U.S. v. Soto-Lopez

• Decision Date: 04 June 1993
• Docket Number: SOTO-LOPE,No. 92-2554,A,92-2554
• Citation: 995 F.2d 694
• Parties: UNITED STATES of America, Appellee, v. Jose Mariappellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 694

995 F.2d 694

UNITED STATES of America, Appellee, v. Jose Maria SOTO-LOPEZ, Appellant.

No. 92-2554.

United States Court of Appeals Seventh Circuit.

Argued March 30, 1993.

Decided June 4, 1993.

Helene B. Greenwald, Asst. U.S. Atty. (argued), Chicago, IL (Fred Foreman, U.S. Atty., Gregory T. Mitchell, Asst. U.S. Atty., on the brief), for appellee.

Arturo Hernandez-Melendez (argued), San Jose, CA, for appellant.

Before CUMMINGS and RIPPLE, Circuit Judges, and TIMBERS, Senior Circuit Judge. ^*

TIMBERS, Senior Circuit Judge.

Appellant Jose Maria Soto-Lopez appeals from his conviction, after a bench trial, of possession with intent to distribute cocaine pursuant to 21 U.S.C. § 841(a)(1) (1988). Appellant moved to suppress the evidence obtained after he was questioned by agents at the airport, claiming that he was subject to an investigative stop without reasonable suspicion. The motion was denied. He was tried and found guilty. The court imposed a two-level enhancement of his sentence for obstructing justice at the suppression hearing. On appeal, appellant claims that the court erred in denying his motion to suppress, lacked sufficient evidence to convict, and erred in enhancing his sentence.

I.

We summarize only those facts and prior proceedings believed necessary to an understanding of the issues raised on appeal.

Appellant was a passenger on a flight from San Jose, California, to Chicago's O'Hare Airport on June 7, 1990. DEA Agent Robert Irwin and Chicago Police Detective Richard Crowley were at the airport that day as part of a combined federal and local attempt to seize drugs smuggled into Chicago. They were assigned to monitor flights arriving from "source cities", one of which was San Jose.

As appellant deplaned, Irwin and Crowley were observing passengers on the main concourse of the terminal. They particularly noticed appellant because of what was described in the agents' testimony as his "flashy" appearance. He was wearing a San Francisco 49er's jacket, a pair of designer blue jeans with a large silver buckle, a western-style shirt, snakeskin boots, a gold chain or two around his neck, and a large gold watch. The agents observed him looking around the gate. He seemed unusually nervous. His actions aroused the agents' suspicion. They watched appellant leave the gate area and noticed that he looked over his shoulder. Appellant stopped at a row of newspaper vending machines. The agents approached him.

They asked if he would answer a few questions. They told him that he could leave at any time during the conversation. They informed appellant of their credentials as law enforcement agents, and told him that he was not under arrest. Appellant agreed to remain and answer question asked by the agents. They questioned him in English, although Spanish is his first language. He does not speak English very well, but he understood their questions and responded in English. He told them his name and that he had just gotten off a flight from California. The agents asked if they could see his ticket. He handed it to one of the agents, who noticed that it was a one-way ticket to Chicago, issued to appellant in San Jose. The agent also noticed appellant's hand shaking as he handed the ticket to him. Stapled on the inside of the ticket envelope was a baggage claim check. One agent read the baggage claim check aloud so the other could write it down for further investigation. After looking at the ticket, the agent returned it to appellant.

The agents asked appellant a series of questions about his trip to Chicago. He stated that he was unemployed, had no money, and came to Chicago to look for work as an auto repair mechanic. He said that he planned to stay in Chicago for one week, and that he bought the $556.00 ticket with a credit card. The agents also asked to see appellant's identification. He gave them his California driver's license and a resident alien card. According to the agents, they were both immediately returned to appellant. While talking with appellant, one agent read aloud the information on the ticket so the other agent could write it down for further investigation.

The agents then informed appellant that they were conducting an investigation of narcotics trafficking at the airport and asked if he was transporting drugs. Appellant replied that he was not. He voluntarily allowed the agents to search his carry-on bag. The agents asked appellant if he had any other luggage. He replied "no", but became noticeably nervous. The agents allowed appellant to proceed on his way, but they followed him. He went to the baggage claim area of the airport. One of the agents went behind the baggage carousel and looked for the piece of luggage which matched the claim check number he had written down. He located the piece of luggage. Without disturbing it, he went back to observe appellant.

