                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-30-2003

USA v. Wilmore
Precedential or Non-Precedential: Non-Precedential

Docket 02-1582




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                                                                 NOT PRECEDENTIAL

                UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT
                          ___________

                               No. 02-1582
                               ___________

                     UNITED STATES OF AMERICA

                                       v.

                          QUINTIN WILMORE,

                                                 Appellant
                               ___________

               On Appeal from the United States District Court
                   for the Eastern District of Pennsylvania

                  District Court Judge: William H. Yohn, Jr.
                      (D.C. Criminal No. 01-cr-00198)
                                ___________

                Submitted Under Third Circuit L.A.R. 34.1(a)
                            January 14, 2003

Before: ROTH, FUENTES, Circuit Judges, and ALDISERT, Senior Circuit Judge

                      (Opinion Filed: January 30, 2003)
                       ________________________

                        OPINION OF THE COURT
                       ________________________
FUENTES, Circuit Judge:

        Quintin Wilmore pleaded guilty to possession with intent to distribute cocaine in

violation of 21 U.S.C. §§841(a)(1) and (b)(1)(B), and was sentenced to 120 months

imprisonment. Wilmore appeals the final judgment of the District Court and raises two issues:

1) did the District Court err in denying his motion to suppress the physical evidence; and 2)

did the District Court err in determining his criminal history category.

        We have jurisdiction pursuant to 28 U.S.C. §1291. We exercise de novo review of the

District Court’s legal determination on the suppression issue and defer to that court’s factual

findings unless clearly erroneous. Ornelas v. United States, 517 U.S. 690, 699 (1996); United

States v. Roberson, 90 F.3d 75, 77 (3d Cir. 1996).              Because Wilmore did not preserve the

sentencing issue, we review the District Court’s criminal history category determination for

plain error. See Fed. R. Crim. P. 52(b); United States v. Knight, 266 F.3d 203, 207 (3d Cir.

2001). For the reasons stated below, we will affirm.

                                                     I.

        On March 19, 2001, Drug Enforcement Agency (“DEA”) Special Agent Leo Mount

received a telephone call from Task Force Officer Edward Matis. Officer Matis, assigned to

the DEA Dallas-Fort Worth Airport Unit, informed Agent Mount that a confidential source had

reported to him that a possible drug courier named Quintin Wilmore was traveling from

Phoenix, through Dallas, to Philadelphia.          The confidential source described Wilmore as a

black male in his 20’s, 5’11” tall, weighing approximately 200 pounds, wearing black pants, a

black jacket, and a black bandana. Airline records indicated that Wilmore was on flight 1750

from Dallas to Philadelphia, and that he had checked one bag. Wilmore had reserved a one-way


                                                      2
ticket at 11:43 p.m. on March 18, and purchased the ticket with $1,100 in cash at 1:53 a.m. on

March 19, 2001, at the ticket counter in Phoenix for a 2:30 a.m. departure.

        DEA agents arrived at the Philadelphia International Airport in time to meet Wilmore’s

flight. Wilmore was observed exiting the jetway and walking to the baggage claim area.         His

appearance was consistent with the description given by the confidential source except for the

color of his pants, which were dark green rather than black. Before claiming his bag, Wilmore

used a courtesy phone to make one call.          While Wilmore was on the phone, DEA agents

located his bag and placed it in a dog-sniff line-up. The dog did not alert to the presence of

drugs in the bag.

        After Wilmore claimed his bag, DEA Task Force Officers James Corbett and William

Knightly approached him while he was standing on the sidewalk just outside the terminal.       The

officers identified themselves, explained that they were members of a drug interdiction unit,

stated their purpose, and asked to speak with Wilmore. The officers spoke in a conversational

tone and did not block Wilmore’s passage.         Wilmore agreed to speak with the officers.   He

stated that he had just arrived from Phoenix and produced his ticket, which was in his name and

showed that he had traveled to Philadelphia from Phoenix via the Dallas-Fort Worth airport.

