           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                       2    United States v. Alston                      No. 03-3134
        ELECTRONIC CITATION: 2004 FED App. 0209P (6th Cir.)
                    File Name: 04a0209p.06                                                   _________________
                                                                                                  COUNSEL
UNITED STATES COURT OF APPEALS
                                                                         ON BRIEF: Wesley A. Dumas, Sr., Cleveland, Ohio, for
                  FOR THE SIXTH CIRCUIT                                  Appellant. David P. Folmar, Jr., ASSISTANT UNITED
                    _________________                                    STATES ATTORNEY, Cleveland, Ohio, for Appellee.

 UNITED STATES OF AMERICA , X                                                                _________________
            Plaintiff-Appellee, -                                                                OPINION
                                   -
                                                                                             _________________
                                   -  No. 03-3134
           v.                      -
                                    >                                       BOYCE F. MARTIN, JR., Circuit Judge. Kashiema Alston
                                   ,                                     was convicted by a jury of possession with intent to distribute
 KASHIEMA ALSTON,                  -                                     cocaine under 21 U.S.C. § 841(a)(1)(B). On appeal, Ms.
         Defendant-Appellant. -                                          Alston asserts that the district court erred in denying her
                                  N                                      motion to suppress because she was illegally seized in
      Appeal from the United States District Court                       violation of her rights under the Fourth Amendment. Ms.
     for the Northern District of Ohio at Cleveland.                     Alston also argues that the district court erred in denying her
   No. 02-00054—Solomon Oliver, Jr., District Judge.                     proposed jury instruction, stating that the jury should not give
                                                                         more credibility to the testimony of law enforcement officers
                    Submitted: June 10, 2004                             than other witnesses solely because of their status. We hold
                                                                         that the encounter between Ms. Alston and the officers did not
                Decided and Filed: July 7, 2004                          rise to the level of a seizure for purposes of the Fourth
                                                                         Amendment. Thus, we affirm the district court's denial of the
        Before: MARTIN and SUTTON, Circuit Judges;                       motion to suppress. We also hold that the district court did
              WILLIAMS, Senior District Judge.*                          not abuse its discretion in denying Ms. Alston's last-minute
                                                                         request for a jury instruction, and we affirm the judgment of
                                                                         the district court.
                                                                                                        I.
                                                                           Ms. Alston was arrested on January 14, 2002, in Cleveland
                                                                         International Airport after her carry-on luggage was searched,
                                                                         and officers found cocaine inside the lining of a coat
                                                                         contained in her luggage. Ms. Alston was traveling from Los
                                                                         Angeles, California, to Hartford, Connecticut, her hometown.
    *
     The Honorable Glen M. Williams, Senior United States District       Officers in Cleveland received information from a drug task
Judge for the W estern D istrict of V irginia, sitting by designation.

                                  1
No. 03-3134                       United States v. Alston      3    4    United States v. Alston                     No. 03-3134

force in Houston, Texas, stating that Ms. Alston was traveling      Johnston again asked if he could speak with her. She again
from Los Angeles to Hartford and that the circumstances             consented, and Officer Johnston asked her name and asked for
surrounding the purchase of her ticket indicated that she           identification. Ms. Alston produced identification, and after
might be involved in illegal drug transportation.                   a brief inspection, Officer Johnston returned it to her. Then,
                                                                    Officer Johnston asked to inspect her boarding pass. Again,
  An investigation by officers in Cleveland revealed that Ms.       Ms. Alston produced the boarding pass, and after a brief
Alston's ticket was purchased by Robert Taylor, a man who           inspection, Officer Johnston returned it. During this time,
produced no identification and paid the fare in cash. Ms.           Officer Harrison stood a distance behind Officer Johnston,
Alston departed on January 11, 2002, and was scheduled to           and Officer Johns pretended to be a traveler talking on the
return on January 20, 2002. Late in the evening on                  telephone.
January 13, 2002, the return ticket was changed to depart on
January 14, 2002. The fee for this change was paid in cash.            Officer Johnston then asked if he could have permission to
The investigation revealed that Ms. Alston was traveling            search her carry-on baggage. Again, Ms. Alston consented.
alone and that she checked no baggage in Los Angeles. The           Officer Harrison approached in order to search the bag and
officers learned that her plane was scheduled to land in            found that it was sealed by a lock. Officer Johnston asked
Cleveland, where she would change planes, and that she was          Ms. Alston if she had a key, and she said no. Officer
seated near the center of the plane arriving from Los Angeles.      Harrison proceeded to open the bag by separating the zipper.
                                                                    During the search of Ms. Alston's luggage, Officer Harrison
  Officers Brian Johnston, Debra Harrison, and Kirk Johns           picked up a coat and noticed that it was quite heavy. She
were assigned to locate Ms. Alston when she landed in               began to pat down the coat and felt what she believed to be
Cleveland. After approaching one individual and determining         contraband in the lining of the coat. Officer Johns then
that she was not Ms. Alston, the officers observed Ms. Alston       approached and offered Officer Harrison a knife with which
deplane. Although they did not know her specific age or have        to cut the lining of the coat. After Officer Harrison retrieved
a physical description of her, the officers were able to locate     packets of cocaine from the lining of the coat, Ms. Alston was
her as a single female traveler in the middle of the plane. The     arrested.
officers observed her as she left her gate, purchased a cup of
coffee, and purchased food. Ms. Alston then approached a              After Ms. Alston was indicted, she filed a motion to
bank of telephones. The three officers, who were all dressed        suppress, claiming that the officers illegally seized her and
in plain clothes and not showing weapons, decided to                that the evidence obtained from the seizure should be
approach her before she made a telephone call.                      suppressed. The district court held a suppression hearing in
                                                                    which the motion to suppress was denied orally. A jury found
  Officer Johnston approached Ms. Alston, and after showing         Ms. Alston guilty, and she was sentenced to sixty-three
her his identification, he told her that he was a drug-task-force   months imprisonment.
officer and asked if he could speak with her. Office Johnston
testified at the suppression hearing that he told Ms. Alston                                       II.
that she was not under arrest and was free to leave at anytime.
Ms. Alston initially consented, but she went to ask the gate          This Court reviews a district court's factual findings in a
agent a question regarding her flight, leaving her carry-on         suppression hearing for clear error and reviews a district
luggage at the phone bank. Ms. Alston returned, and Officer
No. 03-3134                      United States v. Alston     5    6     United States v. Alston                      No. 03-3134

