UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4175
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DIALLO COBHAM,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Alexander Williams, Jr., District Judge.
(CR-04-173-AW)
Submitted: December 21, 2005 Decided: February 2, 2006
Before LUTTIG, MICHAEL, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James Wyda, Federal Public Defender, Martin G. Bahl, Staff
Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Baltimore,
Maryland, for Appellant. Rod J. Rosenstein, United States
Attorney, Michael R. Pauze, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
A grand jury charged Diallo Cobham with conspiracy to
distribute cocaine in violation of 21 U.S.C.A. § 846 (West 1999),
possession with intent to distribute cocaine in violation of 21
U.S.C.A. § 841 (West 1999), and possession of a firearm after a
felony conviction in violation of 18 U.S.C.A. § 922(g) (West 2000).
Prior to trial, Cobham moved to suppress drugs and other evidence
recovered during a search of his truck at the Baltimore-Washington
International Airport (“BWI”). After an evidentiary hearing, the
district court denied the motion. A jury subsequently convicted
Cobham of all charges, and the district court sentenced him to a
240-month term of imprisonment, followed by eight years of
supervised release. Cobham appeals his conviction, arguing that
the district court erred in denying his motion to suppress the
evidence. He also appeals his sentence, contending that the
district court erred by enhancing his sentence based on his prior
drug-related offenses. We affirm.
In February 2004, Detective Scott C. Parrish received
information from a confidential informant in California identifying
Diallo Cobham as a “kilogram cocaine dealer.” The source provided
information concerning the location of Cobham’s drug supplier,
Cobham’s method of transportation, and a detailed description of
how Cobham wrapped his supply of cocaine in black electrical tape
and then concealed it in dark clothing inside his baggage. After
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receiving this information, Det. Parrish investigated further and
discovered that Cobham had two prior felony convictions in
Maryland, in addition to arrests for drug charges in Los Angeles
and Maryland.
On March 22, 2004, a Southwest Airline employee told Parrish
that Cobham was traveling from Los Angeles to BWI, going through
St. Louis, returning from a trip made to California the previous
day. Det. Parrish also discovered that Cobham would often travel
to Los Angeles and spend less than 24 hours there. Armed with all
this information, Det. Parrish, along with other officers,
established surveillance at BWI airport. When Cobham’s flight
landed, he left the plane carrying a backpack, went to baggage
claim to retrieve one checked suitcase, and then went to the
airline office to recover a second suitcase that had been damaged
in flight. He then made his way to the parking garage.
As Cobham reached his pickup truck, Det. Darin Cover,
approached and asked if he could speak to Cobham. While other law
enforcement officers and a police canine were present in the
vicinity of the pickup, they all remained several feet away.
During the course of the conversation, Det. Cover, a 17-year
veteran of the police force, observed that Cobham acted in a
nervous manner, sweating, stuttering, and pacing. Det. Cover asked
Cobham for identification, which he provided. Cobham then placed
his two suitcases and backpack in his truck and locked the vehicle.
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Det. Cover asked Cobham if he had any drugs on him and Cobham
replied that he did not, but Cobham refused to consent to a search
of his luggage. Cobham then made a call on his cell phone and told
the detective that “my lawyer said I should leave.” Det. Cover
told Cobham that he was free to leave, but that his truck “wasn’t
going anywhere.” As Cobham began to walk away, the police canine
alerted on the driver’s side of the truck. The police then
arrested Cobham and searched the truck, finding a brick of cocaine
wrapped in electrical tape and concealed in a pair of jeans.
The Fourth Amendment permits law enforcement officers to seize
the person or property of another without a warrant or probable
cause when the officers have a “reasonable, articulable suspicion
that the person has been, or is about to be engaged in criminal
activity.” United States v. Place, 462 U.S. 696, 702 (1983)
(citing Terry v. Ohio, 392 U.S. 1, 22 (1968)). This exception is
limited to those circumstances in which a substantial governmental
interest supports the seizure and the detention only minimally
intrudes. Place, 462 U.S. at 703. “[W]here the authorities
possess specific and articulable facts warranting a reasonable
belief that a traveler’s luggage contains narcotics, the
governmental interest in seizing the luggage briefly to pursue
further investigation is substantial.” Id.
We agree with the district court that the officers did not
seize Cobham when they approached him in the airport parking lot.
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No violation of the Fourth Amendment occurs when police merely
approach an individual and ask some questions of him, even when an
officer identifies himself as a law enforcement agent. See Florida
v. Royer, 460 U.S. 491, 497 (1983). A seizure takes place only
when a reasonable person under the circumstances would not feel
free to leave or otherwise terminate the encounter. See Florida v.
Bostick, 501 U.S. 429, 434 (1991). Here, Det. Cover identified
himself as a law enforcement officer and received Cobham’s
permission to speak with him. All other officers in the vicinity
remained several feet away. Det. Cover did not retain Cobham’s
identification or ticket stub but rather returned them both after
briefly inspecting them. See Royer, 460 U.S. at 504. When Cobham
refused to consent to a search, Detective Cover told him he was
free to leave. Given the brevity of the encounter and that Det.
Cover explicitly gave Cobham permission to leave, a reasonable
person in this situation would have felt free to terminate the
encounter. Therefore, we conclude that no seizure of Cobham
occurred.
The law enforcement officers at BWI did seize Cobham’s truck,
however. The only questions are whether the officers had a
reasonable suspicion to justify their seizure, and whether the
seizure was properly limited in scope. Cover seized Cobham’s truck
based on a tip from a confidential source, Cobham’s frequent travel
to a source state for one night, Cobham’s locking his luggage into
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his truck while in the presence of a police officer, his sweating,
stuttering, and pacing, and his prior arrests on drug charges. The
totality of these circumstances create a reasonable, articulable
suspicion that Cobham was carrying drugs in his luggage, thus
justifying the seizure of his property.
Additionally, we believe that the seizure of the truck was
properly limited in its scope. A police canine arrived at the
truck while Cobham was walking away; after circling the truck, the
dog alerted within minutes of the initial encounter. The detention
of the property lasted only a few minutes prior to Cobham’s arrest,
was minimally intrusive, and was therefore appropriate in scope.
See, e.g. Royer, 460 U.S. at 505-06; Place, 462 U.S. at 705-06.
Accordingly, no violation of the Fourth Amendment occurred.
Finally, we reject Cobham’s Sixth Amendment claim that the
district court improperly enhanced his sentence based on his prior
convictions. As Cobham concedes, the Supreme Court has held that
prior convictions do not constitute elements of an offense, which
must be found beyond a reasonable doubt by a jury. See United
States v. Almendarez-Torres, 523 U.S. 224, 243 (1998). The Court’s
recent holding in United States v. Booker, 125 S. Ct. 738 (2005)
does not require a different result. See United States v. Cheek,
415 F.3d 349, 354 (4th Cir. 2005).
We therefore affirm the judgment of the district court. We
dispense with oral argument because the facts and legal contentions
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are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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