985 F.2d 1333 (7th Cir. 1993), 91-2138, United States v. Adebayo

Docket Nº:91-2138, 91-2226.
Citation:985 F.2d 1333
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Oluremi ADEBAYO and Christopher A. Davis, Defendants-Appellants.
Case Date:February 05, 1993
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 1333

985 F.2d 1333 (7th Cir. 1993)

UNITED STATES of America, Plaintiff-Appellee,

v.

Oluremi ADEBAYO and Christopher A. Davis, Defendants-Appellants.

Nos. 91-2138, 91-2226.

United States Court of Appeals, Seventh Circuit

February 5, 1993

Argued June 10, 1992.

As Amended Feb. 9, 1993.

Page 1334

Barry R. Elden, Asst. U.S. Atty., Haywood E. McDuffie (argued), Office of the U.S. Atty., Criminal Receiving, Appellate Div., Chicago, IL, for U.S.

William J. Stevens, Chicago, IL (argued), for Christopher A. Davis.

Paul M. Brayman, Chicago, IL (argued), for Oluremi Adebayo.

Before POSNER, COFFEY and EASTERBROOK, Circuit Judges.

COFFEY, Circuit Judge.

Christopher A. Davis and Oluremi S. Adebayo were arrested and subsequently indicted on one count of conspiring to possess with intent to distribute heroin in violation of 21 U.S.C. § 846, and one count of possession with intent to distribute heroin in violation of 21 U.S.C. § 841(a)(1). The district court granted Adebayo's motion to sever his trial from Davis'. Davis was convicted on both counts and the district court sentenced him to concurrent terms of 78 months imprisonment on each count. Adebayo was convicted on the conspiracy count only and was sentenced to 70 months imprisonment. Both defendants appeal their convictions. Davis also argues that his sentence should be vacated. We affirm.

I.

  1. Factual Background

    We set out only the facts relevant to the issues raised on appeal. On the morning of June 15, 1990, a United States Customs agent based in New York informed the United States Drug Enforcement Administration in Chicago ("DEA") and officers of the Chicago Police Department Transportation

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    Group Task Force ("Task Force") 1 of an anonymous tip that a man named Tunde Williams would arrive in Chicago at 11:55 a.m. on Midway Airlines Flight No. 932 carrying heroin. The tip described the heroin smuggler as a "black male, approximately 5' 11", wearing a striped jacket and slacks." Agents Robert Glynn and Michael Bobko, after arriving at Midway Airport, confirmed through the airline that a man using the name "T. Williams" was on Midway flight 932 and his traveling companion was referred to as "S. Ade." Glynn, Bobko and agents Richard Ludowig and Patrick Flaherty positioned themselves in the gate area for flight 932 to observe as the passengers deplaned.

    The agents and the defendants gave sharply different accounts of the events which followed. According to the defendants, Adebayo deplaned ahead of Davis, and walked directly to a pay phone to make a five-second call to obtain an address. Davis explained that he left the plane after Adebayo because he was delayed placing Adebayo's address book in his brief case. Davis claims that when he stepped out into the gate area, he walked past Adebayo and headed for the airport's security checkpoint exit. Adebayo says he followed behind. Davis stopped at a newsstand to buy gum and then headed outside towards a taxi stand, with Adebayo following 10 to 15 feet behind. The defendants claim they had previously agreed to meet at the taxi stand.

    The agents, in contrast, testified that a man matching the description they had received of the smuggler (a black male, approximately 5' 11", wearing a striped jacket and slacks) was the tenth or twelfth person to deplane. They later positively identified that passenger as Christopher A. Davis, and not "Tunde Williams", the name given by the anonymous informant. The agents say Davis took 10 or 12 steps, stopped, turned his head, and looked back towards the plane's exit. A few passengers later, Oluremi Adebayo emerged, walked towards Davis, made eye contact with him, and directed Davis with a head gesture to proceed down the concourse. Davis complied with the direction, and Adebayo followed behind. Adebayo stopped at a phone near the gate area, held the receiver in his hand for less than a minute while watching Davis proceed down the walkway. The agents say Adebayo never made a phone call. Adebayo hung up the phone and followed Davis through the security exit. He followed Davis for a few more seconds and then nodded to him to proceed through an exit door. Davis complied and he followed him out the exit door.

    The agents and the defendants also disagree about what happened once Adebayo and Davis walked outside the airport terminal. The agents' account is as follows: Two agents approached Davis, identified themselves as narcotics officers, and asked if they could speak with him. Davis told the agents he did not have any drugs, and agreed to speak with them. The agents asked Davis his name and requested identification. Davis gave them his drivers license. The agents noticed that Davis appeared extremely nervous as they asked him (Davis) for his plane ticket. He responded that he did not have one, but acknowledged that he had been on the flight from New York. The agents then told Davis that he was not under arrest and was free to go. Next, the agents asked Davis if the briefcase he was carrying was his and if he had packed it himself. Davis answered yes to both questions. The agents told Davis that they did not have a warrant but were asking permission to search his briefcase and were asking whether he was carrying drugs. They informed Davis that he did not have to consent to the briefcase search because they did not have a warrant for him. Nevertheless, he consented to the briefcase search. The agents found two airline tickets in the briefcase in the names of "S. Ade and T. Williams." The tickets indicated that "S. Ade" had paid cash for the tickets and that the two passengers had adjoining seats. When the agents asked Davis if the tickets were his, he answered, "No, yes, I don't know." One agent than asked Davis if he had drugs on his person and if he would

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    consent to a search of his "outer garment". Davis verbally consented to this search and opened his jacket. One agent felt the jacket and discovered a packet he recognized to be of a kind used in narcotics trafficking. Davis was placed under arrest, and a more thorough pat down disclosed three more packets in his waist band. The packets were later analyzed and determined to contain heroin.

    Davis' version of his encounter with the agents outside the terminal building is markedly different. According to Davis, as he left the terminal and headed towards the taxi stand, two men flashing DEA credentials approached him, identified themselves as DEA agents and told him they believed he was carrying illegal drugs. One agent stepped in front of Davis, and said he wanted to search him. The agent took hold of Davis' left hand, took Davis' briefcase from his right hand, and gave the briefcase to the other agent, who proceeded to search it. One of the agents then said he was going to search Davis' person. Davis remained silent but "presented his jacket". The agent put his hand in Davis' jacket and found a heroin packet. The agents arrested Davis and read him his rights. The subsequent search revealed three more heroin packets hidden in his waistband. Davis concedes that the agents were in plainclothes and did not display any weapons during their encounter. He admits that when the agents asked if they could talk with him he said "yeah." He also admits that in response to the agent's questions he told them that he had flown in from New York, that the briefcase he was carrying was his, and that he had packed its contents. He denies giving the officers' permission to search his briefcase or his jacket, and denies that he was ever told during the encounter that he had the right to discontinue the questioning and that he was free to leave. He also denies that the airline tickets were found during the first search of his briefcase, and maintains that the agents found them only after he was arrested.

    Two other agents had approached Adebayo while their colleagues were busy with Davis. Once these agents learned of the discovery of the heroin on Davis, they arrested Adebayo as well.

  2. Proceedings

    Both Davis and Adebayo filed motions to suppress the evidence obtained in connection with their arrests. Each of the defendants individually contend that when he was approached by agents outside the airport terminal building, he was "seized" within the meaning of the Fourth Amendment to the United States Constitution...

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