U.S. v. Hathcock, 96-1501

• Decision Date: 26 February 1997
• Docket Number: No. 96-1501,96-1501
• Citation: 103 F.3d 715
• Parties: UNITED STATES of America, Plaintiff--Appellee, v. Gregory W. HATHCOCK, Defendant--Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 715

103 F.3d 715

UNITED STATES of America, Plaintiff--Appellee, v. Gregory W. HATHCOCK, Defendant--Appellant.

No. 96-1501.

United States Court of Appeals,

Eighth Circuit.

Submitted Sept. 10, 1996.

Decided Jan. 9, 1997.

Rehearing and Suggestion for Rehearing En Banc Denied Feb. 26, 1997.

Mary Heise Buckley, Omaha, NE, argued (David R. Stickman, Federal Public Defender of Nebraska, on the brief), for appellant.

Nancy A. Svoboda, Omaha, NE, argued (Thomas J. Monaghan, U.S. Atty. for the D. Neb., on the brief), for Appellee.

Before WOLLMAN, Circuit Judge, HENLEY, Senior Circuit Judge, and HANSEN, Circuit Judge.

HANSEN, Circuit Judge.

Following his conditional plea of guilty to possessing a controlled substance with intent to distribute it, Gregory W. Hathcock appeals the district court's ¹ denial of his motion to suppress evidence obtained as a result of an encounter he had with an officer prior to his arrest. We affirm.

I.

On July 1, 1994, four officers of the Omaha Police Department, including Sergeant Mark T. Langan and Officer Mark Lang, were conducting surveillance of flights arriving at Eppley Airfield in Omaha, Nebraska, from the west coast. The officers were looking for individuals who were transporting drugs into Omaha. Gregory Hathcock arrived late that evening on a flight originating from the west coast and exited the plane with another individual. The officers saw the two persons walk together a few feet and then split up in the corridor. Hathcock was carrying a duffel bag and did not retrieve any luggage from the luggage carousel. He sometimes walked very quickly, trotting, and other times walked slowly. Hathcock seemed to be nervous, looking back and forth. He walked out to the taxi cab stand area, but no taxi cabs were there at the moment.

Sergeant Langan had observed Hathcock's behavior and had concluded that Hathcock met the profile of a drug courier. The sergeant followed Hathcock and approached him at the taxi cab stand area. The sergeant showed his police badge, told Hathcock his name, and informed Hathcock he was with the Narcotics Unit of the Omaha Police Department. Sergeant Langan asked Hathcock if he would mind answering a few questions, and Hathcock said he would not mind. The officer explained that he was at the airport to identify possible drug couriers arriving from the west coast and that this was his reason for wanting to talk to Hathcock. He asked whether Hathcock understood this; Hathcock replied that he did.

When asked his name, Hathcock identified himself as "Greg Johnson." Sergeant Langan asked to see Hathcock's airline ticket, and Hathcock produced a ticket issued to Greg Johnson. Langan then asked for permission to search Hathcock's duffel bag for drugs. Hathcock said that he first wanted to go to a residence at 5040 Corby Street and that Sergeant Langan could search the bag at that location in about an hour.

Sergeant Langan asked Hathcock whether he had any identification, and Hathcock replied that he did not. Langan then asked Hathcock whether he would show the officer his wallet. Hathcock took out his wallet. When Langan asked whether he could look though the wallet for identification, Hathcock replied that that would be fine and handed the wallet to the officer. Langan asked Hathcock a second time whether the wallet contained any identification, and Hathcock again said no.

Sergeant Langan searched Hathcock's wallet. He found a traffic ticket and a medical card, both in the name of Gregory W. Hathcock. The sergeant asked Hathcock whether his name was, in fact, Gregory Hathcock, rather than Gregory Johnson. Hathcock admitted that his real last name was Hathcock, and that he was only flying under the name of Gregory Johnson. Sergeant Langan then placed Hathcock under arrest for providing "false information to a police officer." The entire exchange lasted about three minutes.

Sergeant Langan took Hathcock to the security office of the airport and ran a records check on him. The check revealed no outstanding warrants for Hathcock. Langan then asked Hathcock for permission to search Hathcock's duffel bag. Hathcock told Langan he would consent, but his bag contained some fragile items. The sergeant said he would simply stand and watch if Hathcock would unzip the bag and remove the items himself. Hathcock agreed to this.

