6 F.3d 1270 (7th Cir. 1993), 92-2340, United States v. McCarthur

Docket Nº:92-2340.
Citation:6 F.3d 1270
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Sandra McCARTHUR, Defendant-Appellant.
Case Date:October 12, 1993
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 1270

6 F.3d 1270 (7th Cir. 1993)

UNITED STATES of America, Plaintiff-Appellee,

v.

Sandra McCARTHUR, Defendant-Appellant.

No. 92-2340.

United States Court of Appeals, Seventh Circuit

October 12, 1993

Argued Jan. 29, 1993.

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Eddie Stevens (argued), Office of U.S. Atty., Crim. Div., Barry R. Elden, Asst. U.S. Atty., Criminal Receiving, App. Div., Chicago, IL, for U.S.

Richard L. Kagan, Anthony M. Petrone (argued), Chicago, IL, for defendant-appellant.

Before FLAUM, MANION and ROVNER, Circuit Judges.

ILANA DIAMOND ROVNER, Circuit Judge.

A jury convicted Sandra McCarthur of possessing three kilograms of cocaine with the intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1). McCarthur contends that the cocaine was obtained in violation of her Fourth Amendment right to be free from unreasonable searches and seizures, and that the introduction at trial of a statement she made regarding a prior arrest for cocaine possession violated Fed.R.Evid. 404(b) and her Fifth Amendment right to a fair trial. We affirm the district court.

I. FACTS

On the afternoon of September 27, 1991, Officer Michael Bobko and Detectives Andrew Abbott and Thomas Kinsella, all of the Drug Enforcement Administration Transportation Task Force, were posted at Chicago's Union Station. Bobko is a twenty-three year veteran of the Chicago Police Department and has been a member of various narcotics investigation units since 1972. Abbott has worked for the Chicago Police Department for twenty-one years, sixteen of which have involved narcotics investigation. All three officers were in plain clothes, and their weapons were hidden. On that afternoon, they were assigned to observe passengers disembarking from Amtrak Train No. 4 from Los Angeles. The DEA has determined that Los Angeles is a source city for the importation of cocaine into the Midwest, and that Train No. 4 is the single most frequently used means of transporting illegal narcotics to the Chicago area. The officers did not, however, have prior information that any particular

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passenger on the train that day was carrying drugs.

When the train arrived and the passengers began to disembark, Bobko and Abbott simultaneously noticed that Sandra McCarthur was walking more slowly than the other passengers, that she frequently glanced over her shoulder, and that she was having trouble carrying a nylon tote bag, which appeared to be more heavily weighted on one side than the other. They also observed that McCarthur repeatedly flicked her nostrils, a habit Bobko thought indicative of nasal cocaine use. Bobko caught Abbott's attention and made a gesture indicating that he noticed they had both been observing the same individual. The officers continued to watch McCarthur as she walked to the ticket area, noting that she stopped several times to place the tote bag on the floor and rest her back against a wall, each time looking around nervously at the people moving through the station. She then got into line at the ticket counter, purchased a ticket with cash, placed the ticket in her purse, and turned to walk back down the hallway in the direction from which she had come. Bobko spoke briefly with the ticket agent who had sold McCarthur the ticket, discovering that McCarthur had bought a ticket to Detroit with cash and that she had not identified herself because it was not required. The officers then decided to approach McCarthur and question her.

Bobko and Abbott came abreast of McCarthur on her left and casually matched her stride. Kinsella remained approximately ten to fifteen feet behind them to observe. When McCarthur looked in Bobko's direction, he displayed his badge and photo identification and said in a conversational tone, "I'm a Chicago police officer. Can I talk to you for a minute?" McCarthur stopped abruptly, put the tote bag down between her ankles, looked rapidly between Bobko, Abbott, and the tote bag, and then replied, "Sure."

