspicion,
thereby terminating the investigation.  /17/ From the perspective of a
person not carrying contraband, it would thus have been absolutely
clear that there was no arrest here.  The situation in this respect
contrasts sharply with that in Dunaway.

   Another factor singled out by the en banc appellate court -- the
agents' control of respondent's luggage and his ticket (Pet. Supp.
App. 48) is again entirely insufficient to convert the encounter from
a Terry stop to an arrest.  First, as is noted above (page 3 note 4),
it is by no means clear that the officers secured respondent's luggage
before obtaining his consent.  And even if they did, that would in no
respect alter the fundamental character of the encounter.  Certainly
if, as we argue below (see page 30 note 27, infra), there was by this
juncture reasonable suspicion justifying a brief detention of
respondent for the purpose of seeking his consent to a search of the
suitcases themselves so as to make it possible to search them if
consent was forthcoming.  The detention of the suitcases prior to
securing respondent's consent to their search, if it indeed occurred,
lasted only a matter of moments.  /18/ Because the officers promptly
made it clear to respondent that the purpose of retrieving his luggage
was to make it possible for them to search it if he consented, the
retrieval of the luggage underscores, rather than contradicts, the
limited character of the contact between police and respondent.  The
retrieval of the luggage accordingly did not convert the situation
into an arrest.

   The officers' retention of respondent's airline ticket is also no
more probative of an arrest than the other factors discussed above.
It may be that the officers' failure immediately to return
respondent's ticket lends support to the conclusion that he was at
some point seized (but see note 27, infra), but the ticket was never
removed from respondent's presence, and the officers' custody of it in
no way implied that the interview of respondent was tantamount to
lodging of a criminal charge, or that his detention would not end upon
completion of the brief planned course of investigation.

   A final factor adduced by the court below in support of its
conclusion that respondent had been arrested was the State's apparent
concession at oral argument that the officers would not have allowed
respondent to leave the makeshift office if he had sought to do so
(Pet. Supp. App. 50).  This concession is not supported by anything in
the record, and it is thus simply impossible to say what the
subjective intentions of Officers Johnson and Magdalena were.  In any
event, those subjective intentions are irrelevant, for there is no
indication that any such intentions were communicated to respondent.
Scott v. United States, 436 U.S. 128, 136-137 (1978);  United States
v. Mendenhall, supra, 446 U.S.at 554 n.6 (opinion of Stewart, J.).
Moreover, the State's concession is inapposite to the inquiry at hand,
for even assuming the officers planned to detain respondent, if he
sought to leave, until they had ascertained whether he would consent
to a search of his bags, that shows only that he would have been
seized, if necessary, and not that he was seized.  Furthermore, to the
extent the officers' subjective intentions may be considered, they
bear only upon whether there was a seizure of some kind and not on
whether the seizure was an arrest.

   In sum, there is nothing in the record that supports the District
Court of Appeal's conclusion that respondent had been subjected to an
arrest or its functional equivalent at the time he consented to the
search of his suitcases.  The contraband uncovered is thus not
suppressible as the fruit of an unlawful arrest.

 II. RESPONDENT WAS NOT UNLAWFULLY SEIZED BY THE DADE COUNTY POLICE
OFFICERS

   Thus far we have argued that respondent was not under arrest or
subject to a functionally equivalent form of detention requiring a
probable cause predicate at the time he agreed to the search of his
luggage.  If the Court agrees with our submission, it may simply
remand the case to the Florida courts for any further proceedings.
Alternatively, however, the Court may deem it appropriate to address
some of the remaining issues in this case, which may be urged as
alternative grounds for affirmance or arise upon remand, so as to
provide guidance for the courts below.  That course may be
particularly appropriate because the opinion under review gives reason
to believe that the court below is disposed to an erroneous view of
the law that would apply on remand.  We address those issues in the
remaining sections of this brief.

   Assuming that respondent was not arrested at any point prior to the
search the question may arise whether he was subject to any lesser
intrusion regulated by the Fourth Amendment, and if so, whether the
necessary predicate for that police conduct existed.  /19/ It is our
threshold contention that respondent was not seized within the meaning
of the Fourth Amendment during the initial encounter with police.
Alternatively, we contend that if a seizure technically occurred, the
intrusion effected was so modest as to be reasonable in light of the
grounds for suspicion known to the officers at the time they contacted
respondent.  Finally, we argue that the second phase of the encounter,
in which respondent accompanied the officers to their makeshift
office, was either a continuation of a consensual encounter, or at
most a time-limited investigative detention justifiable in light of
the additional grounds for suspicion established in the first phase of
the interview.

