933 F.2d 1412 (8th Cir. 1991), 89-2920, United States v. McKines
|Citation:||933 F.2d 1412|
|Party Name:||UNITED STATES of America, Appellee, v. James A. McKINES, Appellant.|
|Case Date:||May 17, 1991|
|Court:||United States Courts of Appeals, Court of Appeals for the Eighth Circuit|
Submitted Feb. 1, 1991.
Elven Bauman, Belton, Mo., for appellant.
Mark Miller, Kansas City, Mo., for appellee.
Before LAY, Chief Judge, McMILLIAN, ARNOLD, JOHN R. GIBSON, FAGG, BOWMAN, WOLLMAN, MAGILL, BEAM and LOKEN, Circuit Judges, En Banc.
BEAM, Circuit Judge, joined by BOWMAN and WOLLMAN, Circuit Judges.
JOHN R. GIBSON, FAGG and LOKEN, Circuit Judges, join in Parts I and IIA and join in those portions of Part IIC indicated in the special concurrence.
James A. McKines appeals from his conviction, following a two-day jury trial, for conspiracy to possess with intent to distribute phencyclidine (PCP), in violation of 21 U.S.C. Sec. 846 (1988); for possession with intent to distribute PCP, in violation of 21 U.S.C. Sec. 841(a)(1) (1988); and for travelling in interstate commerce with the intent to possess PCP, in violation of 18 U.S.C.
Sec. 1952 (1988). Because of two prior convictions for possession of PCP, the district court sentenced McKines to the mandatory life terms required by the first and second counts. See 21 U.S.C. Sec. 841(b)(1)(A). McKines was also sentenced to prison for five years on the remaining count.
McKines argues that the district court erred in denying his motion to suppress evidence seized from his baggage at the Kansas City International Airport, that proof of two prior drug convictions should not have been received in evidence, and that the mandatory life sentences violate the eighth amendment. We affirm.
Around seven o'clock in the morning on June 8, 1989, Agent Carl Hicks of the Drug Enforcement Administration watched McKines deplane from flight 656, arriving in Kansas City from Las Vegas. Hicks, joined by two detectives from the Platte County Sheriff's Office, Tully Kessler and Paul Carrill, and working his regular detail at the airport, was looking for drug couriers. All three officers were in plain clothes and did not wear exposed badges or weapons. As he got off the plane, McKines caught Hicks's attention. Hicks noticed that McKines was casually dressed in black corduroy trousers, a white pullover shirt, and either loafers or sandals without socks. He was bearded and wore sunglasses. Hicks watched McKines walk directly to a telephone, apparently make a call, and then proceed to the baggage claim area. There, McKines walked to the back of the carousel, where Hicks observed him glancing about the terminal. McKines claimed two suitcases and left the terminal building in search of a cab.
Based on his observation, Hicks suspected that McKines might be a drug courier and decided to question him. Hicks testified that he approached McKines on the sidewalk outside the terminal, "showed him my badge and told him that I was a police officer and asked him if I could talk to him." Transcript of Evidentiary Hearing, July 27, 1989, at 6 (July 27, 1989, Hearing Transcript). McKines, whom Hicks described as cool and collected throughout the interview, replied, "Sure." Id. at 7. At the agent's request, McKines gave Hicks his airplane ticket, issued to John McKines, and his driver's license, bearing the name James McKines. McKines shrugged off this discrepancy. Hicks returned these items before again showing his badge, identifying himself as an agent with the DEA, and telling McKines that he was watching for drugs being smuggled into Kansas City. Id. at 10. 1 McKines readily gave permission for Hicks to search his suitcases.
When McKines began to open one of the suitcases on the crowded sidewalk, Hicks suggested that they move back inside the terminal to a less crowded area. In a small alcove just inside the terminal door, Hicks first examined the smaller suitcase, in which he found only men's clothing. Before Hicks opened the second suitcase, McKines commented that it had been given to him by Charlotte, a friend in Las Vegas, for delivery to her sister, Michelle, in Kansas City. In this suitcase Hicks found, among other things, an eight-pack of sixteen-ounce Mountain Dew bottles. As soon as he opened the suitcase, Hicks thought that he smelled PCP, but he could not pinpoint its source. "I smelled the top of the bottles and I smelled a faint odor of what I felt was PCP but in examining the bottle caps, the bottle caps were still in a sealed condition and appeared not to have been removed or tampered with." Id. at 14. Hicks then concluded the interview and McKines resumed his search for a cab.
