United States v. Warner ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5216
IRIS WARNER,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of North Carolina, at Greensboro.
N. Carlton Tilley, Jr., District Judge.
(CR-94-204)
Argued: December 6, 1996
Decided: January 3, 1997
Before HALL, ERVIN, and MICHAEL, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
ARGUED: Gregory Davis, Assistant Federal Public Defender,
Greensboro, North Carolina, for Appellant. Richard Stanley Glaser,
Jr., Assistant United States Attorney/Chief, Criminal Division,
Greensboro, North Carolina, for Appellee. ON BRIEF: William E.
Martin, Federal Public Defender, Greensboro, North Carolina, for
Appellant. Walter C. Holton, Jr., United States Attorney, Greensboro,
North Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Iris Warner entered a conditional plea of guilty to possessing 118.6
grams of cocaine base with the intent to distribute it, for which she
was sentenced to 87 months in prison. She appeals the district court's
denial of her motion to suppress the introduction of the drugs into evi-
dence, and she appeals her sentence. We affirm.
I.
A.
Three persons testified at the suppression hearing: J.E. Hoover, a
detective with the Greensboro, North Carolina, police department;
Annie L. White, an Airport Police officer who conducted the search;
and Warner herself. The district court concluded that White was the
most credible witness, reasoning that her relatively tangential involve-
ment in the investigation and arrest rendered her less interested in the
outcome of the hearing than either Warner or Hoover. Because War-
ner's testimony was inconsistent with White's in several respects, the
district court concluded that Warner was less credible; thus, as to mat-
ters disputed between Warner and Hoover, the court accepted Hoo-
ver's version of what had occurred.
B.
Hoover testified that, on July 28, 1994, while on routine drug inter-
diction duty at the Piedmont Triad Airport, he noticed Warner soon
after she arrived at the terminal on a flight from New York. Warner
shielded her eyes with her hand to avoid Hoover's scrutiny, and she
left the terminal without first going to the baggage claim area. Hoover
approached her, identified himself, and asked if he could see her air-
line ticket. Warner showed Hoover the ticket, which had been issued
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in her name; at Hoover's request, she also produced valid identifica-
tion.
Hoover then asked Warner if she were carrying any drugs in her
shoulder bag or on her person. Warner parroted Hoover's questions,
initially professing not to understand them. Warner finally denied
possessing any drugs, and she permitted Hoover to look through her
bag, which was found to contain no contraband.
Finally, Hoover asked Warner whether she would go with him to
the Airport Police office to be searched. Warner replied, "Yes, but I
would like my lawyer." Hoover and his partner, Detective Kaplan,
accompanied Warner to the office; Hoover called for White on his
radio and asked her to meet them there.
On the way to the office, the trio passed by a bank of telephones,
but Warner neither asked to use them nor repeated her request for a
lawyer. When they arrived at their destination, White was waiting for
them. White escorted Warner to a small room, then asked Warner
anew for her consent to be searched. Warner did not respond verbally,
but instead gave White a package that had been concealed beneath her
clothing. The package turned out to contain crack cocaine.
Warner was indicted on a single count of possessing the cocaine
with the intent to distribute it. After the district court denied her
motion to suppress, Warner agreed to plead guilty on condition that
she be allowed to appeal the court's ruling and the sentence imposed
on her conviction.
II.
A.
Neither party contends that the police had probable cause to believe
that Warner was engaged in criminal activity until she actually pro-
duced the cocaine. Warner asserts that she had by then been unlaw-
fully seized, rendering the drugs inadmissible as fruits of the illegal
police conduct. The district court found that the entire episode was a
consensual encounter, and that the drugs were produced as the result
of a lawful attempt to obtain Warner's consent to be searched.
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The district court's findings are not clearly erroneous. Though it is
probably accurate to say that most encounters with interdiction agents
are not enthusiastically "consented" to, but are more or less tolerated
or endured, such encounters ripen into seizures"only if, in view of all
of the circumstances surrounding the incident, a reasonable person
would have believed that he was not free to leave." United States v.
Mendenhall, 446 U.S. 544, 554 (1980).
Here, as in Mendenhall, the encounter took place in a public area,
there was no overt display of authority or of weapons, and the police
casually approached the suspect, politely requesting information. The
Supreme Court refused to find that a seizure had occurred under such
circumstances, and we decline to do so today.
B.
Inasmuch as Warner had not been seized prior to the drugs being
produced, the Fifth Amendment right to counsel, afforded to those in
police custody, had not yet attached. See Tukes v. Dugger, 911 F.2d
508, 515 (11th Cir. 1990) ("Where the prisoner is not in custody, the
Edwards [v. Arizona] and [Arizona v.] Roberson concerns are not
triggered because the non-custodial defendant is free to refuse to
answer police questions, free to leave the police station and go home,
and free to seek out and consult a lawyer."). Thus, Hoover was not
compelled to honor Warner's request for a lawyer; he could -- and
did -- simply ignore it.
III.
Warner's attack on her sentence fares no better. She contends that
the terms "cocaine" and "cocaine base," as they are defined in 21
U.S.C. § 841, do not adequately distinguish crack cocaine from its
powdered relative. According to Warner, the term"cocaine base" is
sufficiently ambiguous to require invocation of the rule of lenity,
allowing her to be sentenced for possessing crack cocaine as if she
had actually possessed the same quantity of powder. We recently
rejected an identical argument in United States v. Fisher, 58 F.3d 96(4th Cir.), cert. denied, 116 S. Ct. 329 (1995).
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IV.
Warner's conviction and sentence are affirmed.
AFFIRMED
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