927 F2d 612 United States v. Sabugo

927 F.2d 612

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

UNITED STATES of America, Plaintiff-Appellee,
v.
Robert John SABUGO, Defendant-Appellant.

No. 90-10228.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 14, 1991.
Decided March 1, 1991.

Appeal from the United States District Court for the District of Hawaii, No. CR-89-1532-01-SPK; Samuel P. King, District Judge, Presiding.

D.Hawaii

AFFIRMED.

Before SCHROEDER, PREGERSON and THOMAS G. NELSON, Circuit Judges.

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1

MEMORANDUM*

BACKGROUND

2

On October 12, 1989, defendant Robert Sabugo was charged in a one-count indictment with possession with intent to distribute more than 500 grams of cocaine in violation of 21 U.S.C. Secs. 841(a)(1) and 841(b)(1)(B)(ii). Sabugo moved to suppress evidence on the ground that the government violated the Fourth Amendment by "seizing" him at the Honolulu International Airport without reasonable suspicion.

3

The undisputed facts before the court on Sabugo's motion to suppress are: On September 20, 1989, at Honolulu International Airport, Sabugo disembarked Continental Airlines flight 23 from Los Angeles. Near the airport arrival gate, three DEA agents--Keller, Johnson, and Nazarchek--were watching people to detect drug trafficking activity.

4

Sabugo walked from the arrival gate down a passageway toward the baggage claim area. He was carrying a small black nylon shoulder bag. Agent Keller testified that he had no specific information to cause him to suspect that Sabugo was a drug courier. Nonetheless, Keller walked towards Sabugo. When Keller was within two feet of Sabugo, Keller displayed his DEA credentials and identified himself as a DEA agent.

5

When Keller asked Sabugo if he could talk to him, Sabugo stopped and turned to face Keller. Keller testified that he was wearing civilian clothes and was not carrying a gun. Keller asked Sabugo where he came from and Sabugo responded "LA." Keller asked Sabugo if he came from the Continental flight and Sabugo replied "yes." At Keller's request, Sabugo took his plane ticket from his coat pocket and handed it to Keller. Keller removed the ticket from its folder and examined it. Finding nothing suspicious about the ticket, Keller returned the ticket to Sabugo.

6

Keller then resumed questioning Sabugo. Keller asked Sabugo why he went to Los Angeles. Sabugo told him to visit relatives. Keller also asked Sabugo where he lived and worked. Sabugo responded that he lived in Haleiwa and was a cook in Jameson's Restaurant.

7

When Keller asked Sabugo if he was carrying any narcotics, Sabugo "mumbled something." Keller then asked Sabugo if he could search his black nylon bag. Sabugo handed him the bag. Keller immediately knelt down on the floor, zipped open the bag, and searched it. During his search of the bag, Keller found four heat-sealed plastic packages containing cocaine. Keller told Sabugo he was under arrest, and Sabugo responded "I know." Agent Keller's entire questioning of Sabugo lasted three to five minutes.1

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8

At the hearing on Sabugo's motion to suppress, Sabugo argued that Keller's questioning constituted a Terry stop that was not supported by reasonable suspicion. The government admitted that agent Keller had "no reasonable suspicion to warrant an investigative stop." Instead, the government argued that the questioning of Sabugo did not rise to the level of an investigatory stop, but was merely a consensual encounter. Thus, under the government's reasoning, the agents did not need reasonable suspicion to question Sabugo.

9

The district court agreed with the government. The court held that

10

Agent Keller's interview of defendant in the terminal passageway only constituted a consensual encounter. Defendant was approached in a public corridor of the airport, and at no time did Agent Keller have to "stop" defendant in order to get his attention or otherwise block or impede defendant's path of travel in order to talk to him. Rather, defendant stopped walking on his own accord after Agent Keller asked to talk to him. Agent Keller's subsequent questions were posed in a normal conversational tone and were not in any way coercive or threatening. Agent Keller was not attired in a police uniform nor did he have any weapon displayed during the interview. At no time during the interview was defendant physically moved to another location; the only movement occurred after defendant had been arrested and was escorted back to the DEA office.

11

Under the legal standard articulated in United States v. Mendenhall, this Court finds that in view of all of the circumstances herein, a reasonable person in defendant's position would have believed that he was free to leave or otherwise terminate Agent Keller's interview at any time. Therefore, defendant was not involuntary detained nor seized by Agent Keller during this interview.

