Hubert H. Humphrey, III, State Attorney General, James P. Spencer, Assistant Attorney General, Paul R. Kempainen, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent).

John M. Stuart, Minnesota State Public Defender, Timothy C. Rank, Special Assistant Public Defender, Faegre & Benson, 2200 Norwest Center, 90 South Seventh Street, Minneapolis, MN 55402 (for appellant).

Considered and decided by Randall, Presiding Judge, Kalitowski, Judge, and Holtan, Judge.[*]

Appellant challenges the district court's conclusion that the arresting officer had reasonable suspicion to justify his investigative stop of appellant. We reverse.

Staber first noticed Martinson as Martinson descended the escalator to the baggage claim area. Martinson clutched his duffel bag tightly under his arm, "like a football" (according to Staber), even though it had a shoulder strap. Staber noted that Martinson "walked past carousel 14 and went to the restroom." Staber testified that he continued to watch Martinson at that time because drug enforcement officers note people who travel with only carry-on luggage.

After leaving the restroom, Martinson returned to the carousel, which he circled and paced around. Staber testified that Martinson "appeared agitated and upset." When the luggage from flight 916 arrived at the carousel, Martinson retrieved a hard-sided bag measuring approximately 30" by 12" by 8". Staber found it "unusual" that Martinson checked this bag, because it was small enough that Martinson could have carried it on the plane with his duffel bag.

As Martinson left the carousel, Staber and Giller approached him. Staber showed his badge and identified himself to Martinson as a member of the airport narcotics interdiction unit. Staber informed Martinson that he was not under arrest or being detained and asked Martinson if he could speak with him. Martinson consented.

Martinson told Staber that he was coming from Arizona via Las Vegas. When Staber asked to see Martinson's airline ticket, Martinson initially began to remove a Northwest Airlines ticket folder from his duffel bag, then quickly pushed that folder back into his bag and produced an America West ticket folder. The America West ticket was a one-way cash ticket from Phoenix to Minneapolis, via Las Vegas. Staber testified that he knew from experience that "most drug couriers travel with one-way tickets paid for with cash."

Staber then asked Martinson for identification. Martinson said he had no photograph identification or any identification containing his address. Martinson did produce a certified copy of his birth certificate.

Staber asked to see the Northwest ticket folder. Martinson presented it to Staber, saying that it was from an earlier trip. The Northwest ticket was a one-way cash ticket from Minneapolis to Phoenix dated May 31, 1995. When questioned about the purpose of his trip, Martinson answered that he had gone to Arizona for a job interview. Staber testified he found it suspicious that Martinson used two one-way tickets rather than one presumably less expensive round-trip ticket, that Martinson used two different airlines, and that Martinson said the Northwest ticket was from an earlier trip, even though it corresponded to Martinson's arrival in Phoenix two days earlier. The tickets contained information consistent with the birth certificate, except that the America West ticket listed Martinson's name as Martanson.

Staber asked Martinson if he would consent to a search of his luggage. Martinson said that he would not, and began to leave. Staber then told Martinson that he intended to detain Martinson and his bags until a narcotics dog at the airport could examine Martinson's luggage. The state concedes that Staber's conduct at this point constituted a seizure within the meaning of the Fourth Amendment.

Staber and Tyndall escorted Martinson outside so that he could smoke a cigarette until the dog arrived. While outside, Staber informed Martinson that the officers were not looking for people carrying small amounts of drugs for personal use. Martinson removed a small syringe and a small vial of crystal methamphetamine from inside his pants. At that point, Staber told Martinson that he was under arrest for possession of a controlled substance. Martinson threw the vial and unsuccessfully attempted to flee.

When the narcotics dog and its keeper, officer James Lindquist, arrived, the dog alerted to the duffel bag. Staber arrested Martinson and obtained a warrant to search both of his bags. The search revealed 1 kilogram of cocaine and 297 grams of methamphetamine in the hard-sided bag, and no controlled substances in the duffel bag.

