United States v. Gwendolyn Holmes

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 99-2707
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the District
v. * of Nebraska.
*
Gwendolyn Holmes, * [UNPUBLISHED]
*
Appellant. *
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Submitted: December 16, 1999
Filed: December 29, 1999
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Before McMILLIAN and FAGG, Circuit Judges, and BOGUE,* District Judge.
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PER CURIAM.
After Gwendolyn Holmes deplaned at the Omaha airport, an officer trained to
detect drug couriers noticed Holmes's carry on bag appeared to be empty and she
retrieved no luggage at the baggage carousel. His suspicions aroused, the officer
decided to talk with Holmes. When the officer approached Holmes at the airport taxi
stand, she agreed to speak with the officer and also agreed to a pat down search.
During the pat down, the officer found cocaine taped to Holmes's back. Holmes was
*
The Honorable Andrew W. Bogue, United States District Judge for the District
of South Dakota, sitting by designation.
charged with possession with intent to distribute cocaine in violation of 21 U.S.C. §
841(a)(1). Holmes filed a motion to suppress the cocaine, and the district court denied
the motion, finding Holmes's encounter with the police officer was consensual and
Holmes's consent to the encounter was voluntary. Holmes then pleaded guilty,
reserving her right to appeal the denial of her suppression motion.
On appeal, Holmes asserts that once the police officer identified himself as a
drug agent and asked her whether she was carrying any drugs, her encounter with him
became a seizure, and the seizure was unlawful because the officer lacked a reasonable
suspicion of criminal activity. Holmes relies on United States v. Millan, 912 F.2d 1014
(8th Cir. 1990), and United States v. Nunley, 873 F.2d 182 (8th Cir. 1989). In United
States v. McKines, 933 F.2d 1412, 1417-18 (8th Cir. 1991), our en banc court
explained Millan and Nunley do not establish a bright line test that a seizure occurs
whenever an officer identifies himself as a drug enforcement agent and makes the
suspect aware she is the focus of a drug investigation. Instead, we held these factors
do not, without more, convert a consensual encounter into a seizure. See id. at 1418;
United States v. Dixon, 51 F.3d 1376, 1380 (8th Cir. 1995). Here, the encounter was
in a public place, the officer did not touch Holmes or speak in a threatening tone of
voice, and Holmes testified she consented to the search, although she said she felt
compelled to do so given the presence of two other officers. Holmes does not
challenge the voluntariness of her consent on appeal, however. Absent any coercive
police tactics in this case, we conclude the district court properly found the encounter
was consensual and no seizure occurred. See Dixon, 51 F.3d at 1380. Thus, the
officer needed no reasonable suspicion of criminal activity. Holmes's consent to the
pat-down search distinguishes this case from United States v. Eustaquio, No. 99-1772,
1999 WL 1133751 (8th Cir. Dec. 13, 1999), and United States v. Tovar-Valdivia, 193
F.3d 1025 (8th Cir. 1999), where it was undisputed that the defendants did not consent
to any touching by the officers. Accordingly, we affirm the district court's denial of
Holmes's motion to suppress.
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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