United States v. Eddie Louis Taylor

956 F.2d 572, 1992 U.S. App. LEXIS 1668, 1992 WL 19468

• Court: Court of Appeals for the Sixth Circuit
• Decided: February 10, 1992
• Docket: 89-6396
• Status: Published

Opinions

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 IY (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).

In the case at bar, the district court expressly determined that the initial contact between Taylor and the law enforcement officers consisted of no more than a consensual “interview.”² The trial court’s finding of fact was predicated upon the credibility that the judge assigned to the witnesses after having personally evaluated their behavior and manner of testifying, the reasonableness of their testimony, their candor (or lack thereof), the accuracy of their memories, their respective interests or biases in the outcome of the proceeding, and all other indicia of truthfulness that are uniquely within the province of the factfinder — be it judge or jury — to assess.

Findings of fact anchored in credibility assessments are generally not subject to reversal upon appellant review. Clear error rarely occurs in the context of airport police-civilian encounters because resolution of fourth amendment issues in this milieu is “going to turn largely on credibility determinations made by the district judge at the suppression hearing.” United States v. Cooke, 915 F.2d at 252. “Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly eroneous.” United States v. Rose, 889 F.2d at 1494 (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518) (1985) (emphasis added)). Accord Hernandez v. New York, — U.S. -, 111 S.Ct. 1859, 1871-72, 114 L.Ed.2d 395 (1991). See Anderson v. City of Bessemer City, 470 U.S. at 573-74, 105 S.Ct. at 1511 (clearly erroneous standard “plainly does not entitle a reviewing court to reverse the finding of the trier of fact simply because it is convinced that it would have decided the case differently”); Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 109 S.Ct. 2678, 2696, 105 L.Ed.2d 562 (1989), aff'g, 842 F.2d 825 (6th Cir.1988); Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 498-99, 104 S.Ct. 1949, 1958, 80 L.Ed.2d 502 (1984); Batts v. NLT Corp., 844 F.2d 331, 336 (6th Cir.1988); Sewell v. Jefferson County Fiscal Court, 863 F.2d 461 (6th Cir.1988), cert. denied, 493 U.S. 820, 110 S.Ct. 75, 107 L.Ed.2d 42 (1989); Watson v. Fort Worth Bank & Trust, 798 F.2d 791, 798-99 (5th Cir.1986), cert. granted, in part, 483 U.S. 1004, 107 S.Ct. 3227, 97 L.Ed.2d 734, motion denied, 484 U.S. 961, 108 S.Ct. 448, 98 L.Ed.2d 388 (1987), and vacated, 487 U.S. 977, 108 S.Ct. 2777, 101 L.Ed.2d 827 (1988). See also Mendenhall, 446 U.S. at 557, 100 S.Ct. at 1879 (if trial court’s factual finding on motion to suppress is sustained in the record, then appeals court is “mistaken for substituting for that finding its view of the evidence”).

The district court’s factual conclusion in the instant case that the initial encounter was not a “seizure” was factually supported by the record developed below, and was, as a matter of law, fully consistent with the published opinions of the Supreme Court and this court mandating that a “seizure” does not occur when officers approach an individual and, after identifying themselves, request an interview and an opportunity to inspect the individual’s driver’s license and airline ticket. See, e.g., Mendenhall, 446 U.S. at 555, 100 S.Ct. at 1877 (suspect “was not seized simply by reason of the fact that the agents approached her, asked her if she would show them her ticket and identification, and posed to her a few questions”); Winfrey, 915 F.2d at 216 (“[t]he request for, and examination of, an airline ticket and driver’s license do not amount to a seizure under the fourth amendment”) (citing Royer, 460 U.S. at 501, 103 S.Ct. at 1326). While the test for a “seizure” is “ ‘flexible enough to be applied in a whole range of police conduct in an equally broad range of settings, it calls for consistent application from one police encounter to the next, regardless of the particular individual’s response to the actions of the police.’ ” United States v. Cooke, 915 F.2d at 252 (quoting Michigan v. Chesternut, 486 U.S. at 574, 108 S.Ct. at 1979). Failure to consistently apply this court’s established seizure jurisprudence to substantively indistinguishable factual scenarios would seriously undermine the ability of a police officer acting within this judicial circuit to “ ‘determine in advance whether the conduct contemplated will implicate the Fourth Amendment.’ ” Id.3

