U.S. v. Sullivan

• Citation: 903 F.2d 1093
• Decision Date: 29 May 1990
• Docket Number: No. 89-2242,89-2242
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Winston SULLIVAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1093

903 F.2d 1093

UNITED STATES of America, Plaintiff-Appellee, v. Winston SULLIVAN, Defendant-Appellant.

No. 89-2242.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 10, 1990.

Decided May 29, 1990.

Thomas M. Durkin, Ted S. Helwig, Loretta H. Davenport, Asst. U.S. Attys., Chicago, Ill., for plaintiff-appellee.

Gwendolyn D. Anderson, Anderson & Associates, Chicago, Ill., for defendant-appellant.

Before POSNER, RIPPLE, and KANNE, Circuit Judges.

RIPPLE, Circuit Judge.

Winston Sullivan was stopped by undercover agents at Union Station in Chicago on January 12, 1988. A subsequent search of a bag that Mr. Sullivan had been carrying disclosed one and one-half kilograms of 95% pure cocaine. Prior to trial, Mr. Sullivan moved to suppress the cocaine on the ground that it was the fruit of an illegal seizure. The district court denied this motion. Mr. Sullivan subsequently was found guilty of conspiracy to possess with intent to distribute cocaine in violation of 21 U.S.C. Sec. 846, possession with intent to distribute cocaine in violation of 21 U.S.C. Sec. 841, and interstate travel in aid of racketeering in violation of 18 U.S.C. Sec. 1952.

On appeal, Mr. Sullivan claims that the district court erred in denying his motion to suppress and in not granting him a downward departure from the sentencing guidelines. He also asserts that there was insufficient evidence to convict him of conspiracy. We reverse the judgment of the district court with respect to the conspiracy count and remand the case for resentencing.

I BACKGROUND

A. Facts

On January 12, 1988, Officer George Graham was monitoring incoming trains at Union Station in Chicago. Officer Graham's attention first was drawn to Mr. Sullivan when another male passenger walking in front of Mr. Sullivan turned around as the two of them disembarked from their train. The two men conversed briefly and then separated. Officer Graham and another officer followed Mr. Sullivan, and two other officers followed the other man. It later was determined that the other man had boarded the train in Kansas City and apparently was not acquainted with the defendant except for a brief conversation on the train. No charges ever were filed against him, nor was there any other evidence linking the two men.

Officer Graham followed the defendant into the train station. The defendant was carrying a duffle bag. He made eye contact with the officer and quickly looked away. The defendant then went to a public telephone. Officer Graham testified that the defendant did not put any money in the phone, but just held the receiver to his ear and looked around the station. When the defendant once again saw Officer Graham, he "huddled to the phone" and turned his back. Tr. at 9. He then hung up the phone and walked quickly toward the exit of the station.

Officer Graham approached the defendant near the exit, identified himself, and asked if the defendant would speak to him. The defendant agreed. Officer Graham requested to see his train ticket, and observed that it was a one-way ticket from Los Angeles and had been purchased on the day of departure for cash. He returned the ticket to Mr. Sullivan. Officer Graham asked Mr. Sullivan what he was doing in Los Angeles, and Mr. Sullivan responded that he was visiting friends. When Officer Graham asked him the Officer Graham testified that the defendant then asked why he had been stopped, and Officer Graham replied that he was conducting a narcotics investigation. The defendant "looked away and then he looked at the ground and could not maintain eye contact with" Officer Graham. Tr. at 14. Officer Graham told the defendant that he was not under arrest, that the bag would be detained to check for narcotics, but that the defendant was free to leave. The defendant asked if he could speak to his lawyer. Officer Graham led him to the public phones, and the defendant placed money into the phone and talked with his mother. ¹

names of the friends, Mr. Sullivan said he could not remember.

Officer Graham testified that when the defendant terminated his phone conversation, he told the officers that they could have his bag. Mr. Sullivan claims that his mother told him on the phone not to give over the bag, that he reached for the bag, but the officers refused to let him take it. Everyone agrees that Officer Graham then informed Mr. Sullivan that he could stay while a narcotics dog smelled the bag, and that Officer Graham offered him a receipt for the bag. Instead, Mr. Sullivan left the train station.

The officers took the bag to a police facility. A trained narcotics dog, Rex, positively indicated the presence of narcotics in the bag. The officers obtained a search warrant the next day, opened the bag, and discovered the cocaine.

