U.S. v. Yusuff, 95-3219

• Decision Date: 23 September 1996
• Docket Number: No. 95-3219,95-3219
• Citation: 96 F.3d 982
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Olufunke YUSUFF, also known as Stella Johnson, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 982

96 F.3d 982

UNITED STATES of America, Plaintiff-Appellee, v. Olufunke YUSUFF, also known as Stella Johnson, Defendant-Appellant.

No. 95-3219.

United States Court of Appeals Seventh Circuit.

Argued Feb. 9, 1996.

Decided Sept. 23, 1996.

Barry Rand Elden, Chief of Appeals, Diane MacArthur (argued), Office of the United States Attorney, Criminal Appellate Division, Chicago, IL, for Plaintiff-Appellee.

Adam Bourgeois (argued), Chicago, IL, for Defendant-Appellant.

Before COFFEY, KANNE and ROVNER, Circuit Judges.

COFFEY, Circuit Judge.

In February 1994, a federal grand jury indicted Olufunke Yusuff (also known as Stella Johnson) for possessing with the intent to distribute 686 grams of heroin, in violation of 21 U.S.C. § 841(a)(1). Yusuff entered a plea of not guilty and filed a motion to suppress evidence. After a hearing, the district court denied the suppression motion. Yusuff then entered a conditional plea of guilty to the crime charged, pursuant to a plea agreement, in which she reserved her right to appeal the district court's ruling on the suppression motion. The court sentenced Yusuff to 97 months imprisonment to be followed by four years of supervised release and imposed a special assessment fee of $50. Yusuff appeals her sentence and the court's ruling on her suppression motion. We affirm.

I. Background

The arrest of Olufunke Yusuff arose from an investigation by the Drug Enforcement Agency (DEA)/Chicago Police Department joint task force at O'Hare airport in Chicago, Illinois. On January 10, 1994, Special Agents James Stewart and Bill Grant (of the U.S. Customs Service) and Officer Judith Martin (of the Chicago Police Department) were on duty at O'Hare airport conducting drug "interdictions and investigations." The officers testified that as part of their drug interdiction operations, they routinely observed passengers disembarking flights from New York to Chicago because of the flow of drugs and money between the two cities.

The observation of the 4:24 TWA flight from New York began when Agent Stewart approached the TWA ticket counter, where he received information from a DEA informant. Upon request, a TWA employee, Gene Cooper, provided Agent Stewart with a list of names of those on the flight; Stewart testified that he was looking for any "generic" or common names that from his experience he believed drug couriers might assume. Interested by the name "S. Johnson," Stewart had Cooper pull information on that passenger from the TWA computer: S. Johnson had booked a one-way flight from New York shortly before take-off and was seated in seat 7C and would therefore be one of the first passengers to disembark. ¹

Agent Stewart told his partners, Agent Grant and Officer Martin, of the information he had received. As the passengers disembarked the 4:24 flight from New York, the officers observed a woman (the defendant, Yusuff) who nervously "looked around" and proceeded to make a telephone call with a calling card at a bank of public phones. Although the officers testified that they were unaware at that time that the woman they observed disembark was in fact "S. Johnson," they were curious because of her nervous behavior and her appearance (she appeared to be an African national). Agent Stewart testified that it is common for drug couriers to nervously place telephone calls upon disembarkation. After the phone call (two to three minutes), the woman began walking down the concourse. While Agent Grant maintained a look-out at the gate, observing the remainder of the disembarking passengers, Agent Stewart and Officer Martin followed the woman, who turned out to be the defendant, Yusuff.

Agent Stewart approached Yusuff, introduced himself as a police officer, and asked if he might speak with her for a few moments and Yusuff agreed. Agent Stewart asked whether she had taken the flight from New York; Yusuff replied she had and was here to visit her sister who was feeling poorly. He then asked her for identification, but she said she was without any form of i.d., except for a calling card in the name of "Nancy Rafael." Upon questioning, Yusuff could not recall where her sister lived or worked. At this point, Agent Stewart informed Yusuff that she was free to leave but he and Officer Martin would like to ask her a few more questions. Yusuff stated that she understood.

Agent Stewart inquired of Yusuff as to the contents of her bag; Yusuff replied that she had packed it herself and no one had given her anything to carry. Stewart asked Yusuff whether she was carrying any currency or narcotics; Yusuff produced a wad of $300 cash from the bag, declaring "that was all she had." Stewart then asked whether they could search the bag. After Yusuff agreed to the search, Officer Martin rummaged through the bag and found nothing but miscellaneous clothing.