At the officers’ prompting, Wilmore produced identification showing a Tucson address.

Wilmore explained that he lived in Phoenix and had moved to Tucson approximately two

months earlier. He stated that he was in Philadelphia to visit friends, but could not recall their

address. Wilmore said that he was planning to stay in Philadelphia for several days.

        Upon further questioning, Wilmore revealed that he was a car detailer and that he did

not own his own business. Wilmore said that the bag at his feet was his and that he packed it


                                                   3
himself.      Officer Corbett thought that Wilmore exhibited signs of nervousness during their

conversation, including a rigid stance, soft voice, and pulsing neck.          Officer Corbett asked

Wilmore for permission to search his bag and person for narcotics.1                Wilmore responded,

“Sure, go ahead.”

           Officer Corbett kneeled down and searched Wilmore’s bag, but found no drugs. Officer

Corbett then reached toward Wilmore to conduct a pat down search.                   As Officer Corbett

reached toward him, Wilmore took at least two steps backward. When Wilmore turned away,

Officer Corbett grabbed his jacket and felt a hard object on his back. Wilmore spun out of his

jacket and then fled, leaving Officer Corbett holding his jacket.        Based upon his experience,

Officer Corbett believed that the object he felt on Wilmore’s back was probably a kilogram

of cocaine.

           Wilmore fled from Officers Corbett and Knightly in the direction of another officer

stationed in the area.      Wilmore stumbled when that officer reached for him.           His stumble

caused his sweatshirt to rise up, revealing to Officer Knightly that Wilmore had gray duct tape

around the small of his back holding some objects in place.             Officer Knightly believed the

objects to be bricks of cocaine based on his experience.          Wilmore was apprehended by the

officers, and the objects taped to him were found to be three bricks of cocaine.

           A criminal complaint was filed in the Eastern District of Pennsylvania, followed by an

indictment issued by the grand jury.        Wilmore was charged with possession with intent to

distribute cocaine in violation of 21 U.S.C. §§841(a)(1) and (b)(1)(B).            Wilmore moved the


   1
    Wilmore testified during the suppression hearing that he only heard the officer ask to
search his bag, not his person . The District Court found that Officer Corbett had asked to
search both. On appeal, Wilmore does not dispute the District Court’s finding.

                                                   4
District Court to suppress the physical evidence in the case.    On July 16, 2001, following a

hearing, Judge Yohn orally denied the motion.        Wilmore pleaded guilty to the charge, but

reserved his right to appeal the denial of his suppression motion. On February 25, 2002, the

District Court sentenced Wilmore to 120 months imprisonment.

                                               II.

        The cocaine taken from Wilmore was seized in the course of an investigatory stop by

DEA Task Force Officers Corbett and Knightly.          We must determine if the District Court

properly denied Wilmore’s motion to suppress the cocaine on the ground that the stop did not

violate the Fourth Amendment.

        Whether a seizure has occurred within the meaning of the Fourth Amendment turns on

the question of whether a “reasonable person would feel free to ‘disregard the police and go

about his business’ . . .” Florida v. Bostick, 501 U.S. 429, 434 (1991) (citing California v.

Hodari D., 499 U.S. 621, 626 (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 we conclude that a

‘seizure’ has occurred.” Terry v. Ohio, 392 U.S. 1, 19, n. 16 (1968). It is well established that

no seizure has occurred when an officer approaches an individual in a public place, identifies

himself as a law enforcement agent, asks questions, asks to search a person’s bags, or explains

that he is conducting a narcotics investigation.     See Florida v. Royer, 460 U.S. 491, 497

(1983); United States v. Thame, 846 F.2d 200, 202-03 (3d Cir. 1988).