12

After the district court's adverse ruling on his motion to suppress, Sabugo entered a conditional plea of guilty to the indictment pursuant to Fed.R.Crim.P. 11(a)(2), reserving his right to appeal the district court's denial of his motion to suppress evidence.

13

On appeal, Sabugo makes three arguments: first, the district erred in finding that agent Keller's questioning of Sabugo constituted a consensual encounter; second, his due process rights were violated when agent Keller stopped and questioned him without any suspicion of wrongdoing; third, even if no due process violation occurred, this court should use its supervisory powers to prohibit the introduction of evidence obtained in this manner.

STANDARD OF REVIEW

14

We review de novo the district court's denial of Sabugo's motion to suppress, but uphold its findings of fact unless they are clearly erroneous. United States v. $25,000 U.S. Currency, 853 F.2d 1501, 1504 (9th Cir.1988).

DISCUSSION

I. Consensual Encounter or Terry Stop

15

The Fourth Amendment governs all "seizures" of a person, including those involving only a short detention of a person. United States v. Mendenhall, 446 U.S. 544, 551 (1980). An individual "may not be detained even momentarily without reasonable, objective grounds for doing so." Florida v. Royer, 460 U.S. 491, 498 (1983). But "not all personal intercourse between policemen and citizens involves 'seizures' of persons." Terry v. Ohio, 392 U.S. 1, 19 n. 16 (1968). A person is "seized" in Fourth Amendment terms "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." Michigan v. Chesternut, 486 U.S. 567, 573 (1988) (quoting Mendenhall, 446 U.S. at 554).

16

The critical question in this appeal is whether agent Keller "seized" Sabugo when he questioned him at the airport. The government concedes that agent Keller had no reason to suspect Sabugo of committing any crime; therefore, if Sabugo was "seized," the seizure violated the Fourth Amendment. Sabugo argues that he was seized at one of three points: (1) when he was initially questioned by Keller, (2) when Keller took his airline ticket, or (3) when Keller asked Sabugo if he could search his bag.

17

The district court's conclusion that Sabugo was not seized at any point during the questioning is consistent with Ninth Circuit precedent. See United States v. $25,000 U.S. Currency, 853 F.2d 1501, 1504-05 (9th Cir.1988) (2-1); United States v. Erwin, 803 F.2d 1505, 1508 (9th Cir.1986). In both $25,000 U.S. Currency and Erwin, government officers (1) approached the defendant at an airport, (2) identified themselves, (3) asked if the defendant would answer some questions, and (4) asked for and examined the defendant's airline ticket. Both cases held that, under these facts, no seizure took place under the Fourth Amendment.

18

United States v. $25,000 U.S. Currency, 853 F.2d 1501 (9th Cir.1988) (2-1), is particularly compelling:

19

[Defendant] argues that he was seized when the officers approached him in the airport concourse and identified themselves,.... The officers showed no sign of force or aggression, and at no time did they raise their voices or show their firearms. Therefore, [defendant] was not seized at the point of the initial encounter in the airport concourse.

20

Likewise, [defendant] was not seized when the defendant asked him for his identification and airline ticket. Under Royer, asking for and examining [defendant's] ticket and his alien registration card were permissible.

21

* * *

22

* * *

23

After the initial questioning, the officers requested permission from [the defendant] to search his bag. Detective Farrant testified that [the defendant] allowed him to conduct the search. The request to search the bag is not a seizure within the fourth amendment.

24

Id. at 1504-05 (citations omitted). Because the facts of the instant case cannot be meaningfully distinguished from $25,000 U.S. Currency and Erwin, the district court did not err in holding that no "seizure" had occurred under the Fourth Amendment.

II. Due Process/Supervisory Powers Arguments

25

On appeal, Sabugo argues that (1) the government agents' practice of arbitrarily targeting individuals for questioning at airports violates due process and (2) this court should use its "supervisory powers to prohibit the introduction of evidence obtained through such dubious tactics." A party must raise an issue before the trial court, however, to preserve it for appeal. United States v. Hayden, 860 F.2d 1483, 1485 (9th Cir.1988). Because Sabugo did not raise his due process or supervisory powers arguments before the trial court, we do not reach these issues.

26

AFFIRMED.

*

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

1

During Agent Keller's questioning of Sabugo, Agent Johnson went over and stood about 4-5 feet behind Sabugo. Johnson testified that he did not know whether Sabugo saw him

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