U.S. v. Delaney

• Decision Date: 11 April 1995
• Docket Number: 94-3011,Nos. 94-2232,s. 94-2232
• Citation: 52 F.3d 182
• Parties: UNITED STATES of America, Appellee, v. Andrew DELANEY, Appellant. UNITED STATES of America, Appellee, v. Africa SWEENEY, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 182

52 F.3d 182

UNITED STATES of America, Appellee, v. Andrew DELANEY, Appellant.

UNITED STATES of America, Appellee, v. Africa SWEENEY, Appellant.

Nos. 94-2232, 94-3011.

United States Court of Appeals Eighth Circuit.

Submitted Jan. 10, 1995.

Decided April 11, 1995.

W. Russell Bowie, Omaha, NE, for Delaney.

Lawrence G. Whelan, Omaha, NE, for Sweeney.

Michael G. Heavican, Asst. U.S. Atty., Omaha, NE (Laurie Johnston, on the brief), for appellee.

Before BOWMAN, Circuit Judge, JOHN R. GIBSON, Senior Circuit Judge, and WOLLMAN, Circuit Judge.

WOLLMAN, Circuit Judge.

Africa Sweeney appeals from his conviction following his conditional guilty plea to conspiracy to distribute and to possess with intent to distribute cocaine base, in violation of 21 U.S.C. Secs. 846, 841(a)(1). He argues that the district court ¹ erred in adopting the report and recommendation of the magistrate judge ² and denying his motion to suppress evidence. Andrew Delaney appeals from his sentence after pleading guilty to the same conspiracy charge. We affirm the conviction and sentence.

I.

On May 12, 1993, Officer Barry DeJong of the Omaha, Nebraska Police Department received a phone call from a Drug Enforcement Administration (DEA) agent in Los Angeles, California. The DEA agent informed DeJong that a man known as R. Wilson was traveling from Los Angeles to Omaha and had been observed in the Los Angeles airport exhibiting characteristics consistent with those of a drug courier. According to the DEA agent, the man had purchased his ticket with cash from a travel agent just one hour before the flight; he was seen pacing nervously while waiting to board the plane and approached the gate three different times before actually boarding; and he did not check any luggage or carry any luggage onto the plane. The DEA agent gave DeJong a full description of the individual. Acting on the call, Officer DeJong confirmed that a flight from Los Angeles would be arriving in Omaha later that day and that a passenger named R. Wilson was on board. Thereafter, Officers DeJong and Henry and Sergeant Sorys, all of the Omaha Police Department, went to the Omaha airport to await the arrival of the plane.

At the airport, the officers observed Sweeney disembark from the plane and noticed that he matched the description given by the DEA agent. Sweeney was initially observed walking and conversing with an older woman, but as the passengers walked through the main terminal he stepped away and began walking along the wall of the terminal. Officer DeJong and Sergeant Sorys approached Sweeney as he was walking through the main terminal, identified themselves as police officers, and asked if they could speak with him. Sweeney agreed. The officers did not block Sweeney's passage or take his ticket, nor did they immediately stop or detain him. Officer DeJong asked Sweeney whether he was R. Wilson. Sweeney, after stuttering, responded affirmatively. DeJong asked Sweeney whether R. Wilson was his correct name. After again pausing, Sweeney said that it was not and that his real name was Africa Sweeney. DeJong then told Sweeney that the officers were conducting a narcotics investigation and that they suspected that he was carrying drugs. Sweeney interrupted and volunteered to be searched. Before searching him, however, Officer DeJong asked to see Sweeney's airline ticket. DeJong verified that the ticket was issued in the name of R. Wilson and then returned it to Sweeney.

Officer DeJong and Sergeant Sorys escorted Sweeney to a rest room to conduct the search. Sweeney was asked whether he had any luggage, and he responded that he had a black leather suitcase. After Sweeney had signed a consent-to-search form, DeJong conducted a pat-search but found no contraband or identification. He did find, however, a piece of paper upon which was written a name and phone number, coins but no currency, and a digital pager. DeJong returned these items to Sweeney, who then agreed to accompany the officers to the baggage claim area.

At the baggage claim area, Sweeney kept a constant watch on the exit door and appeared to be very nervous. He did not stand still and he made rapid hand gestures. While waiting for the luggage to arrive, Sweeney was unable to focus his attention, and Officer DeJong had to ask him the same question more than once. When the baggage began arriving on the carousel, DeJong asked Sweeney to identify his luggage. Sweeney replied by pointing to a blue bag tied with a green bow, stating that the bag was his. He allowed the bag to pass by him, however, and it was subsequently retrieved by another passenger. When told by Officer DeJong that he thought that Sweeney had a black leather suitcase, Sweeney did not respond and acted even more nervous.

