U.S. v. Campbell

• Citation: 843 F.2d 1089
• Decision Date: 17 May 1988
• Docket Number: No. 87-1192,87-1192
• Parties: UNITED STATES of America, Appellee, v. Lee Andrew CAMPBELL a/k/a John Evans, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 1089

843 F.2d 1089

UNITED STATES of America, Appellee, v. Lee Andrew CAMPBELL a/k/a John Evans, Appellant.

No. 87-1192.

United States Court of Appeals,

Eighth Circuit.

Submitted Nov. 12, 1987.

Decided March 30, 1988.

Rehearing and Rehearing En Banc Denied May 17, 1988.

J. Justin Meehan, St. Louis, Mo., for appellant.

Debra Herzog, Asst. U.S. Atty., St. Louis, Mo., for appellee.

Before JOHN R. GIBSON, FAGG and WOLLMAN, Circuit Judges.

JOHN R. GIBSON, Circuit Judge.

Lee Andrew Campbell appeals his conviction of possessing cocaine with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1) (1982). The sole issue on appeal is whether Campbell was unlawfully seized in violation of the fourth amendment before he consented to a search of his coat which revealed cocaine in its pocket. The district court, ¹ adopting the recommendations of the magistrate, concluded that Campbell was lawfully seized based on reasonable and articulable suspicion of criminal activity under the principles of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and that he voluntarily consented to the search of his coat. We affirm the conviction.

Campbell arrived in St. Louis on TWA Flight # 72 from Los Angeles at 5:30 a.m. on July 24, 1986, wearing a heavy winter coat and carrying only a shoulder bag. Campbell walked very quickly as he entered the concourse. DEA agents had watched the arrival of this flight once a week since June. They were particularly interested in this flight because Los Angeles is considered a source of drugs, the flight left Los Angeles after DEA agents there went off duty, and arrived in St. Louis at a time when its airport was uncrowded. As Campbell left the gate, he looked behind him several times, did not check the arrival or departure boards or pick up baggage, and went directly to the outside area for departing passengers. DEA agents Benjamin Scott and Linda Harold followed him through the terminal and outside.

Agent Scott, who was dressed in plain clothes, identified himself to Campbell as a DEA agent and asked if he would talk with him. Campbell stopped walking and Scott asked to see his airline ticket. Campbell produced a one-way ticket from Los Angeles to St. Louis purchased with cash. Scott then asked for identification, and Campbell provided a Missouri identification card in the name of John Evans, which matched the airline ticket name of J. Evans. During the conversation Scott noticed that Campbell's voice sounded nervous and that his hands trembled when he handed him the airline ticket. Scott examined the airline ticket and identification card and according to the findings of the district court, he did not return them to Campbell. ² Scott informed Campbell that as a narcotics agent, he was looking for certain things that people do that sometimes indicate that they are transporting narcotics and that Campbell had done several of these things. He asked, and received, permission to search Campbell's carry-on bag, but found only clothing. Campbell still appeared nervous and Scott asked if he "would mind" if he searched his coat pockets. Campbell hesitated several seconds and then told him to "go ahead." He searched the outer pockets and found nothing. However, he could feel through Campbell's coat pocket that there was some sort of package in the inner upper left-hand pocket and he reached inside. As he reached in the pocket Campbell raised his hands as if to block Scott, but their hands did not make contact. Scott asked what the package was and Campbell replied that "it was nothing." Scott removed the package, a plastic bag wrapped in tape and containing a white powder, from the pocket. This entire encounter occurred in a public place at the drop-off point for departing passengers.

Agent Scott told Campbell that he believed the powder was cocaine and that he was taking him to the airport police office. Campbell said that he was "not going anywhere." At that point Agent Harold, who had been standing ten to twenty feet away, unnoticed by Campbell, stepped closer and helped handcuff Campbell. When they reached an interview room the agents searched Campbell and found a second package taped to the small of his back under his shirt. Scott field-tested the substance in the first package and found it to be cocaine. Scott then arrested Campbell and informed him of his Miranda rights. The bags contained a total of 237.6 grams of pure cocaine.

Campbell moved to suppress the cocaine seized from him at the airport, arguing that the initial contact by Agent Scott was an unlawful seizure which rendered all evidence obtained thereafter inadmissible as "fruit of the poisonous tree." Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S.Ct. 407, 417-18, 9 L.Ed.2d 441 (1963). Specifically, Campbell maintains that he was stopped solely because he conformed with certain aspects of the drug courier profile ³ and, relying on Reid v. Georgia 448 U.S. 438, 100 S.Ct. 2752, 65 L.Ed.2d 890 (1980) (per curiam), Campbell argues that a suspect's match to the drug courier profile does not provide an officer with the reasonable suspicion necessary to justify a fourth amendment seizure.

