U.S. v. Parker, 87-3023

• Decision Date: 10 July 1991
• Docket Number: No. 87-3023,87-3023
• Parties: 33 Fed. R. Evid. Serv. 773 UNITED STATES of America, Plaintiff-Appellee, v. Traci PARKER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 950

936 F.2d 950

33 Fed. R. Evid. Serv. 773

UNITED STATES of America, Plaintiff-Appellee, v. Traci PARKER, Defendant-Appellant.

No. 87-3023.

United States Court of Appeals Seventh Circuit.

Argued April 3, 1991.

Decided July 10, 1991.

Anton R. Valukas, U.S. Atty., Brian W. Blanchard, Office of the U.S. Atty., Crim. Div., David J. Stetler, Asst. U.S. Atty., James R. Ferguson, and Victoria J. Peters, Asst. U.S. Attys., Office of the U.S. Atty., Crim. Receiving, Appellate Div., Chicago, Ill., for plaintiff-appellee.

Mark A. Locascio and Ronald S. Shapiro, Orzoff, Shapiro & Locascio, Northbrook, Ill., for defendant-appellant.

Before FLAUM and RIPPLE, Circuit Judges, and MOODY, District Judge. ^*

FLAUM, Circuit Judge.

When Amtrak Police Department Special Agent Robert Suave reviewed the passenger manifest for Train No. 4 on July 15, 1987, one passenger caught his attention. "Tiffany Johnson," later identified as the appellee Traci Parker, had purchased a one-way ticket from Los Angeles to Chicago less than an hour before the train departed and had paid for the $400 ticket in cash. The manifest revealed that Parker was travelling alone and that she had reserved a private roomette on the train, but did not indicate an address from whence she had come or one to where she was going. She had given the ticket agent a "call back" phone number, but no one answered when Agent Suave tried the number. All of this information was consistent with the drug courier profile used by police investigating the importation of drugs into the Chicago area by train. Compare, e.g., United States v. Berke, 930 F.2d 1219, 1220 (7th Cir.1991); United States v. High, 921 F.2d 112, 113 (7th Cir.1990); United States v. Johnson, 910 F.2d 1506, 1507 (7th Cir.1990); United States v. Sullivan, 903 F.2d 1093, 1094-95 (7th Cir.1990); United States v. Edwards, 898 F.2d 1273, 1274-75 (7th Cir.1990); see also United States v. Bell, No. 90-1903, and United States v. Williams, No. 90-2630, (opinions forthcoming). Suave, along with other members of a combined state-federal drug task force, decided to question Parker when she arrived in Chicago later that afternoon.

Suave and another agent, Robert Moss, boarded the train at an unscheduled stop outside of Chicago. Paula Rempalski, who was the attendant of the car in which Traci Parker was riding, pointed her out to the agents. She also showed them a large beige suitcase in the baggage compartment that belonged to Parker. When the train arrived at Union Station, Parker walked from the train into the station, where she met a man, later identified as Clayton Harris, and handed him a blue carry-on bag. After a brief conversation, Harris began walking toward an exit. Detective Thomas Kinsella of the Chicago Police Department, a task force member who had been waiting in the station, overheard Parker tell Harris that she was going to get "the other bag." As Harris walked toward an escalator, Detective Kinsella identified himself as a police officer and asked if he could speak with Harris, who agreed. Harris told Kinsella that he was carrying a suitcase for his girlfriend, Traci, but could not tell Kinsella Traci's last name. Harris said that Traci had gone to pick up her other bag.

In the meantime, Parker had turned to the Amtrak baggage handler. Agent Moss observed him put a bag on his cart for the defendant; afterward she began walking in the same direction as had Harris. Followed immediately by Agent Suave, Parker came upon Harris and Detective Kinsella at the foot of the escalator. Agent Suave identified himself to the defendant, and asked if he and Kinsella could speak with her. Parker agreed. The officers asked for some identification and to see Parker's train ticket. Parker said that she had left the ticket on the train. She told Suave that her name was Tiffany Johnson, but her Illinois Driver's License revealed it to be Traci Parker. Parker explained to Suave that she always uses an assumed name when she travels. Detective Kinsella asked Parker whether she had any other baggage and she replied "no."

At this point, the group proceeded to the baggage area, about 100 feet away. The parties dispute whether the law enforcement officers asked Parker to accompany them or whether they told her to do so. Detective Kinsella and Agent Suave testified at a suppression hearing that Kinsella advised Parker and Harris that they were not under arrest, that they were free to leave, and asked them to accompany him to the baggage area. According to Parker, however, Kinsella said, "We'll all take a walk up to the luggage counter."