   At the outset, we note the significant parallels between this case
and Mendenhall.  In Mendenhall the Court considered an airport
encounter between agents of the federal Drug Enforcement
Administration and an individual suspected of transporting narcotics
that was in many respects similar to that at issue here (see 446
U.S.at 547-549).  The Court held that the initial approach of the
agents to Mendenhall, and their request for identification and her
airline ticket, did not constitute an unlawful seizure (id. at 557).
Justices Stewart and Rehnquist concluded that the encounter did not
constitute a seizure subject to the Fourth Amendment at all,
explaining (id. at 553):

         We adhere to the view that a person is "seized" only when, by
      means of physical force or a show of authority, his freedom of
      movement is restrained.

   Justice Powell, joined by the Chief Justice and Justice Blackmun,
did not reach the question whether Mendenhall had been seized because
the government had not argued the contrary in the lower courts, which
had accordingly assumed that a seizure occurred.  Id. at 560.  They
noted, however, that they did not necessarily disagree with Justice
Stewart's analysis.  See also Reid v. Georgia, 448 U.S. 438, 442-443
(1980) (Powell, J., concurring).  On the merits, the concurring
Justices concluded that, even assuming Mendenhall had been seized when
approached by the DEA agents, the intrusion was so modest as to be
reasonable in light of the grounds for suspicion known to the agents.
446 U.S.at 565.  As will be evident, our argument applies, in turn,
the analysis employed by Justice Stewart and that employed by Justice
Powell.

 A. Respondent Was Not Seized Within The Contemplation Of The Fourth
Amendment When Dade County Police Officers Approached Him And Asked If
He Would Show Them His Airline Ticket And Identification

   The issue addressed in Justice Stewart's opinion in Mendenhall --
the standards by which it is to be determined whether an encounter
between law enforcement officers and an individual whom they may
suspect of wrongdoing constitutes a "seizure" of the person rendering
the encounter subject to the Fourth Amendment -- is one of great
practical importance.  In the course of discharging his law
enforcement and community caretaking responsibilities, the
conscientious police officer is (and properly should be) constantly
alert to events or behavior that indicate some possibility that
violations of law are taking place.  Usually the initial basis for
suspicion will not amount to probable cause, and often it will not
constitute the degree of reasonable suspicion necessary to justify any
kind of forcible detention of the individual.  At the same time, the
only available means of investigating the suspicion will often be
through inquiry of the individual, which in some significant
proportion of instances will lead to the discovery of further
information ultimately resulting in the apprehension of a criminal or
the prevention of a crime.  We find it hard to imagine that a rational
set of rules would require the officer to shrug his shoulders and walk
away in such circumstances, rather than making contact with a suspect
in order to pursue the inquiry.

   As in Mendenhall and in the instant case, a salient characteristic
of such investigatory encounters will often be their ambiguity:  the
officer will say nothing regarding the individual's freedom to walk
away, and the individual will not inquire.  At heart, then, the legal
inquiry into whether such an encounter constitutes a Fourth Amendment
seizure will often turn on the choice of a presumption in favor of or
against the conclusion that an encounter, without more, constitutes a
seizure.  We submit that this Court has already decided this question
in favor of the view that an encounter will be presumed not to be a
seizure in the absence of affirmative evidence to the contrary.  Thus,
as the Court stated in Terry, "(o)nly when the officer, by means of
physical force or show of authority, has in some way restrained the
liberty of a citizen may we conclude that a 'seizure' has occurred."
392 U.S.at 19 n.16 (emphasis supplied).  /20/ See also Sibron v. New
York, 392 U.S. 40, 63 (1968) ("show of force or authority which left
(the individual) no choice");  cf. Adams v. Williams, supra, 407
U.S.at 146 n.1.

   As Justice Stewart aptly summed up the controlling principles in
Mendenhall (446 U.S.at 554-555;  footnotes and citations omitted):

      (A) person has been "seized" within the meaning of the Fourth
      Amendment only if, in view of all of the circumstances
      surrounding the incident, a reasonable person would have
      believed that he was not free to leave.  Examples of
      circumstances that might indicate a seizure, even where the
      person did not attempt to leave, would be the threatening
      presence of several officers, the display of a weapon by an
      officer, some physical touching of the person of the citizen, or
      the use of

language or tone of voice indicating that compliance with the
officer's

      request might be compelled.  * * * In the absence of some such
      evidence, otherwise inoffensive contact between a member of the
      public and the police cannot, as a matter of law, amount to a
      seizure of that person.

