                             In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 02-3872
UNITED STATES OF AMERICA,
                                                 Plaintiff-Appellee,
                                 v.

DAPO ADEYEYE,
                                            Defendant-Appellant.

                          ____________
            Appeal from the United States District Court
       for the Northern District of Illinois, Eastern Division.
           No. 00 CR 233—Wayne R. Andersen, Judge.
                          ____________
 ARGUED SEPTEMBER 5, 2003—DECIDED FEBRUARY 20, 2004
                    ____________



  Before BAUER, POSNER, and ROVNER, Circuit Judges.
  ROVNER, Circuit Judge. Dapo Adeyeye pled guilty
to knowingly and intentionally possessing with intent to
distribute approximately one kilogram of a mixture con-
taining heroin, in violation of 21 U.S.C. § 841. His plea re-
served the right to appeal the district court’s denial of his
motion to suppress and his sentence, and he now appeals
both.
  He contends that the district court erred in denying his
motion to suppress the heroin discovered in his hotel room
because the search violated the Equal Protection Clause
2                                                 No. 02-3872

and because his consent to the search was not voluntary. In
addition, he challenges the sentence imposed by the district
court, asserting that the court erred in determining that he
did not qualify for the two-level “safety valve” reduction
under U.S.S.G. § 2D1.1(b)(6) and U.S.S.G. § 5C1.2.
  The trail that led to Adeyeye was a fortuitous one for
law enforcement, if not for Adeyeye. The case originated
with Customs Inspector Susan Papa, who was working at
O’Hare International Airport checking computerized airline
reservation information in an effort to identify potential
khat smugglers.1
  Papa eventually focused on a traveler named Melvin
Reynolds as a potential smuggler. The factors that caused
Papa to inquire further about Reynolds were fairly inno-
cuous: he was a British citizen as were most of the khat
smugglers; and he had no prior travel to the United States.
Other known khat smugglers either had a lot of recent
travel or else none at all. Papa then determined that
Reynolds had used a travel agency that had been used by
khat smugglers in the past, and had booked his reservation
only two days in advance, another red flag. Finally, Papa
testified that his length of stay—three weeks—was signifi-
cant. In her experience, khat smugglers often booked their
reservations for two to three weeks of travel, only to turn
around and return home quickly after arrival.
 Papa then retrieved Reynolds’ Customs’ declaration,
which indicated his United States address would be the
Heart of Chicago Motel. That motel was on a list given by
Customs agents of motels and hotels in the Chicago area at
which they had encountered narcotics activity. Papa then


1
  Khat is a plant from which the leaves are harvested, which are
chewed or brewed into tea to produce a stimulant effect on the
central nervous system. United States v. Hussein, 351 F.3d 9, 11
(1st Cir. 2003).
No. 02-3872                                                3

contacted another agent, Jim Stewart, to inquire if it was
possible that a legitimate foreign traveler would be going to
that motel, because there were other hotels and motels on
the list that foreign travelers would normally frequent. The
agent informed Papa that no travel agent would recommend
the Heart of Chicago Motel to a foreigner. Papa informed
Stewart that the flight had arrived at approximately 10:30
that morning.
  Agents Stewart and Coleman then proceeded with the
investigation. They contacted the motel and inquired
whether a person named Melvin Reynolds had checked in
shortly before the call, and were informed that no one had
registered in that name. They then asked if anyone had
checked in at that time, and were told there was a foreign
individual who had arrived named Dapo Adeyeye. The mo-
tel clerk further informed them that Adeyeye had paid for
the room in cash. The check-in time was consistent with the
time that the agents would have expected Reynolds to reach
the hotel given his flight time. The agents recognized the
name Adeyeye to be of Nigerian origin, but had no informa-
tion as to the race or ethnicity of Reynolds other than that
he was a British citizen. Based on the information before
them, the agents decided to proceed to the motel to deter-
mine whether the person staying there was Reynolds
registering under an alias.
  When they arrived at the motel, the manager informed
them that Adeyeye had been to the motel previously, and
that he requested the same room as the prior occasion.
(There was no testimony that Papa had informed the agents
that it was Reynolds’ first trip to the United States, so the
information regarding his prior stay at the motel did not
cause them to question whether the traveler was Reynolds.)
The room was on the first floor in a more obscure area not
visible from the street. The agents proceeded to the room,
and knocked identifying themselves as police. They heard
muffled sounds inside the room, and after several minutes
4                                               No. 02-3872

