U.S. v. High, 90-1734

• Decision Date: 27 December 1990
• Docket Number: No. 90-1734,90-1734
• Citation: 921 F.2d 112
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Claude HIGH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 112

921 F.2d 112

UNITED STATES of America, Plaintiff-Appellee, v. Claude HIGH, Defendant-Appellant.

No. 90-1734.

United States Court of Appeals Seventh Circuit.

Argued Oct. 3, 1990.

Decided Dec. 27, 1990.

William V. Gallo, Asst. U.S. Atty., Office of the U.S. Atty. and Barry R. Elden, Asst. U.S. Attys., Office of the U.S. Atty., Crim. Receiving, Appellate Div., Chicago, Ill., for plaintiff-appellee.

Rick Halprin and Susan Shatz, Chicago, Ill., for defendant-appellant.

Before WOOD, Jr., CUDAHY and MANION, Circuit Judges.

MANION, Circuit Judge.

Claude High appeals from his conviction for possession with intent to distribute cocaine, a violation of 21 U.S.C. Sec. 841(a)(1). Specifically, High challenges the order of the district court denying his motion to suppress the introduction of the cocaine found in his baggage as evidence against him on the ground that the police officers obtained it through a search and seizure violative of the fourth amendment. We affirm.

I.

On August 23, 1988, Claude High and a companion, Kevin Caldwell, arrived at Chicago's Union Station on an Amtrak train from Los Angeles, California, a source city for narcotics. Detectives George Mays and George Graham and Sergeant Jerry Robinson, drug enforcement officers, monitored the passengers as they detrained. Among the first passengers to detrain were High and Caldwell who alighted quickly. High was carrying a light green, Samsonite suitcase and clutching a brown carry-on bag tightly under his arm. Detectives Mays and Graham testified at the suppression hearing that High made eye contact with them, then looked back at Caldwell, who was a pace behind him, and the two began to walk a little faster. Graham also noted that High eyed his waist and surmised that High was looking for a weapon or beeper which would have indicated that he was a police officer. The agents followed High and Caldwell, lost sight of them, but then caught up with them near the baggage and waiting area. After again making eye contact with the agents, High tapped Caldwell on the shoulder, and the two then headed for an exit.

Mays and Graham approached High and Caldwell and, walking alongside, displayed their badges and identification and asked if they could speak to them. The officers were wearing plainclothes. High and Caldwell stopped walking and agreed to speak to the agents. Sergeant Robinson in the meantime hung back several paces. Graham asked High and Caldwell if he could see some identification, and the two men produced valid Michigan driver's licenses. Graham returned the licenses and then asked to see their train tickets. High retrieved both his and Caldwell's ticket from the brown carry-on bag, which he continued to clutch tightly. After examining them, Graham returned the tickets. The tickets were one-way and purchased with cash one day before departure. Graham then informed High and Caldwell that he was conducting a narcotics investigation, that they were not under arrest, and that they were free to leave at any time. High then asked if there was a problem. High became very nervous and began to peer around the station, looking toward the exit. In response, Graham reiterated that he was conducting a narcotics investigation and asked if High or Caldwell had any narcotics on them or in their bags. Both replied, "No." Graham then asked if he could search their baggage and told them that they could refuse him permission to search and that he needed their permission. High and Caldwell consented to the search. Mays searched Caldwell's bag, but found nothing. As Graham searched High's brown carry-on bag, he felt a kilogram- sized package, looked up at Robinson who was standing a few feet behind High and nodded to him. High then bolted toward the exit, and Mays and Robinson gave chase. High got away. High was later arrested at his home in Michigan.

High was charged by way of indictment with one count of knowingly and intentionally possessing with intent to distribute approximately two kilograms of cocaine in violation of 21 U.S.C. Sec. 841(a)(1). High filed a motion to suppress the cocaine seized by the drug enforcement officers, and the district court denied the motion. The court stated that the officers did not need to have an articulable suspicion to approach High and Caldwell, and alternatively found that if the officers needed an articulable suspicion, that they certainly had it. The court found that the officers' actions were not intimidating, and that they did not block High's path or movement.

A jury found High guilty, and the district court sentenced him to ninety-seven months of imprisonment. High appeals, challenging the denial of the motion to suppress.

II.

The district court, after hearing the testimony of Detectives Mays and Graham, found that High felt free to leave and that the encounter was consensual. ¹ High did not testify.

We must uphold the district court's denial of the motion to suppress unless the denial was clearly erroneous. United States v. Johnson, 910 F.2d 1506, 1508 (7th Cir.1990). " 'Our inquiry is factually based and requires that we give particular deference to the district court that had the opportunity to hear the testimony and observe the demeanor of the witnesses.' " Id. (quoting United States v. Edwards, 898 F.2d 1273, 1276 (7th Cir.1990)).

As this court discussed in Johnson, the Supreme Court has developed three categories of police-citizen encounters in the context of the fourth amendment: (1) an arrest, requiring the police to have probable cause; (2) an investigatory stop, requiring the police to have specific and articulable facts to give rise to a reasonable suspicion; and (3) a voluntary encounter initiated by non-coercive police questioning, requiring no suspicion at all. See id. This court's threshold inquiry must be to determine whether there was a seizure, that is, whether a reasonable person in High's situation would have felt free to leave. If a reasonable person would have felt free to leave, the encounter was consensual, and the fourth amendment is not implicated. High does not address this third category of police-citizen encounters, but simply jumps to a discussion of whether the officers had a reasonable suspicion to stop him. High contends that when a police officer approaches a citizen and asks to see identification and his train tickets without first informing him that he need not comply, no reasonable person in this position would feel free to disregard the officer or to leave. This court has previously rejected such an argument, holding that "the practice of DEA agents in accosting and attempting to question suspected narcotics violators was not coercive per se and the accosted individual would not be deemed to have been seized within the meaning of the Fourth Amendment unless a reasonable person in his position would have believed he was not free to ignore the agents and continue on his way." United States v. Notorianni, 729 F.2d 520, 522 (7th Cir.1984) (citing United States v. Black, 675 F.2d 129, 134-35 (7th Cir.1982), cert. denied, 460 U.S. 1068, 103 S.Ct. 1520, 75 L.Ed.2d 945 (1983)). "The police 'do not violate the fourth amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if he is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions.' " Johnson, 910 F.2d at 1508 (quoting Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 1323, 75 L.Ed.2d 229 (1983) ...