U.S. v. Adebanjo

Decision Date09 March 1995
Docket NumberNo. 93-5550,93-5550
Citation54 F.3d 774
PartiesNOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit. UNITED STATES of America, Plaintiff-Appellee, v. Kolawole ADEBANJO, Defendant-Appellant. . Argued:
CourtU.S. Court of Appeals — Fourth Circuit

ARGUED: Randolph O'Neil Gregory, Sr., Baltimore, MD, for Appellant. Richard Charles Kay, Assistant United States Attorney, Baltimore, MD, for Appellee. ON BRIEF: Lynne A. Battaglia, United States Attorney, Marshal D. Morgan, Third Year Law Student, Baltimore, MD, for Appellee.

D.Md.

AFFIRMED.

Before MURNAGHAN and HAMILTON, Circuit Judges, and SPROUSE, Senior Circuit Judge.

OPINION

PER CURIAM:

Appellant Kolawole Adebanjo (Adebanjo) was indicted for possession with intent to distribute 100 grams or more of a controlled substance containing heroin. See 21 U.S.C.A. Sec. 841(a)(1) (West 1972). Adebanjo moved unsuccessfully to suppress introduction of the drugs and subsequently pled guilty to the indictment, but reserved his right to appeal the suppression ruling. Adebanjo now appeals, contending that the district court erred in admitting the drugs seized in connection with his arrest. We affirm.

I.

On February 23, 1993, Maryland State Trooper Quinones (Quinones) was conducting plain-clothes narcotics interdiction at the train station in New Carrollton, Maryland. Shortly after 8:30 p.m., Quinones observed Adebanjo exit a southbound train from New York City, a known source city for drug trafficking. Adebanjo was neatly dressed, carried no luggage, but was holding a white paper bag bearing the emblem of a fast food restaurant.

As Adebanjo walked past Quinones, the men made eye contact, and Adebanjo quickly averted his gaze. After walking past Quinones, Adebanjo turned around to observe Quinones; the men again made eye contact, and again, Adebanjo quickly averted his stare. Adebanjo then boarded the escalator, walked briskly down it, and as he was descending, he made eye contact once more with Quinones, and again he suddenly turned from Quinones' view. Quinones followed Adebanjo to the lower platform, observed him make a one-minute telephone call, followed him back to the upper platform, and again made eye contact, which was quickly broken off by Adebanjo.

As Adebanjo reached the top of the escalator, he stopped walking and turned to face Quinones, who identified himself as a law enforcement officer and displayed his badge and identification card. At this point, Adebanjo's eyes widened, and he began to scan the platform; indeed, Quinones testified that Adebanjo was "nervous" and "perspiring." (J.A. 27). Quinones asked Adebanjo if he could talk to him, to which Adebanjo responded "all right." Id. at 21. According to Quinones, Adebanjo stated that he had just exited the train from Philadelphia, where he had met his wife for the day. On being asked for his train ticket, Adebanjo stated that he left it on the train. When Quinones asked where Adebanjo lived, Adebanjo stated that he lived in Philadelphia. Quinones asked whether Adebanjo had any identification, and he produced a Maryland driver's license with a Maryland address, and, contrary to his instant representation, stated that he lived in Maryland. When asked to explain his inconsistent answers, Adebanjo stated that he meant to say "Maryland" instead of "Philadelphia. "

Adebanjo asked Quinones "what was going on." Id. at 23. Quinones responded that he was working on the drug interdiction team at the train station in an effort to identify drug couriers entering Maryland. Adebanjo stated that he was not engaged in drug trafficking. Quinones asked if he could search Adebanjo's white paper bag, and Adebanjo agreed. Quinones did not touch the bag or take custody of it; he merely looked inside while Adebanjo held it open and observed some hamburgers, a child's shoe box, and a rolled up "brown paper bag package." Id. Based on his experience, training, and prior arrests he had made, Quinones concluded that the brown paper bag was rolled in a way consistent with the manner in which drugs are packaged. Quinones asked whether he could search the brown paper bag, but Adebanjo declined, responding that it was just food and that he already let Quinones look in the white paper bag.

Denied from searching the brown paper bag, Quinones asked if Adebanjo would consent to having a trained dog sniff the bag for controlled substances, and he agreed, saying "let's go." Id. at 25. Adebanjo agreed to accompany Quinones to the lower platform so that Quinones could call for a dog. Quinones walked in front of Adebanjo, and every time Quinones abated his pace in order to permit Adebanjo to remain in tandem with him, Adebanjo likewise lessened his pace. As they descended the stairs, Adebanjo reached into his jacket with his right hand, and Quinones, for safety purposes, told him to remove his hand from his jacket. Adebanjo complied and then told Quinones to get the dog, and he would wait for him. At this point, Adebanjo turned from Quinones and ascended the stairs. Quinones followed Adebanjo and asked him where he was going. Despite the fact that he walked by two cabs, Adebanjo responded that he was calling a taxi and going home.