This test has been adopted by all of the federal courts of appeals to
address this question (see pages 10-11, supra), and the courts have
generally concluded upon facts similar to those presented here that no
seizure has been effected.  See, e.g., United States v. Wylie, supra,
569 F.2d at 68 ("what a reasonable man innocent of any crime would
have thought had he been in defendant's shoes");  United States v.
West, supra;  United States v. Setzer, 654 F.2d 354, 358 (5th Cir.
1981), United States v. Berry, 636 F.2d 1075 (5th Cir. 1981),
rehearing en banc granted, 649 F.2d 385 (11th Cir. 1981);  but see
United States v. Patino, supra.

   Here, as in Mendenhall, no seizure occurred when the officers
approached respondent.  Indeed, the pattern of the two encounters is
strikingly similar -- a fact we ascribe to professional police
training.  /21/ Just as in Mendenhall (446 U.S.at 555):

      (T)he events took place in the public concourse.  The (officers)
      wore no uniforms and displayed no weapons.  They did not summon
      the respondent to their presence, but instead approached (him)
      and identified themselves as (police officers).  They requested
      but did not demand to see the respondent's identification and
      ticket.

   Tr. 25-26, 31-32, 34.  Although the officers did not expressly
state that respondent was free to leave, that was not essential to a
find that the encounter was consensual.  United States v. Mendenhall,
supra, 446 U.S.at 555 (opinion of Stewart, J.);  Schneckloth v.
Bustamonte, 412 U.S. 218, 227 (1973).  Because the officers at all
times proceeded in a conversational manner containing no manifestation
of an authoritative demand, the absence of an express disavowal of any
such demand is not significant.

   On this threshold issue of the existence of a Fourth Amendment
seizure of the defendant's person, the burden of proof is properly
placed upon the defendant.  /22/ In the present case, respondent has
not identified, and indeed the record does not appear to contain, any
evidence of behavior by the officers -- let alone the use of "physical
force or show of authority" that is the stated benchmark of a
"seizure" -- from which he could reasonably have concluded that he was
not free to leave.  Respondent himself testified solely to his
subjective reaction to the encounter:  that because he had been
approached by police officers, he did not feel free to refuse to
cooperate with their inquiry (Tr. 52).  But whether an encounter is or
is not a seizure regulated by the Fourth Amendment cannot properly
turn upon the subjective beliefs or characteristics of a suspect,
matters that are unknowable to the officers and therefore would result
in precisely the same objective conduct having varying and
unpredictable legal consequences.  Indeed, this Court has consistently
recognized that this kind of question is in fact governed by an
objective standard.  E.g., Scott v. United States, supra, 436 U.S.at
136-137;  Terry v. Ohio, supra, 392 U.S.at 21-22.

   In so saying, we do not doubt that the socialization of many
members of our society promotes in them an attitude of cooperation
with law enforcement authorities that would render it psychologically
difficult to refuse even the most politely framed police inquiry.  Nor
do we question that persons such as respondent, approached in the
midst of commission of a serious crime, will often be prompted by
feelings of guilt or anxiety to cooperate with police inquiries, even
to the point of confessing or consenting to a search that they know
will reveal evidence of their illegal activity.  Both types of
reactions are commonplace, and both are of great utility to law
enforcement efforts.  But so long as the impetus for cooperation
springs from the individual's socialization and psychological makeup,
and is not induced by behavior of the officers that demands
cooperation even from those not internally disposed to it, there is no
justification for bringing the restrictions of the Fourth Amendment to
bear.  Schneckloth v. Bustamonte, supra, 412 U.S.at 234 n.15;
Coolidge v. New Hampshire, 403 U.S. 443, 488 (1971);  see also United
States v. Washington, 431 U.S. 181, 187-188 (1977);  Miranda v.
Arizona, 384 U.S. 436, 477-478 (1966) ("It is an act of responsible
citizenship for individuals to give whatever information they may have
to aid in law enforcement.") /23/

