U.S. v. Teslim, 88-1283

• Citation: 869 F.2d 316
• Decision Date: 15 February 1989
• Docket Number: No. 88-1283,88-1283
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kayode A. TESLIM, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 316

869 F.2d 316

UNITED STATES of America, Plaintiff-Appellee, v. Kayode A. TESLIM, Defendant-Appellant.

No. 88-1283.

United States Court of Appeals, Seventh Circuit.

Argued Nov. 3, 1988.

Decided Feb. 15, 1989.

Allan A. Ackerman, Chicago, Ill., for defendant-appellant.

Rick L. Jancha, Asst. U.S. Atty., James G. Richmond, U.S. Atty., South Bend, Ind., for plaintiff-appellee.

Before POSNER and RIPPLE, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

ESCHBACH, Senior Circuit Judge.

This is a direct criminal appeal from a jury conviction, pursuant to a four-count indictment. The defendant-appellant, Kayode Teslim, challenges his convictions on one count of conspiracy to possess with intent to distribute and to distribute cocaine in violation of 21 U.S.C. Sec. 846 ¹ and one count of possession with intent to distribute more than 500 grams of cocaine in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2. Teslim was sentenced to thirteen years in prison followed by a four-year term of supervised release, and ordered to pay a fine of $20,000 and a special assessment of $100 under 18 U.S.C. Sec. 3013. Appellant now raises four grounds for reversal on appeal, including his assertion that his fourth amendment rights were violated when he was detained at an airport on mere pretext. He also contends that the trial court committed prejudicial error by allowing the prosecution to offer drug courier profile testimony to the jury. He further alleges that there is not sufficient evidence in the record to support his convictions. Finally, Teslim argues that the government's misconduct at trial deprived him of his right to a fair trial. We affirm the convictions.

I.

In September 1987 the Special Operations Section ("SOS") of the South Bend Police Department conducted a narcotics investigation. As a result of information gleaned from confidential informants and other participants, not named in this indictment, the defendant emerged as a suspected supplier, possessor, and co-conspirator in the trafficking of cocaine.

On September 25, 1987, at approximately 6:00 p.m., two SOS officers, Corporals Woltman and Miller, dressed in "plain clothes," were in the Michiana Regional Airport in South Bend, Indiana watching passengers deplane flights from "source" cities. ² As part of an ongoing airport interdiction program, these officers were there to detect suspicious behavior of people exiting airplanes to determine whether these people might be possible drug couriers. ³

At approximately 6:30 p.m., the officers observed the passengers exit United Express flight 2686 from Chicago and enter the terminal. While watching the passengers deplane, the officers' attention was drawn to a particular passenger, Kayode Teslim. ⁴ Both officers testified that they had not been instructed to look for Teslim, nor had they been given his description. Furthermore, they had not been briefed on a concurrent investigation that Darrell Gunn, an SOS lieutenant, was conducting. The police testified that the defendant attracted their attention because he appeared very nervous as he exited the plane and repeatedly looked over his shoulder.

In addition, Woltman recognized Teslim as someone he had seen before at local bars. When Woltman had previously seen Teslim, Teslim would leave with one person at a time for approximately five minutes and then return, sometimes four or five times a night with different people. Woltman told his partner, Corporal Miller, that he recognized Teslim and that he could be a possible drug trafficker. Woltman also told Miller that he had information from a confidential informant that the defendant was involved in drugs.

At the airport, Woltman and Miller observed the defendant deplane with two bags, a brown carry-on bag and a black satchel. They continued to follow the defendant as he proceeded through the airport. Teslim walked very quickly and continued to look over his shoulder. When he got through the tunnel of the airport, he went directly to a pay telephone and picked up the receiver as if to place a call. While he was at the telephone, Teslim continued to scan the airport in a manner consistent with an attempt to detect surveillance. Shortly thereafter, Teslim hung up the telephone and walked directly out of the terminal and into the parking lot without retrieving any luggage. The officers' training and experience had taught them that drug couriers frequently travel with only one or two pieces of carry-on luggage. As Teslim was exiting the airport, he continued to look back over his shoulder.

