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U.S. v. Kim

filed: June 30, 1994; As Corrected July 12, 1994.

UNITED STATES OF AMERICA
v.
YONG HYON KIM, APPELLANT



On Appeal from the United States District Court for the Eastern District of Pennsylvania. (D.C. Crim. Action No. 93-00087-01).

Before: Becker, Hutchinson and Cowen, Circuit Judges.

Author: Cowen

Opinion OF THE COURT

COWEN, Circuit Judge.

Yong Hyon Kim ("Kim") appeals from the judgment of conviction and sentence entered on July 19, 1993 by the United States District Court for the Eastern District of Pennsylvania. Kim was convicted in the district court of possessing with the intent to distribute six kilograms of methamphetamine in violation of 21 U.S.C. § 841(a)(1) and sentenced to a term of imprisonment of 300 months. Kim contends that the district court erred in denying his motion to suppress evidence of drugs allegedly seized in violation of the Fourth Amendment and in applying a two-level sentencing enhancement for obstruction of Justice. As this is an appeal from a final judgment of the district court, we have jurisdiction under 28 U.S.C. § 1291. We reject Kim's arguments and will affirm the conviction and the sentence imposed.

I.

Kim is a thirty-nine-year-old adult male. He was born in Korea but subsequently immigrated with his family to the United States at the age of seventeen. Prior to the occurrence of the events that gave rise to the indictment against him, Kim had continuously lived in the United States for twelve consecutive years and attended South Philadelphia High School. This background indicates, and Kim does not deny, that Kim understood and spoke English well during his encounter with the police, which is at issue in this appeal.

On August 26, 1992, DEA Special Agent Kevin Small ("Small") observed Kim and his friend, Song Youn ("Youn"), on an Amtrak train when it stopped at the Albuquerque station. This Amtrak train normally travels between Los Angeles and Chicago. It regularly leaves Los Angeles eastbound during the evening, crosses the deserts of Southern California and Arizona during the night, and enters New Mexico the following morning. Shortly after noon, the train makes a scheduled stop in Albuquerque. Law enforcement officials believed that this route was employed by drug dealers to traffick drugs from Los Angeles back to the eastern area. Small, together with other law enforcement officials, was involved in several prior investigations and searches on the train in an effort to interdict drugs.

During a train stop on August 26, 1992, Small, accompanied by Sam Candelaria ("Candelaria"), a local police officer on the DEA task force, went to roomette number 12, occupied by Kim and Youn. A roomette in a sleeper car costs more than a coach seat and affords somewhat more privacy than other accommodations. Roomette 12, however, was located in a busy area of the train. It was only ten feet from the entrance to the sleeper car, next to the luggage storage room, and two feet from a stairwell leading to the upper floor of the sleeper car.

Small knocked on the door to Roomette 12 and Kim opened the door. Youn was inside with Kim. Shortly before this time, Small activated a concealed recorder to record any conversation that he may have with the occupants of the roomette. Candelaria was working with Small, but was out of sight, having stationed himself around the corner of the train corridor. Small said in a polite and conversational tone, "How are you guys doing? I'm with the police department." Small bent slightly to show his badge to Kim and Youn who were seated, then knelt in the hallway. At that time Small did not block the doorway or enter the roomette. He remained outside in the hallway in a kneeling position.

Small began to ask several questions, including their point of origin, destination, and place of residence. Kim readily responded to the questions. Small asked if he could see their tickets. Youn produced two tickets in the name of Yong Kim and Terry Park. While Youn was showing the tickets, Small asked how the ride had been. Youn replied, "Real good." Small handed the tickets back to Youn and thanked him. Small then inquired if they had any photo identification. Youn said his name was "Park" and that he had no picture identification with him, while Kim said he had.

At that time, several persons walked past in the train hallway, talking loudly. Candelaria, out of sight to Kim and Youn, waved a piece of paper at Small to inform him that the train reservation was made in the name of "Wonz." Small asked to see the tickets again and handed them back to Youn.