The state charged Martinson with various crimes including importing cocaine across state borders in violation of Minn. Stat. § 152.0261 (1994). At a Rasmussen hearing on February 2, 1995, Martinson argued that the court should suppress the evidence discovered in his luggage because it resulted from a stop unsupported by a reasonable, articulable suspicion of criminal wrongdoing. The district court noted that it was a "close call" "whether the officers had sufficient basis to formally detain Martinson * * * long enough to have a narcotics canine brought to the area to examine his luggage * * * ," but ultimately denied the motion to suppress.

After a trial on stipulated facts, the district court found Martinson guilty of importing cocaine across state borders and sentenced him to 54 months in prison. On appeal, Martinson argues that the arresting officers did not have reasonable suspicion to support their investigative stop of Martinson, and that the district court should therefore have excluded all evidence obtained as a result of the stop.

Minnesota courts look first to United States Supreme Court cases for guidance in determining the reasonableness of a search and seizure. In re Welfare of E.D.J., 502 N.W.2d 779, 781 (Minn. 1993). A police officer may make an investigatory stop of a person if, based on the totality of the circumstances, the officer has a "particularized and objective basis for suspecting the particular person stopped of criminal activity." United States v. Cortez, 449 U.S. 411, 417-18, 101 S. Ct. 690, 695 (1981). The officer must be able to point to specific and articulable facts that, with rational inferences and deductions from those facts, support a reasonable suspicion of criminal activity. Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880 (1968); see also State v. Blacksten, 507 N.W.2d 842, 846 (Minn. 1993) (stating that an investigatory stop must not be "the product of mere whim, caprice, or idle curiosity") (citations omitted).

Here, Staber based his suspicions primarily on Martinson's conduct involving his luggage and on the information Staber obtained while talking with Martinson. Staber testified that Martinson's manner of clutching his duffel bag "very tightly," visiting the restroom, and pacing back and forth contributed to Staber's suspicion that Martinson might be committing a crime. Staber found Martinson's retrieval of his hard-sided bag at the carousel suspicious because it appeared that Martinson could have carried the bag on the plane, and that by checking the bag, he avoided subjecting it to a security check.

Staber found Martinson's purchase of two one-way cash tickets suspicious because he knew that drug couriers often pay cash and use one-way tickets to conceal their itineraries. Martinson's departure alone from a drug source city just two days after arriving there on a different airline also supported a suspicion of wrongdoing, according to Staber, because a short visit to a drug city is consistent with typical courier conduct, drug couriers often travel on multiple airlines to conceal their identities, and Staber presumed that Martinson could have saved money traveling to a job interview by purchasing a round-trip ticket on one airline. Lastly, Staber found it unusual that Martinson carried no picture identification or identification bearing his address.

The district court questioned most of the facts Staber relied upon as a basis for his stop of Martinson. With respect to Martinson's conduct surrounding his luggage, the court took judicial notice "that many airline passengers today travel with only carry-on luggage," and observed that "Staber admitted that there is nothing unusual about arriving airline passengers going to the restroom after a flight and before retrieving baggage." The court further stated:

Staber noted that when Martinson approached Carousel 14 after coming out of the restroom, he seemed "agitated * * * and * * * upset," and did not "remain in one place," but paced about the Carousel several times as opposed to other passengers who "remained right by Carousel 14." This court observes from personal experience that many passengers do not passively await baggage arrival at designated carousels at the airport. Indeed, many "pace," or otherwise move about after long flights while awaiting baggage arrival. Indeed, Staber admitted that it is not unusual for people not to stand in one location while waiting for bags to arrive at a carousel.

* * * *

Staber testified that he found Martinson's retrieval of [his checked luggage] "unusual" because he felt the bag was "small enough he could have carried it on the plane as well as his duffel bag." The court notes from personal experience that many airline passengers check luggage of the type checked by Martinson on this occasion.

The court is somewhat troubled by the fact that according to the officer's testimony, he initially considered Martinson "suspicious" because it appeared he was traveling with only carry-on luggage, and later considered it suspicious that he had checked a bag he could conceivably have carried on. Not only does this seem contradictory, but neither behavior appears to be suspicious in any way given the travel habits of numerous people today.

The court noted with regard to Martinson's failure to produce picture identification that

the current FAA requirement of showing a picture ID before boarding aircraft was not yet in effect on the date in question and no law requires citizens to carry and produce picture ID on demand.