   If the presence of a Fourth Amendment seizure is to be determined
with reference to the subjective motives of the individual for
cooperation, or on the basis of presumptions that suspects would not
voluntarily cooperate with police inquiries but would do so only in
submission to an assertion of authority, the result would be to
convert most police-suspect encounters into "seizures" requiring
specific, articulable suspicion of criminal activity.  Such a result
would place a damaging and entirely unwarranted burden upon law
enforcement, for it makes no allowance for the progressive
accumulation of evidence that in many situations represents the only
means by which suspicion amounting to probable cause may be
established, and criminal activity detected or prevented.  Recognition
of this principle lies behind the rule of Terry and its progeny
recognizing the permissibility of limited 6-9 (collecting cases).  The
cases establish three considerations to be weighed dictate that
objectively non-coercive encounters between police and citizens
(including those suspected of criminal activity) be allowed without
demonstration of any particular level of suspicion as a predicate.
/24/

 B. Even If The Initial Encounter With Respondent Constituted A Fourth
Amendment Seizure Of His Person, It Was Justified By Reasonable
Suspicion Of Criminal Activity

   As noted above, this Court has repeatedly held that police may
detain a person for investigative purposes not tantamount to an arrest
o the basis of reasonable suspicion that he is engaged in criminal
activity that does not meet the standard of probable cause.  Michigan
v. Summers, supra, slip op. 6-9 (collecting cases) .  The cases
establish three considerations to be weighed in determining the
reasonableness of an investigative detention:  "(i) the public
interest served by the seizure, (ii) the nature and scope of the
intrusion, and (iii) the objective facts upon which the law
enforcement officer relied in light of his knowledge and expertise."
United States v. Mendenhall, supra, 446 U.S.at 561 (opinion of Powell,
J.; citations omitted).

   Little need be said to establish the compelling public interest
served by airport surveillance for drug couriers.  As explained by
Justice Powell in Mendenhall (446 U.S.at 561-562) there are few law
enforcement activities more essential to the well-being of our
society.  The high priority assigned to this matter by the federal
government, which was noted in Mendenhall, continues to this date and
explains our interest in this case.  A holding that requires a high
level of suspicion for the kind of minimally intrusive police inquiry
involved in the initial questioning of respondent and that discredits
reliance upon the kinds of subtle factors that have proved reliable to
trained agents in the special context of airport drug courier
detection would have a grave adverse impact upon what has proven to be
one of the most successful programs for interdicting this nation's
illicit drug traffic.

   Turning to the second factor cited in Justice Powell's opinion in
Mendenhall, the nature and scope of the intrusion, the initial police
contact in this case, if a "seizure" at all, was the mildest sort of
infringement upon respondent's liberty imaginable.  It involved no
actual or overtly threatened physical restraint, the inquiry was made
in a polite and unobtrusive conversational manner and entailed no
public embarrassment, and it was of very brief duration (especially
prior to the development of additional information strengthening the
officers' suspicions).  The parallels between the instant case and
United States v. Martinez-Fuerte, 428 U.S. 543 (1976), are especially
instructive.  Both cases involved the activities of specially trained
law enforcement officers dealing with a specific and serious law
enforcement problem at a location that was a relatively focused point
for the particular activity under investigation.  In both cases the
agents were confronted with the task of singling out from a relatively
large universe of innocent travelers a small group of offenders.  In
Martinez-Fuerte the Court not only sanctioned routine interference
with all motorists passing the checkpoint, but, most relevant here,
permitted the officers to single out certain motorists for a stop of
longer duration at a secondary inspection station on the basis of
factors that concededly would not have constituted reasonable
suspicion of alien smuggling activity in other contexts, justifying
this result in large part on the basis of the very limited nature of
the intrusion.  Id. at 563.  In this case, the intrusion is no greater
than in Martinez-Fuerte, but the level of individualized suspicion is
substantially stronger.

   This brings us to the third factor in the analysis -- the basis for
the officers' suspicions.  Whatever might be said about the
substantiality of the facts observed by the officers here as a basis
for justifying a more intrusive seizure in a setting different from
and less specialized than the airport drug interception effort, the
officers' actions in this setting were well justified.  Among the
facts that supported the officers' suspicion were respondent's extreme
nervousness, his particular concern for his luggage, his scrutiny of
others suggesting he was trying to ferret out surveillance, his use of
cash from a large roll of bills to pay for his ticket, and his failure
to completely fill in the required baggage labels.

