United States v. Fabian De Cedeno ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4127
RUDDY A. FABIAN DE CEDENO,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Robert R. Merhige, Jr., Senior District Judge.
(CR-95-78)
Submitted: December 19, 1996
Decided: January 3, 1997
Before ERVIN and MOTZ, Circuit Judges, and BUTZNER,
Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Robert J. Wagner, WAGNER & WAGNER, Richmond, Virginia, for
Appellant. Helen F. Fahey, United States Attorney, Stephen W. Mil-
ler, Assistant United States Attorney, Richmond, Virginia, for Appel-
lee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Ruddy Fabian de Cedeno pled guilty to possession of more than
fifty grams of crack cocaine with intent to distribute, 21 U.S.C.A.
§ 846 (West Supp. 1996), but reserved his right to appeal the district
court's denial of his motion to suppress evidence seized from him at
arrest and statements he made shortly afterward. De Cedeno now
appeals that order and his 135-month sentence. We affirm.
On July 18, 1995, de Cedeno traveled by train from New York City
to Richmond, Virginia. According to de Cedeno, his mother boarded
the train in Delaware. In Washington, D.C., an agent of the Amtrak
Police Department approached them while their train was stopped
and, with their consent, searched the two large tweed suitcases which
they identified as the only baggage they had with them. Although no
contraband was found, the agent later alerted police in Richmond
because he thought de Cedeno had shown unusual nervousness during
the encounter.
Henrico County Police investigators John Riani and Doug Perry
observed de Cedeno and his mother get off the train in Richmond and
noticed that, while each was carrying one of the large suitcases,
de Cedeno was also carrying a black tote bag and a radio and his
mother had a plastic grocery bag. De Cedeno and his mother set their
luggage down in two piles about ten feet apart on the sidewalk in
front of the terminal. When de Cedeno went back into the terminal to
get change, his mother retrieved the black tote bag and put it with her
things. The officers approached de Cedeno and identified themselves.
De Cedeno agreed to speak with them. He said his mother was just
someone he had met on the train and that all the bags had been
searched in Washington. When Riani asked if he could search the
black bag, de Cedeno showed him the radio, opened it, and loudly
stated that it too had been searched. When Riani again asked to look
2
in the black bag, de Cedeno opened the bag himself and began mov-
ing objects around, saying, "See, nothing." The investigator knelt
beside him, intending to look in the bag, but de Cedeno held up his
hands to stop him. Riani moved back and, as de Cedeno pulled a pair
of jeans part way out of the bag, a clear plastic corner bag containing
white powder fell onto the sidewalk. De Cedeno was then arrested. In
the black bag were two bundles of crack totaling 489 grams wrapped
in duct tape, a pager, and a cellular phone. The small plastic corner
bag contained one gram of heroin.
At the train station, de Cedeno was advised of his Miranda1 rights.
He stated that the black bag and the drugs belonged to him, but asked
for an attorney when the investigators challenged his story that he
first met Ms. de Cedeno on the train. The interrogation ceased, and
de Cedeno and his mother were taken to the Henrico County Public
Safety Building.2 They were seated apart in the same room while
Riani completed paperwork. After about twenty minutes, de Cedeno
asked if he could sit next to his mother. Riani asked why and
de Cedeno responded that he wanted to console her because she did
not know anything about the drugs. Riani asked which drugs he meant
and a conversation ensued in which de Cedeno stated that a group of
Colombians had fronted him the cocaine. He said he had come to Vir-
ginia to set up a cocaine distribution operation and owed the Colom-
bians $12,000. He refused to provide information about the
Colombians for fear of harm to his family.
De Cedeno unsuccessfully sought suppression of the drugs seized
on the ground that he was detained without reasonable suspicion
when the investigators approached him outside the terminal in Rich-
mond. The district court did not make specific findings of fact; conse-
quently, we will uphold the denial of the motion to suppress if any
reasonable view of the evidence, taken in the light most favorable to
the government, will sustain the denial. United States v. Bethea, 598
F.2d 331, 333-34 (4th Cir.), cert. denied, 444 U.S. 860 (1979).
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1 Miranda v. Arizona, 384 U.S. 436 (1966).
2 Ms. de Cedeno was arrested after she said she met de Cedeno on the
train, changed her story several times, and finally admitted he was her
son. She was not charged in the offense.
3
The government argues, as it did in the district court, that
de Cedeno was not detained when he was approached by the investi-
gators in Richmond, but that the investigators had a reasonable suspi-
cion of wrongdoing which would have supported an investigative stop
at that point. A person is not seized within the meaning of the Fourth
Amendment when he is merely approached by law enforcement offi-
cers in public and asked questions to which he is willing to listen.
Florida v. Royer, 460 U.S. 491, 497 (1983). De Cedeno contends that
the officers' approach signalled to him that he was the subject of a
drug investigation because it followed closely his encounter with
Amtrak police in Washington and that, therefore, he did not feel free
to leave. We are not persuaded. The officers did nothing before the
discovery of the heroin packet to indicate that de Cedeno was not free
to decline to answer questions or to terminate the conversation. The
district court commented that de Cedeno searched the black bag of his
own accord; we agree.
Even if we were to find that de Cedeno was detained briefly by the
officers, no Fourth Amendment violation occurred. A limited investi-
gative detention must be supported by reasonable, articulable suspi-
cion that the individual so detained is engaged in criminal activity.
United States v. Sokolow, 490 U.S. 1, 7 (1989). In determining
whether a basis for reasonable suspicion existed, the court must con-
sider the totality of the circumstances. Id. at 8. The investigators here
knew that de Cedeno's demeanor during his encounter with the
Amtrak police in Washington had aroused enough concern to elicit a
warning to them. They knew that de Cedeno and his mother had
asserted that they were carrying only the two tweed bags, but saw
them get off the train in Richmond with several other items, princi-
pally the black tote bag which de Cedeno had over his shoulder. They
saw de Cedeno's mother display protectiveness toward the black bag
by placing it with her suitcase when de Cedeno went inside the termi-
nal. Moreover, one of de Cedeno's first statements--that he had just
met Ms. de Cedeno on the train--was inconsistent with what he told
the Amtrak police. We find that the combination of these factors cre-
ated a reasonable, articulable suspicion that de Cedeno was involved
in criminal activity. The district court did not err in denying his
motion to suppress.3
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3 De Cedeno does not challenge the denial of his motion to suppress his
statements at the Public Safety Building.
4
At sentencing, de Cedeno requested a two-level reduction in his
offense level and a sentence below the ten-year mandatory minimum
under the safety valve guidelines. USSG §§ 2D1.1(b)(4), 5C1.2.4 The
government argued that he had not complied with the fifth require-
ment of USSG § 5C1.2 because he had not provided truthful informa-
tion about the offense. De Cedeno testified at the sentencing hearing
that a drug trafficker in New York, known only to him as "Columbia,"
first asked him to transport a television set to Richmond, then gave
him the packet of heroin and the bag containing the crack, the cellular
phone, and the pager. His testimony conflicted with his statements to
police following his arrest. De Cedeno insisted that his mother knew
nothing about the drugs and that he had related everything he knew
about the offense. The district court did not find his testimony credi-
ble and found that he did not qualify for the reduction under USSG
§ 2D1.1(b)(4). Given that the district court did not credit de Cedeno's
testimony, the court did not clearly err in finding that he had not truth-
fully provided all the information he possessed about the offense and
in denying him the reduction.
The conviction and sentence are therefore affirmed. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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4 United States Sentencing Commission, Guidelines Manual (Nov.
1995).
5