they knocked again. At that time, they said that if it was an
inconvenient time they could come back later. Adeyeye’s
testimony at the hearing corroborated the agents’ testimony
regarding the multiple knocks and the offer to return at a
later, more convenient time. Adeyeye then opened the door,
and they identified themselves as police and asked if they
could come in and ask him a few questions. He agreed, and
they advanced to the foyer area of the room.
   The defendant identified himself as Dapo Adeyeye and
stated that he had flown into Chicago from New York.
In response to questions, he said he did not have any iden-
tification with him, and that he did not have his airline
tickets because he discarded them at the airport. He further
responded that he had some money with him, but no
weapons or narcotics. From their vantage point in the room,
the agents could see zip-lock sandwich bags on the bed and
noticed that Adeyeye was very tense and rigid. They asked
him whether he would consent to a search of his belongings,
and he responded in the affirmative. In the luggage on the
bed, the agents discovered thirteen packages of white
powder wrapped in plastic wrap. One agent, upon seeing
the packages, asked “what is it?” and Adeyeye answered
that it was heroin. Adeyeye was then placed under arrest
and given his Miranda warnings. He then provided addi-
tional information to them, including a statement that his
prior stay at the motel was to smuggle heroin, and that the
amount was greater on that occasion. The search of the
motel room revealed a scale, a ledger which correlated with
the packages of heroin found, and a picture of a woman who
Adeyeye identified as a drug courier. They also found an
Amtrak train ticket issued the previous day for New York
to Chicago, indicating that he had traveled by train rather
than by plane as he had indicated. The agents also discov-
ered identification in the name “Dapo Adeyeye.” As it turns
out, Adeyeye had no relationship to Reynolds, but had the
No. 02-3872                                                    5

misfortune of checking in at a time consistent with the trail
left by Reynolds.2
  Adeyeye first argues that the agents violated his equal
protection rights by relying on an impermissible factor of
ethnicity in singling him out for investigation. He does not
allege a broad discriminatory policy or practice by the
agents to target Nigerian nationals, but rather claims that
“in his specific case the officers’ sole reason for approaching
him on March 29, 2000 at the Heart of Chicago Motel was
his Nigerian background, as exemplified by the officers’ own
testimony.” The fatal flaw in that argument is that there is
no such testimony at the suppression hearing.
   The statements which Adeyeye cites in support of his
argument are hearsay statements by a DEA agent intro-
duced at the preliminary hearing to determine whether
there was probable cause to detain Adeyeye. The agent
testified that Customs officials called the Heart of Chicago
Motel to ask if Reynolds had checked in, and then inquired
if any other Nigerian nationals had checked in that morn-
ing. The district court at that hearing noted the problematic
nature of hearsay testimony, but acknowledged that such
statements could be considered at that stage. See Fed. R.
Crim. P. 5.1(e) (Committee Note to 2002 amendment stating
that federal law is now clear that a finding of probable
cause can be based upon hearsay, and therefore eliminating
need for explicit language to that effect previously in
5.1(a)). At the suppression hearing, however, Adeyeye did
not attempt to either introduce that testimony or to use it
to impeach the testimony of the Customs agents. In con-
trast to the preliminary hearing, the testimony at the
suppression hearing was provided by the Customs agents
with personal knowledge of what happened. Papa testified


