51 F.3d 1376 (8th Cir. 1995), 94-3055, United States v. Dixon

Docket Nº:94-3055.
Citation:51 F.3d 1376
Party Name:UNITED STATES of America, Appellee, v. Alvin DIXON, also known as Alvin Devon Dixon, Appellant.
Case Date:April 07, 1995
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 1376

51 F.3d 1376 (8th Cir. 1995)

UNITED STATES of America, Appellee,


Alvin DIXON, also known as Alvin Devon Dixon, Appellant.

No. 94-3055.

United States Court of Appeals, Eighth Circuit

April 7, 1995

Submitted Dec. 13, 1994.

Page 1377

[Copyrighted Material Omitted]

Page 1378

John Michael Quinn, Kansas City, MO, for appellant.

D. Michael Green, Kansas City, MO, for appellee.

Before MAGILL and BEAM, Circuit Judges, and PIERSOL, [*] District Judge.

BEAM, Circuit Judge.

Law enforcement officers detained Alvin Dixon and his luggage at the Kansas City airport so that "Mike" the drug dog could be summoned to sniff the luggage. Mike "alerted" to the luggage, and Dixon ultimately was charged with possession with intent to distribute phencyclidine (PCP). Dixon filed a motion to suppress, alleging several Fourth Amendment violations, but the district court 1 denied the motion. Dixon entered a conditional plea of guilty, was sentenced, and now appeals the ruling on the motion to suppress. We affirm.


On November 26, 1993, Detective Paul Carrill received a telephone tip that a man named Dixon was acting suspiciously near an America West gate of the Kansas City airport. Carrill was told that Dixon would be traveling to Los Angeles and would return after staying just a short time in that city.

To corroborate the tip, Carrill went to the airport and checked the airline's computer for "Dixon." From the computer, he learned that Dixon, at the airport counter, had purchased a round-trip ticket to Los Angeles for $447 cash. Dixon would spend less than twenty-four hours on the ground in Los Angeles, and would return to Kansas City at 5:00 a.m. Dixon had not checked any luggage for the trip. Carrill then searched for the name "Dixon" in the police computer. He located an "Alvin Dixon" with a 1990 Missouri arrest for a narcotics violation. The computer did not provide any disposition for the charge but described Dixon as a black male, six feet tall, 190 pounds, born in 1961.

Carrill and another detective, Braden, went to meet the flight, which had yielded several drug arrests in the past. Among the passengers disembarking, the detectives saw an individual, later determined to be Dixon, who matched the physical description from the police computer and carried only a duffel bag. Dixon bypassed the baggage claim area and proceeded immediately out of the concourse to the taxi stand. There, Carrill displayed his badge, identified himself as a police officer, and asked if Dixon would be willing to talk to him. Carrill testified that Dixon's eyes widened and his breathing increased, but that Dixon agreed to talk.

Carrill first sought to confirm Dixon's identity. Carrill asked to see Dixon's ticket. Carrill testified that Dixon's hands shook as he gave the ticket to Carrill. The ticket was in the name of Alvin Dixon and reflected the itinerary that Carrill had earlier found in the flight computer. Carrill then asked to see some identification. Dixon produced either a Kansas driver's license or a Kansas identification card in the name of Alvin Dixon.

Carrill next questioned Dixon. Carrill asked how long Dixon had been in Los Angeles, to which Dixon replied "a couple of hours." United States v. Dixon, No. 93-00172-01-CR-W-3, Mag. Report & Recommendation at 5 (W.D.Mo. Mar. 3, 1994).

Page 1379

Carrill asked what Dixon was doing in Los Angeles, to which Dixon replied that he was visiting friends. Carrill asked for more information about the friends, but Dixon said that he didn't know their names or the addresses he had visited.

Carrill then re-identified himself as a police officer. He explained that he was looking for narcotics being smuggled through the airport. He asked Dixon for permission to search the duffel bag, but Dixon refused. Carrill informed Dixon that the two detectives were going to detain Dixon and his duffel bag until a drug dog could be brought to the airport to inspect the bag. While Braden placed the call requesting the drug dog, Carrill and Dixon returned to the terminal to wait. Dixon sat in an alcove near the exit, and Carrill stood next to the alcove.

After several minutes, Dixon became agitated and said he wanted to leave. Carrill told Dixon he was being detained until the dog arrived. Some time later, Dixon again attempted to leave, bumping into Carrill as he did so. Dixon returned to his seat when Carrill repeated that they would wait until the dog arrived. Carrill cautioned Dixon not to touch him again. A few minutes later, Dixon stood up, clutching the duffel bag, and said he was going to leave. Dixon shoved Carrill into Braden, and Carrill told Dixon he was under arrest for assaulting an officer. After a brief struggle, the detectives took Dixon and the duffel bag to the sheriff's office. Carrill radioed the dog handler and directed him to go to the sheriff's office as well.

