U.S. v. Brown, 88-5378
| Decision Date | 07 August 1989 |
| Docket Number | No. 88-5378,88-5378 |
| Citation | 884 F.2d 1309 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. KELVAN BROWN, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Joseph T. Vodnoy and Joseph F. Walsh, Los Angeles, Cal., for defendant-appellant.
Stephen A. Mansfield, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.
Appeal from the United States District Court for the Central District of California.
Before BROWNING, FARRIS and CANBY, Circuit Judges.
Kelvan Brown appeals the district court's denial of his motion to suppress two kilograms of cocaine found in his suitcase. After the court denied his motion to suppress, Brown pleaded guilty to possession with intent to distribute cocaine. We affirm.
At 11:15 p.m. on February 19, 1988, narcotics detectives May and Gossett saw Brown enter Los Angeles International Airport. He carried three pieces of luggage and a briefcase, all of which appeared to be new. He appeared to the officers to be nervous. After paying cash for a one-way ticket to Columbus, Ohio, Brown checked two of his suitcases. May and Gossett arranged to have Brown's luggage held. They asked Brown if they could speak to him; they informed him that he was not under arrest and that he was free to leave. The detectives then asked Brown if he understood and would talk with the officers. Brown said: As they spoke, Brown appeared increasingly nervous. When asked for some form of identification, Brown said he was not carrying any. When asked his name, Brown told the detectives that he was "Pearl Lang." Brown consented to a pat-down search and to a search of the luggage he was carrying. During the pat-down, detective Gossett noticed what felt like a card and a set of keys. Brown voluntarily removed the card and showed it to the officers. It was a driver's license identifying Brown by his true name. The detectives asked Brown if they could search his checked luggage. He replied: "Sure, you can search it." The luggage was locked, and the detectives asked Brown for the keys. Brown said the keys were in Ohio. At detective Gossett's request, Brown removed a set of keys from his pocket. The keys appeared to be luggage keys. Brown stated that the keys would not open his checked suitcases. The detectives asked whether Brown would accompany them to try the keys in the luggage. Brown asked: "Do I have to go?" The detectives replied that he did not, but that he would be detained while his luggage was checked. Brown was handcuffed pending the outcome of the search. The keys Brown provided opened the checked luggage which was found to contain about two kilograms of cocaine.
We review de novo the lawfulness of a search. United States v. Limatoc, 807 F.2d 792, 794 (9th Cir.1987). Findings of historical fact made at a suppression hearing are reviewed for clear error. Id.
Brown claims that the detectives violated his Fourth Amendment rights by initially stopping him and holding his checked suitcases. The district court correctly held that neither initially approaching Brown nor holding his baggage constituted a seizure of person or property implicating Fourth Amendment rights.
The detectives' initial contact with Brown was not a seizure of his person. While arrests and investigatory stops are seizures, "not all encounters between law enforcement agents and citizens amount to seizures of the person." United States v. Safirstein, 827 F.2d 1380, 1383 (9th Cir.1987). A person is " 'seized' within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980). A reasonable person in Brown's shoes would have believed he was free to leave. The detectives approached Brown in public. They did not display weapons, touch Brown, or restrain him in any way. They asked in a non-threatening way if they could speak to Brown and told him explicitly that he was free to go. Brown agreed to speak with the detectives. This was a consensual encounter. See United States v. $25,000 U.S. Currency, 853 F.2d 1501, 1505 (9th Cir.1988).
Brown claims that his checked suitcase was unlawfully seized. We must determine whether the brief diversion of Brown's suitcases from their journey to the cargo hold was a seizure. This is a question of first impression in this circuit. "A seizure of property occurs when there is some meaningful interference with an individual's possessory interest in that property." United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 1656, 80 L.Ed.2d 85 (1984). In United States v. Lovell, 849 F.2d 910 (5th Cir.1988), the Fifth Circuit held that briefly delaying checked...
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