   The District Court of Appeals stressed its view that these traits
may commonly be associated with innocent behavior (Pet. Supp. App.
39-41).  That observation wholly fails to support the conclusion drawn
from it;  if the facts observed were consistent with criminal behavior
only, they would supply probable cause.  In any event, these facts are
not to be regarded in isolation but in conjunction, in light of the
special setting in which they arose, and through the trained eyes of
an airport drug surveillance detective.  United States v. Cortez, 449
U.S. 411, 418-420 (1981);  United States v. Mendenhall, supra, 446
U.S.at 563-565 (opinion of Powell, J.);  United States v.
Brignoni-Ponce, supra, 442 U.S.at 884-885.  Viewed in this manner,
even conduct that might appear "wholly innocent to the untrained
observer" may create an articulable basis for suspicion when viewed by
a trained officer.  Brown v. Texas, 443 U.S. 47, 52 n.2 (1979).

   Although the evidence relied upon by the officers here is subtle,
it is not to be disregarded.  As the statistics cited in Mendenhall
(446 U.S.at 562) reveal, these factors, which along with others have
been compiled into an informal drug profile used in one form or
another by federal agents and many state agents, have proven a
powerful indication of criminal drug smuggling activity.  Moreover, it
is simply unrealistic to expect professional drug couriers to give
themselves away in any more blatant fashion.  To require police to
disregard such subtle clues is to discard what may be the only
effective means of combatting drug smuggling accomplished through
commercial air transportation.  In view of the extremely limited
intrusion involved, the grounds for suspicion available to the
officers here should be held a sufficient predicate for any "seizure"
associated with the initial questioning of respondent.

   In suggesting a contrary conclusion, the court below stated that
Officer Johnson's claim that he could differentiate ordinary flight
anxiety from the nervous behavior typically exhibited by a drug
courier "must be completely disregarded" (Pet. Supp. App. 40 n.4).  We
cannot overemphasize the extent of our disagreement with the court
below, which ridiculed this element of the officers' observations as
"amateur forensic psychiatry" (ibid.).  In our view, it defies common
sense to support that officers who have spent months or years
observing tens of thousands of air travelers passing through airports
would not be able to distinguish between the type of nervousness
manifested by persons who fear apprehension for criminal activity and
that exhibited by persons who fear air travel, are worried about
missing a connecting flight, or are concerned about some other
commonplace and innocent anxiety associated with air travel.  In this
connection, we note that most drug couriers are aware of the existence
of courier detection programs at airports, so that their movement of
illicit drugs through airports must be a time of extraordinarily high
anxiety for them;  it would be astonishing if this anxiety were not
often manifested by visible symptoms of "nervousness" that, although
often subtle, are nevertheless reliably detectable by a trained or
experienced observer.  Indeed, the findings of modern science confirm
that there is an extensive "body language" consisting of non-verbal
and largely unconscious communication that all of us "speak" and
understand.  See, e.g., G. Lindzey, C. Hall & R. Thompson, Psychology
424-425 (2d ed. 1978);  J. Fast, Body Language (1970);  P. Farb, Word
Play 231-247 (1973).

   Thus, any rule that tells airport surveillance agents that they
must disregard observations of nervousness that in their experience is
typical of drug courier activity would deprive them of perhaps the
single most useful and reliable factor for singling out suspicious
individuals for further investigation.  It would also conflict with
decisions of this Court that recognize that a trained police officer
is a professional observer of criminal conduct who can often see
meaning where an untrained lay person would not.  United States v.
Cortez, supra, 449 U.S.at 418;  Brown v. Texas, supra, 443 U.S.at 52
n.2;  United States v. Brignoni-Ponce, supra, 444 U.S.at 885.  /25/

   The conclusion we espouse is not inconsistent with Reid v. Georgia,
448 U.S. 438 (1980).  The facts found insufficient there to establish
reasonable suspicion were less probative of criminal conduct than
those described here.  As the Court indicated in Reid (id. at 441),
the facts ovserved there "describe a very large category of presumably
innocent travelers." That observation would not apply to the basis for
the police contact here.  Particularly significant, in our judgment,
is the officer's recognition of furtive conduct typical of a drug
courier.  More importantly, the intrusion at issue in Reid assumed
significantly greater proportions than that at issue here, for there
the DEA agents stopped arriving passengers who had already left the
terminal.  The initial interrogation yielded no further incriminating
information, yet the defendants were asked to return to the terminal
and submit to a search.  The greater intrusion presumed to have
occurred in Reid /26/ may also have influenced the Court's conclusion
that there was insufficient suspicion to justify it.  /27/

