                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 13-4610
                                    ______________

                           UNITED STATES OF AMERICA

                                            v.

                                DAMIEN HAMMONDS,
                                    a/k/a Hondo,
                                                Appellant
                                   _____________

                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                                No. 1-11-cr-00166-001
                     District Judge: Hon. Christopher C. Conner
                                   ______________

                      Submitted Under Third Circuit LAR 34.1(a)
                                    July 8, 2014
                                  ______________

             Before: SMITH, VANASKIE, and SHWARTZ, Circuit Judges.

                                   (Filed: July 9, 2014)
                                    ______________

                                       OPINION
                                    ______________

SHWARTZ, Circuit Judge.

      Damien Hammonds was convicted for his role in a crack and powder cocaine

distribution conspiracy. His only argument on appeal is that the District Court erred by

denying his motion to suppress evidence. The District Court properly denied the motion

                                            1
so we will affirm.

                                                           I

         As we write principally for the parties, we recount only the essential facts. On

June 2, 2010, Marcelo Calderon-Ortiz and Richard Rondon-Diaz, two of Hammonds’s

co-defendants, flew from Philadelphia to San Juan, Puerto Rico. When they went

through security at Philadelphia International Airport, TSA officers observed that they

had significant amounts of cash in their carry-on luggage. The TSA officers attempted to

contact the DEA team at the Philadelphia airport, but failed to do so before the flight to

San Juan departed. The Philadelphia DEA team then contacted the DEA airport

interdiction group in San Juan, Puerto Rico, provided descriptions of Calderon-Ortiz and

Rondon-Diaz, and told the San Juan team they were carrying cash.

         A team of four or five plainclothes agents from the San Juan airport interdiction

group identified Calderon-Ortiz and Rondon-Diaz as they got off the plane and

approached them in the baggage area of the terminal. As the agents spoke to Calderon-

Ortiz and Rondon-Diaz in Spanish, Hammonds—who was, until then, unknown to the

agents—approached the group and volunteered in English that he was traveling with

Calderon-Ortiz and Rondon-Diaz.1 The agents then told Hammonds that they were from

the DEA and asked him for identification. When Hammonds reached in his pocket to



         1
           In its brief, the Government inexplicably asserts that “Hammonds and two co-defendants were
approached and interviewed by” the DEA interdiction group. Appellee Br. 15. Hammonds himself testified,
consistent with the agents’ testimony—and as found by the District Court—that it was he who approached law
enforcement officers, not the other way around. As the Government correctly notes, “[i]t is the district court’s
findings of fact and conclusion[s] of law that are subject to review by this Court,” Appellee Br. 19, so we will rely
on the record and the District Court’s finding of this uncontroverted fact, and not the Government’s mistaken
assertion.

                                                           2
retrieve his identification card, one of the agents saw that he had “bundles of U.S.

currency in his pants pocket.” App. 97. In response to a question from the agent,

Hammonds confirmed that he had money in his pocket. An agent then asked Hammonds,

Calderon-Ortiz, and Rondon-Diaz if they would accompany the team to the DEA office.

The agent told the three men that they were free to leave, that they were not under arrest,

and that the questioning was “just an administrative procedure.”2 App. 97. The three

men agreed to go with the agents.

        The team then escorted the three men to the DEA office, which was located in a

secure part of the airport, with agents in front of and behind the three men. The three

men retained control of their baggage, identification documents, airline tickets, and

currency. The three men were then placed in separate rooms. When Hammonds sat

down, the agent accompanying him told him again that he was not under arrest and that

he could leave at any time.3 The door to the windowless room where Hammonds sat

remained open during the discussion. The agents then asked Hammonds a few

biographical questions and copied his identification card before questioning him about

the source of the currency he was carrying.4 He first said the money was from his

construction job. In response to follow-up questions, he then added that “some of it’s

from savings.” App. 102.



        2
            Hammonds testified at the suppression hearing that the agents “actually told [him] to come” with them
and that they never informed him that he was free to leave. App. 143. The District Court found the agent to be
more credible than Hammonds on this issue. The District Court’s credibility determinations are entitled to great
deference. See United States v. Igbonwa, 120 F.3d 437, 441 (3d Cir. 1997).
          3
            Again, the District Court credited the agent’s testimony instead of Hammonds’s contradictory testimony.
          4
            During this time, the agents ran a background check and determined that Hammonds had a prior drug
conviction.

                                                         3
       After more questioning, Hammonds changed his story again, saying some of the

cash came from his aunt. Hammonds asked to call the aunt to verify his story, and the

agents permitted him to use the speakerphone in the room. The first call went to

voicemail. On the second call, Hammonds told the woman on the other end that he had

been stopped in Puerto Rico, and the woman hung up the phone. Hammonds called

again, and began explaining to the woman that he had been stopped. The agents told the

woman that the money would be subject to forfeiture if it was drug proceeds. She denied

that the money was related to drugs, explained that she had given some money to

Hammonds, and said that he had taken a few thousand extra dollars from her without her

knowledge.

