United States v. Wilmore ( 2003 )

Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
1-30-2003
USA v. Wilmore
Precedential or Non-Precedential: Non-Precedential
Docket 02-1582
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 02-1582
___________
UNITED STATES OF AMERICA
v.
QUINTIN WILMORE,
Appellant
___________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
District Court Judge: William H. Yohn, Jr.
(D.C. Criminal No. 01-cr-00198)
___________
Submitted Under Third Circuit L.A.R. 34.1(a)
January 14, 2003
Before: ROTH, FUENTES, Circuit Judges, and ALDISERT, Senior Circuit Judge
(Opinion Filed: January 30, 2003)
________________________
OPINION OF THE COURT
________________________
FUENTES, Circuit Judge:
Quintin Wilmore pleaded guilty to possession with intent to distribute cocaine in
violation of 21 U.S.C. §§841(a)(1) and (b)(1)(B), and was sentenced to 120 months
imprisonment. Wilmore appeals the final judgment of the District Court and raises two issues:
1) did the District Court err in denying his motion to suppress the physical evidence; and 2)
did the District Court err in determining his criminal history category.
We have jurisdiction pursuant to 28 U.S.C. §1291. We exercise de novo review of the
District Court’s legal determination on the suppression issue and defer to that court’s factual
findings unless clearly erroneous. Ornelas v. United States, 517 U.S. 690, 699 (1996); United
States v. Roberson, 90 F.3d 75, 77 (3d Cir. 1996). Because Wilmore did not preserve the
sentencing issue, we review the District Court’s criminal history category determination for
plain error. See Fed. R. Crim. P. 52(b); United States v. Knight, 266 F.3d 203, 207 (3d Cir.
2001). For the reasons stated below, we will affirm.
I.
On March 19, 2001, Drug Enforcement Agency (“DEA”) Special Agent Leo Mount
received a telephone call from Task Force Officer Edward Matis. Officer Matis, assigned to
the DEA Dallas-Fort Worth Airport Unit, informed Agent Mount that a confidential source had
reported to him that a possible drug courier named Quintin Wilmore was traveling from
Phoenix, through Dallas, to Philadelphia. The confidential source described Wilmore as a
black male in his 20’s, 5’11” tall, weighing approximately 200 pounds, wearing black pants, a
black jacket, and a black bandana. Airline records indicated that Wilmore was on flight 1750
from Dallas to Philadelphia, and that he had checked one bag. Wilmore had reserved a one-way
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ticket at 11:43 p.m. on March 18, and purchased the ticket with $1,100 in cash at 1:53 a.m. on
March 19, 2001, at the ticket counter in Phoenix for a 2:30 a.m. departure.
DEA agents arrived at the Philadelphia International Airport in time to meet Wilmore’s
flight. Wilmore was observed exiting the jetway and walking to the baggage claim area. His
appearance was consistent with the description given by the confidential source except for the
color of his pants, which were dark green rather than black. Before claiming his bag, Wilmore
used a courtesy phone to make one call. While Wilmore was on the phone, DEA agents
located his bag and placed it in a dog-sniff line-up. The dog did not alert to the presence of
drugs in the bag.
After Wilmore claimed his bag, DEA Task Force Officers James Corbett and William
Knightly approached him while he was standing on the sidewalk just outside the terminal. The
officers identified themselves, explained that they were members of a drug interdiction unit,
stated their purpose, and asked to speak with Wilmore. The officers spoke in a conversational
tone and did not block Wilmore’s passage. Wilmore agreed to speak with the officers. He
stated that he had just arrived from Phoenix and produced his ticket, which was in his name and
showed that he had traveled to Philadelphia from Phoenix via the Dallas-Fort Worth airport.
At the officers’ prompting, Wilmore produced identification showing a Tucson address.
Wilmore explained that he lived in Phoenix and had moved to Tucson approximately two
months earlier. He stated that he was in Philadelphia to visit friends, but could not recall their
address. Wilmore said that he was planning to stay in Philadelphia for several days.
Upon further questioning, Wilmore revealed that he was a car detailer and that he did
not own his own business. Wilmore said that the bag at his feet was his and that he packed it
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himself. Officer Corbett thought that Wilmore exhibited signs of nervousness during their
conversation, including a rigid stance, soft voice, and pulsing neck. Officer Corbett asked
Wilmore for permission to search his bag and person for narcotics.1 Wilmore responded,
“Sure, go ahead.”
Officer Corbett kneeled down and searched Wilmore’s bag, but found no drugs. Officer
Corbett then reached toward Wilmore to conduct a pat down search. As Officer Corbett
reached toward him, Wilmore took at least two steps backward. When Wilmore turned away,
Officer Corbett grabbed his jacket and felt a hard object on his back. Wilmore spun out of his
jacket and then fled, leaving Officer Corbett holding his jacket. Based upon his experience,
Officer Corbett believed that the object he felt on Wilmore’s back was probably a kilogram
of cocaine.