The district court also concluded as a matter of fact that Taylor consented to Bevel’s search of his carry-on bag. The question of whether Taylor voluntarily tendered his shoulder bag for examination, or whether its inspection was the tainted product of unlawful duress or coercion, “is a question of fact to be determined from the totality of the circumstances.” Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 2047-48, 36 L.Ed.2d 854 (1973). “ ‘The district court’s findings with regard to voluntariness will not be reversed unless clearly erroneous.’ ” United States v. Rose, 889 F.2d at 1494 (quoting United States v. Jones, 846 F.2d 358, 360 (6th Cir.1988) (per curiam)). See Anderson v. City of Bessemer City, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985); Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 109 S.Ct. 2678, 2696, 105 L.Ed.2d 562 (1989), aff'g, 842 F.2d 825 (6th Cir.1988); Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 498-99, 104 S.Ct. 1949, 1958, 80 L.Ed.2d 502 (1984); Batts v. NLT Corp., 844 F.2d 331, 336 (6th Cir.1988); Sewell v. Jefferson County Fiscal Court, 863 F.2d 461 (6th Cir.1988), cert. denied, 493 U.S. 820, 110 S.Ct. 75, 107 L.Ed.2d 42 (1989); Watson v. Fort Worth Bank & Trust, 798 F.2d 791, 798-99 (5th Cir.1986), cert. granted, in part, 483 U.S. 1004, 107 S.Ct. 3227, 97 L.Ed.2d 734, motion denied, 484 U.S. 961, 108 S.Ct. 448, 98 L.Ed.2d 388 (1987), and vacated, 487 U.S. 977, 108 S.Ct. 2777, 101 L.Ed.2d 827 (1988). See also Mendenhall, 446 U.S. at 557, 100 S.Ct. at 1879 (if trial court’s factual finding on motion to suppress is sustained in the record, then appeals court is “mistaken for substituting for that finding its view of the evidence”). Proof of voluntary consent must be “by clear and positive testimony” and the consent must be proven to have been “unequivocal, specific, intelligently given, uncontaminated by any duress or coercion.” United States v. Williams, 754 F.2d 672, 675 (6th Cir.1985).

In determining that Taylor voluntarily consented to the search of his bag, the district judge again relied upon his personal observations of the witnesses and assigned greater credibility to the testimony of the officers than he assigned to that of Taylor, thus reaching a factual conclusion that was not clearly erroneous. As found by the district court, “the evidence shows [that Taylor] consented to the search of his tote bag.” The consent was given unequivocally and, moreover, was uncontaminated by duress or coercion because it occurred within the context of a consensual conversation.

During her search of Taylor’s bag, Bevel noted the presence of two spherical, tape-bound parcels, and immediately identified the packaging as that which is unique to the transportation of cocaine. Upon making this very incriminating discovery, the officers directed Taylor to accompany them to their office at the airport. The district court correctly concluded that Taylor was at that moment “seized” within the meaning of the fourth amendment. See Florida v. Royer, 460 U.S. at 501, 103 S.Ct. at 1326 (suspect seized when, among other things, officers asked him to accompany them to a police room and retained possession of his ticket and driver’s license); United States v. Garcia, 866 F.2d 147, 151 (6th Cir.1989) (“the one occurrence which seems to separate ‘seizures’ from casual contacts between police and citizens is when the defendant is asked to accompany the police or agents to a place to which the defendant had not planned to go”).

