272
992 F.2d 272
UNITED
STATES of America,
Plaintiff-Appellee,
v.
Richard A MANUEL,
Defendant- Appellant.
No. 92-3324.
United States Court of
Appeals,
Tenth Circuit.
April 30, 1993.
Defendant was convicted in the United States District
Court for the District of Kansas, Monti L. Belot, J., 791 F.Supp. 265, pursuant
to conditional plea of guilty to possession with intent to distribute cocaine
base. Defendant appealed. The Court of Appeals, Paul J. Kelly, Jr., Circuit
Judge, held that: (1) police officers had reasonable suspicion to detain
defendant after he had answered several other questions, but declined consent
to opening of gift-wrapped package; (2) defendant's consent to search of his
person was "voluntary"; and (3) record did not support defendant's equal
protection claim that he was approached by officers solely because of his race.
Affirmed.
1. Arrest
68(4)
Officers
could approach disembarking bus passenger as he walked away from station and
ask him potentially incriminating questions without effecting Fourth Amendment
"seizure." U.S.C.A. Const.Amend. 4.
See publication Words
and Phrases for other judicial constructions and definitions.
2. Arrest
63.5(9)
Police
officers had reasonable suspicion to detain departing bus passenger after he
had answered several questions, but declined consent to opening of gift-wrapped
package; passenger had arrived from "source" state, did not use pay
phone at bus station to call for ride, claimed to be visiting friend whose last
name and address he did not know, and was vague about contents of package.
U.S.C.A Const.Amend. 4.
3. Arrest
63.5(4)
Exercise of right to refuse
consent to search cannot alone be basis of reasonable suspicion supporting
detention of suspect. U.S.C.A. Const.Amend. 4.
4. Searches and Seizures
194
Government
bears burden of proof that defendant's consent to search of his person was
voluntary, and "voluntariness" is question of fact to be determined
based on totality of circumstances. U.S.C.A. Const.Amend. 4.
See publication Words
and Phrases for other judicial constructions and definitions.
5. Searches and Seizures
172
Mere
submission to lawful authority does not equate to "consent" to search
but, rather, valid consent must be unequivocal and specific, and freely and
intelligently given. U.S.C.A. Const.Amend. 4.
See publication Words
and Phrases for other judicial constructions and definitions.
6. Searches and Seizures
184
Merely
because person is detained or in custody does not preclude voluntary consent to
search. U.S.C.A. Const.Amend. 4.
7. Searches and Seizures
183
Defendant's
consent to search of his person was "voluntary," even though officers
failed to advise him of his right to refuse consent; officers were in plain
clothes with weapons concealed, encounter was brief and occurred on open,
public street, and defendant's steadfast refusal to consent to opening of
gift-wrapped package evidenced his awareness of his right to refuse consent,
U.S.C.A. Const.Amend. 4.
See publication Words
and Phrases for other judicial constructions and definitions.
8. Searches and Seizures
179.1
Absent
overt coercion during investigative detention, officer's stated suspicion does
not render consent to search "involuntary " U.S.C.A. Const.Amend. 4.
See publication Words
and Phrases for other judicial constructions and definitions.
273
9. Constitutional Law
223
Record
was inadequate to review defendant's equal protection claim that he was
approached by officers solely because of his race; officers testified that race
was not factor, testimony in record established nondiscriminatory reasons for
initiating consensual encounter, and record did not address any discriminatory
policy. U.S.C.A. Const. Amends. 4, 14.
10. Constitutional Law
223
Police
officers' selecting person for consensual interviews based solely on race is
deserving of strict scrutiny, and raises serious equal protection concerns.
U.S.C.A. Const.Amends. 4. 14.
11. Constitutional Law
223
Just
as in selective prosecution claims, something more than speculation and
conjecture is necessary for defendant to prove denial of equal protection on
ground that defendant was approached by police officers for consensual
encounter solely because of race. U.S.C.A. Const.Amends. 4, 14.
12. Criminal Law
1031(1)
Court
of Appeals would not address issue of whether alleged inventory search should
have been conducted at station house, rather than on street, or claim that
package searched was never in defendant's immediate control because officers
had never returned package, as neither issue was raised below and essential
district court findings were absent. Fed.Rules Cr.Proc.Rule 12(b, f), 18
U.S.C.A.
