United States v. Kenny L. Smith ( 1996 )


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  •                                    ___________
    No. 95-3885
    ___________
    United States of America,          *
    *
    Appellee,               *
    * Appeal from the United States
    v.                           * District Court for the Western
    * District of Missouri.
    Kenny L. Smith, also known as      *
    Kenney L. Smith, Thomas            *
    Williams, "Kilo,"                  *
    *
    Appellant.              *
    ___________
    Submitted:   March 12, 1996
    Filed:   April 26, 1996
    ___________
    Before McMILLIAN, BEAM, and HANSEN, Circuit Judges.
    ___________
    BEAM, Circuit Judge.
    Kenny Smith appeals his conviction for possession with intent to
    distribute cocaine base (crack cocaine) in violation of 21 U.S.C. §
    841(a)(1) and (b)(1)(A).    Smith argues the district court1 erred in denying
    his motion to suppress evidence and in setting his base offense level.    We
    affirm.
    I. BACKGROUND
    On February 28, 1995, Kenny Smith returned to Kansas City from Los
    Angeles via Amtrak.    Several drug interdiction officers were at the station
    watching passengers arriving on trains from known drug source cities.
    Smith's train was one of the conveyances under observation.      After Smith
    got off the train, he caught the
    1
    The Honorable Scott O. Wright, United States District Judge
    for the Western District of Missouri.
    attention       of   one       of   the   interdiction   officers,   Officer    Wilson,   by
    repeatedly glancing nervously in Wilson's direction and carrying his jacket
    instead of wearing it despite the cold February weather.
    After noticing these irregularities, Officer Wilson approached Smith,
    identified himself as a police officer, and asked him if he would answer
    some questions.       Smith agreed to speak with Officer Wilson who then asked
    Smith if he had his train ticket.              Although Smith searched his suitcase for
    the ticket, he apparently did not find it or produce it.                  Officer Wilson
    then asked to search Smith's jacket for illegal narcotics.                Smith held the
    jacket toward Officer Wilson and implied that the search would reveal
    nothing.    Officer Wilson found a nylon pouch containing approximately one
    kilogram of crack cocaine sewn into the jacket's lining.                  In response to
    Officer Wilson's discovery, Smith stated that the jacket was not his, but
    that he had simply taken the jacket from the train after it went unclaimed
    by its true owner for two days.
    Smith was arrested and charged with possession with intent to
    distribute crack cocaine.             Before trial, Smith moved to suppress the crack
    cocaine found in the jacket and his statements to the police.                  Adopting the
    2
    magistrate judge's             report and recommendation, the district court denied
    the motion and Smith was convicted.               At sentencing, Smith objected to the
    presentence report, arguing it incorrectly set his base offense level at
    36, based on possession of 1,018.8 grams of crack cocaine.                     The district
    court nevertheless accepted that base offense level and sentenced Smith to
    188 months in prison with five years supervised release (base offense level
    36; criminal history category I).
    Smith appeals alleging that, in searching the jacket at the train
    station, Officer Wilson transformed the encounter into an
    2
    The Honorable John T. Maughmer, Chief United                               States
    Magistrate Judge for the Western District of Missouri.
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    investigatory stop which was not supported by the necessary reasonable
    suspicion.      Smith further argues that the 1,018.8 grams of crack cocaine
    found on his possession should have been treated as powder cocaine for
    sentencing because the disparity in penalties between crack and powder
    cocaine in the sentencing guidelines is unconstitutional.         Finding these
    arguments unavailing, we affirm Smith's conviction and sentence.
    II.   DISCUSSION
    Smith argues the crack cocaine found in the jacket at the train
    station should have been suppressed.        We disagree.3   Nothing in the stop
    transformed what was a consensual encounter into an investigatory stop.
    It is well settled that law enforcement officers may approach individuals
    in public places and ask them to answer some questions (if they are willing
    to listen) without offending the Fourth Amendment, as long as reasonable
    persons would know they could refuse to cooperate.     Florida v. Bostick, 
    501 U.S. 429
    , 431 (1991); United States v. Robinson, 
    984 F.2d 911
    , 913 (8th
    Cir. 1993).      That is all that occurred here.    Smith was approached in a
    public place and willingly answered the questions posed by Officer Wilson.
