U.S. v. Taylor

Citation956 F.2d 572
Decision Date10 February 1992
Docket NumberNo. 89-6396,89-6396
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Eddie Louis TAYLOR, Defendant-Appellant. . Re
CourtU.S. Court of Appeals — Sixth Circuit

Sidney P. Alexander, Asst. U.S. Atty. (argued and briefed), Ed Bryant, U.S. Atty., Memphis, Tenn., for U.S.

Robert M. Friedman (argued & briefed), Lawrence W. White, Memphis, Tenn., for Eddie Louis Taylor.

Nancy Hollander (briefed), Freedman, Boyd & Daniels, Albuquerque, N.M., for amicus curiae National Ass'n of Criminal Defense Lawyers.

Before MERRITT, Chief Circuit Judge, KEITH, KENNEDY, MARTIN, JONES, MILBURN, GUY, NELSON, RYAN, NORRIS, SUHRHEINRICH, Circuit Judges; and KRUPANSKY, Senior Circuit Judge. *

KRUPANSKY, Senior Circuit Judge.

Defendant-appellant, Eddie Louis Taylor (Taylor), appealed from an order of the district court dated June 30, 1989, denying his motion to suppress evidence discovered by officers of the Memphis, Tennessee police force during a search of his luggage at the Memphis International Airport on October 3, 1988. Subsequent to the trial court's decision, Taylor entered a conditional plea of guilty to one count of possessing with an intent to distribute 2 kilograms of cocaine, reserving his right to appeal the order denying suppression pursuant to Fed.R.Crim.P. 11(a)(2). Taylor was subsequently sentenced to serve 63 months in prison.

The record disclosed that on October 3, 1988, Taylor flew from Miami, Florida--a high-level source city for drug distribution--to Memphis. Taylor was the only African-American in the initial group of deplaning passengers. The record, however, does not disclose how many additional blacks were included in the steady stream of passengers leaving the aircraft at the Memphis terminal. As Taylor exited the jetway and entered the terminal corridor, he was observed by three plainclothes officers of the Memphis police department who were assigned to the department's Drug Task Force Unit. Without consulting each other, the three officers--Joseph Eldridge (Eldridge), Bonnie Bevel (Bevel), and Britt Roberts (Roberts)--tracked Taylor as he walked from the gate and down the concourse to the terminal's lower-level baggage claim facility. The officers testified that their surveillance was instigated by Taylor's obviously agitated conduct and appearance. Taylor was poorly attired, but carried a new bag over his shoulder. He proceeded rapidly--at almost a running pace--along the corridor, furtively scanning the course of his travel, including the area behind him. He proceeded directly to the curb without claiming any baggage, and was going in the direction of a parking lot situated across the roadway from the terminal.

Eldridge approached Taylor short of the curb and identified himself as a police officer and solicited Taylor for an interview. In his testimony at the suppression hearing, Taylor contradicted Eldridge's version of the events and testified that Eldridge forcibly prevented him from proceeding toward his destination by grasping his elbow and propelling him backward to within several feet of the terminal building's facade. Taylor stated that he observed the officers' firearms, whereas the officers testified that their weapons were completely concealed. There is no dispute that Bevel had joined Eldridge and Taylor on the sidewalk, while Roberts had proceeded to a position across the roadway and adjacent to the parking lot.

In response to Eldridge's inquiries, Taylor volunteered that he lived across the river in Haiti, Missouri and that he had been in Miami for three weeks, but failed to explain the absence of additional baggage to accommodate his extended Miami visit. In further response to Eldridge's questions, Taylor voluntarily produced a one-way ticket from Miami to Memphis that had been purchased with cash, a driver's license with a name corresponding to that which appeared on the airline ticket. Taylor denied the officers' assertions that these items were, immediately subsequent to inspection, returned to him. As the conversation progressed, the officers observed that Taylor was "sweating profusely."

Bevel invited Taylor to permit her to inspect the contents of his shoulder bag. It is not disputed that, in response to this request, Taylor placed the carry-on bag on the sidewalk, unzipped it, riffled through some paper wrappings and other materials in the bag, and simultaneously assured Bevel and Eldridge that the bag contained nothing apart from gifts for his children, which would be of no interest to the officers. Taylor testified that after he shuffled the contents of the bag, he moved to replace it on his shoulder, but that Bevel snatched it from his hand and prevented him from doing so.

