United States v. Carlos Tyrone Henderson, 85 F.3d 617, 4th Cir. (1996)
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Scribd Government DocsUnited States v. Carlos Tyrone Henderson, 85 F.3d 617, 4th Cir. (1996)
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Scribd Government Docs85 F.
3d 617
NOTICE: Fourth Circuit Local Rule 36(c) states that citation
of unpublished dispositions is disfavored except for establishing
res judicata, estoppel, or the law of the case and requires
service of copies of cited unpublished dispositions of the Fourth
Circuit.
UNITED STATES of America, Plaintiff-Appellee,
v.
Carlos Tyrone HENDERSON, Defendant-Appellant.
No. 95-5125.
United States Court of Appeals, Fourth Circuit.
Submitted Dec. 19, 1995.
Decided May 14, 1996.
Charles Jackson Alexander, II, MORROW, ALEXANDER, TASH &
LONG, Winston-Salem, North Carolina, for Appellant. Walter C. Holton,
Jr., United States Attorney, Douglas Cannon, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.
Before WILKINSON, Chief Judge, and HALL and NIEMEYER, Circuit
Judges.
OPINION
PER CURIAM:
I.
Appellant Carlos Tyrone Henderson was indicted for possession with intent to
distribute cocaine base. See 21 U.S.C. 841(a) (1988). Henderson moved
unsuccessfully to suppress the introduction of the drugs and subsequently pled
guilty to the indictment, reserving his right to appeal the suppression ruling.
Henderson now appeals, contending that the district court erred in admitting the
drugs seized in connection with his arrest. We affirm.
On August 31, 1994, Detectives Eddie Hoover and C.L. Piner were conducting
narcotics interdiction at the Piedmont Triad International Airport in
Greensboro, North Carolina. The officers observed Henderson exit a plane
which arrived from Newark, New Jersey. The New York area is a source city
for drugs for Greensboro. Henderson, who is African American, was dressed in
street clothes and carrying a garment bag.
As Henderson walked past the officers, he made eye contact with Hoover and
then quickly averted his eyes and ducked his head. After passing the officers,
Henderson looked back twice. The officers followed Henderson out of the
airport and approached him and two other men as they stood by a car in front of
the terminal.
The officers identified themselves as law enforcement officers and displayed
their badges and identification cards. Two other officers were in the area but
were not involved in the encounter. Piner advised Henderson that they were
conducting a drug investigation and asked Henderson for his airline ticket and
some identification.
Henderson gave Piner his driver's license. There was conflicting testimony at
the suppression hearing as to whether Piner gave Henderson his license back,
but for purposes of its decision, the district court assumed that the license was
not returned. Piner then asked for consent to search Henderson's luggage, and
Henderson acquiesced. The officers found a quantity of crack cocaine in
Henderson's bag. The officers did not inform Henderson that he was free to
refuse the search.
Henderson was charged in a one-count indictment with possession with intent to
distribute crack cocaine in violation of 21 U.S.C. 841(a). Henderson moved to
suppress the drugs recovered from his luggage by the officers. The district
court denied the motion, concluding that the encounter with the officers was
consensual and that the officers did not initially approach Henderson on the
basis of his race. Accordingly, Henderson's motion to suppress the introduction
of the drugs was denied.
On appeal, Henderson contends that the district court erred in its determination
that the consensual encounter never developed into a seizure. According to
Henderson, he was seized without reasonable suspicion when Officer Piner
failed to return his driver's license. Henderson also asserts that the officers'
initial decision to approach him was made with discriminatory intent in
violation of the Equal Protection Clause.
II.
8
The first issue is whether the encounter between the officers and Henderson
ceased to be consensual at some point and became a seizure. Consensual
encounters do not implicate the Fourth Amendment, but seizures do. See
Florida v. Bostick, 501 U.S. 429, 434 (1991). The Supreme Court has
consistently held, however, "that a seizure does not occur simply because a
police officer approaches an individual and asks a few questions." Id.; see also
INS v. Delgado, 466 U.S. 210, 216 (1984) (interrogation relating to one's
identity or a request for identification does not, by itself, implicate the Fourth
Amendment).
As the Supreme Court explained in Terry v. Ohio, 392 U.S. 1, 19 n. 16 (1968):
10
Obviously,
not all personal 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 a citizen may we conclude that a
"seizure" has occurred.
11
Only when the circumstanczes of the encounter become "so intimidating as to
demonstrate that a reasonable person would have believed he was not free to
leave" does the encounter become a seizure. Delgado, 466 U.S. at 216. It is also
clear that the encounter does not become a seizure merely because the officers
do not tell the defendant that he is free to leave or that he may refuse to comply
with their requests. United States v. Analla, 975 F.2d 119, 124 (4th Cir.1992),
cert. denied, --- U.S. ----, 61 U.S.L.W. 3714 (U.S. Apr. 19, 1993) (No. 926891).
12
We find that Henderson was not seized when the officers approached him and
asked to see his license. Further, Henderson's cooperation with the officers did
not convert the encounter into a seizure, even though the officers did not tell
Henderson that he was free to leave or to refuse the request. Neither officer had
a gun drawn, and there is no evidence of any use or threat of physical force. See
United States v. Flowers, 912 F.2d 707, 712 (4th Cir.1990) (seizure cannot
occur in the absence of threats, offensive contact, or similar circumstances),
cert. denied, 501 U.S. 1253 (1991).
13
In addition, Piner's retention of Henderson's license did not amount to a seizure.
Piner did not take Henderson's license to the squad car or retain it for an
extended period of time. Henderson was free to request that his license be
returned and to leave the scene. See Analla, 975 F.2d at 124.
14
We thus conclude that the district court's finding that a seizure did not occur
was not clearly erroneous. See United States v. Gooding, 695 F.2d 78, 82 (4th
Cir.1982) (determination of whether a seizure occurred is generally one of fact).
Because Henderson was not seized within the meaning of the Fourth
Amendment when the police searched his bag and he does not dispute the
district court's finding that he voluntarily consented to the search, the evidence
obtained was properly admitted.
III.
15
Henderson next claims that he was denied equal protection because he was
approached by the officers solely on the basis of his race. Without deciding
whether selecting persons for consensual interviews based solely on race raises
equal protection concerns, we find that the district court's factual determination
that the officers approached Henderson based on other factors besides race was
not clearly erroneous. Though certainly not dispositive, Hoover testified that
race was not a factor. In addition, Hoover testified that Henderson arrived from
a drug-source city, refused to make eye contact, and glanced back at the
officers twice as he walked out of the terminal. We thus conclude that
Henderson failed to show discriminatory intent on the part of the officers; this
failure forecloses any equal protection claim. See McCleskey v. Kemp, 481
U.S. 279, 292 (1987) (a defendant who alleges an equal protection violation has
the burden of proving the existence of purposeful discrimination).
16
The judgment of the district court is therefore affirmed. We dispense with oral
argument in view of our prior order directing that this appeal proceed on the
briefs.
17
AFFIRMED.
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