At the sheriff's office, the detectives placed Dixon's bag in a corner of the room. Mike the drug dog was then brought into the room. He gave a positive indication of narcotics by biting and scratching at the bag. A search warrant was obtained, which Carrill executed. Carrill found four soft drink bottles containing a liquid solution which Carrill believed to be PCP. Dixon moved to suppress the fruit of Carrill's search, but the district court found that no Fourth Amendment violations had occurred and denied the motion.

Dixon entered a conditional plea of guilty to the charge of possession with intent to distribute PCP, and now appeals the ruling on his motion to suppress. Urging reversal, Dixon contends that during his encounter with Carrill, he and his duffel bag were "seized" in violation of the Fourth Amendment. In addition, Dixon contends that the government failed to properly establish Mike's qualifications.


A. Seizure Issues

  1. Timing of the Seizure

    Dixon first contends that he was "seized" prior to his detention. The district court determined that Dixon was not seized until he was detained to wait for the arrival of the drug dog. Whether a seizure occurs is a question of law which we review de novo. United States v. McKines, 933 F.2d 1412, 1426 (8th Cir.) (en banc), cert. denied, 502 U.S. 985, 112 S.Ct. 593, 116 L.Ed.2d 617 (1991).

    Not every contact between law enforcement officers and citizens constitutes a Fourth Amendment "seizure." Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 1878 n. 16, 20 L.Ed.2d 889 (1968). For example, a seizure does not ordinarily occur when a police officer approaches an individual and asks for identification or asks a few questions. Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 2386, 115 L.Ed.2d 389 (1991). A seizure occurs only if, considering all of the circumstances, a reasonable person would believe that he is not free to leave. INS v. Delgado, 466 U.S. 210, 215, 104 S.Ct. 1758, 1762, 80 L.Ed.2d 247 (1984). In addition, for a seizure to occur, there must be either a physical application of force by the officer or a submission to the officer's assertion of authority. California v. Hodari D., 499 U.S. 621, 626-29, 111 S.Ct. 1547, 1550-51, 113 L.Ed.2d 690 (1991); United States v. Thompkins, 998 F.2d 629, 633 (8th Cir.1993).

    Dixon concedes that his encounter with Carrill was, initially, consensual. The encounter occurred in a public area. Dixon conversed only with Carrill. There is no indication that the detectives used outright coercion or even subtle threats. They did

    Page 1380

    not, for example, surround Dixon or display their weapons. Although admitting the consensual nature of the encounter, Dixon argues that the encounter ripened into a seizure when Carrill reidentified himself as a law enforcement officer and began questioning Dixon about drugs.

    We have specifically held that redisplaying a badge and informing an individual that he or she is the focus of a drug investigation are factors in determining whether a seizure exists. McKines, 933 F.2d at 1418. However, those factors do not have any "independent significance;" those factors do not, without more, convert a consensual encounter into a seizure. See id. Given the lack of any other even mildly coercive tactics in the present case, we conclude that Dixon was not seized until Carrill informed him that he would be detained until the arrival of the drug dog.

  2. Nature of The Seizure

    Dixon next contends that his detention was a de facto arrest. The district court determined that the detention was an investigative stop. Whether a particular seizure amounted to an arrest is a question of law which we review de novo. United States v. Bloomfield, 40 F.3d 910, 916 (8th Cir.1994) (en banc), cert. denied, --- U.S. ----, 115 S.Ct. 1970, 131 L.Ed.2d 859 (1995). See United States v. Mendenhall, 446 U.S. 544, 551-52 n. 5, 100 S.Ct. 1870, 1875-76, 64 L.Ed.2d 497 (1980).

    Seizures fall into two categories: investigative stops and arrests. There is no bright line of demarcation between the two. United States v. Miller, 974 F.2d 953, 957 (8th Cir.1992). In distinguishing between a stop and an arrest, we consider the length of the detention and the conduct of the law enforcement officers. Bloomfield, 40 F.3d at 916-17. An investigative stop must be temporary and must last no longer than is necessary to effectuate the purpose of the stop. Florida v. Royer, 460 U.S. 491, 500, 103 S.Ct. 1319, 1325-26, 75 L.Ed.2d 229 (1983) (plurality). Similarly, "the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer's suspicion in a short period of time." Id. If the detention lasts too long, or if the officers' conduct is too intrusive, then the stop is converted into an arrest. See Bloomfield, 40 F.3d at 916-17.

    It is undisputed that Dixon's detention was at least an investigative stop. The issue here is whether the detention rose to the level of an arrest. Dixon argues that the detention...

To continue reading