Bevel contradicted Taylor by asserting that he voluntarily surrendered the bag upon her renewed solicitation to examine its contents. Bevel and Eldridge stated that Taylor responded "okay" or "naw, go ahead" and backed off, leaving the bag on the ground for Bevel to inspect. Bevel's inspection disclosed two large, spherical bundles wrapped in brown plastic tape, which both Bevel and Eldridge immediately recognized as packaging common to cocaine transportation. Upon this discovery, the officers directed Taylor to accompany them to the Drug Task Force Unit's office inside the airport terminal.

Subsequent to entering the office, Roberts advised Taylor of his Miranda rights. Bevel cut open one of the taped balls and chemically field tested its white, powdery contents. The substance tested positive for cocaine. Taylor was thereupon placed under formal arrest. Incident to the arrest, Eldridge searched Taylor's person and discovered $1,000 in cash hidden in each of his socks, and approximately another $900 in his wallet.

In his motion to suppress, Taylor argued that he was unreasonably "seized" within the meaning of the fourth amendment when the three law enforcement officers encountered him on the sidewalk adjacent to the airport terminal building. Taylor also charged that the officers lacked the level of suspicion required as a predicate to an investigative Terry stop, 1 and denied, in any event, that he had voluntarily conversed with the officers or had consented to Bevel's inspection of his carry-on bag, or to the subsequent chemical field testing of the contents of the taped balls. Taylor argued that all of the events that transpired subsequent to the initial curbside confrontation outside the terminal--the search of his shoulder bag, his removal to the Drug Task Force Unit's office, the chemical field test of the contents of the taped packages, as well as his arrest and the search that disclosed the large amount of cash he possessed--were the tainted fruit of the initial, allegedly illegal encounter.

In its opinion denying suppression, the district court credited the officers' version of events over Taylor's testimony, and concluded as a matter of fact that the initial conversation between the officers and Taylor, including Bevel's search of Taylor's shoulder bag, were consensual.

The evidence shows Mr. Taylor consented to interview by the officers. The evidence shows he consented to the search of his tote bag. He, in fact, was in possession of two (2) kilograms of cocaine. Mr. Taylor was actually arrested when the cocaine was discovered in the tote bag. At that point, he was not free to leave the presence of the officers.

The court concluded, as a matter of law, that the arrest immediately subsequent to the discovery of the taped balls was supported by probable cause and did not violate Taylor's fourth amendment rights.

Recognizing that the fourth amendment protects citizens against "unreasonable searches and seizures," U.S. Const. amend IV (emphasis added), the Supreme Court and this Circuit consistently have admonished that not every encounter between a civilian and the police constitutes a "seizure" invoking fourth amendment safeguards. Relevant precedent has made clear that a seizure within the meaning and purpose of the fourth amendment does not occur when governmental agents approach a pedestrian, identify themselves as law enforcement officers, and solicit conversation or request an interview. See, e.g., Immigration and Naturalization Service v. Delgado, 466 U.S. 210, 215, 104 S.Ct. 1758, 1762, 80 L.Ed.2d 247 (1984) ("[t]he Fourth Amendment does not proscribe all contact between the police and citizens"); Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229 (1983) (plurality opinion) ("law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place"); United States v. Mendenhall, 446 U.S. 544, 553, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980) (plurality opinion) ("[t]he purpose of the Fourth Amendment is not to eliminate all contact between the police and the citizenry"); United States v. Cooke, 915 F.2d 250, 251 (6th Cir.1990); United States v. Winfrey, 915 F.2d 212, 216 (6th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 709, 112 L.Ed.2d 698 (1991); United States v. Kelly, 913 F.2d 261, 264 (6th Cir.1990) ("Initial questioning, without more, is not unlawful.").

Existing precedent teaches that a "seizure" occurs during a police-citizen encounter "only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." Mendenhall, 446 U.S. at 554, 100 S.Ct. at 1877; accord Michigan v. Chesternut, 486 U.S. 567, 573, 108 S.Ct. 1975, 1979, 100 L.Ed.2d 565 (1988); I.N.S. v. Delgado, 466 U.S. at 215, 104 S.Ct. at 1762; United States v. Grant, 920 F.2d 376, 381 (6th Cir.1990); United States v. Saperstein, 723 F.2d 1221, 1225 (6th Cir.1983). "The finding that a citizen has been subjected to a fourth amendment search or seizure involves a question of fact and cannot be reversed unless clearly erroneous." United States v. Grant, 920 F.2d at 381 (emphasis added).

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