       After hearing Hammonds’s inconsistent explanations for the money, the agents

sought his consent to search his luggage, which he gave, and he removed the money—

about $6,000—from his pocket. The agents then brought a dog trained to detect drugs.

The dog walked past Hammonds’s luggage and the currency, which had been placed in

an envelope. The dog alerted only to the odor of drugs emanating from the envelope.

       The agents then met to discuss their conversations with the three men, and

“realized there was a very big difference in terms of what these guys were telling

[them].” App. 106. Calderon-Ortiz and Rondon-Diaz told the agents that they were

traveling with Hammonds, that all of the money they possessed belonged to Hammonds,

and that they were in Puerto Rico to purchase a kilogram of cocaine. The agents then

seized the cash, which totaled a little over $22,000, and provided the three men receipts,

after which the three men left the DEA office. Hammonds later called the DEA office for

                                             4
assistance with a return ticket to Philadelphia (as the agents had confiscated his money),

and the agents tried to work with the airline to get Hammonds a ticket back to

Philadelphia that same day.

                                                         II

         Hammonds was indicted, along with eight other co-defendants.5 The indictment

charged Hammonds with one count of distribution and possession with the intent to

distribute at least 280 grams of crack cocaine and 5 kilograms of powder cocaine, in

violation of 28 U.S.C. § 841(a)(1), and one count of conspiracy to do the same, in

violation of 21 U.S.C. § 846. Before trial, Hammonds moved to suppress the evidence

the San Juan agents obtained, which he contended violated the Fourth Amendment. After

a hearing, the District Court denied the motion, concluding that Hammonds was not

seized and, in the alternative, that any seizure did not violate the Fourth Amendment

because it was supported by a reasonable, articulable suspicion that Hammonds was

committing or was about to commit a crime, and the detention was no more intrusive than

necessary to confirm or dispel that suspicion.

         Hammonds proceeded to trial, the jury convicted him on both counts, and the

District Court sentenced him to concurrent terms of 240 months’ imprisonment on each

count.

                                                         III

         Hammonds appeals only the denial of his motion to suppress, arguing that the

agents’ investigatory stop evolved into a seizure without an arrest warrant or probable

         5
             Hammonds’s co-defendants all pled guilty.

                                                         5
cause.6 We review a district court’s factual findings for clear error and exercise plenary

review of its application of the law to those facts. United States v. Perez, 280 F.3d 318,

336 (3d Cir. 2002). Clear error review is deferential. In cases “[w]here there are two

permissible views of the evidence, the factfinder’s choice between them cannot be clearly

erroneous.” Anderson v. City of Bessemer, 470 U.S. 564, 574 (1985); see also id. at 575

(“[W]hen a trial judge’s finding is based on his decision to credit the testimony of one of

two or more witnesses, each of whom has told a coherent and facially plausible story that

is not contradicted by extrinsic evidence, that finding, if not internally inconsistent, can

virtually never be clear error.”); United States v. Igbonwa, 120 F.3d 437, 441 (3d Cir.

1997) (holding that review of factual findings “is more deferential with respect to

determinations about the credibility of witnesses”) (citing Anderson, 470 U.S. at 575).

        Hammonds challenges the District Court’s factual finding that he was not under

arrest and was free to leave. The District Court rejected Hammonds’s assertion and

found that the agents credibly testified that he was told he was free to leave. This

conclusion is supported by, among other things, the fact that Hammonds approached the

agents and retained his identification, airline tickets, and baggage, and thus had the means

to leave at any time. Because the District Court’s factual findings were based on

credibility determinations and are not “internally inconsistent,” Hammonds has not

shown that they were clearly erroneous.




        6
          The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We exercise jurisdiction pursuant to 28
U.S.C. § 1291.

                                                         6
        Plenary review of the District Court’s application of law to those facts shows there

was no error. To this end, we examine whether the Fourth Amendment applies to

Hammonds’s encounter with the interdiction team. An encounter with police is

consensual “[s]o long as a reasonable person would feel free ‘to disregard the police and

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

v. Hodari D., 499 U.S. 621, 628 (1991)). A consensual encounter “will not trigger Fourth

Amendment scrutiny unless it loses its consensual nature.” Id.

        Here, the encounter was consensual and Hammonds was therefore not seized.