The court summarized the significance of Martinson's manner of clutching his duffel bag, walking past the carousel for his flight, apparently traveling with only carry-on luggage, going to the restroom, pacing about and retrieving a checked bag that he might have been able to carry on, with the statement that "any and all of these observations, as articulated could be made daily of totally innocent members of the traveling public."

After finding almost all of the factors relied upon by Staber for the stop to be consistent with completely innocent conduct, the district court nonetheless concluded that Florida v. Royer, 460 U.S. 491, 103 S. Ct. 1319 (1983), compelled a finding that Staber had reasonable suspicion to stop Martinson. In Royer, the Court held that the arresting officers had reasonable suspicion for an investigative stop where the officers knew that Royer paid cash for a one-way ticket, was traveling under an assumed name, tagged his bags with an apparent alias, and generally matched the drug courier profile. 460 U.S. at 493-94, 103 S. Ct. at 1322.

Royer, however, is easily distinguishable from this case because Royer's most salient fact, the known alias, is missing here. In concluding that reasonable suspicion supported the stop in that case, the Royer Court explicitly relied on the agents' knowledge that the defendant was using an alias. The Court stated that

when the officers discovered that Royer was traveling under an assumed name, this fact, and the facts already known to the officers--paying cash for a one-way ticket, the mode of checking the two bags, and Royer's appearance and conduct in general--were adequate grounds for suspecting Royer of carrying drugs and for temporarily detaining him * * * .

Royer, 460 U.S. at 502, 103 S. Ct. at 1326 (emphasis added). The language of Royer makes clear that the result in that case turned on the agents' knowledge that the defendant was traveling under an alias.

Here, in contrast, Martinson did not use an alias. Staber must concede that at the time of the stop, he had no reason to believe that Martinson was traveling under an assumed name. In Royer, the agents knew that the name on Royer's tickets and baggage tags was inconsistent with the one on his driver's license. Here, on the other hand, Staber knew that Martinson's birth certificate and both of his airline tickets listed essentially the same name. As a result, Royer is distinguishable from this case and does not compel a finding of reasonable suspicion.

Thus, with Royer distinguishable, the observations and conclusions of the trial court are consistent only with the conclusion that the officers did not have reasonable suspicion to stop Martinson.

We do note that we reject respondent's contention at oral argument that because innocent persons may travel under assumed names, the use of an alias has no bearing on the existence of reasonable suspicion and cannot, therefore, form the basis for a meaningful distinction.

We find United States v. Green, 52 F.3d 194 (8th Cir. 1995), and United States v. White, 890 F.2d 1413 (8th Cir. 1989), relevant to our facts and instructive on the law to be applied to the facts. In Green, the Eighth Circuit Court of Appeals found no reasonable suspicion where the defendant arrived alone from a drug source city tightly holding a small bag, wearing new, baggy clothes, the defendant was "terribly nervous," engaged in counter-surveillance, failed to make eye contact with a detective, provided a vague description of the purpose of her trip, and may have failed to produce her plane ticket or identification. 52 F.3d at 196. Similarly, in White, the eighth circuit found no reasonable suspicion where the defendant purchased a one-way cash ticket on an early morning flight from a drug source city, appeared nervous, engaged in counter-surveillance, and held a duffel bag tightly in both hands instead of by its shoulder strap. 890 F.2d at 1414-15.

Here, the district court essentially adopted all of the facts relied on by Staber for his stop of Martinson, and then patiently explained away all of Staber's reliance, but ended up feeling compelled by Royer to find the stop reasonable.

We conclude that Martinson's conduct substantially resembled that of the defendants in Green and White, where the courts found no reasonable suspicion. The fact that an officer's hunch is ultimately proven correct cannot save a stop that is unconstitutional for lack of reasonable, articulable suspicion. Martinson's conduct differed significantly from that of the defendant in Royer, because unlike Royer, Martinson did not use an alias. Accordingly, Royer does not compel a finding of reasonable suspicion. The district court should have excluded all evidence obtained as a result of the stop and search.

Reversed.

[ ]^* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.