United States v. Regina Radford , 856 F.3d 1147 ( 2017 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16-3768
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
REGINA ELIZABETH RADFORD,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 4:15-cr-40066 — Sara Darrow, Judge.
____________________
ARGUED APRIL 25, 2017 — DECIDED MAY 22, 2017
____________________
Before POSNER, KANNE, and HAMILTON, Circuit Judges.
POSNER, Circuit Judge. The defendant, Regina Radford,
was convicted of possession of heroin with intent to distrib-
ute at least 100 grams of the drug, in violation of 21 U.S.C.
§ 841(a)(1)—a crime that normally (though not in this case,
as we’ll see) subjects the offender to a minimum prison term
of five years. Id. § 841(b)(1)(B). She argues that the search of
her handbags was the product of an unlawful seizure of
her—a seizure not authorized by warrant or probable
2 No. 16-3768
cause—and that she did not consent to the search. The dis-
trict judge, however, agreed with the government that Rad-
ford had not been seized and had consented to the search,
and if this is right then she was rightly convicted of violating
section 841(a)(1). But if the police found the heroin not be-
cause (as they argue and the judge found) Radford permit-
ted them to search her handbags, but because by seizing her
they left her with no choice but to consent to their searching
her bags, she is entitled to be acquitted, for in the circum-
stances that she posits, the search of the bags was the prod-
uct of warrantless and therefore unauthorized coercion.
The story begins in September 2015, when Radford
boarded an Amtrak train in Flagstaff, Arizona, planning (we
now know) to deliver heroin to a person in Toledo, Ohio.
The train made a stop in Galesburg, Illinois, and while it was
stopped there a Galesburg police officer named Mings, hav-
ing studied Radford’s travel schedule (he testified that he
goes every day to the Amtrak station to study the travel
plans of passengers who booked roomettes on trains stop-
ping at the station), noted several potential indicators that
she was engaged in drug trafficking: she had purchased a
one-way ticket two days before the trip, had paid a premium
for a roomette, and was traveling between locations that
Mings understood to be sources of illegal drugs: Flagstaff
and Chicago being source cities and Ohio a source state. He
checked government records for possible criminal history
and learned that Radford had been arrested more than sev-
en years earlier for assisting undocumented aliens and for
possessing marijuana, but he didn’t know whether the arrest
had led to prosecution, conviction, and punishment. And so
he decided to accost her during the train’s brief stop in
Galesburg.
No. 16-3768 3
The defendant was sitting in a roomette measuring 3 ½
feet by 6 ½ feet (for a video of an Amtrak roomette see
Amtrak, “Video Tour of Amtrak Roomette,”
http://blog.amtrak.com/2014/02/video-tour-amtrak-roomette/
(visited May 16, 2017)). Mings, in full police uniform,
knocked on the door. The defendant, without having to
stand, opened it. Mings remained standing in the hallway.
He identified himself as an officer of the Galesburg Police
Department and the Drug Enforcement Administration, and
told her that they (there was another officer with him, alt-
hough that officer didn’t speak to Radford) were doing “se-
curity checks” to “check for people transporting illegal nar-
cotics on trains.” He requested her to show him her identifi-
cation and train ticket. She had only an electronic train tick-
et, which was on her phone, but she handed him her identi-
fication, which he examined and returned. He asked wheth-
er her luggage was in the roomette and then told her he was
going to ask her a series of “security questions.” He asked:
“Did you pack your own bags? Did anyone ask you to
transport anything for them? Are you transporting any ille-
gal narcotics? Are you transporting any large sums of cur-
rency? And do you have any weapons?” She said that she
had packed her own bags but answered no to the other ques-
tions. Last and critically he asked her whether he and the
other officer could search her luggage “to confirm all state-
ments were true.” Radford responded, “I guess so. You’re
just doing your job.” He then asked her to step out of the
roomette so that he could search her luggage, and she com-
plied.
Throughout the interview Mings spoke in what the dis-
trict court determined was a “conversational tone.” But he
never advised Radford that she could refuse to speak with
4 No. 16-3768
him or to deny his request to search her bags. The search, to
which she consented, revealed 707 grams of heroin con-
tained in capsules in her makeup bag and her purse.
She was indicted and moved to suppress the evidence of
the heroin on the ground that it was the fruit of an unlawful
seizure. After a hearing the district judge denied her motion
on the ground that her encounter with Mings had been con-
sensual rather than a seizure and that she had voluntarily
consented to the search. She then pleaded guilty, reserving
however a right to appeal the denial of her motion to sup-
press. The judge found Radford eligible for safety-valve re-
lief from the five-year statutory minimum sentence, see 21
U.S.C. § 841(b)(1)(B); 18 U.S.C. § 3353(f), and sentenced her
to 12 months’ imprisonment.
