U.S. v. Kim, 93-10022

• Decision Date: 01 June 1994
• Docket Number: No. 93-10022,93-10022
• Citation: 25 F.3d 1426
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Chong In KIM, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1426

25 F.3d 1426

UNITED STATES of America, Plaintiff-Appellee, v. Chong In KIM, Defendant-Appellant.

No. 93-10022.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 11, 1994.

Decided June 1, 1994.

Joseph M. Gedan, Honolulu, HI, for defendant-appellant.

Florence T. Nakakuni, Asst. U.S. Atty., Honolulu, HI, for plaintiff-appellee.

Appeal from the United States District Court for the District of Hawaii.

Before: CHOY, SCHROEDER, and NOONAN, Circuit Judges.

CHOY, Circuit Judge:

Appellant Chong In Kim was convicted on December 4, 1992, in the United States District Court for the District of Hawaii of possession of various narcotics with intent to distribute under 21 U.S.C. Sec. 841(a)(1) and possession of firearms in connection with the use and trafficking of controlled substances under 18 U.S.C. Secs. 922(g)(3) and 924(c)(1). Sentenced to 108 months in federal prison, Kim challenges two aspects of the district court's ruling and one aspect of sentencing, including: The judge's failure to find that Kim was arrested pursuant to an illegal, race-based stop; the finding that Kim consented to be searched; and the enhancement of Kim's sentence on the basis of contraband suppressed at trial as the fruit of an illegal search and seizure.

I.

Kim's conviction arises out of an investigation conducted by the Drug Enforcement Administration (DEA) in the McCully district of Honolulu. Agent Aiu testified that this investigation was prompted by a tip informing the DEA that on November 13, 1991 a male Korean, five-feet six to five-feet seven in height, in his mid-twenties or early thirties, would be carrying several ounces of methamphetamine ("ice") in the vicinity of the Chun Soo Herb Center at 808 Sheridan Street and the adjoining gift shop. After two and a half hours of surveillance outside this shopping center, Agent Barlow alerted other agents to the existence of a brisk traffic in persons of Korean appearance going in and out of the herb center and gift shop. Agent Barlow had previously spotted Kim and a companion, Stuart Machado, exit from the gift shop carrying a suitcase and seat themselves in an automobile parked in front of the two shops on a public street.

As Agent Aiu arrived in response to Agent Barlow's call, he parked his unmarked car so as to block partially the egress of Kim's vehicle. Agent Aiu then approached the driver's side of the car opposite Kim, identified himself as a DEA agent, and requested leave to ask some questions. After Machado claimed not to have his driver's license with him, Agent Aiu asked Kim for identification, to which Kim responded that his name was "Mr. Oh." Hesitating to open the wallet he produced, Kim stopped and claimed that the wallet belonged to a friend before relenting and giving his real name.

With onlookers gathering nearby, Agent Aiu asked the two men to step out of the car for further questioning. With Agent Barlow beside him, Agent Aiu then requested and received from Kim permission to see the contents of the suitcase, whereupon Kim retrieved the suitcase from the trunk and handed it to the agents. Finding the suitcase empty, Agent Aiu paired off separately with Kim for further questioning.

Agent Aiu then noticed an unidentified object protruding from Kim's pocket, moved closer to Kim and, according to the agent's version, only pointed toward the protrusion. Kim contends that Agent Aiu touched the object's outline through Kim's trousers before being told it was a lighter. In response to Agent Aiu's request that Kim remove the object, Kim handed the agent a silver container. When Kim did not object to the agent's request to open the vial, Agent Aiu looked inside and found several grams of what he recognized to be crystal methamphetamine. Asked about the substance, Kim acknowledged that it was ice and requested to speak to Agent Aiu privately. In the discussions that followed Kim offered his cooperation and information about future shipments of ice to Hawaii. Advised by Agent Aiu of his Miranda rights, Kim agreed to talk to him outside the presence of an attorney.

After Kim was instructed to drop Machado off nearby, a mix-up ensued in which Machado dropped off Kim and was pulled over by other federal agents. Kim's vehicle was seized for forfeiture under federal law and when later searched was found to contain various firearms, including a revolver subject to this appeal, and a small amount of narcotics. A search of Kim at DEA headquarters revealed a pouch containing an additional 86.5 grams of ice, also subject to this appeal. Kim was then released with the understanding that he would cooperate with the DEA. Difficulties in establishing contact with Kim in the following weeks aroused DEA suspicions that he would renege on his offer.