                              CONCLUSION

   The judgment of the District Court of Appeal of Florida should be
reversed

   REX E. LEE

      Solicitor General

   D. LOWELL JENSEN

      Assistant Attorney General

   ANDREW L. FREY

      Deputy Solicitor General

   JOSHUA I. SCHWARTZ

      Assistant to the Solicitor General

   DEBORAH WATSON

      Attorney

   February 1982

   /1/ DEA has devoted considerable effort to training its agents to
assure compliance with the evolving outlines of the Fourth Amendment
law that governs airport drug surveillance.  In this training, the DEA
presently employs a comprehensive manual, Legal Problems in Airport
Interceptions of Domestic Drug Couriers (1980) ("DEA Manual"), that
instructs agents on the requirements of the Fourth Amendment.  We have
lodged copies of this publication with the Clerk for distribution to
the Court and provided copies to counsel.  Earlier versions of this
manual have been in use in DEA training since 1978.  Id. at 8.
Pursuant to 21 U.S.C. 873, the DEA provides training employing these
materials to state and local law enforcement personnel as well as
federal agents.

   /2/ "Tr." refers to the transcript of the May 22, 1978, suppression
hearing.

   /3/ At the suppression hearing, Officer Johnson explained that the
move was made "(f)or the protection of the general public" and to
minimize embarrassment to respondent (Tr. 32).

   /4/ The opinion under review states (Pet. Supp. App. 45) that the
officers retrieved the luggage and brought it to the office before
requesting respondent's consent to search.  However, the record is not
entirely clear this point and could be read to suggest that the
sequence was the reverse.  See Tr. 28-29, 44-45, 48-49.  The trial
court made no finding on this point.

   /5/ Officer Johnson had testified that the entire encounter with
respondent proceeded in conversational tones and that no physical
force or threat was employed (Tr. 32-35).

   /6/ Officer Johnson testified, however, that respondent was asked
to empty his pockets after he was arrested (Tr. 49).

   /7/ The trial court did not explicitly address respondent's
contention that he had been effectively arrested, or the State's
contention that no seizure had transpired or that the encounter was a
permissible Terry stop.  The panel of the appellate court described
the trial court's alternative holding as follows:  (Pet. Supp. App. 2;
 footnote omitted):

      (W)ith the defendant fitting the profile of a drug courier and
      (sic) officers had probable cause to believe his luggage
      contained contraband, justifying a search.

   The actual ruling, quoted in the text, does not demand this
characterization.  Presumably the panel inferred from the lower
court's discussion of exigent circumstances that that court had found,
sub silentio, probable cause supporting a search, and had further
found (explicitly) that exigent circumstances excused the absence of a
search warrant.  But given the State's reliance upon Terry v. Ohio, it
seems more likely that the trial court's true intention was to
explain, by tracking loosely this Court's analysis in Terry, why
neither a warrant nor probable cause in required to justify limited
investigative detention.  Thus, it may be that the trial court meant
to hold, in conformity with the State's argument, that there was no
more than a Terry stop here, that it was properly supported by founded
and articulable suspicion, and that respondent's consent to the search
was accordingly untainted, even if the preceding interview was not
entirely consensual.

   /8/ The officers had retained respondent's airline ticket as they
walked with him from the concourse, where he had produced the ticket
in response to the officers' request, to the makeshift office.  Before
retrieving respondent's luggage, Officer Johnson removed the baggage
stubs from respondent's ticket folder, leaving the ticket behind with
respondent and Officer Magdalena in the office.  (Tr. 41-42, 44, 46).

   /9/ Because it held that respondent had been arrested, the en banc
court declined to decide whether the facts available to the officers,
including the discrepancy with respect to respondent's name, would
constitute reasonable suspicion sufficient to support a Terry stop
(Pet. Supp. App. 42-43 n.6, 51-52 & n.11).  The court did, however,
record its view (id. at 51) that "a mere similarity with the contents
of the drug courier profile is insufficient even to constitute the
articulable suspicion required to justify a Terry stop," citing Reid
v. Georgia, 448 U.S. 438 (1980).  Notwithstanding its reservation of
decision, the court also noted (Pet. Supp. App. 39-41) its view that
all of the bases for suspicion cited by the officers to explain the
initial contact "are at least equally, and usually far more
frequently, consistent with complete innocence" (id. at 39a).  The
court rejected out of hand (id. at 40 n.4) Officer Johnson's testimony
(Tr. 16-17) that based upon his experience he was generally able to
distinguish the furtive wariness of a drug courier from the flight
anxiety of a "white knuckle airline passenger."

