Appeal from the United States District Court for the Eastern District of Virginia at Alexandria. T. S. Ellis, III, District Judge and Albert V. Bryan, Jr., Chief District Judge. 88-0065-A.
Ervin, Chief Judge, Widener, Circuit Judge, and Michael, United States District Judge for the Western District of Virginia, sitting by designation.
Arthur Gray appeals from the district court's denial of his motion to suppress the narcotics seized from him following a search of his person made by Drug Enforcement Administration Agents at Washington National Airport. Finding that appellant consented to this search following a voluntary encounter with the agents, we affirm the district court's refusal to suppress the evidence.
Factual and Procedural Background
On March 1, 1988, the defendant-appellant, Arthur Gray, arrived at Washington National Airport on an Eastern Airlines shuttle from New York City. Shortly after he deplaned, Gray was approached by Special Agent Floyd Johnston of the Drug Enforcement Administration ("DEA"). Johnston identified himself to Gray, and walked alongside him through the terminal, asking him questions about the flight, his point of departure, and whether he was carrying drugs. The two men were joined by a second DEA agent, Bill Dwyer. At that point, Johnston requested and obtained permission to search Gray. The search revealed that Gray was carrying 21 grams of crack, and the agents arrested him.
Gray was subsequently indicted on a charge of possessing narcotics with the intent to distribute, in violation of 21 U.S.C. § 841(a)(1). Gray moved to suppress the drugs seized during the search at National Airport, as well as the statements he made pursuant to his arrest, on the grounds that the evidence resulted from an illegal search and seizure. Following a full evidentiary hearing, the district court denied appellant's motion.
Gray then entered into a plea agreement whereby he agreed to plead guilty to the indictment, but preserved his right to appeal the denial of his motion to suppress, and to challenge the constitutionality of the Federal Sentencing Guidelines.*fn1 Appellant was convicted on his plea and sentenced to 5 years, 3 months in prison, a five-year period of probation, and was ordered to pay a special assessment of $50.00.
The evidence at the suppression hearing consisted almost entirely of the testimony of Special Agent Johnston. The agent stated that he initially approached Gray because the appellant had arrived on the shuttle from New York, a source city, and because Gray was guarding the front of his unzipped jacket, in his abdominal area, as if he were trying to hide the front of his pants. Johnston approached Gray in the terminal area, identified himself, and asked if he could speak with appellant; Gray replied "sure." Johnston then accompanied Gray as appellant walked toward the escalator, went up the escalator, and went down a hallway into the main terminal area. During their walk, the agent asked Gray if he had come in from New York, and if Johnston could see his airline ticket. Gray explained that he had left his ticket on the airplane. When Johnston requested identification, Gray produced a laminated i.d. card bearing his name and picture. Johnston returned the card, explained the "purpose and function of the DEA" to Gray, and asked Gray if he was carrying drugs. At this point, the two men, who had stopped walking, were joined by DEA Special Agent Dwyer. Johnston introduced Gray to Dwyer, and again asked appellant if he were carrying drugs; Gray replied that he was not.
Johnston then requested permission to search Gray's person. According to the agent, Gray replied "Sure. Go ahead." Johnston then asked Gray if he objected to stepping out of the stream of pedestrian traffic, and Gray indicated that he did not. All three men stepped into a public alcove, where Johnston once again asked Gray: "Do you mind if I search -- are you sure you don't mind that I search your person? You don't have to let me if you don't want to." Appellant told the detective to "go ahead," and lifted his arms out from his waist. The search revealed Gray's possession of 21 grams of crack, whereupon the agents advised Gray of his rights and arrested him.
Fourth Amendment Seizure Question
The decision of the trial court not to suppress the evidence in question was based solely upon the testimony of Agent Johnston. Given this testimony, the lower court found that appellant's contact with the DEA agents amounted ...