    The encounter was clearly consensual.
    Despite appellant's claims to the contrary, the consensual tone of
    the conversation did not end when Officer Wilson asked to search the
    jacket.4      The district court found that Smith
    3
    We also disagree with Smith's argument on appeal that his
    statements to the police should have been suppressed.      As the
    district court found, Smith was "fully and fairly advised of his
    rights and voluntarily and knowingly waived his right to remain
    silent without any coercion whatsoever." Consequently, we find no
    error in the district court's denial of the motion to suppress
    Smith's statements.
    4
    Appellant offers our decision in United States v. Green, 
    52 F.3d 194
    , 197 (8th Cir. 1995), in support of this argument. In
    Green, we reversed a similar conviction, finding no reasonable
    suspicion to justify the investigatory stop to which the defendant
    had been subjected. Appellant urges us to reverse here as well.
    In so doing, however, appellant overlooks the key fact in our
    discussion in Green, i.e., that Green refused to consent to the
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    voluntarily handed the jacket to Officer Wilson, showing his consent to the
    search of the jacket and its contents.           That finding was not clearly
    erroneous.    United States v. Parris, 
    17 F.3d 227
    , 229 (8th Cir.), cert.
    denied, 
    114 S. Ct. 1662
    (1994).      Had Smith refused his consent, a different
    case might have been presented.      However, on these facts, Smith's consent
    prevented the encounter from becoming an investigatory stop and therefore
    alleviated the need for the encounter to be justified by reasonable
    suspicion.5   See United States v. Washington, 
    957 F.2d 559
    , 563 (8th Cir.)
    (encounter which remains consensual is not transformed into investigatory
    stop and need not be justified by reasonable suspicion), cert. denied, 
    506 U.S. 883
    (1992).     Consequently, the crack cocaine discovered during the
    search was properly admitted into evidence at trial.6        See Schneckloth v.
    Bustamonte, 
    412 U.S. 218
    , 227-28 (1973).
    Smith    next   argues   that   his   sentence   violates   both   his   equal
    protection and due process rights.           Specifically, Smith attacks the
    disparities in penalties for crack and powder forms of cocaine found in the
    sentencing guidelines.   He argues that the 1,018.8 grams of crack cocaine
    for which he was held responsible should be
    search of her bag. 
    Id. In this
    case, there was no such refusal.
    Instead, Smith freely consented to the search.   Therefore, the
    Green decision is inapplicable to these facts.
    5
    Because of our finding that Smith consented to the search, we
    need not address the abandonment issue raised by the government.
    6
    Smith further argues that the police lacked probable cause to
    arrest him.    The success of this argument is contingent upon a
    finding that the cocaine was improperly seized and should have been
    suppressed. Because the police committed no error in conducting
    the jacket search, however, we find that the cocaine constituted
    probable cause for Smith's arrest.
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    treated as powder cocaine for sentencing purposes.                    This treatment would
    reduce his base offense level from 36 to 26.
    Smith,    who     is   black,    argues       that   the   100    to   1   ratio   works
    disproportionately to the disadvantage of blacks and other minorities in
    violation of their equal protection rights.               In his due process argument,
    Smith claims there is no difference between crack and powder cocaine, so
    there can be no rational basis for distinguishing between penalties for the
    two substances.       These arguments are precluded by this court's earlier
    decisions in which we expressly held that the different treatments given
    crack and powder cocaine by the sentencing guidelines do not violate either
    the right to equal protection or the right to due process as                     guaranteed
    by the Constitution.        See, e.g., United States v. Jackson, 
    67 F.3d 1359
    ,
    1367 (8th Cir. 1995); United States v. Clary, 
    34 F.3d 709
    , 710 (8th Cir.
    1994), cert. denied, 
    115 S. Ct. 1172
    (1995); United States v. Buckner, 
    894 F.2d 975
    , 978 (8th Cir. 1990).         We have considered the remainder of Smith's
    arguments and find them to be without merit.
    III. CONCLUSION
    Because    the    district      court   correctly      denied     Smith's    motion   to
    suppress evidence and did not err in determining his base offense level,
    we affirm.
    A true copy.
    Attest:
    CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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