United States v. Michael Anthony Polk ( 1996 )


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  •                                    ___________
    No. 96-1723
    ___________
    United States of America,              *
    *
    Plaintiff-Appellee,        *
    *   Appeal from the United States
    v.                                *   District Court for the
    *   Western District of Missouri.
    Michael Anthony Polk, also             *
    known as Richard Davis, also           *
    known as Michael Dudley Pollard,*
    *
    Defendant-Appellant.       *
    ___________
    Submitted:   September 11, 1996
    Filed:   October 9, 1996
    ___________
    Before MAGILL, FLOYD R. GIBSON, and LAY, Circuit Judges.
    ___________
    LAY, Circuit Judge.
    Michael Anthony Polk was indicted on a charge of possession with
    intent to distribute cocaine under 21 U.S.C. § § 841(a)(1) and (b)(1)(B).
    Following the indictment, Polk filed a motion to suppress cocaine seized
    from his duffle bag.    The district court1 denied the motion, adopting the
    report and recommendation of the magistrate judge.2          Polk entered a
    conditional plea of guilty, and the district court sentenced him to seventy
    months imprisonment to be followed by a five-year term of supervised
    release.   Polk appeals the denial of his motion to suppress, claiming the
    government violated his Fourth Amendment rights when drug
    1
    The Honorable Joseph E. Stevens, Jr., United States District
    Judge for the Western District of Missouri.
    2
    The Honorable Sarah W. Hays, United States Magistrate Judge
    for the Western District of Missouri.
    enforcement agents stopped him at the Kansas City airport, questioned him,
    and searched his luggage pursuant to a warrant.                 Polk also claims the
    district court improperly sentenced him because it assigned responsibility
    to Polk for the entire net weight of a mixture containing cocaine, rather
    than taking into account only the "pure cocaine."               We affirm.
    I.
    On March 29, 1994, a confidential informant ("CI") informed Detective
    Steve Santoli of the Jackson County, Missouri, drug unit that a courier
    transporting cocaine from Los Angeles would be arriving at Kansas City
    International Airport ("KCI") at 2:00 p.m. that day.             The CI described the
    courier as a black male named “Mike,” who was approximately 5'7" tall and
    had a thin build, a chipped front tooth, and a thin mustache.                   According
    to the CI, the courier probably would be wearing a jogging suit.                Detective
    Santoli relayed this information to Detective Mark Braden of the Drug
    Interdiction Task Force at KCI.
    On the afternoon of March 29, Detective Braden watched passengers
    depart USAir Flight 728 arriving from Los Angeles, which landed at 1:45
    p.m.    He noticed a man who fit the description given by the CI depart the
    plane    and   walk   quickly   from   the    terminal    to   the   sidewalk   outside.
    Detective Braden approached the man.              Braden then displayed his badge and
    asked Polk if he could speak with him.              Polk appeared nervous, but agreed
    to talk.    Polk produced a one-way ticket he had purchased with cash under
    the name "Richard Davis," but could not produce any identification.                 When
    Detective Braden asked Polk the purpose of his trip to Kansas City, Polk
    responded he was visiting for a relative's funeral, but he could not
    remember the relative's last name.            During this conversation, Detective
    Braden noticed that Polk had a chipped front tooth.
    Polk told Detective Braden he had luggage which had arrived
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    earlier and which was sent to the address in Kansas City where he was to
    stay, but he could not recall the address.   At that point, Detective Braden
    asked for Polk's consent to search the duffle bag Polk was carrying.   Polk
    refused.   Detective Braden told Polk he was detaining the bag for a canine
    sniff.   He informed Polk that he was free to leave and that he could come
    back for the bag, which would be returned to him if the sniff was negative.
    Polk elected to wait.   Three to four minutes later, the canine team came
    and a narcotics detection dog sniffed the bag and alerted to the presence
    of narcotics.   Detective Braden told Polk he was going to detain him until
    a search warrant could be obtained for the bag.         Based on Detective
    Braden’s affidavit, a Platte County Circuit Judge issued a search warrant
    for the bag.    The ensuing search revealed two tape-wrapped packages of
    cocaine.
    After Polk's indictment and the denial of his motion to suppress,
    Polk entered a conditional plea of guilty.     He was sentenced to seventy
    months imprisonment, to be followed by a five-year term of supervised
    release.   The district court based the sentence on the total weight of the
    cocaine, found to be 500.97 grams.    A forensic chemist testified at the
    sentencing hearing that the cocaine was eighty-five percent pure.
    II.
