U.S. v. Adeyeye, 02-3872.

• Decision Date: 20 February 2004
• Docket Number: No. 02-3872.,02-3872.
• Citation: 359 F.3d 457
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Dapo ADEYEYE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

359 F.3d 457

UNITED STATES of America, Plaintiff-Appellee, v. Dapo ADEYEYE, Defendant-Appellant.

No. 02-3872.

United States Court of Appeals, Seventh Circuit.

Argued September 5, 2003.

Decided February 20, 2004.

James P. Fieweger (argued), Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

Andrea E. Gambino (argued), Richard H. Parsons, Office of the Federal Public Defender, Peoria, IL, for Defendant-Appellant.

Before BAUER, POSNER, and ROVNER, Circuit Judges.

ROVNER, Circuit Judge.

Dapo Adeyeye pled guilty to knowingly and intentionally possessing with intent to distribute approximately one kilogram of a mixture containing heroin, in violation of 21 U.S.C. § 841. His plea reserved the right to appeal the district court's denial of his motion to suppress and his sentence, and he now appeals both.

He contends that the district court erred in denying his motion to suppress the heroin discovered in his hotel room because the search violated the Equal Protection Clause and because his consent to the search was not voluntary. In addition, he challenges the sentence imposed by the district court, asserting that the court erred in determining that he did not qualify for the two-level "safety valve" reduction under U.S.S.G. § 2D1.1(b)(6) and U.S.S.G. § 5C1.2.

The trail that led to Adeyeye was a fortuitous one for law enforcement, if not for Adeyeye. The case originated with Customs Inspector Susan Papa, who was working at O'Hare International Airport checking computerized airline reservation information in an effort to identify potential khat smugglers.¹

Papa eventually focused on a traveler named Melvin Reynolds as a potential smuggler. The factors that caused Papa to inquire further about Reynolds were fairly innocuous: he was a British citizen as were most of the khat smugglers; and he had no prior travel to the United States. Other known khat smugglers either had a lot of recent travel or else none at all. Papa then determined that Reynolds had used a travel agency that had been used by khat smugglers in the past, and had booked his reservation only two days in advance, another red flag. Finally, Papa testified that his length of stay — three weeks — was significant. In her experience, khat smugglers often booked their reservations for two to three weeks of travel, only to turn around and return home quickly after arrival.

Papa then retrieved Reynolds' Customs' declaration, which indicated his United States address would be the Heart of Chicago Motel. That motel was on a list given by Customs agents of motels and hotels in the Chicago area at which they had encountered narcotics activity. Papa then contacted another agent, Jim Stewart, to inquire if it was possible that a legitimate foreign traveler would be going to that motel, because there were other hotels and motels on the list that foreign travelers would normally frequent. The agent informed Papa that no travel agent would recommend the Heart of Chicago Motel to a foreigner. Papa informed Stewart that the flight had arrived at approximately 10:30 that morning.

Agents Stewart and Coleman then proceeded with the investigation. They contacted the motel and inquired whether a person named Melvin Reynolds had checked in shortly before the call, and were informed that no one had registered in that name. They then asked if anyone had checked in at that time, and were told there was a foreign individual who had arrived named Dapo Adeyeye. The motel clerk further informed them that Adeyeye had paid for the room in cash. The check-in time was consistent with the time that the agents would have expected Reynolds to reach the hotel given his flight time. The agents recognized the name Adeyeye to be of Nigerian origin, but had no information as to the race or ethnicity of Reynolds other than that he was a British citizen. Based on the information before them, the agents decided to proceed to the motel to determine whether the person staying there was Reynolds registering under an alias.

When they arrived at the motel, the manager informed them that Adeyeye had been to the motel previously, and that he requested the same room as the prior occasion. (There was no testimony that Papa had informed the agents that it was Reynolds' first trip to the United States, so the information regarding his prior stay at the motel did not cause them to question whether the traveler was Reynolds.) The room was on the first floor in a more obscure area not visible from the street. The agents proceeded to the room, and knocked identifying themselves as police. They heard muffled sounds inside the room, and after several minutes they knocked again. At that time, they said that if it was an inconvenient time they could come back later. Adeyeye's testimony at the hearing corroborated the agents' testimony regarding the multiple knocks and the offer to return at a later, more convenient time. Adeyeye then opened the door, and they identified themselves as police and asked if they could come in and ask him a few questions. He agreed, and they advanced to the foyer area of the room.

The defendant identified himself as Dapo Adeyeye and stated that he had flown into Chicago from New York. In response to questions, he said he did not have any identification with him, and that he did not have his airline tickets because he discarded them at the airport. He further responded that he had some money with him, but no weapons or narcotics. From their vantage point in the room, the agents could see zip-lock sandwich bags on the bed and noticed that Adeyeye was very tense and rigid. They asked him whether he would consent to a search of his belongings, and he responded in the affirmative. In the luggage on the bed, the agents discovered thirteen packages of white powder wrapped in plastic wrap. One agent, upon seeing the packages, asked "what is it?" and Adeyeye answered that it was heroin. Adeyeye was then placed under arrest and given his Miranda warnings. He then provided additional information to them, including a statement that his prior stay at the motel was to smuggle heroin, and that the amount was greater on that occasion. The search of the motel room revealed a scale, a ledger which correlated with the packages of heroin found, and a picture of a woman who Adeyeye identified as a drug courier. They also found an Amtrak train ticket issued the previous day for New York to Chicago, indicating that he had traveled by train rather than by plane as he had indicated. The agents also discovered identification in the name "Dapo Adeyeye." As it turns out, Adeyeye had no relationship to Reynolds, but had the misfortune of checking in at a time consistent with the trail left by Reynolds.²

Adeyeye first argues that the agents violated his equal protection rights by relying on an impermissible factor of ethnicity in singling him out for investigation. He does not allege a broad discriminatory policy or practice by the agents to target Nigerian nationals, but rather claims that "in his specific case the officers' sole reason for approaching him on March 29, 2000 at the Heart of Chicago Motel was his Nigerian background, as exemplified by the officers' own testimony." The fatal flaw in that argument is that there is no such testimony at the suppression hearing.

The statements which Adeyeye cites in support of his argument are hearsay statements by a DEA agent introduced at the preliminary hearing to determine whether there was probable cause to detain Adeyeye. The agent testified that Customs officials called the Heart of Chicago Motel to ask if Reynolds had checked in, and then inquired if any other Nigerian nationals had checked in that morning. The district court at that hearing noted the problematic nature of hearsay testimony, but acknowledged that such statements could be considered at that stage. See Fed. R.Crim.P. 5.1(e) (Committee Note to 2002 amendment stating that federal law is now clear that a finding of probable cause can be based upon hearsay, and therefore eliminating need for explicit language to that effect previously in 5.1(a)). At the suppression hearing, however, Adeyeye did not attempt to either introduce that testimony or to use it to impeach the testimony of the Customs agents. In contrast to the preliminary hearing, the testimony at the suppression hearing was provided by the Customs agents with personal knowledge of what happened. Papa testified that Reynolds was singled out because he was a British citizen, traveling for a time period consistent with that of prior khat smugglers, using a travel agent previously used by such smugglers, and staying at a hotel that no travel agent would recommend to a legitimate foreign traveler. Stewart and Coleman testified that they proceeded to the motel based on those factors once they determined that a foreign national had indeed checked into the motel at a time consistent with Reynolds' travel schedule. They questioned the motel manager in an effort to further determine the identity of the motel guest, and learned that he had requested a particular room which is obscured from view, and that he paid...