United States v. Wade, Levar ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-2442
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LEVAR V. WADE,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 3:01-30030-001—Jeanne E. Scott, Judge.
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ARGUED JANUARY 26, 2005—DECIDED MARCH 15, 2005
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Before EASTERBROOK, RIPPLE, and EVANS, Circuit Judges.
EVANS, Circuit Judge. Bad timing often results in one
being in the wrong place at the wrong time. Levar Wade
will certainly attest to that, for it was being in the wrong
place at the wrong time that resulted in his ticket to a
federal prison. Because bad timing is the true cause of his
predicament, not an illegal detention or a nonconsensual
search, we reject his appeal and affirm the judgment of the
district court.
Acting on a tip that a fellow named Michael Sullivan was
a drug courier bringing crack cocaine from Chicago into the
2 No. 04-2442
Amtrak station in Springfield, Illinois, FBI agents and local
police set a trap to nab him when he got off a train. In a
stroke of bad luck, Wade exited the train carrying a duffel
bag around the same time Sullivan stepped off. Sullivan,
who was also carrying a bag, appeared to be around the
same age—early twenties—as Wade. Sullivan was ap-
proached and led away. Another officer, Detective Stephen
Welsh, thinking Sullivan might have a cohort,1 followed
Wade through the station.
At the front of the station, Welsh decided to approach
Wade, but he first radioed for two other officers, Williamson
and Flynn, to join him. Williamson and Flynn came from
opposite sides of the building to assist. Welsh, who was not
in uniform, approached Wade just outside the station, iden-
tified himself as an officer, and asked to speak with him.
Welsh may have “touched” Wade’s arm to “get his atten-
tion,” and after Wade agreed to speak, Welsh suggested
that they move inside the station, “where it was warm and
well lit.” Wade did not say anything in response, and he and
the officers stepped inside. The suggestion to go inside the
station was not unreasonable given that it was around 10
p.m., on a post-Thanksgiving night in November.
Once inside the station, Welsh stood in front of Wade
while the other two officers stood “a little bit away” behind
him. Welsh asked to see Wade’s identification, but when
Wade started to reach for his duffel bag Welsh put out his
hand and said something to the effect of “wait a minute.”
Welsh then asked if Wade had any weapons or contraband
in the bag. After Wade replied “No,” Welsh asked “Can I
search it?” and Wade said “Go ahead.” As Welsh looked
through the bag, he asked Wade if he would mind if Officer
1
As luck (good or bad) would have it, there was no real connec-
tion between Wade and Sullivan. They were not cohorts. Both,
however, turned out to be carrying cocaine.
No. 04-2442 3
Flynn searched him. Wade said “No, go ahead.” Flynn asked
Wade if he had “needles or anything like that on you” and
Wade said “No.” Flynn then asked Wade, “Do you mind if I
check you?” and Wade said “No, go ahead.” A moment later,
Flynn retrieved a plastic bag containing 54 grams of crack
cocaine from Wade’s inside jacket pocket. Wade was
arrested and subsequently charged with possessing more
than 50 grams of crack with intent to distribute. After his
motion to suppress the crack failed, Wade conditionally pled
guilty, reserving the right to appeal the denial of his
motion.
Wade initially argued that his consent was not volun-
tarily given, but that contention gradually morphed into a
claim that he was “illegally detained” by Welsh and the
other officers. If he’s right on either count, the search and
seizure was invalid.
As we see it, there really are no true credibility findings
at issue here, but to the extent there are, our review is only
for clear error. United States v. Pedroza, 269 F.3d 821 (7th
Cir. 2001); United States v. Marshall, 157 F.3d 477 (7th Cir.
1998). Questions of law—that is, the legal conclusion of
whether Wade’s consent was voluntary and whether he was
illegally seized—are reviewed de novo. Ornelas v. United
States, 517 U.S. 690 (1996).
What we have recounted thus far essentially comes from
Welsh’s suppression hearing testimony. Wade did not tes-
tify at the hearing or offer a contrary view. In denying
Wade’s motion to suppress, the district judge accepted the
testimony as true.
Even though consensual searches, and stops that fall
short of seizures, do not implicate the Fourth Amendment,
United States v. Hendricks, 319 F.3d 993, 999 (7th Cir.