    On appeal, Polk argues (1) his initial encounter with Detective
    Braden was an investigative stop unsupported by the requisite articulable
    reasonable suspicion, (2) his luggage was detained improperly and without
    reasonable suspicion, and (3) the search warrant for his luggage was not
    supported by probable cause.
    A.
    Polk first contends that his initial encounter with Detective Braden
    was a seizure within the meaning of the Fourth Amendment.
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    An individual's encounter with a police officer rises to the level of a
    seizure when "the officer, by means of physical force or show of authority,
    has in some way restrained the liberty of a citizen."    Terry v. Ohio, 
    392 U.S. 1
    , 19 n.16 (1968).     This court has refused to draw a bright line
    between police conduct that constitutes a seizure and police conduct that
    does not.     Instead, our inquiry is fact-specific: whether "a reasonable
    person would not have believed himself free to leave."     United States v.
    McKines, 
    933 F.2d 1412
    , 1419 (8th Cir.) (en banc), cert. denied, 
    502 U.S. 985
    (1991).     Though the factual findings made by the district court are
    subject to the clearly erroneous standard of review, whether a seizure
    occurred is a question of law we review de novo.   United States v. Delaney,
    
    52 F.3d 182
    , 186 (8th Cir.), cert. denied, 
    116 S. Ct. 209
    (1995); 
    McKines, 933 F.2d at 1426
    .
    In Delaney, when two officers initially questioned the defendant, but
    did not prevent him from proceeding, threaten him, display weapons, or
    touch him, this court found a seizure did not 
    occur. 52 F.3d at 186
    .
    Here, only one officer approached Polk, and the same factors missing in
    Delaney are missing here.   Braden approached Polk on a public sidewalk and
    did not implicitly or explicitly threaten him in any way.
    Arguably, the encounter rose to the level of a seizure when Detective
    Braden displayed his badge for the second time and informed Polk he was on
    narcotics detail at the airport.   However, this court has refused to find
    that such factors, standing alone, constitute a Fourth Amendment seizure.
    
    McKines, 933 F.2d at 1418
    ; see also United States v. Dixon, 
    51 F.3d 1376
    ,
    1380 (8th Cir. 1995) ("[T]hose factors do not, without more, convert a
    consensual encounter into a seizure.").    In addition, as in Dixon, there
    seems to be a "lack of any other even mildly coercive tactics" presented
    here, thus indicating, for purposes of Fourth Amendment analysis, that a
    seizure did not occur.   Id.; see also United States v. Green, 
    52 F.3d 194
    ,
    197 (8th Cir. 1995) (finding on similar facts
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    that "[a] request for information does not turn consensual questioning into
    an investigatory stop"); United States v. Dennis, 
    933 F.2d 671
    , 673 (8th
    Cir. 1991) (per curiam) (holding that no seizure occurred when the officers
    "were dressed in plain clothes and did not physically touch Dennis or
    display their weapons").    Finally, and perhaps most importantly, Braden
    told Polk he was free to leave and pick up his luggage later.        Tr. of
    Suppression Hr'g, June 9, 1994, at 22.
    B.
    Even if the encounter rose to the level of an investigative stop, the
    government’s conduct satisfies constitutional scrutiny because Detective
    Braden had reasonable suspicion warranting such a stop.        In order to
    justify an investigative stop as constitutionally permissible, an officer
    must have reasonable suspicion, based on articulable facts, that criminal
    behavior is afoot.   United States v. Bloomfield, 
    40 F.3d 910
    , 916 (8th Cir.
    1994) (en banc), cert. denied, 
    115 S. Ct. 1970
    (1995).   This suspicion must
    be more than just an "unparticularized suspicion or 'hunch.'"      Terry v.
    Ohio, 
    392 U.S. 1
    , 27 (1968).   Rather, "the police officer must be able to
    point to specific and articulable facts which, taken together with rational
    inferences from those facts, reasonably warrant that intrusion."     
    Id. at 21.
      This same standard governs detention of luggage for purposes of a
    limited investigation such as a canine sniff.   United States v. Place, 
    462 U.S. 696
    , 708-09 (1985); see also 
    Dixon, 51 F.3d at 1380
    ("A detention of
    a traveler’s property is subject to the same standards as a detention of
    a person.").
    Most persuasive here is the CI's detailed description of a particular
    drug courier, which closely matched Polk's appearance.   This court is more
    likely to find reasonable suspicion supporting a stop when a corroborated
    tip is among the government's presentation of proof. See United States v.