After searching the bag, Officer Judith Martin asked Yusuff: "Do you mind if I pat you down?" According to Martin's testimony, Yusuff responded that she did not mind a pat down. Officer Martin placed her hand on the pocket of Yusuff's coat and felt a hard lump. "What is that?" Martin inquired; "Drugs," Yusuff replied. "How much?" Martin questioned; "700 grams," Yusuff confessed.

Upon Yusuff's admission, the officers took her to a more secluded part of the terminal (an empty gate area). The defendant Yusuff then opened her coat and removed a wrapped plastic bundle from underneath a girdle that she was wearing. The bundle when opened by Officer Martin, revealed a crushed white powder that the officers suspected was narcotics. At this time, the officers placed Yusuff under arrest and advised her of her Miranda rights.

Yusuff subsequently was indicted for possessing with the intent to distribute 686 grams of heroin. The defendant filed a motion to suppress the evidence, contending that Officer Martin and Agent Stewart had infringed upon her right to be free of unreasonable searches and seizures. The district court held a hearing. In contrast to Officer Martin and Agent Stewart's testimony, Yusuff testified at the suppression hearing that in response to Officer Martin's request to conduct a pat-down, she replied: "No, you cannot pat me down."

At the close of the suppression hearing, the district court found that the corroborating testimony of the police officers was worthy of credence and that Yusuff had voluntarily consented to the pat-down search. Accordingly, he denied the defendant's motion to suppress the evidence. Following the district judge's ruling on her suppression motion, Yusuff pled guilty, reserving the right to appeal the judge's adverse decision.

II. Analysis

A. Consent to Search

Yusuff argues that the district court erred in concluding that she had consented to Officer Martin's pat down search. ²

The Fourth Amendment protects individuals from "unreasonable" searches and seizures. However, a search conducted pursuant to the voluntary consent of an individual is constitutionally permissible. Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S.Ct. 2041, 2045, 36 L.Ed.2d 854 (1973). The Supreme Court has made it clear that:

a seizure does not occur simply because a police officer approaches an individual and asks a few questions. So long as a reasonable person would feel free to "disregard the police and go about his business," California v. Hodari D., 499 U.S. 621, 628, 111 S.Ct. 1547 [1552] 113 L.Ed.2d 690 (1991), the encounter is consensual and no reasonable suspicion is required. The encounter will not trigger Fourth Amendment scrutiny unless it loses its consensual nature. The Court made precisely this point in Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868 [1879 n. 16] 20 L.Ed.2d 889 (1968): "Obviously, not all intercourse between policemen and citizens involves 'seizures' of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of the citizen may we conclude that a seizure has occurred."

Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 2386, 115 L.Ed.2d 389 (1991). "The question of whether a particular encounter is voluntary is a factual one, dependant on the circumstances of each case." United States v. Nobles, 69 F.3d 172, 180 (7th Cir.1995) (quoting United States v. Maldonado, 38 F.3d 936, 939 (7th Cir.1994), cert. denied, --- U.S. ----, 116 S.Ct. 205, 133 L.Ed.2d 138 (1995)). When evaluating whether a consent to search was voluntary, the court should determine whether a defendant's will was overborne by the police actions. Schneckloth, 412 U.S. at 226, 93 S.Ct. at 2047. The factors to be reviewed in determining whether a consent was voluntary include: (1) whether the encounter occurred in a public place; (2) whether the suspect consented to speak with the officers; (3) whether the officers informed the individual that he was not under arrest and was free to leave; (4) whether the individuals were moved to another area; (5) whether there was a threatening presence of several officers and a display of weapons or physical force; (6) whether the officers deprived the defendant of documents she needed to continue on her way; and (7) whether the officers' tone of voice was such that their requests would likely be obeyed. Nobles, 69 F.3d at 180 (citing United States v. Robinson, 30 F.3d 774, 782 (7th Cir.1994); United States v. McCarthur, 6 F.3d 1270, 1276 (7th Cir.1993); United States v. Withers, 972 F.2d 837, 842 (7th Cir.1992)).

We review deferentially a trial judge's factual finding that a search was consensual, particularly when such a determination is based upon the judge's assessment of witness credibility:

When the district court's decision rests on credibility determinations, this court has stated that "the trial judge's ... choice of whom to believe is conclusive on the appellate court unless the judge credits exceedingly improbable testimony." United States v. Cardona-Rivera, 904 F.2d 1149, 1152 (7th Cir.1990). In other words, "[w]e must...