As Teslim walked into the parking lot, he went directly east and surveilled the parking lot, then turned around, and walked directly west to a yellow 1979 Lincoln Continental. Teslim opened the car door, placed his luggage on the passenger's seat, and put the car in reverse when the police officers approached him. Teslim opened the car door and Woltman identified himself and his partner as police officers. Woltman asked Teslim whether he would be willing to talk with them and told him that he was under no obligation to do so. Teslim exited the vehicle and Woltman asked him for his driver's license. Woltman repeated to the defendant that he was under no obligation to talk to the police, but Teslim agreed and gave Woltman an identification card from Indiana. Woltman observed that the defendant had a difficult time retrieving the card from its case because his hands were shaking and his finger dexterity was poor. Woltman also asked him for his airplane ticket, but Teslim said he did not have it. Woltman observed that Teslim's voice was cracking as he talked to him. When Teslim was unable to produce a driver's license, Woltman asked him how he intended to drive the car without a valid driver's license, and Teslim responded by saying that someone was going to pick him up. The officers noticed that Teslim was very nervous, his voice changed, his hands were shaking, and he played with his keys as he spoke with them.

Woltman then handed the identification card to Miller, advised Teslim that they were conducting a narcotics investigation, and asked if he would consent to a search of his luggage. Woltman told the defendant that the search was voluntary and he could refuse. Teslim became very upset and said he was tired of this embarassment to him and his family. He refused to consent to the search of his luggage and told the police officers they would have to obtain a search warrant.

At approximately 6:40 p.m., the police advised Teslim that they were going to contact Corporal Ron Gerkey, the head of a canine unit from the St. Joseph County Police Department, who would come to the scene with a police dog to conduct a "sniff test" of the vehicle for narcotics. The officers told Teslim that he could either stay with the luggage or they could give him a receipt for his luggage and that he was free to leave. Before leaving, the defendant placed a burgandy briefcase, that the police had not previously noticed, into the car. Corporal Miller then handed Teslim his identification card back, but the defendant gestured to the officer as if to indicate that he did not want it back and continued to walk into the airport. The defendant then entered the terminal and left the airport. The conversation between Teslim and the police officers took place in a public area and lasted approximately five to seven minutes. While Woltman went to call the canine unit, Miller remained with the car in the parking lot.

At approximately 7:05 p.m., Corporal Ron Gerkey of the St. Joseph County Police Department arrived with his dog, Bosco. ⁵ Bosco gave a positive, aggressive indication for the presence of narcotics at the passenger's side door of the yellow Lincoln.

Later that evening at approximately 10:00 p.m., Woltman obtained a search warrant from United States District Judge Robert L. Miller, Jr. authorizing a search of the automobile and its contents. During a search of the car, police officers found a package wrapped in brown plastic tape containing a white powdery substance and an airplane ticket in the name of Kayode Teslim in the right front pocket of the brown carry-on bag. The officers removed the package from the car and performed a field test on it. It tested positive for the presence of cocaine. The officers then sent the package to the DEA laboratory in Chicago, Illinois, where a chemist determined that the package contained 813 grams of 88% pure cocaine. The estimated street value of this cocaine was approximately $300,000. The officers also found $6,000 cash in the burgandy briefcase. Defendant was arrested later that evening at his home in Elkhart, Indiana.

A grand jury, on October 15, 1987, returned a four-count indictment charging Kayode Teslim with one count of conspiracy to possess with intent to distribute and to distribute cocaine in violation of 21 U.S.C. Sec. 846, two counts of possession of cocaine with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2, and one count of possession with intent to distribute more than 500 grams of cocaine in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2. Prior to trial, Teslim moved to suppress the contents of the luggage seized from him at the Michiana Regional Airport parking lot, claiming that the police violated his fourth and fourteenth amendment rights by detaining him without reasonable, articulable suspicion. After a hearing, the district court denied Teslim's motion to suppress the cocaine finding that the officers had specific and articulable grounds to make a brief, investigatory stop of Teslim and that the detention of the vehicle and its contents was lawful and based on a reasonable suspicion that the luggage contained contraband. At trial, the jury found the defendant guilty of conspiracy and possession of more than 500 grams of cocaine, but acquitted him on the other two counts.

II.

A.

The appellant first argues that his fourth...