United States v. Marte ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4735
RAMON MARTE,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Albert V. Bryan, Jr., Senior District Judge.
(CR-96-119-A)
Submitted: April 17, 1997
Decided: May 1, 1997
Before NIEMEYER and WILLIAMS, Circuit Judges, and
BUTZNER, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
C. Dean Latsios, Fairfax, Virginia, for Appellant. Helen F. Fahey,
United States Attorney, Michael E. Rich, Assistant United States
Attorney, Ian Simmons, Special Assistant United States Attorney,
Alexandria, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Appellant Ramon Marte was indicted for possession with intent to
distribute heroin. See 21 U.S.C. § 841(a) (1994). Marte moved unsuc-
cessfully to suppress the introduction of the drugs and subsequently
pled guilty to the indictment, reserving his right to appeal the suppres-
sion ruling. Marte now appeals, contending that the district court
erred in admitting the drugs seized in connection with his arrest. We
affirm.
I.
On March 19, 1996, Officer Christopher Flanagan and Special
Agent Alex Yasevich, both with the Drug Enforcement Administra-
tion ("DEA"), were conducting narcotics interdiction at Dulles Inter-
national Airport. After getting a tip from Miami law enforcement
officers, Flanagan and Yasevich observed Marte exit a plane which
arrived from Miami, while carrying a black leather carry-on bag.
Flanagan identified himself as a DEA officer and displayed his cre-
dentials. Flanagan asked Marte for his airline ticket and some identifi-
cation and then advised Marte that he was conducting a drug
investigation. Marte gave Flanagan his passport and ticket, and both
were promptly returned. Flanagan then asked for consent to search
Marte's bag, and Marte acquiesced. While Flanagan was searching
the bag, Marte walked back towards the plane accompanied by
Yasevich. Neither DEA official informed Marte that he was free to
leave or to refuse the search.
In the bag's center compartment, Flanagan found a black package
wrapped tightly in black plastic, clear tape, and a towel. Based on his
training and experience, Flanagan concluded that the package con-
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tained heroin or cocaine. He cut into the back side of the package with
a knife, and a substance, later determined to be heroin, leaked out.
II.
The first issue is whether the encounter between the officers and
Marte ceased to be consensual at some point and became a seizure.
Consensual encounters do not implicate the Fourth Amendment, but
seizures do. See Florida v. Bostick, 501 U.S. 429, 434 (1991). The
Supreme Court has consistently held, however, "that a seizure does
not occur simply because a police officer approaches an individual
and asks a few questions." Id.; see also INS v. Delgado, 466 U.S. 210,
216 (1984) (interrogation relating to one's identity or a request for
identification does not, by itself, implicate the Fourth Amendment).
It is also clear that the encounter does not become a seizure merely
because the officers do not tell the defendant that he is free to leave
or that he may refuse to comply with their requests. United States v.
Analla, 975 F.2d 119, 124 (4th Cir. 1992).
We find that Marte was not seized when the officers approached
him and asked for identification. Neither officer had a gun drawn, and
there is no evidence of any use or threat of physical force. Further,
Marte's cooperation with the officers did not convert the encounter
into a seizure, even though the officers did not tell Marte that he was
free to leave or to refuse the request to search. See United States v.
Flowers, 912 F.2d 707, 712 (4th Cir. 1990) (seizure cannot occur in
the absence of threats, offensive contact, or similar circumstances).
We thus conclude that the district court's finding that a seizure did
not occur was not clearly erroneous. See United States v. Gooding,
695 F.2d 78, 82 (4th Cir. 1982) (determination of whether a seizure
occurred is generally one of fact). Because Marte was not seized
within the meaning of the Fourth Amendment when the DEA officers
searched his bag, we now turn to the question of whether Marte vol-
untarily consented to the search.
III.
Courts look to the totality of the circumstances to determine
whether consent to a warrantless search was voluntary. See United
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States v. Lattimore, 87 F.3d 647, 650 (4th Cir. 1996). A finding that
an accused's consent was voluntary is reviewed for clear error. Id.The district court's finding was not clearly erroneous. Marte was
twenty-nine years old, and there is no evidence that he was incapable
of understanding the officers or the situation. The officers who
approached him were dressed in plain clothes and displayed no weap-
ons. The officers questioned Marte politely and asked for his consent
to search his bag. Testimony at the hearing, in short, fully supports
the district court's finding that Marte gave his consent voluntarily,
free of threats, force, or intimidation.
IV.
Finally, Marte contends that his consent to the search of his bag did
not extend to the search of the package within the bag, and therefore,
the drugs found in that package were inadmissible. We reject this
argument.
It is clear that "[w]hen an official search is properly authorized--
whether by consent or by the issuance of a valid warrant--the scope
of the search is limited by the terms of its authorization." Walter v.
United States, 447 U.S. 649, 656 (1980). The inquiry is whether a rea-
sonable person would have understood the exchange between Flana-
gan and Marte as indicating that Marte's authorization to search his
bag for drugs included permission to search the sealed package placed
inside his luggage. See Florida v. Jimeno, 500 U.S. 248, 251 (1991).
We conclude that a reasonable person would understand Marte's
authorization for a search of his bag to include permission to search
any items found inside the bag. Common sense supports this under-
standing. Flanagan indicated that he was looking for illegal drugs, and
his search target was the bag. Marte gave his permission to search his
bag for drugs. Packages such as those found in Marte's bag may be
thought by a reasonable person to contain drugs. Thus, the permission
to search the bag covered the package found in that bag. Furthermore,
the fact that Flanagan cut into the package does not mandate a differ-
ent result. See United States v. Kim, 27 F.3d 947, 956-57 (3d Cir.
1994).
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V.
For the foregoing reasons, we affirm the denial of Marte's motion
to suppress. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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