United States v. Henderson ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5125
CARLOS TYRONE HENDERSON,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of North Carolina, at Greensboro.
Frank W. Bullock, Jr., Chief District Judge.
(CR-94-221-2)
Submitted: December 19, 1995
Decided: May 14, 1996
Before WILKINSON, Chief Judge, and HALL and NIEMEYER,
Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
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.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
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, con-
tending that the district court erred in admitting the drugs seized in
connection with his arrest. We affirm.
I.
On August 31, 1994, Detectives Eddie Hoover and C. L. Piner
were conducting narcotics interdiction at the Piedmont Triad Interna-
tional 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 fol-
lowed 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 Hen-
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derson 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, conclud-
ing 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.
The first issue is whether the encounter between the officers and
Henderson ceased to be consensual at some point and became a sei-
zure. 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):
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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 con-
clude that a "seizure" has occurred.
Only when the circumstances of the encounter become"so intimidat-
ing 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. 92-6891).
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 sei-
zure, 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 circum-
stances), cert. denied, 501 U.S. 1253 (1991).
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.
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.
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III.
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 errone-
ous. 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).
The judgment of the district court is therefore affirmed. We dis-
pense with oral argument in view of our prior order directing that this
appeal proceed on the briefs.
AFFIRMED
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