U.S. v. Rose

• Citation: 889 F.2d 1490
• Decision Date: 20 November 1989
• Docket Number: No. 89-1010,89-1010
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William Raymond ROSE, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 1490

889 F.2d 1490

UNITED STATES of America, Plaintiff-Appellee, v. William Raymond ROSE, Defendant-Appellant.

No. 89-1010.

United States Court of Appeals Sixth Circuit.

Argued Oct. 3, 1989.

Decided Nov. 20, 1989.

Donald A. Scheer, Asst. U.S. Atty. (argued), Office of the U.S. Atty., Civil Div., Detroit, Mich., for U.S.

Steven F. Fishman (argued), Detroit, Mich., for William Raymond Rose.

Before MARTIN and MILBURN, Circuit Judges, and CONTIE, Senior Circuit Judge.

CONTIE, Senior Circuit Judge.

William Rose appeals his conviction for possession with intent to distribute cocaine in violation of 21 U.S.C. Sec. 841(a)(1).

I.

On July 17, 1986, two Drug Enforcement Agency (DEA) Agents stationed at the Detroit Metropolitan Airport observed the appellant, William Rose, deplane Pan Am flight 504, a direct flight originating in Miami, Florida. The agents testified that the appellant descended the aircraft's stairwell at a "rapid pace" carrying only a duffel bag, then walked rapidly from the arrival gate to the far north exit of the international terminal without stopping at the baggage claim area. The appellant made several hurried phone calls, nervously shuffling his feet while talking, then left the airport terminal and entered his automobile which was parked in the short-term parking area.

DEA Agents Magee and Johnston, suspecting that the appellant might be a narcotics courier, attempted to detain him. Testimony regarding the manner of this detention differs. Appellant testified that the DEA agents stood in the middle of the road blocking the airport parking lot exit, whereas the agents testified that they merely approached the appellant's vehicle identified themselves, and asked the appellant if he would answer a few questions. Both parties agree, however, that the agents were dressed in civilian clothes and did not display weapons at the time of the stop.

Agent Magee asked the appellant to turn off his automobile because its loud muffler made conversation difficult. The appellant turned off the engine and stepped out of his automobile. Appellant testified that the officers ordered him to exit the car, whereas the agents testified that he stepped out without request. The agents did not request, nor did they take, appellant's car keys. Appellant consented to a search of his duffel bag after informing the agents that he had been in Florida for one week. A search of the duffel bag revealed handwritten notes resembling narcotics records and an airline ticket indicating that appellant's trip had lasted only three days, not one week. Based on this evidence Agent Magee performed a pat-down search of the appellant and discovered a package hidden below the appellant's waist. Agent Magee placed the appellant under arrest and asked him to remove the hidden package. Appellant complied and handed Agent Magee a bag of white powder which was subsequently determined to be a substance containing cocaine.

On February 19, 1987, a federal grand jury indicted appellant on one count of possession with intent to distribute cocaine in violation of 21 U.S.C. Sec. 841(a)(1).

On March 30, 1987, appellant filed a motion to suppress the evidence seized at the airport at the time of the arrest. The district court conducted an evidentiary hearing on this motion and subsequently issued a Memorandum Opinion and Order on June 9, 1987, denying appellant's motion.

On June 19, 1987, appellant withdrew his plea of not guilty and entered a plea of guilty while retaining his right to appeal the district court's denial of his motion to suppress the evidence seized at the airport. Appellant was sentenced to eighteen months in prison, to be followed by a special parole term of three years. The district court entered the Judgment and Commitment Order.

On August 24, 1988, this court vacated and remanded the district court's Memorandum Opinion and Order denying the appellant's motion to suppress evidence 856 F.2d 197. This court found the district court's opinion ambiguous regarding whether a seizure had taken place and instructed the district court on remand to consider whether the DEA agents' conduct of stopping the appellant amounted to a seizure of the appellant. This court further instructed that if a seizure occurred, the district court was to consider next whether the seizure was constitutionally permissible.

