United States v. Alston

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 United States v. Alston No. 03-3134 ELECTRONIC CITATION: 2004 FED App. 0209P (6th Cir.) File Name: 04a0209p.06 _________________ COUNSEL UNITED STATES COURT OF APPEALS ON BRIEF: Wesley A. Dumas, Sr., Cleveland, Ohio, for FOR THE SIXTH CIRCUIT Appellant. David P. Folmar, Jr., ASSISTANT UNITED _________________ STATES ATTORNEY, Cleveland, Ohio, for Appellee.

UNITED STATES OF AMERICA , X _________________ Plaintiff-Appellee, - OPINION - _________________ - No. 03-3134 v. - > BOYCE F. MARTIN, JR., Circuit Judge. Kashiema Alston , was convicted by a jury of possession with intent to distribute KASHIEMA ALSTON, - cocaine under 21 U.S.C. § 841(a)(1)(B). On appeal, Ms. Defendant-Appellant. - Alston asserts that the district court erred in denying her N motion to suppress because she was illegally seized in Appeal from the United States District Court violation of her rights under the Fourth Amendment. Ms. for the Northern District of Ohio at Cleveland. Alston also argues that the district court erred in denying her No. 02-00054—Solomon Oliver, Jr., District Judge. proposed jury instruction, stating that the jury should not give more credibility to the testimony of law enforcement officers Submitted: June 10, 2004 than other witnesses solely because of their status. We hold that the encounter between Ms. Alston and the officers did not Decided and Filed: July 7, 2004 rise to the level of a seizure for purposes of the Fourth Amendment. Thus, we affirm the district court's denial of the Before: MARTIN and SUTTON, Circuit Judges; motion to suppress. We also hold that the district court did WILLIAMS, Senior District Judge.* not abuse its discretion in denying Ms. Alston's last-minute request for a jury instruction, and we affirm the judgment of the district court. I. Ms. Alston was arrested on January 14, 2002, in Cleveland International Airport after her carry-on luggage was searched, and officers found cocaine inside the lining of a coat contained in her luggage. Ms. Alston was traveling from Los Angeles, California, to Hartford, Connecticut, her hometown. * The Honorable Glen M. Williams, Senior United States District Officers in Cleveland received information from a drug task Judge for the W estern D istrict of V irginia, sitting by designation.

1 No. 03-3134 United States v. Alston 3 4 United States v. Alston No. 03-3134

force in Houston, Texas, stating that Ms. Alston was traveling Johnston again asked if he could speak with her. She again from Los Angeles to Hartford and that the circumstances consented, and Officer Johnston asked her name and asked for surrounding the purchase of her ticket indicated that she identification. Ms. Alston produced identification, and after might be involved in illegal drug transportation. a brief inspection, Officer Johnston returned it to her. Then, Officer Johnston asked to inspect her boarding pass. Again, An investigation by officers in Cleveland revealed that Ms. Ms. Alston produced the boarding pass, and after a brief Alston's ticket was purchased by Robert Taylor, a man who inspection, Officer Johnston returned it. During this time, produced no identification and paid the fare in cash. Ms. Officer Harrison stood a distance behind Officer Johnston, Alston departed on January 11, 2002, and was scheduled to and Officer Johns pretended to be a traveler talking on the return on January 20, 2002. Late in the evening on telephone. January 13, 2002, the return ticket was changed to depart on January 14, 2002. The fee for this change was paid in cash. Officer Johnston then asked if he could have permission to The investigation revealed that Ms. Alston was traveling search her carry-on baggage. Again, Ms. Alston consented. alone and that she checked no baggage in Los Angeles. The Officer Harrison approached in order to search the bag and officers learned that her plane was scheduled to land in found that it was sealed by a lock. Officer Johnston asked Cleveland, where she would change planes, and that she was Ms. Alston if she had a key, and she said no. Officer seated near the center of the plane arriving from Los Angeles. Harrison proceeded to open the bag by separating the zipper. During the search of Ms. Alston's luggage, Officer Harrison Officers Brian Johnston, Debra Harrison, and Kirk Johns picked up a coat and noticed that it was quite heavy. She were assigned to locate Ms. Alston when she landed in began to pat down the coat and felt what she believed to be Cleveland. After approaching one individual and determining contraband in the lining of the coat. Officer Johns then that she was not Ms. Alston, the officers observed Ms. Alston approached and offered Officer Harrison a knife with which deplane. Although they did not know her specific age or have to cut the lining of the coat. After Officer Harrison retrieved a physical description of her, the officers were able to locate packets of cocaine from the lining of the coat, Ms. Alston was her as a single female traveler in the middle of the plane. The arrested. officers observed her as she left her gate, purchased a cup of coffee, and purchased food. Ms. Alston then approached a After Ms. Alston was indicted, she filed a motion to bank of telephones. The three officers, who were all dressed suppress, claiming that the officers illegally seized her and in plain clothes and not showing weapons, decided to that the evidence obtained from the seizure should be approach her before she made a telephone call. suppressed. The district court held a suppression hearing in which the motion to suppress was denied orally. A jury found Officer Johnston approached Ms. Alston, and after showing Ms. Alston guilty, and she was sentenced to sixty-three her his identification, he told her that he was a drug-task-force months imprisonment. officer and asked if he could speak with her. Office Johnston testified at the suppression hearing that he told Ms. Alston II. that she was not under arrest and was free to leave at anytime. Ms. Alston initially consented, but she went to ask the gate This Court reviews a district court's factual findings in a agent a question regarding her flight, leaving her carry-on suppression hearing for clear error and reviews a district luggage at the phone bank. Ms. Alston returned, and Officer No. 03-3134 United States v. Alston 5 6 United States v. Alston No. 03-3134