Steven
Gradert, Asst. Federal Public Defender, Wichita, KS, for defendant-appellant.
D.
Blair Watson, Asst. U.S. Atty. (Lee Thompson, with him on the brief), Wichita,
KS, for plaintiff-appellee.
Before
KELLY, Circuit Judge, SETH, Senior Circuit Judge, and ALLEY, District Judge.†
PAUL
KELLY, Jr., Circuit Judge.
Mr.
Manuel entered a conditional plea of guilty, Fed.R.Crim.P. 11(a)(2), to
possession with intent to distribute 232 grams of cocaine base, 21 U.S.C. §
841(a)(1). He now appeals the denial of his motion to suppress. Our
jurisdiction arises under 28 U.S.C. § 1291 and we affirm.
Background
In
the early evening, two officers of Wichita's drug interdiction unit observed
Mr. Manuel walking away from a bus terminal. Initially, the officers had been
following a white male carrying a package they regarded as suspicious, but
decided not to continue when he was met at the station by an older woman who
appeared to be family or a friend. Mr. Manuel was accompanied by a white male
who did not have luggage. Assuming that Mr. Manuel also had gotten off the bus,
the officers asked to speak with him. They explained the purpose of drug
interdiction and asked Mr. Manuel if he was carrying any weapons, large amounts
of cash or illegal drugs. Mr. Manuel said no and the officers then asked
permission to search the bag he was carrying. He agreed.
While
one officer continued questioning, the other searched the bag and discovered a
small box wrapped in Christmas paper with a tag reading "To: Dee Dee From:
Kevin." When asked about the package, Mr. Manuel explained that it
contained "perfume or something." The officers said that they were
suspicious, and made three requests to gain consent to open the package–Mr.
Manuel refused. An officer then asked to search Mr. Manuel's person, and he
agreed. The search revealed a pipe thought to be drug paraphernalia, in
violation of local ordinance. Mr. Manuel was arrested, and the package was
opened and found to contain cocaine base.
Relying
on Florida v. Bostick, - U.S. -, -, 111 S.Ct. 2382, 2386, 115 L.Ed.2d 389
(1991), the district court determined that the initial encounter between the
officers and Mr. Manuel was consensual and not a seizure. United States v.
Manuel, 791 F.Supp.
† The Honorable Wayne
E. Alley. United States District Judge for the Western District of Oklahoma,
sitting by designation.
274
265,
268 (D.Kan.1992). According to the district court, the encounter became an
investigatory detention at the time Mr. Manuel consented to a search of his
person. Id at 269. The court found that the officers continued to hold Mr.
Manuel's property and persisted in seeking his consent to open the package;
therefore, he was not free to end the conversation and proceed on his way. Id.
For reasonable suspicion of criminal activity to justify this seizure, the
district court relied on the following facts: (1) Mr. Manuel "had just
arrived on a bus and was not from Wichita," (2) he claimed to be visiting
a person named "Roger," but did not know Roger's last name or
address, (3) Mr. Manuel was supposed to call a number so that someone could
pick him up, (4) he was carrying a Christmas package in late-January, and (5)
he gave a vague response when questioned about its contents. Id. The district
court further determined that Mr. Manuel's consent to search his person was
voluntary and that the arrest for drug paraphernalia was not a mere pretext for
searching the package. Id at 270.
Discussion
On
appeal, Mr. Manuel argues that (1) the investigatory detention was not
supported by reasonable suspicion, (2) his consent to search was therefore the
fruit of an unlawful detention, (3) even assuming that the detention was
supported by reasonable suspicion, his consent was involuntary, (4) he was
impermissibly stopped due solely to his race, and (5) the search of the package
without a warrant was unlawful.
We
review the district court's factual findings on a motion to suppress under the
clearly erroneous standard, while considering the evidence in the light most
favorable to the district court's decision. United States v. Soto, 988 F.2d
1548, 1551 (10th Cir.1993). Legal questions are reviewed de novo as is the
ultimate conclusion of Fourth Amendment reasonableness. Id
[1] At the outset,
we agree with the district court that under Bostick, the officers could
approach Mr. Manuel as he walked away from the bus station and ask him
potentially incriminating questions without effecting a Fourth Amendment
seizure. Officers may approach "randomly or because they suspect in some
vague way that the individuals may be engaged in criminal activity...." Id
- U.S. at -, 111 S.Ct. at 2384. In other words, officers may approach on a
hunch. Provided that the officers “do not convey a message that compliance with
their requests is required," they are free to ask questions, ask to see
identification, and seek consent to search personal effects, even when the
officers have "no basis" for suspicion. 1dd at -, 111 S.Ct. at 2386.