court's conclusions of law de novo. United States v. Waldon,      Officer Johnston spoke in a non-threatening manner and did
206 F.3d 597, 602 (6th Cir. 2000).                                not display a weapon. Furthermore, the atmosphere was not
                                                                  police dominated. Although there were three officers on the
   Ms. Alston argues that the encounter with the officers on      scene, only Officer Johnston approached the defendant while
January 14, 2002, amounted to a seizure, and that the seizure     the other officers remained some distance away. Officer
was unconstitutional because the officers had neither             Johnston testified that he told Ms. Alston she was free to walk
reasonable suspicion nor probable cause to detain her.            away, but Ms. Alston did not choose to do so. The encounter
Because we believe that a reasonable person in Ms. Alston's       was very brief, and Ms. Alston was not asked to accompany
circumstances would have felt free to leave, we hold that Ms.     the officers to a different location. Nothing in the record
Alston was not seized for purposes of the Fourth Amendment.       suggests that a reasonable person would not have felt free to
Further, because Ms. Alston does not challenge the district       leave. The district court did not provide us findings of fact,
court's holding that her consent to search was freely and         and cases like this generally turn on credibility determinations
voluntarily given, we hold that the evidence obtained by the      made by the district judge at the suppression hearing.
officers was properly admitted by the district court.             However, even viewing the facts in the light most favorable
                                                                  to Ms. Alston, we find nothing that would lead us to conclude
   "Under the Fourth Amendment, there are three types of          that a reasonable person would not have felt free to leave.
permissible encounters between police and citizens:               Therefore, there was no seizure for purposes of the Fourth
consensual encounters in which contact is initiated by a police   Amendment.
officer without any articulable reason whatsoever and the
citizen is briefly asked some questions; a temporary                Defendant's brief does not challenge the district court's
involuntary detention or Terry stop which must be predicated      holding that Ms. Alston's consent to search was voluntary,
upon 'reasonable suspicion;' and arrests which must be based      and, thus, we will not review this finding.
on probable cause." United States v. Bueno, 21 F.3d 120, 123
(6th Cir. 1994). The first of these encounters is permissible                                     III.
without any particularized suspicion because no seizure has
occurred for purposes of the Fourth Amendment. A seizure            Ms. Alston alleges that the district court erred in not
occurs when "under the totality of the circumstances, a           instructing the jury that it should not lend more credibility to
reasonable person would have believed that he or she was not      the testimony of law enforcement officials solely because of
free to walk away." United States v. Saperstein, 723 F.2d         their status. "We will reverse a conviction for failure to give
1221, 1225 (6th Cir. 1983).                                       a requested jury instruction only when: (1) the requested
                                                                  instruction is a correct statement of the law; (2) the requested
  This Court has been asked to address this issue many times,     instruction is not substantially covered by other delivered
and while the facts of each case are different, we do not see     instructions; and (3) the failure to give the instruction impairs
anything in this case that would make us think that a             the defendant's theory of the case." United States v. Chesney,
reasonable person in Ms. Alston's circumstances would not         86 F.3d 564, 573 (6th Cir. 1996).
have felt free to terminate the encounter. Ms. Alston was
approached by officers in plain clothes and asked if she would      The district court committed no error in denying Ms.
speak to them. After responding that she would, Officer           Alston's proposed instruction on witness credibility. The jury
Johnston asked for her identification and boarding pass.          was given lengthy instructions on considerations to make
No. 03-3134                      United States v. Alston     7

when determining witness credibility. A portion of these
instructions told the jurors to "[a]sk yourself if the witness
had any relationship to the government or the defendant, or
anything to gain or lose from the case, that might influence
the witness's testimony. Ask yourself if the witness had any
bias or prejudice or reason for testifying that might cause the
witness to lie or to slant their testimony in favor of one side
or the other." App. 244. In addition, the district court
instructed the jury that "the instructions . . . apply to each
witness, regardless of who they are or which side may have
called them." We believe the above instruction invites jurors
to think about whether witnesses, such as the officers, may be
biased because of their relationship with the government. Ms.
Alston's concern that the officers' testimony would be given
greater deference because of their status was adequately
addressed by this instruction and other jury instructions as a
whole, and the district court did not abuse its discretion.
  For these reasons, we AFFIRM the judgment of the district
court.