Appellant was speaking with another Hispanic man at the baggage claim area. They were both looking around. After they spoke, appellant left the airport without the luggage. The other man remained until he made eye contact with one of the agents. Then he too left. The luggage was left on the carousel. No one else claimed it. The agents took the luggage to a DEA office within the airport and arranged for a narcotics dog to sniff it. The dog reacted violently and ripped it. A search warrant was obtained. Once opened, the agents discovered ten wrapped kilogram size packages of cocaine in the luggage.

Appellant was indicted on October 30, 1990 for knowingly and unlawfully possessing with intent to distribute approximately 10,049 grams of cocaine, in violation of 21 U.S.C. § 841(a)(1). Appellant was not present at the arraignment. A bench warrant was issued for his arrest. He was arrested in California on October 2, 1991. The case was removed to the Northern District of Illinois on October 22, 1991 where he was arraigned and pleaded not guilty.

On February 18, 1992, appellant filed a motion to suppress evidence, claiming that he was detained and questioned unlawfully by the agents in violation of the Fourth Amendment. He said that he found it difficult fully to express himself in English, and that, when the agents asked if he minded answering a few questions and he responded "yes", he meant yes, he did mind. Appellant acknowledged that he was told that he was free to leave, but, since there was an agent on either side of him, he did not feel that he really could go. He denied having luggage on the flight or having a baggage claim check.

The court denied appellant's motion. The parties stipulated that the evidence adduced at the suppression hearing would stand as trial evidence. After a bench trial, the court found appellant guilty of the one count charged in the indictment. The court sentenced him to 151 months, to be followed by five years supervised release. The sentence included a two-level enhancement for obstruction of justice based on the court's finding that appellant did not testify truthfully when he said at the suppression hearing that he had no luggage with him other than the carry-on bag.

On appeal, appellant claims that the court erred in denying his motion to suppress and not finding that he was illegally detained in violation of the Fourth Amendment. He also asserts that there was insufficient evidence to convict him on the possession charge. He contends that the court erred in imposing the two-level enhancement of his sentence. For the reasons that follow, we reject his contentions and affirm the judgment.

II.

(A) Motion to Suppress

We are limited in our review of the denial of a motion to suppress. We can overturn the court's decision only if it was clearly erroneous. United States v. Edwards, 898 F.2d 1273, 1276 (7th Cir.1990).

Appellant asserts that here the court erred in finding the incident at the airport a consensual encounter and not a detention--a critical error in that a detention requires that the officers must have reasonable suspicion to detain a suspect. Terry v. Ohio, 392 U.S. 1, 26-27 (1968). What has become known as a "Terry" stop differs from a brief consensual encounter, from which a reasonable person would feel free to walk away, since an officer need not have any level of suspicion for a consensual encounter. Florida v. Bostick, 111 S.Ct. 2382, 2386 (1991); United States v. Williams, 945 F.2d 192, 196 (7th Cir.1991); United States v. Serna-Barreto, 842 F.2d 965, 966 (7th Cir.1988).

Appellant claims that the facts show that his encounter was not consensual, but was a Terry stop, requiring reasonable suspicion. Williams, supra, 945 F.2d at 195. He claims that he was stopped in an isolated area and was facing a wall throughout the entire encounter. This, he says made him feel compelled to remain and accordingly he was detained. We disagree.

The court's finding that the incident took place in a public area is not clearly erroneous. The facts are that the area where he was stopped was directly across from the gate in the main terminal. As in Florida v. Royer, 460 U.S. 491, 497 (1983), when an officer questions an individual who is willing to answer in a public place, the encounter does not rise to a seizure. Although appellant claims the area was isolated, there were people passing in the general vicinity, as appellant concedes.

Appellant further claims that when the agents took his plane ticket and identification, the incident escalated from what arguably began as a consensual encounter into a Terry stop. United States v. Borys, 766 F.2d 304, 310 (7th Cir.1985) (retention of airline ticket and driver's license is critical factor in turning a consensual encounter into a stop), cert. denied, 474 U.S. 1082 (1986). The facts of this case, however, do not support his claim. While in Borys we stated that "retaining airline tickets and driver's licenses has been a crucial factor in finding that a seizure has occurred", we held that, when an officer merely glances at a ticket, it does...