United States v. Menoken , 77 F. App'x 683 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 03-4294
FRANK MENOKEN,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
Charles H. Haden II, District Judge.
(CR-02-45)
Submitted: October 1, 2003
Decided: October 14, 2003
Before WIDENER and WILLIAMS, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
Andrew J. Katz, THE KATZ WORKING FAMILIES LAW FIRM,
L.C., Charleston, West Virginia, for Appellant. Kasey Warner, United
States Attorney, W. Chad Noel, Assistant United States Attorney,
Charleston, West Virginia, for Appellee.
2 UNITED STATES v. MENOKEN
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Frank Menoken appeals his jury conviction of conspiracy and pos-
session with intent to distribute cocaine in violation of 21 U.S.C.
§§ 841, 846 (2000) and the resulting eighty-four month sentence.
Menoken challenges the district court’s denial of his motion to sup-
press two ounces of cocaine found in his duffel bag, $6000 in cash
found on his person, and incriminating statements he later made after
being arrested and advised of his Miranda rights. We affirm.
The Fourth Amendment prohibits "unreasonable" search and sei-
zures. A person is considered "seized" for Fourth Amendment pur-
poses if, under all of the circumstances, a reasonable person in the
position of the suspect would believe that he or she was not free to
leave or to terminate the encounter. Florida v. Bostick, 501 U.S. 429,
436-37 (1991). We review the factual findings underlying a motion
to suppress for clear error and legal determinations de novo. Ornelas
v. United States, 517 U.S. 690, 691 (1996); United States v. Rusher,
966 F.2d 868, 873 (4th Cir. 1992). When a suppression motion has
been denied, we review the evidence in the light most favorable to the
Government. United States v. Seidman, 156 F.3d 542, 547 (4th Cir.
1998).
The district court properly concluded that Menoken voluntarily
answered questions by agents of the Drug Enforcement Agency
("DEA") that were asked in a non-coercive manner as he disembarked
from a train. The DEA agents did not restrict Menoken’s movement
and did not ask to search his duffel bag until Menoken voluntarily
abandoned it. The DEA agents did not accuse Menoken of wrongdo-
ing and told him he was free to make a telephone call to the person
he was in town to visit. Moreover, they repeatedly assured Menoken
that he was free to end their questioning and leave at any time. In fact,
Menoken did begin to leave but then stopped and voluntarily initiated
UNITED STATES v. MENOKEN 3
dialogue with another agent. "Circumstances where the citizen would
feel free to go, but stays and has a dialogue with the officer, are con-
sidered consensual, and therefore do not implicate the Fourth Amend-
ment." United States v. Weaver 282 F.3d 302, 309 (4th Cir. 2002).
Under these circumstances, we find that no unlawful seizure took
place that would warrant the suppression of any incriminating evi-
dence. See United States v. Flowers, 912 F.2d 707, 710-12 (4th Cir.
1990); United States v. Lehmann, 798 F.2d 692, 694 (4th Cir. 1986).
Accordingly, we affirm the district court’s denial of Menoken’s
motion to suppress for the reasons stated by that court in its memoran-
dum opinion and order denying the motion. We dispense with oral
argument, because the facts and legal contentions are adequately pre-
sented in the materials before the court and argument would not aid
the decisional process.
AFFIRMED