U.S. v. Gray, 88-5114

• Decision Date: 28 August 1989
• Docket Number: No. 88-5114,88-5114
• Citation: 883 F.2d 320
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Arthur GRAY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 320

883 F.2d 320

UNITED STATES of America, Plaintiff-Appellee, v. Arthur GRAY, Defendant-Appellant.

No. 88-5114.

United States Court of Appeals Fourth Circuit.

Argued April 14, 1989.

Decided Aug. 28, 1989.

David T. Williams (Robert Stanley Powell, Alexandria, Va., on brief), for defendant-appellant.

William Graham Otis, Asst. U.S. Atty., Henry E. Hudson, U.S. Atty., Alexandria, Va., Philip K. Eure, Sp. Asst. U.S. Atty., on brief, for plaintiff-appellee.

Before ERVIN, Chief Judge, WIDENER, Circuit Judge, and MICHAEL, United States District Judge for the Western District of Virginia, sitting by designation.

ERVIN, Chief Judge:

Arthur Gray appeals from the district court's denial of his motion to suppress the narcotics seized from him following a search of his person made by Drug Enforcement Administration Agents at Washington National Airport. Finding that appellant consented to this search following a voluntary encounter with the agents, we affirm the district court's refusal to suppress the evidence.

I. Factual and Procedural Background

On March 1, 1988, the defendant-appellant, Arthur Gray, arrived at Washington National Airport on an Eastern Airlines shuttle from New York City. Shortly after he deplaned, Gray was approached by Special Agent Floyd Johnston of the Drug Enforcement Administration ("DEA"). Johnston identified himself to Gray, and walked alongside him through the terminal, asking him questions about the flight, his point of departure, and whether he was carrying drugs. The two men were joined by a second DEA agent, Bill Dwyer. At that point, Johnston requested and obtained permission to search Gray. The search revealed that Gray was carrying 21 grams of crack, and the agents arrested him.

Gray was subsequently indicted on a charge of possessing narcotics with the intent to distribute, in violation of 21 U.S.C. Sec. 841(a)(1). Gray moved to suppress the drugs seized during the search at National Airport, as well as the statements he made pursuant to his arrest, on the grounds that the evidence resulted from an illegal search and seizure. Following a full evidentiary hearing, the district court denied appellant's motion.

Gray then entered into a plea agreement whereby he agreed to plead guilty to the indictment, but preserved his right to appeal the denial of his motion to suppress, and to challenge the constitutionality of the Federal Sentencing Guidelines. ¹ Appellant was convicted on his plea and sentenced to 5 years, 3 months in prison, a five-year period of probation, and was ordered to pay a special assessment of $50.00.

The evidence at the suppression hearing consisted almost entirely of the testimony of Special Agent Johnston. The agent stated that he initially approached Gray because the appellant had arrived on the shuttle from New York, a source city, and because Gray was guarding the front of his unzipped jacket, in his abdominal area, as if he were trying to hide the front of his pants. Johnston approached Gray in the terminal area, identified himself, and asked if he could speak with appellant; Gray replied "sure." Johnston then accompanied Gray as appellant walked toward the escalator, went up the escalator, and went down a hallway into the main terminal area. During their walk, the agent asked Gray if he had come in from New York, and if Johnston could see his airline ticket. Gray explained that he had left his ticket on the airplane. When Johnston requested identification, Gray produced a laminated i.d. card bearing his name and picture. Johnston returned the card, explained the "purpose and function of the DEA" to Gray, and asked Gray if he was carrying drugs. At this point, the two men, who had stopped walking, were joined by DEA Special Agent Dwyer. Johnston introduced Gray to Dwyer, and again asked appellant if he were carrying drugs; Gray replied that he was not.

Johnston then requested permission to search Gray's person. According to the agent, Gray replied "Sure. Go ahead." Johnston then asked Gray if he objected to stepping out of the stream of pedestrian traffic, and Gray indicated that he did not. All three men stepped into a public alcove, where Johnston once again asked Gray: "Do you mind if I search--are you sure you don't mind that I search your person? You don't have to let me if you don't want to." Appellant told the detective to "go ahead," and lifted his arms out from his waist. The search revealed Gray's possession of 21 grams of crack, whereupon the agents advised Gray of his rights and arrested him.

