United States v. Lubin ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5928
JEAN L. LUBIN,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of North Carolina, at Greensboro.
N. Carlton Tilley, Jr., District Judge.
(CR-95-153)
Submitted: June 28, 1996
Decided: July 22, 1996
Before NIEMEYER, LUTTIG, and WILLIAMS, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Lisa S. Costner, Donald K. Tisdale, Sr., TISDALE, GRACE, MENE-
FEE & COSTNER, P.A., Winston-Salem, North Carolina, for Appel-
lant. Walter C. Holton, Jr., United States Attorney, Timika Shafeek,
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Unpublished opinions are not binding precedent in this circuit.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:
The Appellant, Jean Lubin, appeals the district's order denying his
motion to suppress crack cocaine found in his trousers during drug
interdiction activities at the Piedmont International Airport in Greens-
boro, North Carolina. Lubin contends that police detective Hoover's
actions of questioning him after he deplaned from a flight from
Miami via Fort Lauderdale and patting a suspicious bulge in Lubin's
trousers was a violation of the Fourth Amendment. The district court
ruled that Hoover had probable cause to arrest Lubin once he had
closely observed the bulge in Lubin's trousers, and that the search and
seizure were incident to a valid arrest. After a complete review of the
district court's decision to deny Lubin's motion to suppress,1 we find
no reversible error and affirm the district court's order.
First, Lubin was not "seized" under the Fourth Amendment when
Hoover asked if Lubin would speak with him and answer a few ques-
tions. The record supports the conclusion that from Lubin's perspec-
tive, and that of Hoover's, Lubin was free to refuse the initial request
for questioning and the search of his travel bag. Lubin's voluntary
cooperation with such requests does not, absent coercive circum-
stances not present here, implicate the Fourth Amendment.2
In our opinion, the size, shape, and location of the bulge in Lubin's
trousers provided a particularized ground for suspecting him of crimi-
nal conduct. Considering the close distance that Hoover observed the
"tin can"-like bulge and Lubin's failure to offer an explanation, we
find it was appropriate for Hoover to consider other probative facts,
_________________________________________________________________
1 United States v. Han, 74 F.3d 537, 540 (4th Cir.), cert. denied, ___
U.S. ___, 64 U.S.L.W. 3807 (U.S. June 3, 1996) (No. 95-8891).
2 Florida v. Royer, 460 U.S. 491 (1983); United States v. Mendenhall,
446 U.S. 544 (1980).
2
such as the extent to which a suspect matches a drug courier profile.
We permitted reliance on such factors in United States v. Harrison,
667 F.2d 1158, 1160 (4th Cir.), cert. denied, 457 U.S. 1121 (1982),
where the suspect had a four- to six-inch long bulge on his back under
his jacket. Lubin's actions of traveling under a false name on a one-
way ticket purchased with cash fits the modus operandi of other drug
couriers from Florida. We find the combination of these various fac-
tors gave detective Hoover probable cause to believe Lubin was car-
rying contraband goods in his trousers and justified his arrest.3 Once
the validity of the arrest is established, the search of Lubin's person
and seizure of the drugs he had concealed were unexceptionable as
permissible incidents to a valid arrest.4 The fact that Hoover con-
ducted the search, patting the suspicious bulge, before formally arrest-
ing Lubin does not change its status.5
Accordingly, we find that the search and seizure of the crack
cocaine in this matter was lawful and in accordance with the Constitu-
tion. We dispense with oral argument because the facts and legal con-
tentions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
_________________________________________________________________
3 See Texas v. Brown, 460 U.S. 730, 742 (1983) (plurality opinion).
4 See Florida v. Roger, 460 U.S. 491 (1983); New York v. Belton, 453
U.S. 454 (1981).
5 Han, 74 F.3d at 541.
3