Bobko asked McCarthur whether she had been on Train No. 4 and if she would show him her ticket stub. McCarthur confirmed that she had just gotten off Train No. 4, which she had boarded in Los Angeles, and she opened her purse to take out the ticket stub. Bobko and Abbott both noticed that McCarthur appeared to be very nervous, that her posture was unusually rigid and her hands were shaking, and that the pulse in her neck was visibly pounding. McCarthur's ticket stub indicated that the ticket had been for a one-way trip, paid for in cash on the day of departure, and issued to a passenger named "L. Montgomery." Bobko returned the ticket stub to McCarthur and asked her if she was "L. Montgomery." She hesitated, then said that she was. Bobko asked for a piece of identification, and McCarthur claimed that she had none. When Bobko then asked her if her destination was Chicago, McCarthur replied that she was going home to Detroit, and pulled out her ticket to show it to Bobko. Bobko looked at it briefly and returned it to McCarthur.

The conversation then turned to what McCarthur had been doing in Los Angeles. She claimed that she had flown in from Detroit with her boyfriend, that they had stayed at a motel, and had taken a side trip to Las Vegas. She said that she was now on her way home to Detroit by train, and that her boyfriend would be flying back a short time later. Bobko asked why she hadn't purchased a direct ticket from Los Angeles to Detroit, and McCarthur hesitated before saying that such tickets were unavailable, a statement Bobko knew to be false. In response to Bobko's followup questions concerning some of the details of her trip, McCarthur was unable to recall her boyfriend's name, the name of the motel where they had stayed, or what they had done in Los Angeles. Bobko again asked whether she had some identification, inquiring whether a telephone bill he had noticed in her purse might have her name on it. McCarthur denied that it did, and as she pulled the envelope from her purse, a Social Security card fell to the ground. When Bobko bent down to pick it up, he noticed that it bore the name of "Sandra McCarthur." He then handed the card back to McCarthur.

McCarthur became visibly more and more nervous, avoiding eye contact with the officers and hesitating and stammering in response to Bobko's questions. More contradictions in her story emerged. First she

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stated that the Social Security card belonged to her sister, then that it belonged to her girlfriend. When Bobko asked her why she had someone else's Social Security card in her purse, she did not answer. Bobko then turned his attention to her tote bag, asking whether it belonged to her and whether she had packed it herself. She claimed that her boyfriend had placed some things in it before she packed it, yet she also claimed that she was aware of all of its contents. Bobko asked whether the tote bag contained any sealed or wrapped packages, and McCarthur replied that it did not.

At that point, McCarthur asked Bobko why she was being questioned. Bobko explained that he and Abbott were assigned to conduct narcotics interdiction in the train station and that they routinely spoke to many people in the course of their work. At the suppression hearing, Bobko testified that he explicitly told McCarthur that she was not under arrest or obligated to speak with them and that she was free to go. McCarthur disputes this, claiming that she was never informed that she was not under arrest, or that she could terminate the encounter if she chose. According to Bobko, after he told McCarthur she was free to go, she asked if anyone had called them about her, and Bobko stated, "No. There's been no call on you." Bobko reiterated to McCarthur that he and Abbott were simply conducting routine drug investigations at the station, and then he asked if she had any drugs in her bag. McCarthur drew a deep breath and replied no. She then looked directly at Bobko and asked him whether he intended to search her tote bag. Bobko stated that he and Abbott would like to look in the bag but could not do so without her permission because they did not have a search warrant. McCarthur told them to go ahead and look in the tote bag. But as Bobko unzipped the bag and began to search it, McCarthur stopped him, zipped it back closed and told him that she did not want him to see the dirty laundry and other personal items it contained.

Bobko then explained to McCarthur that her bag would be detained for approximately fifteen minutes for a sniff by a narcotics detection dog, that she could leave without the bag if she wished, and that she would be given a written receipt for the bag if she chose to leave. Bobko also told her that if the dog did indicate that narcotics were present, he and Abbott would retain the bag and obtain a warrant to search it and that if narcotics were found, they would obtain a warrant for McCarthur's arrest. McCarthur hesitated a moment, then assented to a search of her bag. The search soon revealed a one-kilogram package of cocaine; and two additional one-kilogram packages of cocaine were recovered from the bag later. The cocaine and the tote bag were confiscated.

McCarthur was placed under arrest and was taken to a room for questioning. McCarthur admitted to Bobko that she had been arrested once before for possession of a small quantity of cocaine in New York state. At trial, over McCarthur's objection, the district court...

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