Small asked about Kim and Youn's luggage. He told them that he worked for DEA and that DEA had "problems with people on board trains smuggling drugs out of L.A. back East." He then asked, "You guys don't have drugs in your luggage today, do you?" Kim answered no. Small asked, "Would you voluntarily consent for me to search?" Kim readily replied, "Sure." At that time, several persons passed by Roomette 12. Small then pointed to a leather bag and asked if it was Kim's. Kim answered yes. Youn also offered to move his bags down for Small, but Small stated that he wanted to examine the bags one at a time.

Upon opening the leather bag, Small found six cans of "Naturade All-Natural Vegetable Protein." They appeared to be factory-sealed cans with factory lids which were intact. Small asked what it was and what it was for. Kim replied that it was vegetable protein and that he did not know what it was because he "got it for a present." Small asked where Kim got it. Kim replied, "We bought it in L.A." Small asked Kim if he was sure what the cans contained. Kim did not say anything. Youn answered, "It's closed." Small opened one of the cans and asked Kim who gave them to him. Kim replied, "The guy in L.A." Small asked, "What guy?" There was no answer. Small then handed the can to Candelaria who determined that it contained drugs. The agents then placed Kim and Youn under arrest.

Subsequently it was discovered that Kim made at least two trips to Los Angeles in an apparent attempt to engage in drug trafficking, one in July of 1992, the other in August of 1992 during which he was arrested. Kim was then charged with (1) possessing with the intent to distribute six kilograms of methamphetamine in violation of 21 U.S.C. § 841(a)(1), and (2) conspiracy to distribute methamphetamine in violation of 21 U.S.C. § 846. Before the trial began, Kim made a motion to suppress the drugs uncovered by Small, contending that Kim was unconstitutionally seized during the encounter with Small and, in any event, his consent to search his luggage did not extend to the sealed cans in the luggage. The district court denied the motion. The jury subsequently convicted Kim of the possession count, but acquitted him of the conspiracy count. On appeal, Kim primarily challenges the denial of his motion to suppress the methamphetamine.

II.

We first address whether an unconstitutional seizure occurred when Small encountered Kim. In reviewing the decision of the district court, we apply the clear error standard with respect to the factual findings. See United States v. Coggins, 986 F.2d 651, 654 (3d Cir. 1993). With respect to the ultimate legal question of whether a seizure occurred, we exercise plenary review. Id.

The Fourth Amendment prohibits unreasonable searches and seizures. U.S. Const. amend. IV. The Supreme Court has interpreted this amendment as requiring probable cause for making an arrest, e.g., Hayes v. Florida, 470 U.S. 811, 814-16, 105 S. Ct. 1643, 1646, 84 L. Ed. 2d 705 (1985), and reasonable suspicion of criminal activity for making an investigative stop, Terry v. Ohio, 392 U.S. 1, 30, 88 S. Ct. 1868, 1884-85, 20 L. Ed. 2d 889 (1968).

With respect to police conduct that falls short of an investigative stop, the Supreme Court has made clear that "a seizure does not occur simply because a police officer approaches an individual and asks a few questions." Florida v. Bostick, ___ U.S. ___, ___, 111 S. Ct. 2382, 2386 (1991). "Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may [a court] conclude that a 'seizure' has occurred." Id. (citations and internal quotation marks omitted). When an encounter is consensual, no reasonable suspicion is required.

In a line of cases starting with United States v. Mendenhall, 446 U.S. 544, 554-58, 100 S. Ct. 1870, 1877-79, 64 L. Ed. 2d 497 (1980), to Florida v. Royer, 460 U.S. 491, 493-508, 103 S. Ct. 1319, 1321-29, 75 L. Ed. 2d 229 (1983) (plurality opinion) and Michigan v. Chesternut, 486 U.S. 567, 573, 108 S. Ct. 1975, 1979, 100 L. Ed. 2d 565 (1988), the Supreme Court indicated that "a seizure occurs when a reasonable person would believe that he or she is not 'free to leave.'" Bostick, ___ U.S. at ___, 111 S. Ct. at 2386. Relying on this language, Bostick, who was questioned by the police in the "cramped confines" of a bus on which he was to travel, argued that he was not free to leave and, thus, was seized. Id. at ___, 111 S. Ct. at 2384-86.