   In light of its conclusion that respondent had been unlawfully
arrested, the en banc court also reserved decision as to whether he
had been "seized" for Fourth Amendment purposes as soon as the
officers approached him and asked to speak to him (Pet. Supp. App. 49
n.8).

   /10/ The en banc court evidently read the trial court's oral
opinion as holding that the exigency created by an air traveler's
imminent departure was in itself a sufficient predicate for a search,
without regard to the existence of probable cause (see Pet. Supp. App.
46-47, 55-56;  compare page 5 note 7, supra).

   /11/ Because of the limitations of space available to an amicus
curiae, and the number of issues presented by this case, we invite the
Court's attention to our brief in Michigan v. Summers, No. 79-1794
(June 22, 1981), pages 9-22, and our brief in United States v.
Mendenhall, supra, pages 47-62, wherein we address the distinction
between an arrest requiring probable cause and a lesser seizure
sustainable on the basis of reasonable suspicion more fully than is
possible here.  We similarly invite the court's attention to pages
19-26 of our brief in Mendenhall addressing the question whether the
initial contact with the respondent there was a seizure vel non, and
pages 26-42, which address the existence of reasonable suspicion at
the beginning of that encounter.  Copies of these briefs have been
provided to counsel.

   /12/ The identity between the name respondent placed on his luggage
tags and that on the airline ticket revealed the falseness of his
explanation that a friend had purchased the airline ticket for him.

   /13/ It does not matter that respondent might have refused consent
to the search.  Plainly the officers had a right to attempt to secure
such consent -- a procedure which took only a few moments.  Of course,
if respondent had refused consent and nevertheless been further
detained, a different question would be presented.

   /14/ In light of the arguments made in the trial court, we
interpret the court's rather conclusory finding of consent (see page
5, supra) to mean that the entire sequence of events up to and
including the consent to search was consensual.  If the Court deems
the trial court's finding insufficiently clear, a remand for further
proceedings may be warranted.

   /15/ The Court has on several occasions recognized that an
individual may properly be asked to make some movement from a point at
which he has encountered law enforcement officers for reasons of
safety and convenience without requiring that the officers be able to
adduce any greater reason for suspicion than that which occasioned the
stop originally" See, e.g., Michigan v. Summers, supra, slip op. 10
n.16, 13;  Pennsylvania.v. Mimms, 434 U.S. 106, 109-111 (1977);
United States v. Martinez-Fuerte, 428 U.S. 543, 560 (1976).

   /16/ We note that respondent was left alone with Office Magdalena
at the time Officer Johnson went to retrieve the luggage (Tr. 42).

   /17/ Officer Johnson recounted his statement to respondent

   (Tr. 28):

      To be the best of my recollection, it was something to the
      effect that we suspected that he was carrying narcotics, and
      that we would like him to open the suitcases to allow us to see
      what was in them to dispel that suspicion or to confirm that
      suspicion.

   /18/ This case thus does not present a question comparable to that
presented in United States v. West, supra, 651 F.2d at 74, petition
for cert. pending No. 81-307 (filed Aug. 14, 1981), where narcotics
agents detained a suitcase for a period of one hour pending the
arrival of a narcotics detecting dog because they reasonably suspected
that the suitcase contained narcotics.  There the defendant had
refused consent to search of his luggage and had been allowed to
proceed on his way while his bags were detained.  The instant case is
distinguishable by the extreme brevity of any detention of luggage,
the limited purpose served, and the fact that absent respondent's
consent to the search no significant intrusion upon respondent's
privacy or possessory interests in his luggage would have been
effected.  There is no reason to conclude that respondent's consent to
search was a product of the retrieval of his luggage.  We note that
the court below did not hold that the momentary detention of
respondent's luggage itself violated any Fourth Amendment right or
that the consent to search was a fruit of such a violation.  Rather,
the court viewed the retrieval of the luggage as an indication that
respondent had been arrested -- a conclusion we think entirely
unfounded for the reasons stated in the text.

   We note that the Second Circuit's recent decision in United States
v. Place, 660 F.2d 44 (1981), conflicts with the First Circuit's West
decision with respect to the lawfulness of the detention of luggage.
The Second Circuit has declined to reconsider its decision en banc,
and we intend to seek this Court's review of the decision in Place.
As explained above, however, there is no occasion to consider here
whether a detention of luggage of the sort involved in West and Place
is permissible based upon reasonable suspicion.

