                                   ___________

                                   No. 96-1723
                                   ___________

United States of America,              *
                                       *
            Plaintiff-Appellee,        *
                                       *   Appeal from the United States
     v.                                *   District Court for the
                                       *   Western District of Missouri.
Michael Anthony Polk, also             *
known as Richard Davis, also           *
known as Michael Dudley Pollard,*
                                       *
            Defendant-Appellant.       *

                                   ___________

                      Submitted:   September 11, 1996

                          Filed:   October 9, 1996
                                   ___________

Before MAGILL, FLOYD R. GIBSON, and LAY, Circuit Judges.

                                   ___________

LAY, Circuit Judge.


     Michael Anthony Polk was indicted on a charge of possession with
intent to distribute cocaine under 21 U.S.C. § § 841(a)(1) and (b)(1)(B).
Following the indictment, Polk filed a motion to suppress cocaine seized
from his duffle bag.    The district court1 denied the motion, adopting the
report and recommendation of the magistrate judge.2          Polk entered a
conditional plea of guilty, and the district court sentenced him to seventy
months imprisonment to be followed by a five-year term of supervised
release.   Polk appeals the denial of his motion to suppress, claiming the
government violated his Fourth Amendment rights when drug




     1
     The Honorable Joseph E. Stevens, Jr., United States District
Judge for the Western District of Missouri.
     2
      The Honorable Sarah W. Hays, United States Magistrate Judge
for the Western District of Missouri.
enforcement agents stopped him at the Kansas City airport, questioned him,
and searched his luggage pursuant to a warrant.                 Polk also claims the
district court improperly sentenced him because it assigned responsibility
to Polk for the entire net weight of a mixture containing cocaine, rather
than taking into account only the "pure cocaine."               We affirm.


                                             I.


        On March 29, 1994, a confidential informant ("CI") informed Detective
Steve Santoli of the Jackson County, Missouri, drug unit that a courier
transporting cocaine from Los Angeles would be arriving at Kansas City
International Airport ("KCI") at 2:00 p.m. that day.             The CI described the
courier as a black male named “Mike,” who was approximately 5'7" tall and
had a thin build, a chipped front tooth, and a thin mustache.                   According
to the CI, the courier probably would be wearing a jogging suit.                Detective
Santoli relayed this information to Detective Mark Braden of the Drug
Interdiction Task Force at KCI.


        On the afternoon of March 29, Detective Braden watched passengers
depart USAir Flight 728 arriving from Los Angeles, which landed at 1:45
p.m.    He noticed a man who fit the description given by the CI depart the
plane    and   walk   quickly   from   the    terminal    to   the   sidewalk   outside.
Detective Braden approached the man.              Braden then displayed his badge and
asked Polk if he could speak with him.              Polk appeared nervous, but agreed
to talk.    Polk produced a one-way ticket he had purchased with cash under
the name "Richard Davis," but could not produce any identification.                 When
Detective Braden asked Polk the purpose of his trip to Kansas City, Polk
responded he was visiting for a relative's funeral, but he could not
remember the relative's last name.            During this conversation, Detective
Braden noticed that Polk had a chipped front tooth.


        Polk told Detective Braden he had luggage which had arrived




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earlier and which was sent to the address in Kansas City where he was to
stay, but he could not recall the address.   At that point, Detective Braden
asked for Polk's consent to search the duffle bag Polk was carrying.   Polk
refused.   Detective Braden told Polk he was detaining the bag for a canine
sniff.   He informed Polk that he was free to leave and that he could come
back for the bag, which would be returned to him if the sniff was negative.
Polk elected to wait.   Three to four minutes later, the canine team came
and a narcotics detection dog sniffed the bag and alerted to the presence
of narcotics.   Detective Braden told Polk he was going to detain him until
a search warrant could be obtained for the bag.         Based on Detective
Braden’s affidavit, a Platte County Circuit Judge issued a search warrant
for the bag.    The ensuing search revealed two tape-wrapped packages of
cocaine.


     After Polk's indictment and the denial of his motion to suppress,
Polk entered a conditional plea of guilty.     He was sentenced to seventy
months imprisonment, to be followed by a five-year term of supervised
release.   The district court based the sentence on the total weight of the
cocaine, found to be 500.97 grams.    A forensic chemist testified at the
sentencing hearing that the cocaine was eighty-five percent pure.


                                    II.