When the group arrived at the baggage claim area, Agent Suave showed his identification to the baggage handler he had seen removing baggage from Train Number 4 and asked if he had any luggage for Parker, pointing to her as he did so. The baggage handler said yes, and indicated that the beige suitcase was Parker's. Parker denied that the suitcase was hers, to which the redcap replied, "That's the bag you gave me." Detective Kinsella laid the bag on the floor and asked Parker's permission to search it. Parker told Kinsella that she didn't care if he searched the bag since it did not belong to her. When Kinsella unzipped the bag, however, Parker asked him, "Don't you need a search warrant to do that?" Kinsella asked Parker again if the suitcase belonged to her and if she wanted him to stop. Parker again denied the bag was hers and told Kinsella to go ahead.

The suitcase contained almost a kilogram of cocaine and a half gallon of a liquid containing Phencyclidine (PCP). When they discovered these items, the officers arrested Parker and advised her of her rights. She was taken to the DEA offices for questioning, where she signed a waiver of her rights and confessed that she was to be paid $5,000 for transporting the drugs from Los Angeles. She was indicted for conspiring to possess with intent to distribute cocaine and PCP and for possessing those two drugs. Parker moved to quash her arrest and to suppress all of the evidence in the case on the ground that she had been seized at the train station without probable cause. The district court denied the motion, Parker went to trial, and the jury found her guilty on all three counts. The district court sentenced Parker to thirteen years of incarceration on each of the counts, to be served concurrently.

Parker raises five claims--as best we can tell--on appeal. First, she renews her argument that she was seized without probable cause in the train station. Second, she claims that the district court should not have admitted the evidence relating to the baggage handler's statement that the beige suitcase belonged to Parker. Third, Parker contends that the evidence was insufficient to establish her ownership or control over the beige suitcase containing the drugs. Fourth, the district court ruled that neither the government nor the defense could comment upon the fact that the baggage handler did not testify at trial; Parker says this ruling was grossly unfair. Finally, Parker maintains that her sentence was excessive. We address each claim in turn, and affirm the appellant's convictions and sentence.

Parker's fourth amendment claim relates to her movement from the foot of the escalator to the baggage claim area of the train station. She concedes that her initial encounter with the task force agents did not implicate her fourth amendment rights because she agreed to answer the officers' questions. When a defendant consents to questioning by police, there is no fourth amendment seizure. Berke, 930 F.2d at 1221; United States v. Durades, 929 F.2d 1160, 1163 (7th Cir.1991). Parker maintains that the officers seized her without probable cause, however, by directing her to accompany them to the luggage counter 100 feet away. In denying Parker's motion to suppress, the district court specifically found that Parker consented to accompany the officers. We owe deference to findings of fact made during suppression hearings, ¹ United States v. Hagan, 913 F.2d 1278, 1282 (7th Cir.1990), and in this case the district court's findings are easily supported. The district court explicitly credited Detective Kinsella's testimony that he twice told Parker that she was not under arrest, once when he and Agent Suave first began questioning Parker, and again when he asked Parker and Harris to step over to the baggage area. By contrast, the court explicitly discredited Parker's testimony, concluding that she had perjured herself. At any rate, we do not place dispositive weight on the question of whether Detective Kinsella advised Parker a second time that she was free to leave as nothing had occurred, up to that point, to suggest to Parker that Kinsella's position had changed and that she was no longer free to terminate the interview. None of the officers ever drew a weapon or used any force to detain Parker or Harris, and the entire encounter took place in a crowded public train station. Moreover, Parker admitted that the officers did not threaten her in any way, and used courteous language when speaking to her. Even her own testimony supports the district court's conclusion that she consented to go with the officers to the baggage area. Parker testified that Kinsella directed her "[t]o follow him, accompany him to another area," R. 61 at 50, which was "away from the crowd," R. 61 at 52, suggesting that Parker understood that the officers wanted only to continue questioning her in a less congested part of the station. Most significant, Parker stated that she went with the officers because she was curious about what was going on. She also said that she didn't feel free to leave, but in light of the other evidence, we affirm the district court's determination that Parker consented to accompany the officers to the baggage area.

The defendant's second, third, and fourth claims relate to the evidence linking her to the beige suitcase in which Detective Kinsella...