U.S. v. Hawthorne, 91-2096

Decision Date15 December 1992
Docket NumberNo. 91-2096,91-2096
Citation982 F.2d 1186
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Christopher HAWTHORNE, also known as Xavier Bratton, Defendant-Appellant.
CourtU.S. Court of Appeals — Eighth Circuit

Lloyd Koelker, Kansas City, MO, argued, for defendant-appellant.

Mark A. Miller, Kansas City, MO, argued, for plaintiff-appellee.

Before JOHN R. GIBSON, BEAM, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

JOHN R. GIBSON, Circuit Judge.

Christopher Hawthorne appeals from his conviction of possession with intent to distribute crack cocaine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A) (1988). Hawthorne entered a conditional guilty plea, and the sole issue before us is the denial of his motion to suppress the crack cocaine that was found when he was detained and his baggage was searched near the Kansas City, Missouri railroad station. Hawthorne makes a three-fold argument: (1) there was an insufficient basis for the police detention; (2) he did not consent to the search of his bag, and (3) if he did consent, it was involuntary. We affirm.

On June 8, 1990, Hawthorne arrived at the Kansas City Amtrak Station on a train from Los Angeles. Detectives Pat Sola and Randy Hopkins, officers in the Drug Enforcement Unit of the Kansas City, Missouri Police Department, had been working the station for at least two months before Hawthorne's arrival, and had stopped eighteen to twenty passengers arriving on trains from Los Angeles. Relying on a "drug courier profile," they looked for Los Angeles passengers who wore "Los Angeles" hats or shirts; appeared nervous and looked around frequently; had unchecked luggage; tried to leave the station quickly either by taxi or calling for one; or handed a taxi driver a piece of paper with an address written on it.

After Hawthorne alighted from the Los Angeles train, Detective Sola noticed him walking about a pace behind an elderly woman. Sola saw the woman ask Hawthorne if he was from Kansas City. Hawthorne said, "No," and continued to walk with the woman. Sola concluded that the two were not together, but that Hawthorne was trying to appear to be with her. Hawthorne was wearing a green and white striped shirt, blue jeans, and tennis shoes, and was carrying a gym-bag sized flight bag with a shoulder strap. Hawthorne looked around at the people in the station and acted "jittery." Sola followed Hawthorne and the woman as they walked to the parking garage. After the woman met an elderly man, Sola saw Hawthorne come back into the station, but then he lost sight of him. Sola and Hopkins went upstairs to another exit and saw Hawthorne walking rapidly down the street. The detectives got into an unmarked police car and drove in the direction Hawthorne was walking. The detectives saw him enter the Motor Inn Hotel, which was near the Amtrak Station. The detectives entered the hotel lobby and saw Hawthorne make a telephone call. When Hawthorne finished his call, Detective Sola approached him and began to walk beside him toward the front door. Sola asked Hawthorne if he could talk to him, Hawthorne answered, "Yes," and stopped walking. Sola then showed Hawthorne his identification card and said he was a police officer. Sola asked if Hawthorne was staying at the hotel; Hawthorne replied that he was not, and that he had come to Kansas City to visit a cousin. Sola asked to see Hawthorne's train ticket, and Hawthorne showed him a one-way ticket from Los Angeles, California, purchased for cash the day of departure. When Sola asked for identification, Hawthorne said he did not have any with him (Sola later found out that the name on Hawthorne's train ticket--Xavier Bratton--was an assumed name). Sola asked for Hawthorne's cousin's name, and Hawthorne said that her name was Marge but he could not remember her last name.

Sola then asked permission to look in Hawthorne's bag for narcotics, and Hawthorne said, "No." Based on the facts described above, Sola believed Hawthorne was carrying narcotics and decided to detain him. Sola told Hawthorne that he was temporarily detaining him and his bag and was ordering a narcotics detection dog to sniff the bag. Sola and Hawthorne walked out the front door, and Detective Hopkins, who had been watching the encounter from ten to fifteen feet away, followed. Sola took Hawthorne's bag and told him to sit in the front seat of the car. Sola asked Hopkins to order a drug detection dog, which he thought probably would arrive in five to thirty minutes. Hopkins went to the driver's side of the car and ordered the dog, but he was not told how long it would be before the dog arrived. The car door on the passenger side where Hawthorne was sitting was open, Sola stood on the sidewalk next to the door, and the bag was on the ground between Hawthorne and Sola.