     On appeal, Polk argues (1) his initial encounter with Detective
Braden was an investigative stop unsupported by the requisite articulable
reasonable suspicion, (2) his luggage was detained improperly and without
reasonable suspicion, and (3) the search warrant for his luggage was not
supported by probable cause.
                                     A.


     Polk first contends that his initial encounter with Detective Braden
was a seizure within the meaning of the Fourth Amendment.




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An individual's encounter with a police officer rises to the level of a
seizure when "the officer, by means of physical force or show of authority,
has in some way restrained the liberty of a citizen."    Terry v. Ohio, 392
U.S. 1, 19 n.16 (1968).     This court has refused to draw a bright line
between police conduct that constitutes a seizure and police conduct that
does not.     Instead, our inquiry is fact-specific: whether "a reasonable
person would not have believed himself free to leave."     United States v.
McKines, 933 F.2d 1412, 1419 (8th Cir.) (en banc), cert. denied, 502 U.S.
985 (1991).     Though the factual findings made by the district court are
subject to the clearly erroneous standard of review, whether a seizure
occurred is a question of law we review de novo.   United States v. Delaney,
52 F.3d 182, 186 (8th Cir.), cert. denied, 116 S. Ct. 209 (1995); McKines,
933 F.2d at 1426.


     In Delaney, when two officers initially questioned the defendant, but
did not prevent him from proceeding, threaten him, display weapons, or
touch him, this court found a seizure did not occur.       52 F.3d at 186.
Here, only one officer approached Polk, and the same factors missing in
Delaney are missing here.   Braden approached Polk on a public sidewalk and
did not implicitly or explicitly threaten him in any way.


     Arguably, the encounter rose to the level of a seizure when Detective
Braden displayed his badge for the second time and informed Polk he was on
narcotics detail at the airport.   However, this court has refused to find
that such factors, standing alone, constitute a Fourth Amendment seizure.
McKines, 933 F.2d at 1418; see also United States v. Dixon, 51 F.3d 1376,
1380 (8th Cir. 1995) ("[T]hose factors do not, without more, convert a
consensual encounter into a seizure.").    In addition, as in Dixon, there
seems to be a "lack of any other even mildly coercive tactics" presented
here, thus indicating, for purposes of Fourth Amendment analysis, that a
seizure did not occur.   Id.; see also United States v. Green, 52 F.3d 194,
197 (8th Cir. 1995) (finding on similar facts




                                    -4-
that "[a] request for information does not turn consensual questioning into
an investigatory stop"); United States v. Dennis, 933 F.2d 671, 673 (8th
Cir. 1991) (per curiam) (holding that no seizure occurred when the officers
"were dressed in plain clothes and did not physically touch Dennis or
display their weapons").    Finally, and perhaps most importantly, Braden
told Polk he was free to leave and pick up his luggage later.        Tr. of
Suppression Hr'g, June 9, 1994, at 22.


                                     B.


      Even if the encounter rose to the level of an investigative stop, the
government’s conduct satisfies constitutional scrutiny because Detective
Braden had reasonable suspicion warranting such a stop.        In order to
justify an investigative stop as constitutionally permissible, an officer
must have reasonable suspicion, based on articulable facts, that criminal
behavior is afoot.   United States v. Bloomfield, 40 F.3d 910, 916 (8th Cir.
1994) (en banc), cert. denied, 115 S. Ct. 1970 (1995).   This suspicion must
be more than just an "unparticularized suspicion or 'hunch.'"      Terry v.
Ohio, 392 U.S. 1, 27 (1968).   Rather, "the police officer must be able to
point to specific and articulable facts which, taken together with rational
inferences from those facts, reasonably warrant that intrusion."     Id. at
21.   This same standard governs detention of luggage for purposes of a
limited investigation such as a canine sniff.   United States v. Place, 462
U.S. 696, 708-09 (1985); see also Dixon, 51 F.3d at 1380 ("A detention of
a traveler’s property is subject to the same standards as a detention of
a person.").