In deciding whether an encounter is consensual, the relevant inquiry "is
whether a reasonable person would feel free to decline the officers requests or
otherwise terminate the encounter." Id at -, 111 S.Ct. at 2387.
[2] The immediate
issue then becomes whether the officers had reasonable suspicion to detain Mr.
Manuel after he had answered several of their questions, but declined to
consent to opening the package. Although we consider the totality of the
circumstances, United States v. Cortez, 449 (U.S. 411, 417, 101 S.Ct. 690, 694,
66 L.Ed.2d 621 (1981), the government was required "to point to specific
and articulable facts which, taken together with rational inferences from those
facts, reasonably warrant" Mr. Manuel's brief, two to three-minute detention
prior to his arrest. Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20
L.Ed.2d 889 (1968). See also United States v. Sharpe, 470 U.S. 675, 689, 105
S.Ct. 1568, 1577, 84 L.Ed.2d 605 (1985).
[3] Mr. Manuel
contends that his repeated refusals to consent to a search of the package
motivated the investigative detention. We agree that the exercise of a right to refuse consent alone
cannot be the basis of reasonable suspicion. Florida v. Royer, 460
U.S. 491, 498, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229 (1983). However, the
officers here had more. Mr. Manuel had arrived on a bus from what the officers
considered a "source" state, did not use the pay phones at the bus
station to call for a ride, claimed to be visiting a friend whose last name and
address he did not know, and carried a gift wrapped package, but was vague
about its contents. Apart from the real or imagined significance of Christmas
paper in late Janu-
275
ary,
the officer testified that narcotics smugglers sometimes gift wrap packages in
an effort to discourage police from opening them. The district court's findings
concerning articulable circumstances supporting reasonable suspicion are not
clearly erroneous. Thus, we cannot attribute the investigative detention to Mr.
Manuel's refusal to consent to opening of his package, and we need not address
his argument that his subsequent consent to a search of his person was tainted
by an unlawful seizure.
[4-6] Mr. Manuel
argues that his consent to a search of his person was involuntary. The
government bears the burden of proof on this issue, and voluntariness is a
question of fact to be determined based on the totality of the circumstances.
Schneckloth v. Bustamonte, 412 U.S. 218, 228-29, 93 S.Ct. 2041, 2048-49, 36
L.Ed.2d 854 (1973). Mere submission to lawful authority does not equate to
consent, rather valid consent must be unequivocal and specific, and freely and
intelligently given. Royer, 460 U.S. at 497, 103 S.Ct. at 1324; Soto, 988 F.2d
at 1557-58. Merely because a person is detained or in custody does not preclude
voluntary consent. Royer, 460 U.S. at 501, 103 S.Ct. at 1326 (investigative
detention); Soto, 988 F.2d at 1557-58 (same, citing Manuel, 791 F.Supp. 265,
270); United States v. Watson, 423 U.S. 411, 424-25, 96 S.Ct. 820, 828, 46
L.Ed.2d 598 (1976) (custody); United States v. Rodriguez-Garcia, 983 F.2d 1563,
1567 (10th Cir. 1993) (same).
[7, 8] The district
court applied the correct legal standards and found that consent was voluntary,
relying on several factors. Manuel, 791 F.Supp. at 270. The officers were in
plain clothes with weapons concealed, the encounter was brief and occurred on
an open, public street. Prior to consenting to the search of his person, Mr.
Manuel consented to the search of his bag, but would not consent to the search
of the wrapped package. According to the district court, Mr. Manuel was thus
cognizant of his right to refuse consent. Id. The district court commented that
Mr. Manuel experienced nothing more coercive than two officers indicating that
they suspected that the package contained illegal drugs. In the absence of any
overt coercion during an investigative detention, however, a stated suspicion
does not render consent involuntary. See Soto, 988 F.2d at 1557-58.
Mr.