At the point in time when the officers directed Taylor to accompany them to their airport office, they knew that Taylor: had arrived in Memphis from a high-profile drug source city; had rapidly walked through the airport terminal; had glanced furtively in every direction as if conducting “counter-surveillance”; had no luggage beyond the new shoulder bag he carried, despite his asserted three-week sojourn in South Florida; had paid cash for his one-way air passage from Miami to Memphis; had acted nervously, sweated profusely, and had provided implausible answers to several of the officers’ inquiries; and, notwithstanding his contention that his shoulder bag contained nothing but gifts for his children, was carrying two highly suspicious packages therein. Bevel’s discovery of the taped balls, coupled with the full spectrum of facts known about Taylor when he was seized, not only gave rise to the reasonable suspicion necessary to subject Taylor to a limited investigative Terry stop, but, more importantly, also provided the officers with probable cause to arrest him. See United States v. Sokolow, 490 U.S. 1, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989) (“Probable cause means ‘a fair probability that contraband or evidence of a crime will be found.’ ”) (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983)).⁴

In summary, this court concludes that because the district court — in factual findings anchored in credibility assessments— expressly determined that the initial curbside encounter between Taylor and the officers was consensual, and because the district court also expressly concluded that the initial search of Taylor’s bag was equally consensual and uncoerced, it is unnecessary to consider or decide either the specific factual question of whether the officers’ surveillance of Taylor was motivated to any degree by his race, or the broader constitutional issue of whether the alleged incorporation of a racial component into the DEA’s drug courier profile would, if true, violate an individual’s rights to due process and equal protection of the laws.

A review of the suppression hearing transcript, the briefs and arguments of counsel before the trial court and initially before this court, disclosed no charge that the appellant herein had been selected for a consensual interview because he was an African-American, that the law enforcement officers at the Memphis Airport implemented a general practice or pattern that primarily targeted minorities for consensual interviews, or that they had incorporated a racial component into the drug courier profile. A factually supported record of such charged official conduct in the instant case would have given rise to due process and equal protection constitutional implications cognizable by this court.

Accordingly, for the foregoing reasons, the judgment of the district court is hereby AFFIRMED.

1 . Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

2 . In reaching this factual conclusion, the district court credited the officers’ version of events over that of Taylor, and, a fortiori, decided that a reasonable individual in Taylor’s position would have felt free to ignore the officers’ invitation to engage in a conversation, and proceed on his way. In this context, it is of no consequence that Eldridge testified that he would have pursued Taylor if he had fled. “The subjective intent of the officers is relevant to an assessment of the fourth amendment implications of police conduct only to the extent that that intent has been conveyed to the person confronted." United States v. Rose, 889 F.2d 1490, 1493 (6th Cir.1989) (citing Mendenhall, 446 U.S. at 554 n. 6, 100 S.Ct. at 1877 n. 6) (emphasis added); accord Smith v. Heath, 691 F.2d 220, 223 (6th Cir.1982). The record in the case at bar fails to disclose either directly or by implication that Eldridge conveyed his subjective intentions to Taylor.

Moreover, if Taylor had fled and thereby engaged the officers in hot pursuit, then he would not, in any event, have been “seized" during the time leading up to his actual, physical apprehension. This is so even if — contrary to the facts of this case — the officers’ words and actions, ab initio, clearly conveyed to Taylor that he was not free to leave. See California v. Hodari D., — U.S. -, 111 S.Ct. 1547, 1551-52, 113 L.Ed.2d 690 (1991) (even if officer’s conduct upon encountering suspect constitutes sufficient "show of authority" to apprise suspect that he is not free to leave, no seizure occurs if suspect fails to comply with that injunction and takes flight).

3 . The Supreme Court has repeatedly noted the importance of "providing ‘clear and unequivocal’ guidelines to the law enforcement profession.” Arizona v. Roberson, 486 U.S. 675, 682, 108 S.Ct. 2093, 2098, 100 L.Ed.2d 704 (1988); see also California v. Acevedo, — U.S. -, 111 S.Ct. 1982, 1990, 114 L.Ed.2d 619 (1991) (noting "virtue" of providing clear rules to law enforcement personnel).

4 . The existence of probable cause upon discovery of the taped balls renders academic any discussion of whether Taylor was subjected to a Terry stop or was arrested when he was taken to the police office.