889 F.2d 1490 (6th Cir. 1989), 89-1010, United States v. Rose

Docket Nº:89-1010.
Citation:889 F.2d 1490
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. William Raymond ROSE, Defendant-Appellant.
Case Date:November 20, 1989
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 1490

889 F.2d 1490 (6th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,

v.

William Raymond ROSE, Defendant-Appellant.

No. 89-1010.

United States Court of Appeals, Sixth Circuit

November 20, 1989

Argued Oct. 3, 1989.

Page 1491

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,

Page 1492

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,

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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...

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