      Most persuasive here is the CI's detailed description of a particular
drug courier, which closely matched Polk's appearance.   This court is more
likely to find reasonable suspicion supporting a stop when a corroborated
tip is among the government's presentation of proof. See United States v.
Weaver, 966 F.2d 391,




                                    -5-
394 n.2 (8th Cir.) (noting that reasonable suspicion was in part based on
"intelligence information"), cert. denied, 506 U.S. 1040 (1992); United
States v. Condelee, 915 F.2d 1206, 1208-10 (8th Cir. 1990) (finding
reasonable suspicion in part based on officers' receipt of information that
Los   Angeles    street   gangs   were   using   "sharply   dressed   black   female
couriers").     Indeed, the United States Supreme Court often has found the
higher standard of probable cause met when police partially corroborate an
informant’s tip.    See, e.g., Illinois v. Gates, 462 U.S. 213, 246 (1982);
Draper v. United States, 358 U.S. 307, 313 (1959).


      In addition to the CI's description, reasonable suspicion also is
justified on the factors relied upon by the district court: (1) Polk
arrived on an airplane from a known source city for drugs, (2) he was
traveling alone, (3) he had one carry-on bag and, despite his statements
to the contrary, had not checked any luggage, (4) he was traveling on a
one-way ticket purchased under another name, (5) he said he had forgotten
his identification, (6) he appeared nervous, (7) he was unsure of his
reasons for his visit to Kansas City, and (8) he did not know the address
where he would be staying in Kansas City.        Report and Recommendation, June
23, 1994, at 8.      This court has repeatedly held similar circumstances
sufficient to justify a luggage detention.        See, e.g., Delaney, 52 F.3d at
187 (listing similar factors and holding the investigative stop and luggage
detention justified by reasonable suspicion); Dixon, 51 F.3d at 1382
(upholding an investigative stop where the defendant "had made a very brief
trip, had not checked any baggage, could not answer all of the officers'
questions, and was thought to have been previously arrested on a drug
charge").       The facts here fit well within this line of cases.                We
consequently hold that the detention of Polk and his bag was supported by
reasonable suspicion.


                                          C.


      Polk nonetheless maintains the denial of his motion to




                                         -6-
suppress must be reversed because the search warrant used to search his bag
was not issued on probable cause.             The government argues that the tip and
its corroboration meet the test set out in Gates, which requires the search
warrant to be supported by an affidavit that sets forth sufficient facts
to lead a magistrate to believe there is a fair probability that contraband
or evidence of a crime will be found in a particular place.                        Gates, 462
U.S.   at   238.      While     the    CI's   description   and     Braden's   independent
investigative work may indeed meet the Gates standard of probable cause,
we find such an inquiry irrelevant in light of the Supreme Court's holding
in United States v. Leon, 468 U.S. 897 (1984).                    Under Leon, "evidence
seized pursuant to a warrant, even if obtained in violation of the Fourth
Amendment, should not be excluded if an objectively reasonable officer
could have believed the search was valid."               United States v. Fletcher, 91
F.3d 48, 51 (8th Cir. 1996) (citing Leon, 468 U.S. at 918).                        Leon thus
creates     a   “gray   area”     in    which   probable    cause       determinations    are
unnecessary.     United States v. White, 890 F.2d 1413, 1419 (8th Cir. 1989),
cert. denied, 498 U.S. 825 (1990).


       The detailed description from the CI, corroborated by the defendant's
appearance      and   actions    and    the   response    from    the    trained    narcotics
detection canine, was sufficient to give the officer an objectively
reasonable belief that the search of the luggage was supported by probable
cause.      Therefore we hold the contents of the luggage were admissible
pursuant to a constitutional search, and uphold the district court’s denial
of Polk's motion to suppress.


                                              III.


       Polk also contends that the district court erred in sentencing him
according to the full weight of the 500-gram cocaine substance.                      He urges
that since the cocaine was only eighty-five percent pure, he should be
sentenced based on the "pure" cocaine and not the




                                              -7-
carrying agents.     Polk was sentenced under 21 U.S.C. § 841(b)(1), which
"refers to a 'mixture or substance containing a detectable amount.'         So
long as it contains a detectable amount, the entire mixture or substance
is to be weighed when calculating the sentence."      United States v. Chapman,
500 U.S. 453, 459 (1991).     In United States v. Stewart, 878 F.2d 256 (8th
Cir. 1989), the defendant claimed that the district court "should have
considered only the 'pure' controlled substance and disregarded the amount
of material mixed with it."    Id. at 259.   We rejected the argument, finding
it "in direct conflict with the Guidelines."    Id.   We therefore find Polk's
argument to be without merit.


                                                                     AFFIRMED.


     A true copy.


           Attest:


                   CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




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