B. Disposition in District Court

Mr. Sullivan was charged with conspiracy to possess with intent to distribute cocaine, possession with intent to distribute cocaine, and interstate travel in aid of racketeering. The defendant moved to suppress the cocaine on the ground that the officers did not have probable cause to stop him at the train station. The district court denied this motion.

Mr. Sullivan was found guilty following a jury trial. He was sentenced to five years in prison and ten years of supervised release on Count 2 (possession with intent to distribute cocaine), and five years probation on Counts 1 and 3, to run concurrently with the supervised release. He was re-sentenced on June 13, 1989 pursuant to the sentencing guidelines, to concurrent terms of seventy-eight months on all three Counts and four years of supervised release following release from incarceration. The district court rejected defendant's request for a downward departure and imposed a sentence within the guideline range.

II ANALYSIS

A. Suppression of Evidence

We turn first to Mr. Sullivan's argument that the district court erred in not suppressing the narcotics evidence.

1.

Mr. Sullivan asserts, as he did in the district court, that a seizure took place when he was questioned at Union Station, and that the officers did not have a reasonable suspicion of illegal activity.

The fourth amendment to the Constitution of the United States protects the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." In arguing that he was unreasonably seized, it is axiomatic that Mr. Sullivan must first succeed in proving that his encounter with the officers at Union Station was a "seizure." If, however, Mr. Sullivan consented to the encounter, we have repeatedly held that such a situation is not a "seizure" for purposes of the fourth amendment. See, e.g. United States v. Jaramillo, 891 F.2d 620, 625 (7th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 1791 108 L.Ed.2d 792 (1990); United States v. Dunigan, 884 F.2d 1010, 1015 (7th Cir.1989); United States v. Teslim, 869 F.2d 316, 321 & n. 6 (7th Cir.1989); United States v. Espinosa-Alvarez, 839 F.2d 1201, 1205 (7th Cir.1987). A person is "seized" when " 'in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.' " Michigan v. Chesternut, 486 U.S. 567, 573, 108 S.Ct. 1975, 1979, 100 L.Ed.2d 565 (1988) (quoting United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980) (opinion of Stewart, J.)); see also Teslim, 869 F.2d at 321.

The district court, after conducting a suppression hearing in which it heard and evaluated the testimony of Mr. Sullivan and the police officers, found that Mr. Sullivan consented to the questioning by the officers.

Based upon the defendant's own testimony, it seems to me that it's clear that the defendant was free to leave during his encounter with the police.

The defendant is not an unsophisticated individual. I observed him testify. He is bright. He is articulate. He is a man of some stature physically, a former marine. It seems to me that it is clear that he was not intimidated in giving his consent to the stop and conversation but, in fact, did so.

Tr. at 100-01.

The district court's decision on the issue of consent is a determination of fact. "[A]ccordingly, our standard of review is a limited inquiry into whether the decision of the district court was clearly erroneous, and requires that particular deference be given to the district judge who had the opportunity to hear the testimony and observe the demeanor of the witnesses." Espinosa-Alvarez, 839 F.2d at 1205; see also Dunigan, 884 F.2d at 1014; United States v. Novak, 870 F.2d 1345, 1350 (7th Cir.1989); Teslim, 869 F.2d at 321.

The record clearly supports the district court's finding that Mr. Sullivan was free to leave at any time and thus consented to the encounter. Officer Graham testified that he told Mr. Sullivan several times that Mr. Sullivan was not under arrest and was free to leave. ² Officer Graham informed the defendant that he could leave, but that the defendant's bag would be detained. ³ Furthermore, the record indicates that the officers never drew their weapons and did not impede Mr. Sullivan from leaving. The entire encounter occurred in an open, public place. Moreover, even by Mr. Sullivan's account, the officers took pains to explain to the defendant the procedures that they were following to detain his bag. We conclude that there was no objective reason for Mr. Sullivan to feel that he was not free to leave. In addition, the district court properly considered the character of the defendant to determine if an encounter in which the police have displayed no objective coercion might "have overborne the citizen's freedom to ignore the officer and proceed on his way." Espinosa-Alvarez, 839 F.2d at 1205. The defendant in this case is a former marine who is approximately six feet tall and weighs over 200 pounds. The district court found him to be articulate and intelligent. Our review of the record convinces us that ...