The Supreme Court clarified in Bostick that the "free to leave" language makes sense when police attempt to question a person who is walking down the street or through an airport lobby as in Royer, but not when, for reasons unrelated to the police conduct at issue, the defendant is not free to simply walk away. Id. at ___, 111 S. Ct. at 2387. Individuals may have to stay in their workplace by reason of their employment contract, INS v. Delgado, 466 U.S. 210, 218, 104 S. Ct. 1758, 1763, 80 L. Ed. 2d 247 (1984), or remain in a seat in the bus that was about to depart, Bostick, ___ U.S. at ___, 111 S. Ct. at 2386. Under these circumstances, the test is whether a reasonable person would feel free "to disregard the police and go about his business," id. at ___, 111 S. Ct. at 2386, or ultimately "whether a reasonable person would feel free to decline the officers' requests or otherwise terminate the encounter," id. at ___, 111 S. Ct. at 2387, "taking into account all of the circumstances surrounding the encounter," id.

The location of the encounter at the roomette on a train brings this case under the rubric of Bostick. It is therefore our task to decide whether, under the totality of the circumstances in the case sub judice, a reasonable person would have felt free to decline Small's requests or otherwise terminate the encounter with him. In our assessment of the encounter, we must accord all factors an appropriate weight rather than treat any one factor as dispositive.

The encounter at issue in this case began with a polite knock at the door of Kim's roomette. Small was in plain clothes, his gun was not visible, nor did he ever display his gun. When Kim responded by opening the door, Small commenced the conversation by asking politely how Kim and Youn were doing and identifying himself as employed by a police department. Small then requested, "Can I talk to you for a second?" Without hesitation or equivocation, Kim answered, "Yeah." The conversation went forward in a normal conversational tone. Without more, the posture of the encounter indicated that it was purely consensual. Kim, however, argues that several factors made this encounter nonconsensual and a seizure in violation of the Fourth Amendment. We will address these arguments in turn.*fn1

Kim argues that a seizure occurred because the encounter was in a confined area in a non-public setting, and because Small blocked the exit. Of course, "where the encounter takes place is one factor, but it is not the only one." Bostick, ___ U.S. at ___, 111 S. Ct. at 2387. Our inquiry is how the location of the encounter contributed to a reasonable person's belief that he was not free to terminate the encounter.

We believe the location of the encounter in this case would contribute little to such a belief. As the Supreme Court pointed out, "an individual may decline an officer's request without fearing prosecution," id., because "a refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure," id. The location in itself does not deprive an individual of his ability to terminate an encounter; he can reject an invitation to talk in a private, as well as a public place.*fn2 See also Little, 1994 WL 88834, at 3-5.

Nor do we believe a confined area in a train is inherently coercive. Courts have long ago rejected the argument that "the narrowness and confinement of a train compartment are inherently isolationist, hence coercive." United States v. Brady, 269 U.S. App. D.C. 18, 842 F.2d 1313, 1315 n.5 (D.C. Cir. 1988). See also United States v. Hoffman, 296 U.S. App. D.C. 21, 964 F.2d 21, 23 n.3 (D.C. Cir. 1992) (cramped conditions alone do not invalidate the otherwise lawful police conduct); Tavolacci, 895 F.2d at 1424-26; Savage, 889 F.2d at 1116-17.

Moreover, the district court found that Small did not in fact block the doorway or exit. Kim argues that the district court's finding is clearly erroneous. We have reviewed the record and conclude that it is not.*fn3 Small testified that he knew he was "supposed to [leave] enough room for someone to pass by [him]," and that he "was not blocking the door." App. at 91. This testimony was uncontradicted. Moreover, the door was open during the entire encounter. The roomette was in a well-trafficked area, only ten feet from the entrance to the sleeper car, next to the luggage storage room, and two feet from a stairwell leading to the upper floor of the sleeper car. Voices of the passersby could occasionally be heard on the tape. Directly across from Kim's roomette was the train conductor's room. The door to that room was open and the conductor was in his room during the relevant time period. The conductor passed by in front of Kim's roomette several times to speak to passengers in the hallway. Kim could see the conductor and passengers. Close to Kim's roomette on the same hallway was a large family room occupied by four or five people. Passengers inside that room watched and heard the encounter. Finally, the door to Kim's roomette was a sliding door, which Kim could have easily closed if he wanted to terminate the conversation.

