U.S. v. Williams, 83-1609

• Citation: 754 F.2d 672
• Decision Date: 15 February 1985
• Docket Number: No. 83-1609,83-1609
• Parties: 20 Fed. R. Evid. Serv. 492 UNITED STATES of America, Plaintiff-Appellee, v. Gregory Paul WILLIAMS, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 672

754 F.2d 672

20 Fed. R. Evid. Serv. 492

UNITED STATES of America, Plaintiff-Appellee, v. Gregory Paul WILLIAMS, Defendant-Appellant.

No. 83-1609.

United States Court of Appeals, Sixth Circuit.

Argued June 7, 1984.

Decided Feb. 15, 1985.

F. Randall Karfonta (argued), Detroit, Mich., for defendant-appellant.

Gregory Williams, pro se.

Leonard R. Gilman, U.S. Atty., Thomas A. Ziolkowski (argued), Elizabeth A. Wild Asst. U.S. Atty., Detroit, Mich., for plaintiff-appellee.

Before ENGEL and MERRITT, Circuit Judges, and CELEBREZZE, Senior Circuit Judge.

ENGEL, Circuit Judge.

A one-count indictment was returned in the United States District Court for the Eastern District of Michigan charging defendant Gregory Paul Williams with the intentional and unlawful possession of approximately 996.12 grams of cocaine, a Schedule II, narcotic drug controlled substance, in violation of 21 U.S.C. Sec. 841(a)(1). The charges arose out of Williams' arrest on May 6, 1982 at the Detroit Metropolitan Airport following a search of his luggage. On December 23, 1982, Williams moved to suppress the cocaine seized in that search as evidence. This motion was denied by then United States District Judge Patricia J. Boyle who found the airport search which uncovered the cocaine to be constitutional. On June 20, 1983, Williams entered a plea of guilty to the charge, but pursuant to Fed.R.Crim.P. 11(a)(2), he reserved the right to challenge the search and seizure which preceded his arrest.

On appeal, Williams challenges Judge Boyle's finding that the search in the Detroit Airport was constitutional. Judge Boyle determined that the initial encounter between Williams and Paul Cleeves, a detective sergeant with the Michigan State Police, was not a Fourteenth Amendment seizure. She held that if Williams was seized, the seizure amounted to a brief investigatory detention which was permissible under United States v. Tolbert, 692 F.2d 1041, 1047-48 (6th Cir.1982), cert. denied, --- U.S. ----, 104 S.Ct. 337, 78 L.Ed.2d 306 (1983). Judge Boyle found that there was a reasonable and articulable suspicion that the defendant was engaged in criminal activity sufficient to warrant the temporary stop. She then held that Williams voluntarily consented to the search which ultimately led to the discovery of the cocaine.

We agree with Judge Boyle's conclusion that if the initial encounter between Williams and Cleeves was a seizure, it was a permissible brief investigatory detention. In Tolbert, we stated that a brief investigatory detention is permissible if supported by a reasonable and articulable suspicion that the person seized is engaged in criminal activity. Id. at 1046-47. Articulable suspicion is to be based upon all the circumstances, and an assessment of the whole picture "must raise a suspicion that the particular individual being stopped is engaged in wrongdoing." Id. at 1047 (quoting United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981)).

The specific facts relied upon by Judge Boyle in finding a reasonable and articulable suspicion are well set out in the memorandum opinion and are supported by our own examination of the full record. Williams (1) was on a flight from a "source city," (2) was one of the first passengers to get off the airplane, (3) initially passed the baggage area and went outside the terminal and then returned to the baggage area, (4) glanced about nervously, and (5) was recognized by the police officer as having been in the company of a known drug dealer. Under these circumstances, we find that there was a reasonable and articulable suspicion that Williams was engaged in criminal activity. ¹

Judge Boyle then held that Williams consented to the search of his bags. We agree. Consent must be proved by clear and positive testimony and must be unequivocal, specific, and intelligently given, uncontaminated by any duress and coercion. United States v. McCaleb, 552 F.2d 717, 721 (6th Cir.1977). The prosecutor has the burden of proving that consent was given freely and voluntarily. Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S.Ct. 2041, 2045, 36 L.Ed.2d 854 (1973). While there was clearly disagreement between Williams and Officer Cleeves as to what took place, Judge Boyle credited the testimony of Officer Cleeves.

Accepting these findings, we have little difficulty in upholding Judge Boyle's determination that the search of Williams' baggage was consensual, although it occurred in the greater privacy of the lost baggage area of the airport. There was a singular lack of any coercion when Williams accompanied Cleeves voluntarily to the baggage office. ² Williams was not threatened with detention if he refused to consent to the search. There was no weapon in view. Officer Cleeves was alone. Williams did not object to Cleeves opening his baggage, but instead responded, "No problem," to Cleeves' request to look in the suitcase. Williams denied that he had responded, "No problem," to the request for consent to search the bag; however, Judge Boyle specifically believed Officer Cleeves' testimony was credible and disbelieved Williams. In addition, Williams assisted Cleeves in opening the suitcase by twice setting the tumbler on its combination lock. Considering these circumstances, we find that Williams freely and voluntarily consented to the search of his baggage.

The more difficult question is whether there was also consent for Cleeves to cut open a gift-wrapped box which was found in the suitcase and in which the cocaine was ultimately discovered. The box had originally been put aside when Cleeves went through the luggage. When that initial search produced no contraband, Cleeves stated, "You're all set to go, except for the box." To this, Williams replied, "You're looking." Williams' comment was cryptic. Nonetheless, Judge Boyle found that in the context in which the statement was made, it was not ambiguous and constituted a voluntary consent to the search of the package. ³

Judge Boyle's determination that Williams voluntarily consented to the search of the package is well supported by the evidence. As noted above, there was no duress or coercion surrounding the search. In fact, Williams agreed to accompany Cleeves to a private area, agreed to the search of his luggage, and assisted in the search by unlocking the suitcase. In light of these facts, Williams' statement, "You're looking," is consistent with his prior cooperation with the authorities. Moreover, as noted by Judge Boyle, the defendant was a 36-year old man of normal intelligence with an 11th grade education, and such statements were consistent with her observation that "Defendant is not an articulate individual. At the evidentiary hearing, his responses often consisted of incomplete sentences of a few words." We hold that the search of the package in this case was also voluntary.

It may well be wondered why an individual who knows that his belongings contain drugs would ever consent to a ...