Approximately one minute after the dog was ordered, Hawthorne told Sola to "go ahead and look in his luggage because [he] was going to look anyway." Sola told Hawthorne that he did not have to give permission to look in the bag, that he had ordered a dog, and that if the dog alerted to the bag, they would try to get a search warrant for the bag. Hawthorne told Sola to "go ahead and open [the bag]." Sola looked in the bag and, in addition to men's clothing, found an unsealed white plastic bag with a clear plastic bag inside. The bags contained several large round beige rocks that Sola believed were crack cocaine. Sola placed Hawthorne under arrest.

Hawthorne moved to suppress the crack cocaine that was found in his bag. Following an evidentiary hearing, the magistrate judge 1 proposed the findings of fact stated above and recommended that the motion to suppress be denied because Hawthorne consented to the initial conversation, the detention was lawfully based on a reasonable and articulable suspicion of criminal activity, the detention was reasonable in scope, and Hawthorne voluntarily consented to the search of his bag. The district court 2 conducted an independent review of the record and applicable law, adopted the magistrate judge's recommendations, and denied the motion to suppress, stating that Hawthorne's voluntary consent was the most crucial aspect of the case. Hawthorne then entered a conditional plea of guilty, expressly reserving the right to appeal his conviction.

I.

Hawthorne agrees that his initial encounter and conversation with Detective Sola were permissible and that no seizure occurred until after he refused to consent to the search of his bag. Hawthorne argues that at that point, however, Detective Sola did not have a sufficient basis for detaining him and his bag. We must, therefore, determine whether the investigative, Terry-type 3 stop of Hawthorne and his bag was supported by a reasonable and articulable suspicion of criminal activity. Reid v. Georgia, 448 U.S. 438, 440, 100 S.Ct. 2752, 2753, 65 L.Ed.2d 890 (1980) (per curiam); United States v. Campbell, 843 F.2d 1089, 1093 (8th Cir.1988).

As we have previously stated:

The standard of articulable justification required by the fourth amendment for an investigative, Terry-type seizure is whether the police officers were aware of "particularized, objective facts which, taken together with rational inferences from those facts, reasonably warrant[ed] suspicion that a crime [was] being committed." ... In assessing whether the requisite degree of suspicion exists, we must determine whether the facts collectively establish reasonable suspicion, not whether each particular fact establishes reasonable suspicion. "[T]he totality of the circumstances--the whole picture--must be taken into account." ... We may consider any added meaning certain conduct might suggest to experienced officers trained in the arts of observation and crime detection and acquainted with operating modes of criminals.... It is not necessary that the behavior on which reasonable suspicion is grounded be susceptible only to an interpretation of guilt, ... however, the officers must be acting on facts directly relating to the suspect or the suspect's conduct and not just on a "hunch" or on circumstances which "describe a very broad category of predominantly innocent travelers." ...

Campbell, 843 F.2d at 1093-94 (citations omitted) (quoting United States v. Martin, 706 F.2d 263, 265 (8th Cir.1983); United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 694, 66 L.Ed.2d 621 (1981); Reid, 448 U.S. at 440-41, 100 S.Ct. at 2753-54). The findings of the district court as to what the various parties said or did during the encounter are subject to the clearly erroneous standard. United States v. McKines, 933 F.2d 1412, 1426 (8th Cir.) (en banc), cert. denied, --- U.S. ----, 112 S.Ct. 593, 116 L.Ed.2d 617 (1991). Whether the detention was justified, however, is a question of law to be reviewed de novo. See id.

In light of these principles, we evaluate the circumstances known to Detective Sola at the time the Terry-type stop occurred: (1) Hawthorne arrived on a train from Los Angeles, a known "source" city for drugs; (2) when Hawthorne got off the train, he walked out of the station and into a parking garage about a pace behind an elderly woman and tried to give the impression that they were together; (3) Hawthorne looked all around at the people in the station and appeared "jittery"; (4) after the elderly woman met someone else, Hawthorne came back into the station and left from a different door; (5) Hawthorne was wearing a green and white striped shirt, blue jeans, and tennis shoes; (6) Hawthorne carried a gym-bag sized flight bag and did not have any checked luggage; (7) Hawthorne walked to a nearby hotel to use a telephone instead of using one in the train station, and Hawthorne was not staying at the hotel; (8) Hawthorne used a one-way ticket that had been purchased for cash on the day of departure; (9) Hawthorne had no identification; 4 and (10) Hawthorne could not remember the last name of the cousin he said he was...

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