On December 8, 1988, the district court issued its Memorandum Opinion and Order again denying appellant's motion to suppress the evidence. The district court determined that no seizure had occurred because a reasonable person in the appellant's position would have realized that he was free to leave prior to the search of his duffel bag. To the extent that Agent Magee's conduct could be construed as a seizure, the district court further held that Agent Magee had a reasonable and articulable suspicion to seize the appellant. The seizure, therefore, was constitutionally permissible.

This timely appeal followed.

II.

A.

Appellant argues that the district court erred in concluding that he was not seized within the meaning of the fourth amendment.

Any assessment as to whether police conduct amounts to a seizure implicating the fourth amendment must take into account "all the circumstances surrounding the incident" in each individual case. Michigan v. Chesternut, 486 U.S. 567, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988) (quoting I.N.S. v. Delgado, 466 U.S. 210, 215, 104 S.Ct. 1758, 1762, 80 L.Ed.2d 247 (1984); United States v. Mendenhall, 446 U.S. 544 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980) (Stewart, J.)). In Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Supreme Court held that "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, 88 S.Ct. at 1878.

In determining whether a person has been seized within the meaning of the fourth amendment, the Supreme Court set forth a test which provides that the police can be said to have seized an individual "only if, in view of all of 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 (quoted in United States v. Knox, 839 F.2d 285, 289 (6th Cir.1988), cert. denied, --- U.S. ----, 109 S.Ct. 1742, 104 L.Ed.2d 179 (1989)).

What constitutes a restraint on liberty prompting a person to conclude that he is not free to leave will vary with the police conduct at issue and the setting in which the conduct occurred. Chesternut, 108 S.Ct. at 1979. This test, while flexible enough to be applied to a wide range of police conduct, requires consistent application to every police encounter regardless of the particular individual's response to the policemen's actions. This "reasonable person" standard further ensures that the scope of the fourth amendment protection does not vary with the state of mind of the particular individual involved. Id. at 1980. The subjective intent of the officers is relevant to an assessment of the fourth amendment implications of police conduct only to the extent that that intent has been conveyed to the person confronted. Mendenhall, 446 U.S. at 554 n. 6, 100 S.Ct. at 1877 n. 6.

The Supreme Court has held 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...." Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229 (1983). The Court continued: "Nor would the fact that the officer identifies himself as a police officer, without more, convert the encounter into a seizure requiring some level of objective justification." Id. (citing Mendenhall, 446 U.S. at 555, 100 S.Ct. at 1877).

In the instant action, appellant voluntarily stopped his automobile after DEA Agent Magee displayed identification. Agent Magee was dressed in civilian clothing and did not display a weapon. Magee merely asked the appellant if he would answer some questions. The agent did not possess the appellant's identification, tickets, car keys or other personal property.

Similarly, after the appellant consented to the agent's request to converse, Agent Magee requested that the appellant turn off his automobile because its loud muffler made conversation difficult. Appellant was free to deny this request. Nevertheless, appellant chose to comply and turned off his engine. Agent Magee did not take the appellant's keys. Appellant subsequently consented to the search of his duffel bag wherein Agent Magee discovered evidence contradicting the appellant's previous statements, thereby elevating the agent's suspicion to probable cause. A pat-down search of the appellant was conducted based on the probable cause and resulted in the discovery of drugs. ¹

The appellant does not deny that he consented to the search of his duffel bag. Such consensual conduct may not be deemed a seizure.

It is well settled under the Fourth and Fourteenth Amendments that a search conducted without a warrant issued upon probable cause is "per se unreasonable ... subject only to a few specifically established and well-delineated exceptions." It is equally well settled that one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent.

Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043-44, 36 L.Ed.2d 854 (1973) (citations omitted).

"[T]he question whether a consent to a search was in fact 'voluntary' or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances." Id. at 227, 93 S.Ct. at 2047-48. "The district court's findings with...