Wilmore fled from Officers Corbett and Knightly in the direction of another officer
stationed in the area. Wilmore stumbled when that officer reached for him. His stumble
caused his sweatshirt to rise up, revealing to Officer Knightly that Wilmore had gray duct tape
around the small of his back holding some objects in place. Officer Knightly believed the
objects to be bricks of cocaine based on his experience. Wilmore was apprehended by the
officers, and the objects taped to him were found to be three bricks of cocaine.
A criminal complaint was filed in the Eastern District of Pennsylvania, followed by an
indictment issued by the grand jury. Wilmore was charged with possession with intent to
distribute cocaine in violation of 21 U.S.C. §§841(a)(1) and (b)(1)(B). Wilmore moved the
1
Wilmore testified during the suppression hearing that he only heard the officer ask to
search his bag, not his person . The District Court found that Officer Corbett had asked to
search both. On appeal, Wilmore does not dispute the District Court’s finding.
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District Court to suppress the physical evidence in the case. On July 16, 2001, following a
hearing, Judge Yohn orally denied the motion. Wilmore pleaded guilty to the charge, but
reserved his right to appeal the denial of his suppression motion. On February 25, 2002, the
District Court sentenced Wilmore to 120 months imprisonment.
II.
The cocaine taken from Wilmore was seized in the course of an investigatory stop by
DEA Task Force Officers Corbett and Knightly. We must determine if the District Court
properly denied Wilmore’s motion to suppress the cocaine on the ground that the stop did not
violate the Fourth Amendment.
Whether a seizure has occurred within the meaning of the Fourth Amendment turns on
the question of whether a “reasonable person would feel free to ‘disregard the police and go
about his business’ . . .” Florida v. Bostick, 501 U.S. 429, 434 (1991) (citing California v.
Hodari D., 499 U.S. 621, 626 (1991)). “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.” Terry v. Ohio, 392 U.S. 1, 19, n. 16 (1968). It is well established that
no seizure has occurred when an officer approaches an individual in a public place, identifies
himself as a law enforcement agent, asks questions, asks to search a person’s bags, or explains
that he is conducting a narcotics investigation. See Florida v. Royer, 460 U.S. 491, 497
(1983); United States v. Thame, 846 F.2d 200, 202-03 (3d Cir. 1988).
Here, Wilmore was not seized when the task force officers approached him outside the
terminal. The officers merely identified themselves, stated their purpose, asked Wilmore a
few questions, and asked for his consent to search his bag and his person. This exchange
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occurred in a public area in a conversational manner and Wilmore was not physically
restrained. In fact, Wilmore was not seized until the moment when Officer Corbett grabbed
his jacket because that was the first point at which the officers used physical force or a show
of authority to restrain Wilmore.
The next question in this analysis is whether Officer Corbett violated the Fourth
Amendment by grabbing Wilmore’s jacket. A law enforcement officer may conduct an
investigatory stop of a person if the officer has a reasonable, articulable suspicion that the
person is involved in criminal activity. Terry, 392 U.S. at 22. Alternatively, police may
undergo a warrantless search pursuant to the voluntary consent of a person authorized to
consent to the search with or without reasonable suspicion or probable cause. Schneckloth v.
Bustamonte, 412 U.S. 218, 227-28 (1973); United States v. Kim, 27 F.3d 947, 955 (3d Cir.
1994).
There is no dispute on appeal about the fact that Wilmore consented to a search of his
bag and his person. Wilmore contends, however, that he withdrew his consent to search his
person by stepping back from Officer Corbett when the officer reached toward him.
A consent that waives Fourth Amendment rights may be limited in scope and may be
withdrawn by an unequivocal act or statement that clearly expresses the individual’s desire not
to be searched. Florida v. Jimeno, 500 U.S. 248, 252 (1973): Kim, 27 F.3d at 957. We find
that Wilmore’s step or two backward after Officer Corbett stated his intent to pat him down
and began reaching toward him was not an unequivocal withdrawal of consent. Instead,
Wilmore’s movement was ambiguous, and could reasonably have been construed as taking
flight rather than withdrawing consent. C.f. United States v. Ho, 94 F.3d 932, 934 (5th Cir.
6
1996) (defendant withdrew consent by struggling to retrieve portfolio from agent); United
States v. Carter, 985 F.2d 1095, 1096 (D.C. Cir. 1993) (defendant withdrew consent by
snatching paper bag detective had recovered from inside tote bag which defendant had
consented to have searched and saying that he did not want paper bag to be searched).
In fact, despite Wilmore’s insistence that the officers understood his movement to be
a withdrawal of consent, Officers Corbett and Knightly both testified at the suppression
hearing that they construed Wilmore’s steps backward to be flight. Officer Corbett testified:
“I would call it fleeing. I mean, he didn’t say hey, whoa, stop, I don’t want you to search me.