Kim argues that these facts notwithstanding, a reasonable person would not feel free to decline to answer Small's questions or to shut the door, because "it doesn't take much intelligence for a reasonable person to believe that shutting the door in the face of such an intruder would be to invite more serious intrusion." Reply Brief for Appellant at 2. We disagree. As the Supreme Court stated, "an individual may decline an officer's request without fearing prosecution." Bostick, ___ U.S. at ___, 111 S. Ct. at 2387. We hold that under the facts of this case, a reasonable person would have felt free to decline to speak or to terminate his conversation with Agent Small. See id.

Kim next argues that he had a higher expectation of privacy because he was traveling in a private sleeping compartment and that a reasonable person would see his roomette as a safe haven, different from the public coach areas of a train. While we recognize the differences between a roomette in a sleeper car and a seat in the coach area, we do not believe that Kim's expectation of privacy has any overriding importance in our analysis as to whether a seizure occurred. Expectation of privacy is significant in the analysis of whether consent or probable cause is required for making a search, see, e.g., Ex parte Jackson, 96 U.S. 727, 24 L. Ed. 877 (1878); Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967). It sheds no light on what is consent or a consensual encounter. As far as consent is concerned, one may consent to an encounter in the privacy of his own home or in a public square. See Katz, 389 U.S. at 351, 88 S. Ct. at 511 ("What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection."); Lewis v. United States, 385 U.S. 206, 87 S. Ct. 424, 17 L. Ed. 2d 312 (1966) (defendant waived his right to privacy in his home by inviting an undercover agent inside). The high expectation of privacy, alone, will not destroy the otherwise consensual nature of the encounter.*fn4 See Little, 1994 WL 88834, at("expectation of privacy has only a limited relevance").

Kim contends that Small asked focused and potentially incriminating questions. When asked such questions, Kim argues, "an innocent passenger may well feel obligated to demonstrate innocence by cooperation," Brief for Appellant at 28, and "a guilty passenger must feel terrorized and trapped," id. Kim points to a question that Small asked: "You guys don't have drugs in your luggage today, do you?" First, we do not believe this question was accusational. The tone of the question in no way implied that Small accused or believed that Kim had drugs in his possession; it was merely an inquiry.

Secondly, what a guilty passenger would feel and how he would react are irrelevant to our analysis because "the 'reasonable person' test presupposes an innocent person." Bostick, ___ U.S. at ___, 111 S. Ct. at 2388. We do not believe an innocent person would feel compelled to cooperate with police by some potentially incriminating questions. In any event, potentially incriminating questions are permissible. As the Supreme Court stated in Bostick :

The Dissent reserves its strongest criticism for the proposition that police officers can approach individuals as to whom they have no reasonable suspicion and ask them potentially incriminating questions. But this proposition is by no means novel; it has been endorsed by the Court any number of times. Terry, Royer, Rodriguez, and Delgado are just a few examples. As we have explained, today's decision follows logically from those decisions and breaks no new ground. Unless the Dissent advocates overruling a long, unbroken line of decisions dating back more than 20 years, its criticism is not well taken.

Id. See also Little, 1994 WL 88834, at 6 ("The asking of 'incriminating questions' is irrelevant to the totality of the circumstances surrounding the encounter.").*fn5

We therefore hold that potentially incriminating questions do not by themselves make an encounter coercive. In so ruling, we note that Kim cites to only one question, Brief for Appellant at 28, and thus the case does not present the scenario of repeated and persistent questioning of an individual, which was found to constitute an investigative stop in United States v. Savage, 281 U.S. App. D.C. 280, 889 F.2d 1113, 1117-18 (D.C. Cir. 1989).

Kim next argues that Small asked his questions in a "blunt" and "direct" manner which contributed to the coerciveness of the encounter. We disagree. The district court found that Small's tone was polite and conversational. After reading the transcripts of the questions and listening to the tapes ourselves, we agree with the district court. Such a tone ...


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