2
  Incidentally, Reynolds was arrested a month later as he entered
through JFK airport and a search revealed khat.
6                                               No. 02-3872

that Reynolds was singled out because he was a British
citizen, traveling for a time period consistent with that of
prior khat smugglers, using a travel agent previously used
by such smugglers, and staying at a hotel that no travel
agent would recommend to a legitimate foreign traveler.
Stewart and Coleman testified that they proceeded to the
motel based on those factors once they determined that a
foreign national had indeed checked into the motel at a
time consistent with Reynolds’ travel schedule. They
questioned the motel manager in an effort to further
determine the identity of the motel guest, and learned that
he had requested a particular room which is obscured from
view, and that he paid cash for the room, thus leaving no
credit card trail for them to explore. Adeyeye did not cross-
examine them as to any inconsistency between their
statements and those made by the DEA agent at the
preliminary hearing. In fact, the relevant testimony at the
suppression hearing was uncontradicted, and there was no
basis to find that Adeyeye was singled out because of his
ethnicity.
  Adeyeye next contends that the agents lacked reason-
able suspicion to approach him in his hotel room. The gov-
ernment counters that no such suspicion is required for
agents to knock on a door and ask some questions, and that
the standard is met in any case.
  In United States v. Jerez, 108 F.3d 684 (7th Cir. 1997),
we considered the appropriate scrutiny to apply to the
“knock and talk” procedure wherein officers approach a res-
idence in which they suspect illegal activity is occurring,
knock on the door, and then attempt to gain consent to
enter. The court noted that as a general matter, offi-
cers may approach a willing person in a public place and
ask that person questions without violating the Fourth
Amendment. Id. at 689. There is no seizure of the person in
those circumstances unless the person would not have felt
free to leave. Id. Where officers are approaching a person in
No. 02-3872                                                7

a confined space, however, such as a bus, the free-to-leave
question is unhelpful. In such a circumstance, “ ‘the appro-
priate inquiry is whether a reasonable person would feel
free to decline the officers’ request or otherwise terminate
the encounter.’ ” Id., quoting Florida v. Bostick, 501 U.S.
429, 436 (1991); see also United States v. Drayton, 536 U.S.
194 (2002) (reaffirming that the appropriate inquiry is
whether the person would feel free to terminate the encoun-
ter). In Jerez, the police encounter was substantially more
intrusive than is present here, and in fact rose to the level
of a seizure requiring reasonable suspicion. The officers in
that case approached the motel room at 11 p.m., and took
turns knocking on the door for several minutes. Jerez, 108
F.3d at 687. At one point, one of the officers commanded,
“Police. Open up the door. We’d like to talk to you.” Id.
Dissatisfied with the lack of response from the occupants
who appeared to be ignoring the knocks, one officer then
went to the window and began knocking on the window as
well as shining his flashlight through the window into the
room, while the other officer continued knocking on the
door. Id. After a couple of minutes, the occupant came to the
door and allowed the officers entrance. Id.
  We held that the relevant inquiry for the motel occupants,
as for the bus passengers, is whether they would feel free to
decline the officers’ request that they come to the door, or
would feel free to otherwise terminate the encounter. Id. at
689-90. The test is an objective one and requires consider-
ation of the totality of the circumstances. Id. at 690;
Drayton, 536 U.S. at 201. The conduct of the officers in
Jerez conveyed the message that compliance with their
requests was required. Jerez, 108 F.3d at 692. The totality
of the circumstances—including the late hour which
increases the intrusiveness, the prolonged knocking, the
commands and requests to open the door, and the extension
of the knocking to the window combined with the use of the
flashlight—all transformed the situation from a consensual
8                                               No. 02-3872