In denying the motion to suppress, the district court determined that the initial encounter was consensual, requiring no objective justification, and that Campbell answered the questions put to him voluntarily. The court then determined that the encounter matured into an investigative, Terry -type seizure which did not violate the fourth amendment because it was based on a reasonable and articulable suspicion of criminal activity and was properly limited in scope and duration. The court further found that Campbell consented to the search of his bag and coat and that once Agent Scott found the packet of white powder, probable cause existed to arrest Campbell. After waiving his right to trial by jury, Campbell was convicted and sentenced to six years' imprisonment plus a three year mandatory parole term.

I.

Not every encounter between law enforcement officers and an individual constitutes a seizure within the meaning of the fourth amendment. INS v. Delgado, 466 U.S. 210, 215-17, 104 S.Ct. 1758, 1762-63, 80 L.Ed.2d 247 (1984). It is well-settled that "law enforcement officers do not violate the fourth amendment by merely approaching an individual on the street or in another public place by asking him if he is willing to answer some questions [and] by putting questions to him." Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 1323-24, 75 L.Ed.2d 229 (1983) (plurality); United States v. Mendenhall, 446 U.S. 544, 555, 100 S.Ct. 1870, 1877-78, 64 L.Ed.2d 497 (1980) (opinion of Stewart J.). No objective justification is required for such an encounter because no constitutional interest is implicated. Mendenhall, 446 U.S. at 554-55, 100 S.Ct. at 1877-78. However, an initially consensual encounter can ripen into a seizure requiring reasonable suspicion or probable cause. Delgado, 466 U.S. at 215, 104 S.Ct. at 1762. "If an officer, by means of physical force or show of authority, has restrained the liberty of a citizen, we must conclude that a seizure requiring objective justification has occurred." Delgado, 466 U.S. at 215, 104 S.Ct. at 1762 (quoting Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 1879 n. 16, 20 L.Ed.2d 889 (1968)). In determining whether a person has been seized, the inquiry is whether, in view of all the circumstances surrounding the incident, "a reasonable person would have believed that he was not free to leave." Mendenhall, 446 U.S. at 554, 100 S.Ct. at 1877. Whether reasonable suspicion or probable cause exists to justify a seizure is a mixed question of fact and law. The findings with respect to the historical facts are reviewed under the clearly erroneous standard; the ultimate conclusion, however is subject to de novo review. See United States v. Mendenhall, 446 U.S. 544, 551-52 n. 5, 100 S.Ct. 1870, 1875-76 n. 5, 64 L.Ed.2d 497 (1980).

The district court did not err in finding that the initial encounter was consensual. The court correctly concluded that Scott did not seize Campbell when he approached him outside the airport, identified himself as a narcotics agent and asked Campbell if he would answer a few questions. See, e.g., United States v. Poitier, 818 F.2d 679, 682 (8th Cir.1987), cert. denied, --- U.S. ----, 108 S.Ct. 700, 98 L.Ed.2d 651 (1988); United States v. Sadosky, 732 F.2d 1388, 1391 (8th Cir.), cert. denied, 469 U.S. 884, 105 S.Ct. 254, 83 L.Ed.2d 191 (1984). Although there is little doubt that this initial interview came about because of Campbell's conformity with the drug courier profile, Scott used this information only to approach Campbell. See United States v. Miller, 835 F.2d 187, 189 (8th Cir.1987); United States v. Pantazis, 816 F.2d 361, 363 (8th Cir.1987); cf. Reid v. Georgia, 448 U.S. 438, 100 S.Ct. 2752. Scott did not use force or coercion to obtain Campbell's cooperation; Campbell stopped walking and voluntarily produced his airline ticket and identification card in response to Scott's questioning. Because the initial contact was a permissible encounter and the conversation that followed was consensual, Agent Scott's actions, at this point, present no fourth amendment concerns. Royer, 460 U.S. at 497, 103 S.Ct. at 1323-24; Miller, 835 F.2d at 189; Poitier, 818 at 682-83; Pantazis, 816 F.2d at 363.

The district court's conclusion that a Terry -type investigatory stop and seizure within the meaning of Terry occurred can only be based on the district court's finding that Scott retained Campbell's ticket and identification card. An officers' retention of an airline ticket or a driver's license has been treated as a significant factor in determining that a seizure has occurred. ⁴ Suspects deprived of their ticket or license are effectively deprived of the practical ability to terminate the questioning and leave. See Royer, 460 U.S. at 501, 103 S.Ct. at 1326 (...