court's conclusions of law de novo. United States v. Waldon, Officer Johnston spoke in a non-threatening manner and did 206 F.3d 597, 602 (6th Cir. 2000). not display a weapon. Furthermore, the atmosphere was not police dominated. Although there were three officers on the Ms. Alston argues that the encounter with the officers on scene, only Officer Johnston approached the defendant while January 14, 2002, amounted to a seizure, and that the seizure the other officers remained some distance away. Officer was unconstitutional because the officers had neither Johnston testified that he told Ms. Alston she was free to walk reasonable suspicion nor probable cause to detain her. away, but Ms. Alston did not choose to do so. The encounter Because we believe that a reasonable person in Ms. Alston's was very brief, and Ms. Alston was not asked to accompany circumstances would have felt free to leave, we hold that Ms. the officers to a different location. Nothing in the record Alston was not seized for purposes of the Fourth Amendment. suggests that a reasonable person would not have felt free to Further, because Ms. Alston does not challenge the district leave. The district court did not provide us findings of fact, court's holding that her consent to search was freely and and cases like this generally turn on credibility determinations voluntarily given, we hold that the evidence obtained by the made by the district judge at the suppression hearing. officers was properly admitted by the district court. However, even viewing the facts in the light most favorable to Ms. Alston, we find nothing that would lead us to conclude "Under the Fourth Amendment, there are three types of that a reasonable person would not have felt free to leave. permissible encounters between police and citizens: Therefore, there was no seizure for purposes of the Fourth consensual encounters in which contact is initiated by a police Amendment. officer without any articulable reason whatsoever and the citizen is briefly asked some questions; a temporary Defendant's brief does not challenge the district court's involuntary detention or Terry stop which must be predicated holding that Ms. Alston's consent to search was voluntary, upon 'reasonable suspicion;' and arrests which must be based and, thus, we will not review this finding. on probable cause." United States v. Bueno, 21 F.3d 120, 123 (6th Cir. 1994). The first of these encounters is permissible III. without any particularized suspicion because no seizure has occurred for purposes of the Fourth Amendment. A seizure Ms. Alston alleges that the district court erred in not occurs when "under the totality of the circumstances, a instructing the jury that it should not lend more credibility to reasonable person would have believed that he or she was not the testimony of law enforcement officials solely because of free to walk away." United States v. Saperstein, 723 F.2d their status. "We will reverse a conviction for failure to give 1221, 1225 (6th Cir. 1983). a requested jury instruction only when: (1) the requested instruction is a correct statement of the law; (2) the requested This Court has been asked to address this issue many times, instruction is not substantially covered by other delivered and while the facts of each case are different, we do not see instructions; and (3) the failure to give the instruction impairs anything in this case that would make us think that a the defendant's theory of the case." United States v. Chesney, reasonable person in Ms. Alston's circumstances would not 86 F.3d 564, 573 (6th Cir. 1996). have felt free to terminate the encounter. Ms. Alston was approached by officers in plain clothes and asked if she would The district court committed no error in denying Ms. speak to them. After responding that she would, Officer Alston's proposed instruction on witness credibility. The jury Johnston asked for her identification and boarding pass. was given lengthy instructions on considerations to make No. 03-3134 United States v. Alston 7

when determining witness credibility. A portion of these instructions told the jurors to "[a]sk yourself if the witness had any relationship to the government or the defendant, or anything to gain or lose from the case, that might influence the witness's testimony. Ask yourself if the witness had any bias or prejudice or reason for testifying that might cause the witness to lie or to slant their testimony in favor of one side or the other." App. 244. In addition, the district court instructed the jury that "the instructions . . . apply to each witness, regardless of who they are or which side may have called them." We believe the above instruction invites jurors to think about whether witnesses, such as the officers, may be biased because of their relationship with the government. Ms. Alston's concern that the officers' testimony would be given greater deference because of their status was adequately addressed by this instruction and other jury instructions as a whole, and the district court did not abuse its discretion. For these reasons, we AFFIRM the judgment of the district court.