   /19/ Although respondent's counsel's argument on the motion to
suppress is not entirely clear, it appears that he did argue (Tr.
68-69) that even if he was not arrested, respondent was seized
unlawfully at some point.

   /20/ Justice White added, in a concurring opinion, that "(t)here is
nothing in the Constitution which prevents a policeman from addressing
questions to anyone on the streets." 392 U.S.at 34.  Justice Harlan,
too, noted that a policeman has the same right as any other citizen to
pose questions of others, so long as the individual addressed retains
his ordinary freedom to decline to satisfy his questioner.  Id. at
32-33.

   /21/ The DEA Manual stresses that agents who entertain a suspicion
that they believe may be insufficient to justify an investigatory
detention must not demand anything of a suspect, must not say or do
anything that would foster the impression that cooperation is
required, must not move anywhere with a suspect without his consent,
and generally must not create the impression that the suspect is not
free to leave.  DEA Manual 129-131.

   /22/ If, as the Court has held, "(t)he proponent of a motion to
suppress has the burden of establishing that his own Fourth Amendment
rights were violated by (a) challenged search or seizure," Rakas v.
Illinois, 439 U.S. 128, 131 n.1 (1978) (citations omitted), it
necessarily follows that the proponent of suppression must show that a
seizure implicating the Fourth Amendment in fact occurred.

   /23/ Discussing Coolidge, the Court in Schneckloth noted (412
U.S.at 234 n.15, quoting 403 U.S.at 488):

      We found nothing constitutionally suspect in the subjective
      forces * * * impell(ing) coopera(tion) with the police.  'Among
      those are the simple but often powerful convention of openness
      and honesty * * * .'

   /24/ We note, however, that contacts made by drug enforcement
agents are far from random.  See pages 25-30, infra.  Agents
participating in the DEA's airport surveillance program and others
receiving DEA training (see note 1, supra) are instructed that "(y)ou
must be able to articulate some facts" that precipitated the contact.
Id. at 126;  emphasis in original.  Although comprehensive statistics
reflecting the outcome of contacts initiated by DEA agents are
unavailable at this time, the restraint which governs the operation of
the program is revealed by evidence in some of the cases which have
arisen from it.  For instance, in United States v. Garcia, 450 F.Supp.
1020, 1022 (E.D.N.Y. 1978), the defendant was the only individual
contacted in a day of surveillance at New York's busy La Guardia
airport.  Available data concerning the outcome of searches authorized
by travelers contacted substantiates the conservative approach taken
by agents.  In the first 18 months of surveillance at the Detroit
Airport, 96 encounters involving 141 persons led to 77 discoveries of
narcotics and 122 arrests.  United States v. Mendenhall, supra, 446
U.S.at 562 (opinion of Powell, J.), citing United States v. Van Lewis,
409 F.Supp. 535, 539 (E.D. Mich. 1976), aff'd, 556 F.2d 385 (6th Cir.
1977).  See also DEA Manual, 2-3.

   /25/ We note that the observation of characteristic nervousness by
a trained officer is not less objective simply because it is difficult
to describe.  It is real, visible behavior that could be recognized as
indicative of possible drug courier activity by others if, for
example, a film of the suspect's behavior were available.  Moreover,
in this particular case, contrary to the suggestion of the court
below, the officers' suspicion did focus upon two objective
articulable facts relating to respondent's physical expression of
nervousness.  First, respondent's luggage appeared to be a special
object of concern.  Second, respondent appeared to be unusually
concerned about who might be watching him.  Viewed in conjunction,
these facts tend to corroborate the officers' suspicion sufficiently
to justify their initial approach to respondent.

   /26/ The Court in Reid did not decide whether the contact was
purely consensual.  448 U.S.at 443 (Powell, J., concurring).

   /27/ Assuming that the initial contact was lawful, it is plain that
respondent was not unlawfully seized when he accompanied the police
officers to their office.  First, the trial court evidently found that
the respondent voluntarily consented to accompany the agents to their
office.  As explained above (pages 23-24), respondent's testimony that
he felt obliged to honor the officers' requests is not inconsistent
with a finding of voluntary consent because there is no indication
that the officers' conduct induced this feeling in respondent.  Even
if respondent was seized at this juncture, the seizure was lawful, for
by then the officers had assuredly acquired reasonable suspicion of
illegal activity based upon respondent's use of a false name and his
proffering of a false story to explain the use of the alias.