United States v. Mendoza-Cepeda, MENDOZA-CEPED

• Citation: 250 F.3d 626
• Decision Date: 13 February 2001
• Docket Number: APPELLANT,MENDOZA-CEPED,No. 00-3116,00-3116
• Parties: (8th Cir. 2001) UNITED STATES OF AMERICA, APPELLEE, v. JUAN C. Submitted:
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 626

250 F.3d 626 (8th Cir. 2001)

UNITED STATES OF AMERICA, APPELLEE, v. JUAN C. MENDOZA-CEPEDA, APPELLANT.

No. 00-3116

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Submitted: February 13, 2001

Filed: May 18, 2001

Appeal from the United States District Court for the District of Nebraska.

Before Richard S. Arnold, Lay, and Hansen, Circuit Judges.

Hansen, Circuit Judge

Juan Mendoza-Cepeda appeals the district court's ¹ judgment entered upon his conditional guilty plea to possession with intent to distribute methamphetamine. We affirm.

I.

Mendoza-Cepeda arrived in Omaha, Nebraska, on May 10, 1999, on a flight from Phoenix, Arizona. Sergeant Burns and Investigator Rasgorshek of the Commercial Interdiction Unit observed Mendoza-Cepeda exit the plane with a carry-on bag and decided to follow him. Mendoza-Cepeda did not claim any checked luggage, and he proceeded to the taxi stand. There, Sergeant Burns approached Mendoza- Cepeda, displayed his badge, and asked to speak with him. Mendoza-Cepeda handed his plane ticket and passport to Sergeant Burns. After returning the ticket and passport to Mendoza-Cepeda, Sergeant Burns began to explain his purpose at the airport. Mendoza-Cepeda told Sergeant Burns that he did not speak English. Using his rudimentary Spanish, Sergeant Burns asked Mendoza-Cepeda if he had any drugs. Mendoza-Cepeda repeated that he did not speak English. Sergeant Burns then asked if he could search Mendoza-Cepeda's carry-on bag. Mendoza-Cepeda handed his bag to Sergeant Burns and Investigator Rasgorshek searched the bag. No drugs were found. Sergeant Burns asked Mendoza-Cepeda if he could search him. Mendoza- Cepeda did not respond. Sergeant Burns then used gestures while asking Mendoza- Cepeda in Spanish if he could search Mendoza-Cepeda's boots. Mendoza-Cepeda held out one foot at a time for Sergeant Burns to search. Next, Sergeant Burns asked Mendoza-Cepeda if he could search Mendoza-Cepeda's torso. Mendoza-Cepeda did not respond. Sergeant Burns asked Mendoza-Cepeda "yes" or "no" in Spanish while pointing at Mendoza-Cepeda's torso. Mendoza-Cepeda raised his arms and allowed Sergeant Burns to touch his torso. Sergeant Burns felt bundles taped around Mendoza- Cepeda's waist. Sergeant Burns arrested Mendoza-Cepeda and took him back to an office where the bundles were revealed to contain methamphetamine.

A Spanish-speaking Immigration and Naturalization Service agent was contacted to help with questioning Mendoza-Cepeda. Agent Wardy read Mendoza-Cepeda his Miranda rights in Spanish and translated the questions and answers between Investigator Krans and Mendoza-Cepeda. Agent Wardy testified that Mendoza- Cepeda indicated that he understood his rights. Mendoza-Cepeda sought to suppress the evidence seized and the statements he made. His motion to suppress was denied. Mendoza-Cepeda entered a conditional guilty plea, reserving his right to appeal the denial of his motion to suppress, and was sentenced to 70 months of imprisonment followed by five years of supervised release. Mendoza-Cepeda appeals.

II.

We review the question of whether a seizure has occurred de novo and the district court's determination of voluntariness for clear error. United States v. White, 81 F.3d 775, 779-80, (8th Cir.), cert. denied, 519 U.S. 775 (1996).

Mendoza-Cepeda asserts that the encounter at the airport with the officers of the Commercial Interdiction Unit was an investigatory stop which, under the Fourth Amendment, required reasonable suspicion. We disagree. Although a person may not be seized without a reasonable suspicion of criminal activity, "the [Fourth] Amendment is not triggered by a consensual encounter between an officer and a private citizen." United States v. Perez-Sosa, 164 F.3d 1082, 1084 (8th Cir. 1998), cert. denied, 525 U.S. 1186 (1999). A consensual encounter, however, may become a seizure if there is a "threatening presence of several officers, [a] 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. Hathcock, 103 F.3d 715, 718-19 (8th Cir.)(quoting United States v. White, 81 F.3d 775, 779 (8th Cir. 1996)), cert. denied, 521 U.S. 1127 (1997). Here, only two officers of the Commercial Interdiction Unit were present, no weapon was displayed, Mendoza-Cepeda was not physically touched until after he consented to the touching of his torso, and the language used by Sergeant Burns does not indicate that Mendoza- Cepeda's compliance was compelled. The encounter was in a public place, and Mendoza-Cepeda was not in custody at the time. The encounter between Sergeant Burns and Mendoza-Cepeda at the taxi stand did not constitute a seizure.

Mendoza-Cepeda relies on two cases, United States v. Eustaquio, 198 F.3d 1068 (8th Cir. 1999), and United States v. Tovar-Valdivia, 193 F.3d 1025 (8th Cir. 1999), to support his proposition that the encounter at the taxi stand was a detention which lacked reasonable suspicion. Tovar-Valdivia was stopped and questioned by an officer after arriving in Kansas City, Missouri, on a Greyhound bus. The officer asked to see his bus ticket and to search his bag. Upon noticing bulges under his shirt, the officer reached out and felt the bulges without Tovar-Valdivia's consent. Tovar-Valdivia, 193 F.3d at 1027. Similarly, Eustaquio was stopped at the taxi stand at the Eppley Airfield in Omaha, Nebraska, and questioned by two members of the Commercial Interdiction Unit. Eustaquio allowed the officer to search her luggage and her...