U.S. v. Berke

• Decision Date: 22 May 1991
• Docket Number: No. 90-2755,90-2755
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Alvin BERKE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1219

930 F.2d 1219

UNITED STATES of America, Plaintiff-Appellee, v. Alvin BERKE, Defendant-Appellant.

No. 90-2755.

United States Court of Appeals Seventh Circuit.

Argued March 6, 1991.

Decided April 23, 1991.

Rehearing Denied May 22, 1991.

Diane L. Saltoun and Barry R. Elden, Asst. U.S. Attys., Office of the United States Attorney, Chicago, Ill., for plaintiff-appellee.

Stephen J. Finta, Fort Lauderdale, Fla., for defendant-appellant.

Before RIPPLE, and KANNE, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

RIPPLE, Circuit Judge.

Defendant-appellant Alvin Berke was charged in a two-count indictment with possession with intent to distribute cocaine in violation of 21 U.S.C. Sec. 841(a)(1) and conspiracy with intent to distribute cocaine in violation of 21 U.S.C. Sec. 846. Prior to a bench trial, Mr. Berke moved to suppress evidence. He contended that the cocaine

was discovered by law enforcement officials as the result of an illegal search and seizure. The district court denied Mr. Berke's motion and found him guilty on both counts. The district court sentenced Mr. Berke to the mandatory minimum sentence of five years' imprisonment, to run concurrently on both counts. The term of imprisonment is to be followed by a four-year term of supervised release. Mr. Berke brought this timely appeal challenging the district court's denial of his suppression motion and his sentence. For the following reasons, we affirm the judgment of the district court.

I BACKGROUND

On January 15, 1987, Amtrak Police Department investigator Dennis Kroll identified Alvin Berke, via computer printout, as a potential drug courier. The information available to Kroll indicated that Mr. Berke left Deerfield Beach, Florida, a small town near Miami, a known drug source city. The planned final destination was Milwaukee, Wisconsin. Travelling alone, he purchased a one-way ticket with cash just prior to departure and reserved a sleeping compartment. Amtrak officials received no answer when they telephoned the "call back" number Mr. Berke left with his reservation. Kroll contacted drug enforcement officials and informed them that Mr. Berke fit the drug courier profile and was scheduled to arrive at Chicago's Union Station at 9:41 a.m. on January 16.

As Mr. Berke detrained in Union Station, Amtrak employees identified Mr. Berke to Kroll and five members of a drug task force team that consisted of Chicago police officers and Drug Enforcement Administration (DEA) agents. The agents followed Mr. Berke to the main waiting room in the station. Upon reaching that area, Mr. Berke sat on a bench. Officers Mel Schabilion and Richard Boyle approached Mr. Berke and took seats on either side of him. They identified themselves as law enforcement officials and asked to speak with him. Mr. Berke consented. Upon request, Mr. Berke showed the officers his Florida driver's license and his train ticket. The officers informed Mr. Berke that they were conducting a narcotics investigation and requested permission to look in or examine his luggage. ¹ Mr. Berke was informed that he was not under arrest and could leave at any time. He also was told that he need not comply with the request to look inside the bag. Mr. Berke told the officers to "go ahead." At the bottom of the suitcase, the officers found a rectangular package wrapped in brown plastic or vinyl masking tape; the officers suspected that the package contained cocaine. A field test later verified that the substance was cocaine.

Mr. Berke was arrested and taken to a security office at the Amtrak station. Mr. Berke was advised of his Miranda rights and signed a form waiving these rights. ² He told the task force personnel that an unknown person gave him the package in Florida and asked him to deliver it to an unknown person in Milwaukee for the fee of $1,000. He stated that he did not know what was in the package, but suspected, because of the suspicious circumstances surrounding the delivery, that it contained cocaine. Mr. Berke agreed to attempt to complete the delivery. Therefore, he and several of the officers completed the train journey to Milwaukee. After waiting approximately an hour, Mr. Berke was paged over the loudspeaker for a telephone call; the caller told him to return to Florida with the package.

II ANALYSIS

Mr. Berke raises several issues on appeal. He contends that the encounter at the Amtrak station was an illegal seizure of his person in violation of the fourth amendment. He contends that, because of this illegal detention, the search of his bag is invalid. In the alternative, Mr. Berke argues that, if his consent is valid, he agreed only to permit the officers to "look" into the bag, not search it. Because the officers' search went beyond the scope of consent, any evidence found in the illegal search should be suppressed. Finally, Mr. Berke challenges the length of his sentence. While recognizing that five years' imprisonment is the statutory mandatory minimum, he argues that the district court was authorized to impose, and should have imposed, a sentence less than the statutory minimum because of his substantial assistance to the government.