Hathcock unzipped his bag. He removed and ripped up a paper label carrying the brand name "Poly." Hathcock also took out a pair of jeans, but then shook them, put them back in the bag, and zipped it up. Interpreting Hathcock's conduct as a denial of consent to search the bag, Sergeant Langan asked another officer to watch Hathcock and went into the hallway, where he told a third officer, Officer Mark Lang, that he was going to arrange for a drug dog to sniff Hathcock's duffel bag. Langan left to make the arrangements.

While Langan was gone, Officer Lang entered the security office and asked Hathcock for permission to search the bag. Hathcock picked up the bag, lifted it a short distance from the floor, and then threw it back down. He said, "Go ahead and search it. You're going to find what you want anyway." (Supp. R. at 127.) Officer Lang searched the bag and found a small amount of marijuana and a bundle of 492 grams of crack cocaine wrapped in plastic Poly tape.

Hathcock was charged under state law with possession with intent to deliver crack cocaine. Hathcock filed a motion to suppress the crack cocaine. The trial court granted Hathcock's motion, finding that the initial encounter was a Terry stop that was not based on a reasonable, articulable suspicion.

The state appealed to the Nebraska Court of Appeals. Contrary to the trial court, the appellate court found there was reasonable suspicion to support a Terry stop, but further found that Sergeant Langan did not have probable cause under Nebraska state law to arrest Hathcock, because the officer was not working on "an actual criminal matter" within the meaning of section 28-907(1)(a) of the Nebraska Revised Statutes (1989) when he approached Hathcock. ²

Following the decision of the Nebraska Court of Appeals, Hathcock was charged and indicted in federal court with intent to distribute crack cocaine in violation of 21 U.S.C. § 841(a)(1) (1988). Hathcock again filed a motion to suppress the crack cocaine. At a hearing on this motion, Sergeant Langan testified that he had arrested Hathcock based on his belief that Hathcock had violated section 20-26 of the Omaha Municipal Code, which prohibits providing false information to an officer. Sergeant Langan also testified that he did not specifically tell either Officer Lang or, later, the state court prosecutor that he had arrested Hathcock on the basis of a violation of the municipal code rather than the state code.

Hathcock also presented evidence at the suppression hearing. In support of his argument that he was arrested under state (not municipal) law, he offered the opinion of the Nebraska Court of Appeals and the testimony of the technician who had processed the paperwork when Hathcock was booked into jail.

The magistrate judge ³ concluded that the crack cocaine was admissible. First, she determined that the state appellate court's decision was not dispositive on this federal constitutional question. Second, applying an objective standard to determine whether Langan had probable cause to arrest Hathcock, she found that the arrest was valid, regardless of whether Sergeant Langan's subjective intent was to arrest under state or municipal law. Finally, she found that Hathcock had voluntarily consented to Officer Lang's search of his bag. Thus, she recommended that the district court deny Hathcock's motion to suppress.

The district court adopted the magistrate judge's report and recommendation and denied Hathcock's motion to suppress. Hathcock then entered a conditional plea of guilty, reserving the right to appeal the district court's denial of his motion to suppress. He now brings that appeal.

II.

Hathcock first argues the initial encounter between himself and Sergeant Langan was not a consensual stop, but rather a Terry stop that was not supported by reasonable suspicion. See Terry v. Ohio, 392 U.S. 1, 20-27, 88 S.Ct. 1868, 1879-83, 20 L.Ed.2d 889 (1968). In addressing this issue, we review the historical facts for clear error and the ultimate legal conclusions de novo. Ornelas v. United States, --- U.S. ----, ----, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996).

A consensual encounter between an officer and a private citizen does not implicate the Fourth Amendment. Florida v. Bostick, 501 U.S. 429, 434-35, 111 S.Ct. 2382, 2386-87, 115 L.Ed.2d 389 (1991). The line between a consensual encounter and a Terry stop is not a bright line but depends upon the facts of the case. United States v. McKines, 933 F.2d 1412, 1419 (8th Cir.) (en banc), cert. denied, 502 U.S. 985, 112 S.Ct. 593, 116 L.Ed.2d 617 (1991). A consensual encounter becomes a Terry stop when the questioning is so "intimidating, threatening or coercive that a reasonable person would not have believed himself free to leave." Id.; see also Bostick, 501 U.S. at 434-35, 111 S.Ct. at 2386-87. Circumstances that might indicate when an encounter becomes a seizure include "the threatening presence of several officers the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled." United States v. White, 81 F.3d...