Manuel argues that while he initially may have believed he could refuse
consent, the repeated requests for consent, the presence of more than one
officer, and the failure to be advised of his right to refuse consent caused
him to break down and allow the officers to search his person. We believe that the
failure to advise Mr. Manuel of his right to refuse consent, while a factor to
be considered, is not determinative on the consent issue. See INS v. Delgado,
466 U.S 210, 216, 104 S.Ct. 1758, 1762, 80 L.Ed.2d 247 (1984); Schneckloth, 412
U.S. at 231-34, 93 S.Ct. at 2049-51. Moreover, in the absence of any evidence
to the contrary, the district court's finding that Mr. Manuel was aware of his
right to refuse consent is supported by his steadfast exercise of that right
with respect to the Christmas package. The repeated requests for consent
pertained to the package, not Mr. Manuel's person. Based on the totality of the
circumstances, the district court's finding that Mr. Manuel consented to a
search of his person is not clearly erroneous.
[9, 10] Mr. Manuel
next claims that he was denied equal protection because he was approached by
the officers solely because of his race. Quite apart from the Fourth Amendment
analysis, see Bostick, - U.S. at -, n. 1, 111 S.Ct. at 2390 n. 1 (Marshall, J.
dissenting), we agree with Mr. Manuel that selecting persons for consensual
interview based solely on race is deserving of strict scrutiny, and raises
serious equal protection concerns. See Freeman v. Pitts, - U.S -, -, 112 S.Ct.
1430, 1443, 118 L.Ed.2d 108 (1992) (principal wrong of school segregation was
the "injuries and stigma inflicted upon the race disfavored by the
violation") United States v. Taylor, 956 F.2d 572, 580-583 (6th Cir.)
(Keith, J., dissenting), cert denied, - U.S. -, 113 S.Ct. 404, 121 L.Ed.2d 330
(1992). However, on this record, we simply lack an adequate basis to consider
this claim. See Taylor, 966 F.2d at 578-79. The district court was presented
with this argument at the close of the sup-
276
pression
hearing, I R. 134-35, and did not address it in its order. It does not appear
that Defendant sought a ruling on this ground.
[11] The record
simply does not support the version of the facts claimed by Mr. Manuel on
appeal. Though certainly not dispositive, the officers testified that race was
not a factor. The only testimony before us establishes nondiscriminatory
reasons (even if based on speculation) for initiating a consensual encounter
with Mr. Manuel. Just as in selective prosecution claims, see United States v.
Salazar, 720 F.2d 1482, 1487 (10th Cir.1983), cert. denied, 469 U.S. 1110, 105
S.Ct. 789, 83 L.Ed.2d 783 (1985); United States v. Amon, 669 F.2d 1351, 1356-57
(10th Cir.1981), cert. denied, 459 U.S. 825, 103 S.Ct. 57, 74 L.Ed.2d 61
(1982), something more than speculation and conjecture is necessary for proof.
The record does not address any discriminatory policy, let alone support the
assertion that no factors, other than skin color, distinguished Mr. Manuel from
the white males not selected for consensual encounters. See ApIt.Br. at 11.
[12] The final
point raised by Mr. Manual is that the warrantless search conducted after his
arrest (which disclosed the contraband in the package) was improper.
Defendant's counsel and the district court both inquired about this warrantless
search. See I R. 57-58; 69-73; 126-27. The officers asserted that the package
was opened as part of a search incident to an arrest or as part of an inventory
search. See Illinois v. Lafayette, 462 U.S. 640, 648, 103 S.Ct. 2605, 2610, 77
L.Ed.2d 65 (1983) (inventory search); Chimel v. California, 395 U.S. 752,
762-63, 89 S.Ct. 2034, 2039-40, 23 L.Ed.2d 685 (1969). In arguments before the
district court, the government reminded the district court that the scope of
the post-arrest search was not raised in defendant's suppression motion, a
representation we accept. I R. 129.
On
appeal, Mr. Manuel argues that the inventory search was improper because a
proper inventory search should be conducted at the station house and this one
was done on the street. He further argues that the package was never in his
immediate control because the officers had never returned the package. We
decline to address these issues because they were not raised below (but easily
could have been) and district court findings which would be essential are absent.
See Fed.R.Crim.P. 12(b) & (f); United States v. DeWitt, 946 F.2d 1497, 1502
(10th Cir. 1991), cert. denied, Rison v. United States, - U.S. -, 112 S.Ct.
1233, 117 L.Ed.2d 467 (1992).
AFFIRMED.