On appeal from the United States District Court for the Eastern District of Pennsylvania, D.C. Criminal No. 87-00261.
Gibbons, Chief Judge, and Mansmann and Cowen, Circuit Judges.
Albert John Thame, Jr. appeals from the judgment of sentence imposed following his conviction for possession of cocaine with intent to distribute. 21 U.S.C. § 841(a) (1982). He contends that the district court should have suppressed the cocaine that was seized from his luggage. He also contends that the district court erred in allowing the government to present certain evidence and make certain arguments. We will affirm.
Thame was a passenger on an Amtrak train from Fort Lauderdale, Florida to Philadelphia, Pennsylvania. The train left Florida on May 21, 1987 and arrived in Philadelphia on May 22, 1987. Thame did not use his own name, but rather travelled under a reservation made in the name "B. Kelly." An Amtrak investigator in Washington, D.C. reviewed the manifest while the train was underway and discovered that the reservation was made on the day of travel, that no telephone number was given, that a sleeping accommodation was reserved for the northbound trip but not for the return, and that the ticket was paid for in cash. His suspicions aroused, the investigator inquired of personnel at the Fort Lauderdale station whether anyone remembered the passenger. He learned that the passenger had appeared nervous, and had repeatedly asked when the train would leave and whether he could keep his luggage with him. A different Amtrak investigator, Faith Doonan, boarded the train in Washington, and Drug Enforcement agents in Philadelphia were informed of the passenger's description.
The district court conducted a suppression hearing on Thame's motion. What happened when the train arrived in Philadelphia was seriously disputed at the suppression hearing. The version told by Thame conflicts in important respects with the version told by the law enforcement witnesses. The district court, however, credited the testimony of the law enforcement witnesses and found the facts to be as set forth in their testimony. The following factual account is based on that credited testimony.
Philadelphia Police Officer Michael McCue, assigned to the Drug Enforcement Agency, followed Thame up from the platform to the lobby of 30th Street Station while DEA Special Agent John McCarty followed still further behind with Amtrak Investigator Doonan. In the lobby, McCue walked alongside Thame, identified himself, and asked if he could speak with Thame. Thame said that he did not mind. As they continued walking, McCue asked Thame if he had just gotten off the train from Florida, and Thame said that he had. McCue then asked Thame his name, and Thame replied "Albert Thame." McCue then asked if he could see his train ticket. At this point, the two stopped walking as Thame reached into his pocket and produced his train ticket, bearing the name "B. Kelly." Thame, in response to a question from McCue, explained that he was using the ticket of a friend who had to fly back. McCue then asked for identification, and Thame produced a driver's license and old police identification in his correct name. Agent McCarty then joined McCue and Thame and identified himself. McCue handed the ticket and the identification to McCarty, who looked it over and handed it back to Thame. McCarty then explained that they were working with the Narcotics Interdiction Unit, seeking cooperation from passengers from source cities such as Miami and Fort Lauderdale, and asked if Thame would mind if McCue and McCarty looked in the luggage Thame was carrying. Thame declined, stating that he had "sensitive material" in his bag. McCarty replied that that was fine, that he had an absolute right to refuse, but asked whether it would be okay if they conducted the search in a more private place. Thame again declined. McCarty then asked whether Thame would object to a sniff search of the air around the bag by a dog, as this would be less intrusive. Thame agreed. McCarty then asked if Thame would mind accompanying them to the Amtrak police office, explaining that this would be more private and out of the way. Thame carried his own bag to the office. The entire conversation took about two minutes, and the walk to the Amtrak police office took less than a minute. At the office, a sniff search took place, and the dog indicated that there were drugs in Thame's bag. The sniff search was repeated in another room. A warrant was then obtained, the bag was opened, and cocaine was found. The district court refused to suppress the cocaine.
At trial before a jury, Thame denied knowledge of the cocaine. He testified that he had planned to drive back to Philadelphia but the plans fell through, that he called one airline regarding one particular route and was told that only first class seats were available, and that he decided to take the train and split the cost of a sleeping compartment with "B. Kelly." The thrust of the defense was that Kelly had the opportunity to place the cocaine in Thame's bag without Thame's knowledge. Thame was convicted of possession of cocaine with intent to distribute.
Thame contends that his consent to the sniff test was the product of an unlawful detention, and therefore invalid. However, "law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him to answer some questions [or] by putting questions to him if the person is willing to listen. . . ." Florida v. Royer, 460 U.S. 491, 497, 75 L. Ed. 2d 229, 103 S. Ct. 1319 (1983) (plurality opinion) (citations omitted). Moreover, "the fact that the officer identifies himself as a police officer, without more, [does not] convert the encounter into a seizure requiring some level of objective justification." Id.; see also United States v. Mendenhall, 446 U.S. 544, 551-57, 64 L. Ed. 2d 497, 100 S. Ct. 1870 (1980) (opinion announcing the judgment). A majority of the Court has agreed that a contact in which officers "simply ask [if a defendant] would step aside and talk with them, [is] clearly the sort of consensual encounter that implicates no Fourth Amendment interest." Florida v. Rodriguez, 469 U.S. 1, 5-6, 83 L. Ed. 2d 165, 105 S. Ct. 308 (1984) (per curiam). Although we have our doubts whether a reasonable person who is greeted by federal agents and asked for identification feels free to simply ignore the agents, we are not free to substitute our judgment on this question for the Supreme Court's. See United States v. Notorianni, 729 F.2d 520, 522 (7th Cir. 1984) ("Maybe this is a wrong guess about what the average person feels in this situation . . . "); United States v. Cordell, 723 F.2d 1283, 1286, cert. denied, 465 U.S. 1029, 79 L. Ed. 2d 693, 104 S. Ct. 1291 (1984) (Swygert, J., concurring) ("I believe that as a factual psychological matter people who are stopped for questioning of this kind by police officers . . . generally do not feel 'free to leave' . . ."); see also Note, The Drug Courier Profile and Airport Stops: Reasonable Intrusions or Suspicionless Seizures?, 12 Nova L. Rev. 273, 284 (1987) (lower courts recognize "the artificiality of the test").
In Royer, a plurality of the Court rejected the contention that the particular encounter at issue was consensual, stating:
Asking for and examining Royer's ticket and his driver's license were no doubt permissible in themselves, but when the officers identified themselves as narcotics agents, told Royer that he was suspected of transporting narcotics, and asked him to accompany them to the police room, while retaining his ticket and driver's license and without indicating in any way that he was free to depart, Royer was effectively seized for the purposes of the Fourth Amendment. These circumstance surely amount to a show of official authority such that a reasonable person would have believed that he was not free to leave.
460 U.S. at 501-02 (plurality opinion).
Turning to the facts of this case, it is clear that it was permissible to ask Thame for his ticket and for identification. Moreover, the officers did not restrain him, block his path, or otherwise control his movement by retaining his papers. Cf. Cordell, 723 F.2d at 1285 (majority) and at 1287 (Swygert, J., concurring). Unlike the defendants in Mendenhall, Royer, and Rodriguez, Thame did not consent to a search after he moved to another area in response to the officers' request, but rather was only asked to move to the Amtrak police office after he consented to the sniff test. Thus Thames can only prevail on this ...