Unlike the defendant in Florida v. Royer, 460 U.S. 491 (1983),7 Hammonds—and not the

agents—initiated the encounter by approaching the agents. Moreover, the agents told

Hammonds—both before and after they escorted him to the DEA office—that he was

free to leave and that he was not under arrest or even under investigation. Furthermore,

Hammonds retained possession of his identification and airline ticket except for the brief

period of time when the agents made copies of those documents. Cf. id., 460 U.S. at 504

(observing that, “by returning [Royer’s] ticket and driver’s license, and informing him

that he was free to go if he so desired, the officers may have obviated any claim that the

encounter was anything but consensual from start to finish”). Taken as a whole, these

circumstances demonstrate that Hammonds was free to end the encounter if he so chose.8


        7
            In Royer, the Court held that the encounter was not consensual (and the defendant was thus seized)
because the officers approached him, identified themselves as narcotics agents, told Royer he was suspected of
transporting narcotics, asked him to accompany them to a police room, retained possession of his ticket and driver’s
licenses, claimed his baggage without his consent, and never told him that he was free to depart. Royer, 460 U.S. at
501.
          8
            At the suppression hearing, Hammonds testified that he believed he could not walk away from the
interdiction team, but he acknowledged that he was not handcuffed, he saw no weapons, he was not told he was
under arrest, nobody searched him during the initial encounter, and no one physically compelled him to go to the

                                                         7
         Even if Hammonds were correct that the encounter became nonconsensual at the

time the agents escorted him to the DEA office, the agents by then had a reasonable,

articulable suspicion that Hammonds was committing or about to commit a crime. “The

principal components of a determination of reasonable suspicion . . . [are] the events

which occurred leading up to the stop or search, and then the decision whether these

historical facts, viewed from the standpoint of an objectively reasonable police officer,

amount to reasonable suspicion.” Ornelas v. United States, 517 U.S. 690, 696 (1996).

The determination of reasonable suspicion is properly based on “commonsense

judgments and inferences about human behavior,” Illinois v. Wardlow, 528 U.S. 119, 125

(2000), and law enforcement officers are permitted to take into account the “relevant

characteristics of a location in determining whether the circumstances are sufficiently

suspicious to warrant further investigation.” Id. at 124.

         In this case, before taking Hammonds to the DEA office, the agents knew: (1)

Puerto Rico is a source area for drugs entering the continental United States from South

America, Central America, and the Caribbean; (2) American citizens who fly into Puerto

Rico are able to return to the continental United States without having to pass through

customs, making it easier to bring drugs to the continental United States; (3) the proceeds

from the sale of these drugs in the continental United States are often returned to Puerto

Rico by Americans carrying large amounts of cash on their persons or in their carry-on


DEA office. Whatever Hammonds’s subjective belief, it is clear from these facts that a reasonable person would
have felt free to disregard the agents and go about his business—particularly where, as here, that person initiated the
encounter with the agents in the first place. Cf. Bostick, 501 U.S. at 435-37 (holding that “no seizure occurs when
police ask questions of an individual, ask to examine the individual's identification, and request consent to search his
or her luggage—so long as the officers do not convey a message that compliance with their requests is required”).

                                                           8
luggage; (4) when Hammonds saw the agents speaking with Calderon-Ortiz and Rondon-

Diaz, he approached the agents and explained he was their traveling companion, which

struck the agents as strange because Hammonds spoke only English while the other two

spoke only Spanish; and (5) Hammonds, Calderon-Ortiz, and Rondon-Diaz were all

carrying large sums of cash on their person or in their carry-on luggage, which fit the

pattern for individuals bringing drug proceeds to Puerto Rico. These circumstances

provided the agents with a reasonable and articulable suspicion that Hammonds was

engaged in a drug crime, and an investigatory stop was amply justified.

          The agents’ encounter with Hammonds after that point was limited and

proportional to their need to confirm or dispel their suspicion. The agents reminded

Hammonds he was free to leave and left the door to the room open, and they never told

him he was under investigation. The agents never took his belongings from him except

to make copies of his travel and identification documents. Cf. Royer, 460 U.S. at 503 n.9

(noting that unlike the defendant in United States v. Mendenhall, 446 U.S. 544 (1980),

Royer did not retain his identification or his luggage, which the officers collected for him,

and therefore “[a]s a practical matter, Royer could not leave the airport”). Hammonds

was allowed to call his aunt to try to verify one version of his story.9 Moreover, with

Hammonds’s consent, the agents used a drug-sniffing dog to search Hammonds’s

belongings as opposed to a more intrusive search, cf. id. at 505 (suggesting that the




          9
              One of the agents testified that Hammonds never told his aunt that he was under arrest or anything to that
effect.

                                                             9
officers could have used trained dogs), and did so only after Hammonds gave conflicting

explanations for the source of his cash.

       In short, the entire encounter continued only because Hammonds’s answers

became more suspicious and its duration was proportional to the need to investigate his

explanations. Accordingly, even if we were to analyze the encounter under the

investigatory stop rationale of Terry v. Ohio, 392 U.S. 1 (1968), and its progeny, it is

clear that the agents had reasonable suspicion to stop Hammonds and his Fourth

Amendment rights were not violated.

                                             IV

       For the foregoing reasons, we will affirm Hammonds’s judgment of conviction.




                                             10
