United States v. Charles v. Ushery (91-5716) and Benjamin R. Burton (91-5715)

968 F.2d 575, 1992 U.S. App. LEXIS 14001, 1992 WL 137478
CourtCourt of Appeals for the Sixth Circuit
DecidedJune 18, 1992
Docket91-5715, 91-5716
StatusPublished
Cited by38 cases

This text of 968 F.2d 575 (United States v. Charles v. Ushery (91-5716) and Benjamin R. Burton (91-5715)) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Charles v. Ushery (91-5716) and Benjamin R. Burton (91-5715), 968 F.2d 575, 1992 U.S. App. LEXIS 14001, 1992 WL 137478 (6th Cir. 1992).

Opinions

SUHRHEINRICH, Circuit Judge.

Benjamin Ross Burton and Charles Vincent Ushery were charged with conspiracy to possess with intent to distribute cocaine (Count 1) and possession with intent to distribute cocaine (Count 2). Both filed motions to suppress evidence that they claimed was obtained in violation of their constitutional rights. After the district court denied both motions, Burton entered a conditional guilty plea to Count 2, allowing him to appeal the denial of his motion to suppress. Ushery proceeded to trial and was convicted on both counts. Ushery now raises several challenges to his conviction and sentence. We affirm the denial of both motions to suppress. We also affirm Ushery’s conviction and sentence.

I.

In April 1990, Officer David Bunning of the Cincinnati/Northern Kentucky International Airport Police Department received a tip on April 8, 1990 that a round trip ticket to San Francisco, California had just been purchased in the name of Vincent Charles Ushery. The ticket was purchased ten minutes before departure by a man with no identification or luggage, the fare, which exceeded $1,000, was paid in cash, and the return flight was due to depart San Francisco less than twenty-four hours after arrival. Bunning contacted the Cincinnati Police Department and was informed that the subject was probably Charles Vincent Ushery, who was suspected of narcotics trafficking. Bunning contacted the San Francisco International Airport Police Department and relayed a description of Ush-ery. Ushery was observed exiting the Cincinnati flight and meeting three other men, including Terryl Rucker and Benjamin Ross Burton. The four left the airport together. While on the ground, they developed and executed a plan to obtain two kilograms of cocaine.

Meanwhile, Ushery missed his scheduled flight to Cincinnati. The three decided to take the next flight. Ushery paid the fare on Rucker’s ticket, which was issued under the name Frank Hicks. Burton also purchased his one-way ticket to Cincinnati with cash obtained from Ushery. The ticket was issued in the name Benjamin Ross. Ushery, Rucker, and Burton did not approach one another in the airport. However, San Francisco and California police officers stationed at the airport observed the three making eye contact and nodding to one another while awaiting their flight. After the plane was boarded, the San Francisco airport police contacted Officer Bun-ning to alert him of their observations, such as the maintenance of eye contact, and of the impending return.

[578]*578Agent James McKiernan of the DEA joined Officer Bunning at the Cincinnati Airport. They observed Ushery, Rucker, and Burton deplane and followed them. Ushery carried no luggage, Rucker carried a dark bag, and Burton carried a maroon suit bag. The baggage had been described to Bunning by the San Francisco Airport police.

Needing ground transportation, Burton asked a dispatcher to send a cab. However, agent McKiernan subsequently instructed the dispatcher to delay it. Burton and Rucker waited at the curb and were joined by Ushery. Ushery and Rucker left Burton and began to walk down the street with McKiernan and Bunning following. McKiernan called out to Rucker and Ush-ery and then each officer identified himself. The officers explained that they wanted to ask some questions but Rucker and Ushery were not under arrest. Rucker and Ushery each assented. McKiernan spoke to Ruck-er while Bunning spoke with Ushery.

At Bunning’s request, Ushery produced his original round trip ticket bearing the name Vincent Charles Ushery and maintained that he had traveled to visit Benjamin Ross’s aunt. Ushery then identified Burton, who was still waiting for his cab, as Ross. Ushery then consented to a pat down search, which revealed several thousand dollars in cash. Bunning again asked Ushery why he had gone to San Francisco, and Ushery stated that it was to pick up Ross’s children (there were no children with Ushery, Rucker, or Burton).

Simultaneously, Rucker produced his plane ticket for McKiernan. His Indianapolis continuation flight was due to depart in three to six minutes. He explained his absence from the terminal by claiming he was there to meet Ushery’s girlfriend. Rucker consented to a search of his bag. McKiernan found a wallet containing Burton's driver’s license. Rucker then identified Burton, still waiting for his cab, to McKiernan.

Bunning approached Burton, identified himself, and asked to speak with him. Burton consented. Burton initially denied knowing Ushery then stated that they had met on the plane. During the conversation, Burton moved about in an attempt to block Bunning’s view of his bag, which he had placed on a pile of debris next to a garbage can. Upon Bunning’s request, Burton consented to a search of the bag. Burton twice attempted to walk away but on both occasions was instructed to return and witness the search. The search revealed a one kilogram brick of cocaine. Bunning placed Burton under arrest, McKiernan read Ushery and Rucker their Miranda1 rights, and all three were taken to the Airport Police Department. At the police department, Rucker turned over the kilogram of cocaine he had been carrying.

II.

A.

There are three categories of interaction between police and citizens: consensual encounters, temporary detentions (or Terry stops), and arrests. The Fourth Amendment applies only to the latter two. Thus, a police officer must have a reasonable suspicion to conduct a temporary detention or probable cause to conclude an arrest, while no objective justification is required to initiate a consensual encounter. See United States v. Flowers, 909 F.2d 145, 147 (6th Cir.1990).

Burton describes his encounter with the police as nonconsensual and further contends that there were no grounds for reasonable suspicion. The test for whether an encounter with the police constitutes temporary detention is whether “in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980). “As long as the person to whom questions are put remains free to disregard the questions and walk away, there has been no intrusion upon that person’s liberty or privacy as would under the Constitution [579]*579require some particularized and objective justification.” Id.

From the time Burton was approached until the search began, the encounter with the police was entirely consensual. Officer Bunning approached Burton, identified himself as a police officer, asked Burton several questions (after obtaining consent), and then asked for permission to search his bag. This would not render reasonable a belief that one is not free to leave. See United States v. Rose, 889 F.2d 1490, 1493 (6th Cir.1989). Burton points to the fact that the police instructed the dispatcher to delay his taxi. However, Burton was not made aware of this before giving his consent. As a result, he could not have harbored the impression that he was not free to leave or to refuse to answer any questions.

What begins as a consensual encounter may be transformed into a seizure that implicates the Fourth Amendment, such as a temporary detention. I.N.S. v. Delgado,

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Bluebook (online)
968 F.2d 575, 1992 U.S. App. LEXIS 14001, 1992 WL 137478, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-charles-v-ushery-91-5716-and-benjamin-r-burton-ca6-1992.