        Here, Wilmore was not seized when the task force officers approached him outside the

terminal.   The officers merely identified themselves, stated their purpose, asked Wilmore a

few questions, and asked for his consent to search his bag and his person.       This exchange


                                                5
occurred in a public area in a conversational manner and Wilmore was not physically

restrained.   In fact, Wilmore was not seized until the moment when Officer Corbett grabbed

his jacket because that was the first point at which the officers used physical force or a show

of authority to restrain Wilmore.

         The next question in this analysis is whether Officer Corbett violated the Fourth

Amendment by grabbing Wilmore’s jacket.              A law enforcement officer may conduct an

investigatory stop of a person if the officer has a reasonable, articulable suspicion that the

person is involved in criminal activity.     Terry, 392 U.S. at 22.      Alternatively, police may

undergo a warrantless search pursuant to the voluntary consent of a person authorized to

consent to the search with or without reasonable suspicion or probable cause. Schneckloth v.

Bustamonte, 412 U.S. 218, 227-28 (1973); United States v. Kim, 27 F.3d 947, 955 (3d Cir.

1994).

         There is no dispute on appeal about the fact that Wilmore consented to a search of his

bag and his person. Wilmore contends, however, that he withdrew his consent to search his

person by stepping back from Officer Corbett when the officer reached toward him.

         A consent that waives Fourth Amendment rights may be limited in scope and may be

withdrawn by an unequivocal act or statement that clearly expresses the individual’s desire not

to be searched. Florida v. Jimeno, 500 U.S. 248, 252 (1973): Kim, 27 F.3d at 957. We find

that Wilmore’s step or two backward after Officer Corbett stated his intent to pat him down

and began reaching toward him was not an unequivocal withdrawal of consent.               Instead,

Wilmore’s movement was ambiguous, and could reasonably have been construed as taking

flight rather than withdrawing consent.    C.f. United States v. Ho, 94 F.3d 932, 934 (5th Cir.


                                                 6
1996) (defendant withdrew consent by struggling to retrieve portfolio from agent); United

States v. Carter, 985 F.2d 1095, 1096 (D.C. Cir. 1993) (defendant withdrew consent by

snatching paper bag detective had recovered from inside tote bag which defendant had

consented to have searched and saying that he did not want paper bag to be searched).

        In fact, despite Wilmore’s insistence that the officers understood his movement to be

a withdrawal of consent, Officers Corbett and Knightly both testified at the suppression

hearing that they construed Wilmore’s steps backward to be flight. Officer Corbett testified:

“I would call it fleeing. I mean, he didn’t say hey, whoa, stop, I don’t want you to search me.

He fled.” (App. 78a)      Officer Knightly testified: “My impression was that it was an attempt to

flee all along.” (App. 93a) The District Court was in a better position than this Court to assess

the credibility of the officers.   We will therefore not disturb the District Court’s finding that

Officer Corbett’s grabbing of Wilmore’s jacket was valid pursuant to Wilmore’s consent.

        The District Court was also correct that the officers had reasonable suspicion sufficient

to warrant a Terry frisk when they seized him.           Reasonable suspicion is determined by

examining the totality of the circumstances. United States v. Sokolow, 490 U.S. 1, 7-8 (1989).

The officers had a reasonable suspicion based upon: (1) the tip that Wilmore was a drug

courier; (2) his purchase of a one-way plane ticket with cash shortly before the flight; (3) his

vague answers about his travel plans; and (4) his nervousness.           In addition, when Officer

Corbett reached toward Wilmore to pat him down, Wilmore took flight.            “Headlong flight . .

. is the consummate act of evasion: It is not necessarily indicative of wrongdoing, but it is

certainly suggestive of such.”     Illinois v. Wardlow, 528 U.S. 119, 124 (2000).         As Wilmore

was spinning away, Officer Corbett felt an object on Wilmore’s back that he suspected was


                                                  7
cocaine based on his experience.        As Wilmore was fleeing, Officer Knightly saw the objects

strapped to Wilmore’s back, which he also suspected to be cocaine based on his experience.