II. Fourth Amendment Seizure Question

The decision of the trial court not to suppress the evidence in question was based solely upon the testimony of Agent Johnston. Given this testimony, the lower court found that appellant's contact with the DEA agents amounted to an "encounter rather than a Fourth Amendment seizure."

The finding that a fourth amendment seizure of an individual has or has not occurred involves a question of fact and cannot be reversed unless clearly erroneous. United States v. Gooding, 695 F.2d 78, 82 (4th Cir.1982). In reviewing fourth amendment seizure determinations, the appellate courts have recognized that the determination of precisely when an officer's "polite request for an interview" in fact becomes a fourth amendment seizure is "not always an easy one," United States v. Viegas, 639 F.2d 42, 44 (1st Cir.) cert. denied, 451 U.S. 970, 101 S.Ct. 2046, 68 L.Ed.2d 348 (1981), may be "extremely close," United States v. Mendenhall, 446 U.S. 544, 560 at n. 1, 100 S.Ct. 1870, 1880 at n. 1, 64 L.Ed.2d 497 (Powell, J., concurring), and calls for a "refined judgment" by the trial court. United States v. Elmore, 595 F.2d 1036, 1041-42 (5th Cir.1979), cert. denied, 447 U.S. 910, 100 S.Ct. 2998, 64 L.Ed.2d 861 (1980).

In determining whether a person has been "seized" within the meaning of the fourth amendment the federal courts have focused on whether "in view of all 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) (plurality opinion). ² As one court has explained this standard, "[so] long as a person remains at liberty to disregard a police officer's request for information, no constitutional interest is implicated." United States v. Black, 675 F.2d 129, 134 (7th Cir.1982).

The federal courts have examined a variety of factors when determining whether a particular police-citizen encounter constitutes a seizure in the context of airport surveillance. They have, however, tended to focus on three particular areas: (1) the conduct of the police; (2) the characteristics of a particular defendant; and (3) the physical surroundings of the encounter. See Black, supra, at 134. When examining the conduct of a police officer the courts have looked to whether "the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen such that he is not free to walk away." Viegas, supra, at 45, (quoting Terry v. Ohio, 392 U.S. 1, 19 at n. 16, 88 S.Ct. 1868, 1879 at n. 16, 20 L.Ed.2d 889 (1967)). We emphasize, however, that "[a]n individual need not be held at gunpoint" Black, supra, at 134, for a fourth amendment seizure to occur. "[A]ny restraint of movement will do," Elmore, supra, at 1041, including "a show of authority sufficient to make it apparent that the individual is not free to ignore the officer and proceed on his way." Black, supra, at 135.

The courts have examined a number of factors when determining whether an officer did, in fact, display such a "show of authority." The factors most frequently looked to by the courts include: (1) the number of police officers present, United States v. Aguiar, 825 F.2d 39, 40 (4th Cir.1987); United States v. Borys, 766 F.2d 304, 311 (7th Cir.1985); (2) whether the police officers were in uniform and whether they displayed their weapons, Black supra, at 135; United States v. Lehmann, 798 F.2d 692, 694 (4th Cir.1986); (3) whether the officer touched the defendant or made any attempt to physically block his departure or restrain his movement, Aguiar, supra, at 40; Borys, supra, at 310; (4) whether the officer's questioning was "conversational" rather than "intimidating"--i.e. did the officer raise his voice or threaten the defendant, Black, supra. at 135; (5) whether the officer informed the defendant that he positively suspected him of illegal activity rather than treating the encounter as "routine" in nature, Borys, supra, at 311, United States v. Berry, 670 F.2d 583, 597 (5th Cir. Unit B 1982) (en banc); and (6) whether, if the officer requested from the defendant either his plane ticket or some form of official identification, the officer promptly returned it. Aguiar, supra at 40; Lehmann, supra, at 692; Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1984).

The conduct of the DEA agents in this particular case supports the district court's conclusion that their interview with Gray was in fact a consensual encounter, rather than a fourth amendment seizure. The two officers who questioned Gray were dressed in ordinary street clothes, and they at no time displayed their weapons or otherwise attempted to intimidate Gray either physically or verbally. Indeed, Agent Johnston informed Gray that he did not have to consent to a search of his person, something which the agent was under no legal obligation to do. See, e.g., Mendenhall, supra, 446 U.S. at 555, 100 S.Ct. at 1877. Additionally, the agents never made any attempt to...