A. The Fourth Amendment

1. The initial encounter

The district court determined that Mr. Berke's encounter with the law enforcement officers was not protected by the fourth amendment. Voluntary encounters between a private person and law enforcement officers are not seizures and, consequently, not subject to the strictures of the fourth amendment. The question of whether a particular encounter is voluntary "is a factual one, dependent on the circumstances of each case; accordingly, our standard of review is a limited inquiry into whether the decision of the district court was clearly erroneous." United States v. Espinosa-Alvarez, 839 F.2d 1201, 1205 (7th Cir.1987); see also United States v. Edwards, 898 F.2d 1273, 1276 (7th Cir.1990). In Edwards, the court noted:

The proper test for determining whether a given encounter rises to the level of a fourth amendment seizure is "if, in the totality of the circumstances, a reasonable person would not believe that his freedom of movement is restrained, or believes that he remains at liberty to disregard a police officer's request for information, a seizure has not occurred."

898 F.2d at 1276 (quoting Espinosa-Alvarez, 839 F.2d at 1205 (citations omitted)). Following this "totality of circumstances" approach, the district court found that Mr. Berke was approached in a public place and was told that he was not under arrest. ³ The officers explained that they were conducting a narcotics investigation. In addition, when asking for consent to examine Mr. Berke's bags, the officers again told him that he was not required to consent and that he was free to leave. Suppression Tr. of May 4, 1989 at 91, 112. The district court also found that there was no evidence of coercion or physical restraint. ⁴ Therefore the encounter was voluntary and did not implicate the strictures of the fourth amendment. ⁵ The record supports the district court's findings. ⁶ Because the encounter was not a seizure under the fourth amendment, Mr. Berke's argument that his consent to search his bag was invalid because it was the result of an illegal detention has no merit.

2. Search of the bag

Mr. Berke also argues that the search of his bag went beyond the scope of his consent. The parties dispute whether the officers asked to "look" into the bag or "search" the bag. Mr. Berke contends that he gave permission for the officers to look into, but did not consent to a full-scale search of, the luggage. In resolving this conflict, the district court held:

What is apparently in dispute is the scope of the consent given and this broader issue as related to the question of whether or not Mr. Berke was asked for permission to look into his bag or whether the word search was used....

My own view is that the agents asked to look into the bag or to examine the bag. It is also my view that this request put the defendant on notice that if consent was to be given, it was reasonable for the defendant to expect that the contents of the bag were going to be looked at. It was not reasonable to assume that the agents were going to be content at glimpsing solely at top portions of the contents of the bag.

The defendant neither asked for clarification of what the agents meant, nor did he express any limitations on the agents' perusal of the contents of the bag, and fairly and reasonably understood his okay to the agents' request manifested an acquiescence to an inspection of the contents of the bag. As such, it was voluntary.

Tr. of May 9, 1989 at 5-6. ⁷ The officers informed Mr. Berke that they were conducting a narcotics investigation. It was clear that their aim was to determine whether Mr. Berke's bag contained narcotics. Mr. Berke opened the suitcase for the officers. He should have expected that the officers would examine the contents to discover whether narcotics were within the bag. Moreover, a defendant's conduct can be indicative of the scope of a consensual search. See United States v. Hardin, 710 F.2d 1231 (7th Cir.1983), cert. denied, 464 U.S. 918, 104 S.Ct. 286, 78 L.Ed.2d 263. ⁸ Nothing in the record indicates that Mr. Berke attempted to clarify or withdraw his consent after he realized that the officers were going to search, not just "look" inside the suitcase. Consequently, assuming the officers only asked to "look" inside the bag, under the facts of this case, such a request cannot be interpreted as anything but a request to search the luggage for narcotics.

B. The Sentence

The district court sentenced Mr. Berke to five years' imprisonment on each count, to run concurrently, and to four years of supervised release to be served after the period of imprisonment. ⁹ Mr. Berke contends that, pursuant to 18 U.S.C. Sec. 3553(e), the district court should have sentenced him below the mandatory five-year minimum because of...