Therefore, when the officers seized Wilmore after he fled, the totality of the circumstances

amounted to a reasonable suspicion that Wilmore was engaging criminal activity.

        Thus, the initial contact between Officer Corbett and Wilmore was valid because it was

consensual and the later seizure was valid because the officers had a reasonable suspicion that

Wilmore was engaging in criminal activity.              After the officers found the drugs taped to

Wilmore’s body they had probable cause to arrest him.            Because we find that there was no

Fourth Amendment violation, we will affirm the District Court’s denial of Wilmore’s motion

to suppress the physical evidence.

                                                   III.

        The District Court sentenced Wilmore to 120 months’ imprisonment after calculating

his criminal history category as a IV based upon a total of eight criminal history points.           We

must determine      if the    District Court correctly calculated        Wilmore’s     criminal   history

category. 2

        Wilmore argues that he was erroneously placed in criminal history category IV rather

than III because one criminal history point was wrongly assessed based on a DUI conviction

where no evidence existed that he was represented by counsel and another point was wrongly



   2
     The determination of Wilmore’s criminal history category will not affect the length of
his prison term because he was sentenced pursuant to a mandatory minimum term of 120
months. Nonetheless, Wilmore raises this point on appeal because his criminal history
category may affect his designation within the United States Bureau of Prisons and would
affect his sentence if he were to be convicted of violating the terms of his supervised
release.

                                                    8
assessed for a more than ten-year old trespass conviction.        Without the erroneous inclusion

of these two points, Wilmore’s points would have totaled six, which would reduce his criminal

history category to III.

        The Government concedes that Wilmore’s         trespass conviction should not have been

counted because it was time-barred under the sentencing guidelines.                See U.S.S.G.

§4A1.2(e)(2).     The Government argues, however, that the criminal history point for Wilmore’s

DUI conviction was not wrongly assessed.

        No criminal history points should be awarded for a conviction if the right to counsel

was denied in that proceeding. United States v. Escobales, 218 F.3d 259, 261 (3d Cir. 2000).

During a sentencing proceeding, the only cognizable collateral attacks on a prior conviction

are: “(1) where the statute or sentencing guideline under which the defendant was sentenced

provides for right to bring such a collateral attack at sentencing; and (2) when the defendant’s

collateral attack, at sentencing, is based on an allegation this his right to counsel, as described

in Gideon v. Wainwright, 372 U.S. 335 (1963), was violated during the underlying state court

proceeding.” Escobales, 218 F.3d at 260.

        Wilmore argues that his collateral attack on his state DUI conviction is cognizable

because it is based on a violation of his right to counsel.     With respect to Wilmore’s DUI

conviction, however, the Pre-sentence Report (“PSR”) states only that the Probation Officer

was unable to verify Wilmore’s representation in that case.         Wilmore did not object at

sentencing to the assignment of one criminal history point for this conviction.       He did not

assert that he was denied representation in that proceeding. In fact, he does not now assert that

he was actually denied representation. Rather, he seeks remand on the issue because the PSR


                                                9
notes that his representation could not be verified.          We decline to remand for a collateral

attack based on the notation in the PSR absent a credible allegation by Wilmore that he was

denied representation during the state proceeding leading to his DUI conviction.            Although

Wilmore is correct that one criminal history point was added erroneously for his time-barred

trespass conviction, he is not correct that a point was erroneously added for his DUI

conviction.   A reduction of his total criminal history points from eight to seven will not change

his placement within criminal history category IV; in order to be reduced to category III, he

would need to have no more than six criminal history points. Accordingly, the District Court’s

addition of one point for the trespass conviction is harmless error. We therefore affirm.




_____________________________
TO THE CLERK OF THE COURT:

Kindly file the foregoing Opinion.




                                                                 /s/ Julio M. Fuentes
                                                                 Circuit Judge




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