On December 27, 1991, approximately one and a half months after Kim's arrest, Honolulu police seized Kim in a separate incident at Honolulu International Airport after their suspicions were alerted by Kim's attempt to purchase a one way ticket with cash and then heightened by the conflicting stories offered by Kim and his companions. After conferring with the DEA by telephone, the officers handed over to DEA agents for forfeiture proceedings a cellular phone and cash found on Kim, but released Kim when outstanding state warrants for traffic violations could not be confirmed.

Two days later an Agent Howard at DEA headquarters activated Kim's telephone in order, he testified, to ascertain the telephone number displayed thereby. Several minutes later, a caller identifying himself as Kim's brother informed Agent Howard, who claimed to be Kim's friend, that a delivery man would be in Honolulu in five or six hours and that Kim was to provide hotel information. After ascertaining Kim's approximate location through a confidential source, three DEA agents then proceeded to the hotel in which Kim and a companion, Julie Menchavez, were staying. After determining Kim's room number, the agents knocked on the door and identified themselves as police. Following a delay apparently prompted by the ailing Kim's grogginess, they then threatened to knock down the door and continued their demands that Menchavez open up. When Menchavez opened the door and stood back from it, four officers rushed in with guns drawn and surrounded the naked and bedridden Kim.

According to Kim's largely uncontested version of the event, the agents then subjected him to physical abuse and berated him for his lack of cooperation. The subsequent search of the room revealed a pistol, 348 grams of methamphetamine and a suitcase containing $85,000 in cash. After suppressing this evidence at trial as the fruit of an illegal, warrantless entry of Kim's hotel room, the district court grouped the ice found there with amounts previously seized from Kim outside the herb center to raise his offense level from 30 to 34.

II.

A.

Kim's first contention of error is that his conviction should be reversed because the weapons and 94 grams of methamphetamine seized from him by the DEA during their original encounter were derived from an illegal race-based investigatory stop.

Whether an encounter between an individual and law enforcement authorities constitutes an investigatory stop is a mixed question of law and fact subject to de novo review. United States v. Alvarez, 899 F.2d 833, 836 (9th Cir.1990), cert. denied, 498 U.S. 1024, 111 S.Ct. 671, 112 L.Ed.2d 663 (1991). Factual determinations underlying this inquiry are reviewed for clear error. United States v. Espinosa, 827 F.2d 604, 608 (9th Cir.1987), cert. denied, 485 U.S. 968, 108 S.Ct. 1243, 99 L.Ed.2d 441 (1988).

Kim's first contention of error is meritless because the contact between DEA agents and Kim outside the herb center did not rise to the level of an investigatory stop. The record supports the district court's ruling that this initial encounter was consensual and thus fell outside the ambit of the Fourth Amendment's guarantee against unreasonable searches and seizures, including those actuated by a suspect's racial appearance.

Questioning by law enforcement officers constitutes an investigatory stop only if " 'in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.' " INS v. Delgado, 466 U.S. 210, 215, 104 S.Ct. 1758, 1762, 80 L.Ed.2d 247 (1984), quoting United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980) (plurality). Law enforcement officers do not implicate much less "violate the Fourth Amendment by merely approaching an individual on the street ... [or] by asking him if he is willing to answer some questions." Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229 (1983) (plurality).

Central to Kim's characterization of his initial encounter with Agent Aiu as non-consensual is his contention that Agent Aiu patted him down without permission. However, the record does not reveal to be clear error the district court's factual finding that Officer Aiu merely pointed at the object in Kim's pocket. Absent indicia of force or aggression, a request for identification or information is not a seizure or investigatory stop. See $25,000 U.S. Currency, 853 F.2d 1501, 1505 (9th Cir.1988). Finding no other evidence of undue intimidation or coercion in the record, we therefore agree with the district court that Kim's initial encounter with the DEA was not an investigatory stop, racially motivated or otherwise.

On the contrary, the totality of circumstances described in the record supports the district court's finding that the DEA refrained from coercive tactics which might undermine the consensual nature of the encounter and transform its initial questioning of Kim into a Fourth Amendment event. We are mindful that police interrogation of automobile occupants typically involves a greater degree of intrusiveness than questioning of pedestrians and thus more readily impinges...