After everyone had left the baggage claim area, a black tweed suitcase and a duffle bag remained on the baggage carousel. A porter removed these items from the carousel and placed them on the floor. Sweeney was then asked which piece of luggage was his. He responded by saying that the duffle bag might be his and that the officers could search it. Officer DeJong unzipped the bag and found certain items indicating that the bag did not belong to Sweeney. Sergeant Sorys verified that no luggage had been reported lost and then took the suitcase and the duffle bag to the airport security office.

Meanwhile, Sweeney asked DeJong if he could use the rest room. Officers DeJong and Henry then accompanied Sweeney back to the rest room. Once inside, Henry stayed at the door while DeJong escorted Sweeney to a stall. DeJong then pat-searched Sweeney again and told him that, while he could close the door of the stall, he was not to lock the door or flush the toilet. Despite DeJong's instruction, Sweeney locked the door upon entering the stall. DeJong told Sweeney to unlock the door and observed him through the gap between the stall door and the wall of the stall. As Sweeney unlocked the door, DeJong saw him drop his airline ticket between his legs and flush the toilet. Officer DeJong then entered the stall and retrieved the ticket from the toilet.

After exiting the rest room, Sweeney agreed to accompany Officers DeJong and Henry to the airport security office. There, Officer Henry examined the airline ticket and found that a number on the ticket matched the luggage number on the black tweed suitcase. Approximately thirty minutes later, a drug detection dog arrived. The dog alerted to both the suitcase and the duffle bag. Sweeney was then advised that he was not free to leave. The officers thereafter obtained a search warrant and searched both pieces of luggage. It was discovered that the duffle bag did not contain any drugs and that it did not belong to Sweeney. The suitcase, however, contained a box of detergent. Inside the box, the officers discovered eleven ounces of crack cocaine. Sweeney was then arrested. He then immediately implicated Delaney in a conspiracy to distribute the cocaine. Delaney was later arrested when he attempted to pick up Sweeney from the airport.

Sweeney and Delaney were subsequently indicted by a federal grand jury. The district court denied Sweeney's motion to suppress the evidence seized, accepting the magistrate judge's findings that the encounter between Sweeney and the Omaha police officers and the subsequent search for and seizure of cocaine did not violate Sweeney's rights under the Fourth Amendment. Sweeney thereafter conditionally pled guilty, reserving his right to appeal the denial of his motion to suppress. The district court, after granting the government's motion to depart based on Sweeney's substantial assistance, sentenced Sweeney to thirty-three months' imprisonment, with a five year term of supervised release and a $50 assessment. Delaney likewise pled guilty to the same charge. The district court denied Delaney's motion for a downward departure and sentenced him to a term of 168 months' imprisonment, with a five year term of supervised release and a $50 assessment.

II. Africa Sweeney

Sweeney asserts several challenges to the district court's denial of his motion to suppress. We review the denial of a motion to suppress for clear error. United States v. Ward, 23 F.3d 1303, 1305 (8th Cir.1994). We will affirm the district court's decision unless it is unsupported by substantial evidence or is based on an erroneous interpretation of applicable law, or, in light of the entire record, we are left with a firm conviction that a mistake has been made. Id. Whether a seizure occurred, however, is a question of law that we review de novo. United States v. McKines, 933 F.2d 1412, 1426 (8th Cir.) (en banc), cert. denied, 502 U.S. 985, 112 S.Ct. 593, 116 L.Ed.2d 617 (1991). The ultimate conclusion whether the Fourth Amendment has been violated is also a question of law subject to de novo review. United States v. Hernandez, 854 F.2d 295, 297 (8th Cir.1988).

A.

We turn first to Sweeney's argument that he was seized within the meaning of the Fourth Amendment when Officer Dejong and Sergeant Sorys initially approached him in the main terminal of the airport. He contends that the seizure occurred without a reasonable suspicion of criminal activity. See Reid v. Georgia, 448 U.S. 438, 100 S.Ct. 2752, 65 L.Ed.2d 890 (1980) (per curiam). Thus, he argues, his consent to being searched was a tainted fruit of this illegal seizure.

Not all personal contacts between policemen and citizens involve seizures. Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 1879 n. 16, 20 L.Ed.2d 889 (1968). There is no seizure when a police officer approaches an individual and merely questions him or asks to examine his identification, so long as the officer does not convey a message that compliance with his requests is required. Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 2386, 115 L.Ed.2d 389 (1991). A seizure occurs only when, viewing all the circumstances surrounding the encounter, "the police conduct would...