    Weaver, 
    966 F.2d 391
    ,
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    394 n.2 (8th Cir.) (noting that reasonable suspicion was in part based on
    "intelligence information"), cert. denied, 
    506 U.S. 1040
    (1992); United
    States v. Condelee, 
    915 F.2d 1206
    , 1208-10 (8th Cir. 1990) (finding
    reasonable suspicion in part based on officers' receipt of information that
    Los   Angeles    street   gangs   were   using   "sharply   dressed   black   female
    couriers").     Indeed, the United States Supreme Court often has found the
    higher standard of probable cause met when police partially corroborate an
    informant’s tip.    See, e.g., Illinois v. Gates, 
    462 U.S. 213
    , 246 (1982);
    Draper v. United States, 
    358 U.S. 307
    , 313 (1959).
    In addition to the CI's description, reasonable suspicion also is
    justified on the factors relied upon by the district court: (1) Polk
    arrived on an airplane from a known source city for drugs, (2) he was
    traveling alone, (3) he had one carry-on bag and, despite his statements
    to the contrary, had not checked any luggage, (4) he was traveling on a
    one-way ticket purchased under another name, (5) he said he had forgotten
    his identification, (6) he appeared nervous, (7) he was unsure of his
    reasons for his visit to Kansas City, and (8) he did not know the address
    where he would be staying in Kansas City.        Report and Recommendation, June
    23, 1994, at 8.      This court has repeatedly held similar circumstances
    sufficient to justify a luggage detention.        See, e.g., 
    Delaney, 52 F.3d at 187
    (listing similar factors and holding the investigative stop and luggage
    detention justified by reasonable suspicion); 
    Dixon, 51 F.3d at 1382
    (upholding an investigative stop where the defendant "had made a very brief
    trip, had not checked any baggage, could not answer all of the officers'
    questions, and was thought to have been previously arrested on a drug
    charge").       The facts here fit well within this line of cases.                We
    consequently hold that the detention of Polk and his bag was supported by
    reasonable suspicion.
    C.
    Polk nonetheless maintains the denial of his motion to
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    suppress must be reversed because the search warrant used to search his bag
    was not issued on probable cause.             The government argues that the tip and
    its corroboration meet the test set out in Gates, which requires the search
    warrant to be supported by an affidavit that sets forth sufficient facts
    to lead a magistrate to believe there is a fair probability that contraband
    or evidence of a crime will be found in a particular place.                        
    Gates, 462 U.S. at 238
    .      While     the    CI's   description   and     Braden's   independent
    investigative work may indeed meet the Gates standard of probable cause,
    we find such an inquiry irrelevant in light of the Supreme Court's holding
    in United States v. Leon, 
    468 U.S. 897
    (1984).                    Under Leon, "evidence
    seized pursuant to a warrant, even if obtained in violation of the Fourth
    Amendment, should not be excluded if an objectively reasonable officer
    could have believed the search was valid."               United States v. Fletcher, 
    91 F.3d 48
    , 51 (8th Cir. 1996) (citing 
    Leon, 468 U.S. at 918
    ).                        Leon thus
    creates     a   “gray   area”     in    which   probable    cause       determinations    are
    unnecessary.     United States v. White, 
    890 F.2d 1413
    , 1419 (8th Cir. 1989),
    cert. denied, 
    498 U.S. 825
    (1990).
    The detailed description from the CI, corroborated by the defendant's
    appearance      and   actions    and    the   response    from    the    trained    narcotics
    detection canine, was sufficient to give the officer an objectively
    reasonable belief that the search of the luggage was supported by probable
    cause.      Therefore we hold the contents of the luggage were admissible
    pursuant to a constitutional search, and uphold the district court’s denial
    of Polk's motion to suppress.
    III.
    Polk also contends that the district court erred in sentencing him
    according to the full weight of the 500-gram cocaine substance.                      He urges
    that since the cocaine was only eighty-five percent pure, he should be
    sentenced based on the "pure" cocaine and not the
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    carrying agents.     Polk was sentenced under 21 U.S.C. § 841(b)(1), which
    "refers to a 'mixture or substance containing a detectable amount.'         So
    long as it contains a detectable amount, the entire mixture or substance
    is to be weighed when calculating the sentence."      United States v. Chapman,
    
    500 U.S. 453
    , 459 (1991).     In United States v. Stewart, 
    878 F.2d 256
    (8th
    Cir. 1989), the defendant claimed that the district court "should have
    considered only the 'pure' controlled substance and disregarded the amount
    of material mixed with it."    
    Id. at 259.
      We rejected the argument, finding
    it "in direct conflict with the Guidelines."    
    Id. We therefore
    find Polk's
    argument to be without merit.
    AFFIRMED.
    A true copy.
    Attest:
    CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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