He fled.” (App. 78a) Officer Knightly testified: “My impression was that it was an attempt to
flee all along.” (App. 93a) The District Court was in a better position than this Court to assess
the credibility of the officers. We will therefore not disturb the District Court’s finding that
Officer Corbett’s grabbing of Wilmore’s jacket was valid pursuant to Wilmore’s consent.
The District Court was also correct that the officers had reasonable suspicion sufficient
to warrant a Terry frisk when they seized him. Reasonable suspicion is determined by
examining the totality of the circumstances. United States v. Sokolow, 490 U.S. 1, 7-8 (1989).
The officers had a reasonable suspicion based upon: (1) the tip that Wilmore was a drug
courier; (2) his purchase of a one-way plane ticket with cash shortly before the flight; (3) his
vague answers about his travel plans; and (4) his nervousness. In addition, when Officer
Corbett reached toward Wilmore to pat him down, Wilmore took flight. “Headlong flight . .
. is the consummate act of evasion: It is not necessarily indicative of wrongdoing, but it is
certainly suggestive of such.” Illinois v. Wardlow, 528 U.S. 119, 124 (2000). As Wilmore
was spinning away, Officer Corbett felt an object on Wilmore’s back that he suspected was
7
cocaine based on his experience. As Wilmore was fleeing, Officer Knightly saw the objects
strapped to Wilmore’s back, which he also suspected to be cocaine based on his experience.
Therefore, when the officers seized Wilmore after he fled, the totality of the circumstances
amounted to a reasonable suspicion that Wilmore was engaging criminal activity.
Thus, the initial contact between Officer Corbett and Wilmore was valid because it was
consensual and the later seizure was valid because the officers had a reasonable suspicion that
Wilmore was engaging in criminal activity. After the officers found the drugs taped to
Wilmore’s body they had probable cause to arrest him. Because we find that there was no
Fourth Amendment violation, we will affirm the District Court’s denial of Wilmore’s motion
to suppress the physical evidence.
III.
The District Court sentenced Wilmore to 120 months’ imprisonment after calculating
his criminal history category as a IV based upon a total of eight criminal history points. We
must determine if the District Court correctly calculated Wilmore’s criminal history
category. 2
Wilmore argues that he was erroneously placed in criminal history category IV rather
than III because one criminal history point was wrongly assessed based on a DUI conviction
where no evidence existed that he was represented by counsel and another point was wrongly
2
The determination of Wilmore’s criminal history category will not affect the length of
his prison term because he was sentenced pursuant to a mandatory minimum term of 120
months. Nonetheless, Wilmore raises this point on appeal because his criminal history
category may affect his designation within the United States Bureau of Prisons and would
affect his sentence if he were to be convicted of violating the terms of his supervised
release.
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assessed for a more than ten-year old trespass conviction. Without the erroneous inclusion
of these two points, Wilmore’s points would have totaled six, which would reduce his criminal
history category to III.
The Government concedes that Wilmore’s trespass conviction should not have been
counted because it was time-barred under the sentencing guidelines. See U.S.S.G.
§4A1.2(e)(2). The Government argues, however, that the criminal history point for Wilmore’s
DUI conviction was not wrongly assessed.
No criminal history points should be awarded for a conviction if the right to counsel
was denied in that proceeding. United States v. Escobales, 218 F.3d 259, 261 (3d Cir. 2000).
During a sentencing proceeding, the only cognizable collateral attacks on a prior conviction
are: “(1) where the statute or sentencing guideline under which the defendant was sentenced
provides for right to bring such a collateral attack at sentencing; and (2) when the defendant’s
collateral attack, at sentencing, is based on an allegation this his right to counsel, as described
in Gideon v. Wainwright, 372 U.S. 335 (1963), was violated during the underlying state court
proceeding.” Escobales, 218 F.3d at 260.
Wilmore argues that his collateral attack on his state DUI conviction is cognizable
because it is based on a violation of his right to counsel. With respect to Wilmore’s DUI
conviction, however, the Pre-sentence Report (“PSR”) states only that the Probation Officer
was unable to verify Wilmore’s representation in that case. Wilmore did not object at
sentencing to the assignment of one criminal history point for this conviction. He did not
assert that he was denied representation in that proceeding. In fact, he does not now assert that
he was actually denied representation. Rather, he seeks remand on the issue because the PSR
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notes that his representation could not be verified. We decline to remand for a collateral
attack based on the notation in the PSR absent a credible allegation by Wilmore that he was
denied representation during the state proceeding leading to his DUI conviction. Although
Wilmore is correct that one criminal history point was added erroneously for his time-barred
trespass conviction, he is not correct that a point was erroneously added for his DUI
conviction. A reduction of his total criminal history points from eight to seven will not change
his placement within criminal history category IV; in order to be reduced to category III, he
would need to have no more than six criminal history points. Accordingly, the District Court’s
addition of one point for the trespass conviction is harmless error. We therefore affirm.
_____________________________
TO THE CLERK OF THE COURT:
Kindly file the foregoing Opinion.
/s/ Julio M. Fuentes
Circuit Judge
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