After McKines left the terminal, detective Kessler, who had moved to within several feet of the suitcases when Hicks examined the Mountain Dew bottles, told Hicks
that he was certain that the liquid in the bottles was not Mountain Dew. Mountain Dew, he explained, is an opaque liquid which discolors the green glass of the bottles, while the liquid in these bottles appeared to be clear. He also observed that he had learned from prison inmates that it was possible to reseal a bottle to make it look as if it had never been opened. Hicks then pursued McKines outside, where he found him already seated in the back seat of a cab. Hicks asked if he could again look in the larger suitcase, and McKines readily consented. When the suitcase was opened, Hicks took a bottle, unsealed it, and immediately detected the very strong odor of PCP. Hicks promptly arrested McKines.
Prior to trial, McKines moved to suppress the evidence seized from the suitcase. Following an evidentiary hearing, the United States Magistrate Judge recommended that the motion be denied. The magistrate found no constitutional violation because the encounter between Hicks and McKines did not implicate the fourth amendment. The magistrate also found that McKines voluntarily consented to the search. The district court adopted the magistrate's report and recommendation and denied the motion to suppress. On appeal, McKines argues primarily that the encounter with Agent Hicks was not supported by reasonable suspicion. We must first consider, however, whether the encounter implicated the fourth amendment.
A. Fourth amendment seizure
In Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 1879 n. 16, 20 L.Ed.2d 889 (1968), the Supreme Court noted that "not all personal intercourse between policemen and citizens involves 'seizures' of persons." As the Supreme Court readily admits, see INS v. Delgado, 466 U.S. 210, 215, 104 S.Ct. 1758, 1762, 80 L.Ed.2d 247 (1984), and as its cases illustrate, defining this sort of fourth amendment seizure--an intrusion on personal liberty beyond that occurring during an entirely consensual encounter between citizens and police officers, but short of traditional, full-scale arrest requiring probable cause--is difficult. Nevertheless, it is at least clear that such a seizure occurs "[o]nly when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen." United States v. Mendenhall, 446 U.S. 544, 552, 100 S.Ct. 1870, 1876, 64 L.Ed.2d 497 (1980) (opinion of Stewart, J.) (quoting Terry, 392 U.S. at 19 n. 16, 88 S.Ct. at 1879 n. 16). Justice Stewart's opinion has since been cited and relied on for establishing the test for a fourth amendment seizure: "[A] person has been 'seized' within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." Id. 446 U.S. at 554, 100 S.Ct. at 1877. Accord Michigan v. Chesternut, 486 U.S. 567, 573, 108 S.Ct. 1975, 1979, 100 L.Ed.2d 565 (1988); Delgado, 466 U.S. at 215, 104 S.Ct. at 1762; Florida v. Royer, 460 U.S. 491, 502, 103 S.Ct. 1319, 1326, 75 L.Ed.2d 229 (1983). 2
As the Supreme Court's cases make clear, this test requires, generally, that we "take into account 'all of the circumstances surrounding the incident' in each individual case." Chesternut, 486 U.S. at 572, 108 S.Ct. at 1978 (quoting Mendenhall, 446 U.S. at 554, 100 S.Ct. at 1877). The Supreme Court has explicitly set forth several factors which might aid in applying the Mendenhall test.
Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers,
the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled.
Mendenhall, 446 U.S. at 554, 100 S.Ct. at 1877. Applying the test in Mendenhall, Justice Stewart found no fourth amendment seizure. 3 Agents of the DEA stopped Mendenhall in the airport concourse, identified themselves as federal agents, asked to see her identification and her airline ticket, noted discrepancies between the two, and then one agent specifically identified himself as a federal narcotics agent. Id. at 547-48, 100 S.Ct. at 1873. The officers asked Mendenhall to accompany them up a flight of stairs to the DEA's airport office, where Mendenhall consented to a search of her person.
Making clear that Mendenhall "was not seized simply by reason of the fact that the agents approached her, asked her if she would show them her ticket and identification, and posed to her a few questions," id. at 555, 100 S.Ct. at 1877, Justice Stewart considered it significant that the questioning took place in public, that the agents were in plain clothes and did not display weapons, and that their manner was not in any intentional way coercive or intimidating. See id. In short, Justice Stewart's opinion emphasizes that "a person is 'seized' only when, by means of physical force or...
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