2003), we recognize that there is a bit of intimidation in-
volved anytime a police officer stops a person and asks for
permission to conduct a search. The person to whom the
4 No. 04-2442
request is directed might consider several possibilities. If he
refuses, he may think the police will assume he’s got
something to hide and not allow him to leave. Although the
former is probably true, he should know, assuming he didn’t
sleep through high school civics classes, that the latter
proposition is not true. If he consents to the search, it might
be because he has nothing to hide, or because he thinks a
search will not find what he is concealing. Regardless of the
thought processes someone who is asked to consent to a
search might go through, we look to objective fac-
tors—whether a reasonable person would feel free to
terminate the encounter. Id. at 1000; Pedroza, 269 F.3d at
826. And here the objective factors augur for a finding of no
illegal detention and a freely given consent that does not
implicate the Constitution.
Wade seems to concede that his initial encounter with
Welsh involved a nonthreatening request. He argues, though,
that the consensual encounter became a detention when
Welsh asked him to accompany him inside the station, re-
quested identification, and physically obstructed him from
reaching into his duffel bag. Although Wade relies on Florida
v. Royer, 460 U.S. 491 (1983), to argue that an officer’s
request to move to another location is a seizure, Royer is
easily distinguished. In holding that a detention had oc-
curred, the Court in Royer viewed as highly relevant the fact
that the officer had not returned the defendant’s identifica-
tion at the time of the request to move to another location.
Royer, 460 U.S. at 501-02; United States v. Borys, 766 F.2d
304, 310 (7th Cir. 1985) (explaining that officer’s retention
of the defendant’s documentation in Royer was crucial to
the Court’s finding that a detention occurred).
A train station is a public place without custodial over-
tones. See United States v. Edwards, 898 F.2d 1273, 1274,
1276 (7th Cir. 1990). Welsh did not take possession of any
of Wade’s belongings or identification and did not even re-
quest identification until after Wade agreed to move back
No. 04-2442 5
inside. Moreover, Welsh explained the reason for moving
inside—it was warmer and better lit. A reasonable person
faced with Welsh’s request and explanation would have con-
cluded that his consent was not required and that he was
free to decline. See Pedroza, 269 F.3d at 826-27; United
States v. Morgan, 725 F.2d 56, 59 (7th Cir. 1984) (polite
request to move to another location in a busy public place
did not constitute a seizure). Finally, requests for identifica-
tion do not imply a detention. See Terry v. Richardson, 346
F.3d 781, 785 (7th Cir. 2003).
Alternatively, Wade argues the consensual encounter
became a detention when Welsh requested permission for
Flynn to search him; he contends the physical stance of the
officers at the time the request was made was coercive.
Specifically, he contends that with Welsh bent down looking
through the duffel bag and the two other officers, who were
in uniform, standing behind him, a reasonable person would
have concluded that he was not free to leave. In support,
Wade relies on United States v. Jaramillo, 891 F.2d 620(7th Cir. 1989), arguing that once an officer requests
permission to search a subject, a consensual encounter be-
comes an investigatory stop.
Though the court in Jaramillo agreed with the district
court’s conclusion (not challenged by the government on
appeal) that a consensual encounter became a detention by
the time the officers requested permission to pat down the
subjects, that conclusion was based on the totality of cir-
cumstances. And those circumstances, in effect telling the
subjects of the search that they were suspected of possess-
ing narcotics and asking them “about the unusual bulkiness
around their waists,” are quite different from what we have
here. In addition, more recent precedent of the Supreme
Court and this court makes certain that an encounter may
remain consensual even after a request to search. See United
States v. Drayton, 536 U.S. 194, 206 (2002) (encounter re-
mained voluntary even after officers asked bus passengers
6 No. 04-2442
to submit to search of luggage and persons); United States
v. Yusuff, 96 F.3d 982, 987 (7th Cir. 1996) (defendant con-
sented to pat-down search and the court noted similar
encounters are consensual and do not implicate the Fourth
Amendment); United States v. Adebayo, 985 F.2d 1333, 1340
(7th Cir. 1993) (encounter remained consensual after nar-
cotics agents requested permission to search defendant’s
briefcase and jacket).
Nor did the presence of the two officers who stood “off to
the side” and “behind” Wade rise to the level of a “threaten-
ing” situation. See Hendricks, 319 F.3d at 1000. Only Welsh
stood before Wade, and none of the officers brandished
weapons or physically restrained Wade in any way. See
Drayton, 536 U.S. at 204 (that police officers did not use or
make an overwhelming show of force, engage in intimi-
dating movement, brandish weapons, block exits, make
threats, give commands, or even employ an authoritative
tone of voice were all factors evidencing noncoercive nature
of encounter with bus passengers). None of the circum-
stances described by Wade overcome the conclusion that the
encounter remained consensual throughout and that the
situation did not escalate into an illegal detention.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-15-05