Quinones informed Adebanjo that he was going to detain the bag to get a dog to sniff it and possibly apply for a search warrant if the dog indicated that the bag contained controlled substances. Quinones told Adebanjo that he was free to leave and that Quinones would contact him later about retrieving the contents of the bag. Adebanjo, however, refused to surrender the bag, and Quinones again repeated that he planned to have a dog sniff the bag but that Adebanjo was free to leave. Quinones reached for the bag, but Adebanjo pulled it away and began to run. Quinones caught up with Adebanjo and reiterated that Adebanjo was still free to leave and not under arrest, but he was going to retain the bag. A struggle ensued over the bag, it ripped open, and a large freezer bag filled with several packages wrapped with electrical tape fell out of the shoe box. Quinones testified that his experience in law enforcement led him to conclude that these packages contained controlled substances because narcotics were often wrapped in such a fashion for human ingestion so that they could be transported easily. At this point, Quinones placed Adebanjo under arrest. The record reveals that the small packages wrapped with electrical tape contained heroin and that the brown paper bag also contained small packages of heroin wrapped with electrical tape.

Adebanjo was charged in a one-count indictment with possession to distribute 100 grams or more of a controlled substance containing heroin. 21 U.S.C.A. Sec. 841(a)(1) (West 1972). Adebanjo moved to suppress the drugs recovered after his struggle with Quinones. The district court denied the motion, concluding that the encounter with Quinones was consensual until Adebanjo withdrew his consent to have the dog sniff the bag and walked away. The district court assumed for purposes of the suppression motion that the encounter transformed into a seizure when Quinones followed Adebanjo back up the stairs and continued to question him. Alternatively, the district court opined that a seizure occurred when Quinones attempted to take the bag from Adebanjo. The district court then concluded that regardless of which alternative time the encounter became a seizure, at both times Quinones had reasonable, articulable suspicion to seize Adebanjo. Accordingly, Adebanjo's motion to suppress the introduction of the drugs was denied.

On appeal, Adebanjo contends that the district court erred in its determination as to when the encounter became a seizure. According to Adebanjo, he was seized when Quinones asked to search the bag. Alternatively, he asserts that he was seized when Quinones told him to remove his hand from his jacket. Adebanjo also asserts that at either time the seizure was not based upon a reasonable, articulable suspicion.

II.

The threshold issue to resolve is when the encounter between Quinones and Adebanjo ceased to be consensual and became a seizure. Consensual encounters do not implicate the Fourth Amendment, but seizures do. See Florida v. Bostick, 501 U.S. 429, 434 (1991). The Supreme Court has consistently held, however, "that a seizure does not occur simply because a police officer approaches an individual and asks a few questions." Id. Provided that "a reasonable person would feel free 'to disregard the police and go about his business,' the encounter is consensual and no reasonable suspicion is required." Id. (quoting California v. Hodari, 499 U.S. 621, 625 (1991)). Accordingly, if a person is free to leave, then he is not seized. See United States v. Mendenhall, 446 U.S. 544, 554 (1980). An encounter, therefore, will not implicate Fourth Amendment concerns until and unless it ceases to be consensual. As the Court explained in Terry v. Ohio, 392 U.S. 1 (1968):

Obviously, not 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.

Id. at 19 n. 16.

At the suppression hearing, the district court opined that United States v. Wilson, 953 F.2d 116 (4th Cir.1991), was both factually and legally similar to the present appeal and militated strongly in favor of granting Adebanjo's motion to suppress. Ultimately, however, the district court denied the motion to suppress, distinguishing this case from Wilson because Quinones testified to the special significance he attributed to the manner in which the brown bag was rolled. We find, however, that disposition of this...

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    • United States
    • U.S. District Court — Western District of Virginia
    • 17 Noviembre 2009
    ...pocket, and even a repeated request, was, without more, insufficient to effectuate a seizure. See also United States v. Adebanjo, 54 F.3d 774 (4th Cir.1995) (table) (per curiam) (concluding that the defendant was not seized when the officer told him "to remove his hand from his jacket" beca......
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    ...by Agent Howard sufficient to constitute seizure, or that he did not believe that he was free to leave. See United States v. Adebanjo, 54 F.3d 774, at *4 (4th Cir. 1995) (per curiam) (unpublished) (finding defendant was not seized when asked to remove his hand from his jacket since he "was ......
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    ...from an officer to remove one's hand from one's pocket, without more, is insufficient to effectuate a seizure. See United States v. Adebanjo, 54 F.3d 774 (4th Cir. 1995) (concluding that the defendant was not seized when the officer told him to remove his hand from his pocket because the de......

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