encounter into an investigatory stop. Id. As a seizure, it
could be justified only if the officers had reasonable suspi-
cion supported by articulable facts that criminal activity
may have taken place. Id. at 693.
  The present case contrasts sharply with the Jerez con-
duct. In this case, the officers approached the room in the
middle of the afternoon. The knocked only twice, stating
at the time of the second knock that they could return later
if it was an inconvenient time. Adeyeye acknowledges
hearing the officers make that statement. A reasonable
person in that position, having been provided the alterna-
tive of telling the officers it was an inconvenient time,
would have felt free to terminate the encounter. There is no
contrary testimony that would lead us to conclude this was
a seizure rather than a consensual encounter. Accordingly,
there is no need to inquire whether the officers had reason-
able suspicion for an investigatory stop. See also United
States v. Cormier, 220 F.3d 1103, 1109 (9th Cir. 2000)
(encounter consensual where the officer knocked on motel
room door but did not demand that the defendant open the
door and was not unreasonably persistent in her efforts to
obtain access to the room).
   Adeyeye also contends that the court erred in holding that
he voluntarily consented to the search of his room. He
argues that because the court granted the motion to sup-
press the statements he made to the officers, and those
statements were made in the same coercive atmosphere,
that it is inconsistent to hold that his consent was volun-
tary. There is no such inconsistency, however, when the
sequence of events is considered. Adeyeye gave his consent
to the search at the outset to the two agents then present in
the foyer. Upon discovering the white packages in the
luggage, the agent then asked Adeyeye what it was without
first giving Adeyeye his Miranda warnings, and Adeyeye
acknowledged that it was heroin. At that point, the
Miranda warnings were provided. The district court
No. 02-3872                                                9

suppressed all of the statements because the initial state-
ment was provided without Miranda warnings, and the
subsequent statements were made in the context of that
prior statement already having been given. The court also
noted that while both agents testified Adeyeye was given
Miranda warnings, neither testified as to who provided it
and what actually was said. Given the relatively chaotic
atmosphere in the room by that point because there were a
number of agents present along with Agents Stewart and
Coleman, the lack of specificity as to what was actually said
to Adeyeye, and the context of the prior inculpatory state-
ment having already been made by Adeyeye, the court held
that all of the statements should be suppressed. None of
those factors considered by the court impacted the vol-
untariness of the initial consent, and therefore there is no
inconsistency in the court’s holding.
  Finally, Adeyeye contends that he was entitled to the
“safety valve” reduction under U.S.S.G. § 2D1.1(b)(6). He
concedes that in order to be entitled to that reduction, he
must meet each of the five criteria set forth in U.S.S.G.
§ 5C1.2. The dispute is whether he satisfied one of those
criteria, which requires that the defendant had “truthfully
provided to the government all information and evidence
the defendant has concerning the offense or offenses that
were part of the same course of conduct or of a common
scheme or plan.” U.S.S.G. § 5C1.2(a)(5). At his sentencing
hearing and his proffer, Adeyeye maintained that March 29,
2000 was the first time he had ever participated in heroin
trafficking. That conflicted with a statement he gave to the
officers at the time of his arrest, in which he acknowledged
he had stayed at the Heart of Chicago Motel one month
earlier and had transported a large quantity of heroin at
that time to the same contact person as for this delivery.
The registration clerk at the Heart of Chicago Motel
corroborated that earlier statement in that he stated that
Adeyeye stayed at the motel a month earlier and that he
10                                               No. 02-3872

requested the same room on March 29, 2000 as he had
previously occupied. The district court held that the earlier
statement admitting to the prior transaction was more
credible, and there is no reason to disturb that finding.
United States v. Alvarado, 326 F.3d 857, 860 (7th Cir.
2003) (review of the district court’s findings about the fac-
tual predicates for the safety valve is for clear error only);
United States v. Williams, 202 F.3d 959, 964 (7th Cir. 2000).
Furthermore, given that the earlier transaction was close in
time, involved the same type of drug, the same contact
person, and even the same locale right down to the specific
motel room, the court did not err in holding that it was part
of the same course of conduct or common scheme or plan,
and therefore that he was not entitled to the reduction. The
decision of the district court is AFFIRMED.

A true Copy:
       Teste:

                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit




                   USCA-02-C-0072—2-20-04