“Even when law enforcement officers have no basis for
suspecting a particular individual, they may pose questions,
ask for identification, and request consent to search lug-
gage—provided they do not induce cooperation by coercive
means,” United States v. Drayton, 536 U.S. 194, 201 (2002),
and a seizure hasn’t taken place so long as “a reasonable
person would feel free to decline the officers’ requests or
otherwise terminate the encounter,” Florida v. Bostick,
501 U.S. 429, 436 (1991); see also Schneckloth v. Bustamonte,
412 U.S. 218, 227 (1973); United States v. Notorianni, 729 F.2d
520, 522–23 (7th Cir. 1984); United States v. Savage, 889 F.2d
1113, 1116–17 (D.C. Cir. 1989).
Radford, however, argues that she was intimidated by
Mings, primarily because the roomette was small, Mings
weighed 170 pounds and was fully uniformed and equipped
(he was wearing a holster with a gun in it), he was white and
she was black, he was standing and she was sitting, he said
No. 16-3768 5
he was investigating drug trafficking but didn’t tell her she
had a right to refuse to answer his questions or consent to a
search of her handbags.
Her argument exaggerates the situation. Mings didn’t en-
ter the roomette before she consented to the search, his uni-
form with its accouterments established his identity as a po-
lice officer, he told her why he wanted to search her, there
can’t be a rule that a police officer is forbidden to speak to a
person of another race, and since he didn’t tell her that she
had to answer his questions and didn’t threaten her with ar-
rest there was no need to tell her that she didn’t have to an-
swer his questions or consent to a search—that was implicit
in his asking her questions without telling her that she was
required to answer them.
Radford’s argument that her Fourth Amendment rights
were violated is weaker than that of the two defendants in
United States v. Drayton, supra, 536 U.S. at 197–98. There the
police officer’s face was only 12 to 18 inches from the face of
one of the defendants when the officer questioned him on a
bus, two other officers being stationed at the front and back
of the bus and thus visible to the defendants. The officer dis-
played his badge before asking to search their bags and per-
sons and telling them they were investigating drugs and
weapons on the bus. Id. at 198–99. The Supreme Court held
that the defendants had not been seized; it rejected their ar-
gument that their being in a bus, confronted by police dis-
playing badges and with other officers standing at the bus
doors, would make a reasonable person feel coerced. Id.at 203–05. For similar cases see Florida v. Bostick, supra, 501
U.S. at 433, 436–37; Schneckloth v. Bustamonte, supra, 412 U.S.
at 227; and the Notorianni and Savage cases, also cited earlier.
6 No. 16-3768
A case especially close to the present one is United States
v. Goodwin, 449 F.3d 766 (7th Cir. 2006), where three police
officers had stood outside the defendant’s roomette on a
train about to leave and asked him whether he was “willing
to answer some questions.” Id. at 767. When he said yes, they
requested his tickets and identification, asked whether he
was “carrying weapons, narcotics, or large amounts of mon-
ey” and asked for permission to search his bags. Id. We held
that the encounter up to that point had “undoubtedly” not
constituted a seizure. Id. at 768.
It would have been better had Mings, like his counterpart
in Goodwin, 449 F.3d at 767, asked whether Radford was
“willing to answer some questions,” or like his counterpart
in Notorianni, 729 F.2d at 521, whether he “could ask [her]
some questions”; see also United States v. Leiva, 821 F.3d 808,
813–14, 817–18 (7th Cir. 2016). But there was nothing stop-
ping her from asking Mings whether she was under arrest
and had to answer his questions. In all likelihood she an-
swered his questions because she knew the jig was up. Cf.
United States v. Savage, supra, 889 F.2d at 1115. She knew that
she was carrying a substantial quantity of an illegal drug
and that she had an arrest record for trafficking illegal im-
migrants and possessing marijuana. She probably guessed
the police knew all this, and if so she probably also surmised
that they knew the purpose of her train trip. She may well
have realized that if she clammed up she would be greeted
by police at the other stops on her trip, and at her final des-
tination, by which time the police might have obtained a
warrant to arrest and search her. Or she may have thought
that answering questions and consenting to a search would
allay suspicion, inducing the police to leave after a minimal
search or even without searching at all.
No. 16-3768 7
Radford further argues that even if she wasn’t seized, her
response to Mings’s request to search her bags was not a
voluntary consent to search. She may not have known that
she could refuse. But the Supreme Court in Schneckloth v.
Bustamonte, supra, 412 U.S. at 227, 248–49, held that the lack
of such knowledge is not dispositive. Radford contends that
her response—“I guess so. You’re just doing your job.”—is
so noncommittal as not to amount to a “yes.” It’s true that
some phrases offered in response to a request to search, like
“whatever,” “resistance is futile,” or the line uttered in Unit-
ed States v. Worley, 193 F.3d 380 (6th Cir. 1999), “you’ve got
the badge, I guess you can,” could indicate acquiescence ra-
ther than consent. But “I guess so” does literally mean “yes,”
even if half-heartedly, and nothing otherwise indicated that
her response was not voluntary.
AFFIRMED.