                                _____________

                                 No. 96-1501
                                _____________

United States of America,              *
                                       *
     Plaintiff - Appellee,             *    Appeal from the United States
                                       *    District Court for the
     v.                                *    District of Nebraska.
                                       *
Gregory W. Hathcock,                   *
                                       *
     Defendant - Appellant.            *


                                _____________

                       Submitted:   September 10, 1996

                             Filed: January 9, 1997
                                _____________

Before WOLLMAN, Circuit Judge, HENLEY, Senior Circuit Judge, and HANSEN,
Circuit Judge.
                              _____________


HANSEN, Circuit Judge.

     Following his conditional plea of guilty to possessing a controlled
substance with intent to distribute it, Gregory W. Hathcock appeals the
district court's1 denial of his motion to suppress evidence obtained as a
result of an encounter he had with an officer prior to his arrest.          We
affirm.


                                       I.


     On July 1, 1994, four officers of the Omaha Police Department,
including Sergeant Mark T. Langan and Officer Mark Lang, were




     1
      The Honorable William G. Cambridge, Chief Judge, United
States District Court for the District of Nebraska.
conducting surveillance of flights arriving at Eppley Airfield in Omaha,
Nebraska, from the west coast.     The officers were looking for individuals
who were transporting drugs into Omaha.    Gregory Hathcock arrived late that
evening on a flight originating from the west coast and exited the plane
with another individual.   The officers saw the two persons walk together
a few feet and then split up in the corridor.       Hathcock was carrying a
duffel bag and did not retrieve any luggage from the luggage carousel.    He
sometimes walked very quickly, trotting, and other times walked slowly.
Hathcock seemed to be nervous, looking back and forth.      He walked out to
the taxi cab stand area, but no taxi cabs were there at the moment.


     Sergeant Langan had observed Hathcock's behavior and had concluded
that Hathcock met the profile of a drug courier.       The sergeant followed
Hathcock and approached him at the taxi cab stand area.         The sergeant
showed his police badge, told Hathcock his name, and informed Hathcock he
was with the Narcotics Unit of the Omaha Police Department.         Sergeant
Langan asked Hathcock if he would mind answering a few questions, and
Hathcock said he would not mind.    The officer explained that he was at the
airport to identify possible drug couriers arriving from the west coast and
that this was his reason for wanting to talk to Hathcock.   He asked whether
Hathcock understood this; Hathcock replied that he did.


     When asked his name, Hathcock identified himself as "Greg Johnson."
Sergeant Langan asked to see Hathcock's airline ticket, and Hathcock
produced a ticket issued to Greg Johnson.    Langan then asked for permission
to search Hathcock's duffel bag for drugs.      Hathcock said that he first
wanted to go to a residence at 5040 Corby Street and that Sergeant Langan
could search the bag at that location in about an hour.


     Sergeant Langan asked Hathcock whether he had any identification, and
Hathcock replied that he did not.     Langan then




                                       2
asked Hathcock whether he would show the officer his wallet.   Hathcock took
out his wallet.   When Langan asked whether he could look though the wallet
for identification, Hathcock replied that that would be fine and handed the
wallet to the officer.     Langan asked Hathcock a second time whether the
wallet contained any identification, and Hathcock again said no.


      Sergeant Langan searched Hathcock's wallet.        He found a traffic
ticket and a medical card, both in the name of Gregory W. Hathcock.      The
sergeant asked Hathcock whether his name was, in fact, Gregory Hathcock,
rather than Gregory Johnson.    Hathcock admitted that his real last name was
Hathcock, and that he was only flying under the name of Gregory Johnson.
Sergeant Langan then placed Hathcock under arrest for providing "false
information to a police officer."    The entire exchange lasted about three
minutes.


      Sergeant Langan took Hathcock to the security office of the airport
and ran a records check on him.   The check revealed no outstanding warrants
for   Hathcock.   Langan then asked Hathcock for permission to search
Hathcock's duffel bag.   Hathcock told Langan he would consent, but his bag
contained some fragile items.    The sergeant said he would simply stand and
watch if Hathcock would unzip the bag and remove the items himself.
Hathcock agreed to this.


      Hathcock unzipped his bag.     He removed and ripped up a paper label
carrying the brand name "Poly."     Hathcock also took out a pair of jeans,
but then shook them, put them back in the bag, and zipped it up.
Interpreting Hathcock's conduct as a denial of consent to search the bag,
Sergeant Langan asked another officer to watch Hathcock and went into the
hallway, where he told a third officer, Officer Mark Lang, that he was
going to arrange for a drug dog to sniff Hathcock's duffel bag.       Langan
left to make the arrangements.




                                      3
        While Langan was gone, Officer Lang entered the security office and
asked Hathcock for permission to search the bag.        Hathcock picked up the
bag, lifted it a short distance from the floor, and then threw it back
down.       He said, "Go ahead and search it.    You're going to find what you
want anyway."      (Supp. R. at 127.)   Officer Lang searched the bag and found
a small amount of marijuana and a bundle of 492 grams of crack cocaine
wrapped in plastic Poly tape.


        Hathcock was charged under state law with possession with intent to
deliver crack cocaine.        Hathcock filed a motion to suppress the crack
cocaine.       The trial court granted Hathcock's motion, finding that the
initial encounter was a Terry stop that was not based on a reasonable,
articulable suspicion.


        The state appealed to the Nebraska Court of Appeals.    Contrary to the
trial court, the appellate court found there was reasonable suspicion to
support a Terry stop, but further found that Sergeant Langan did not have
probable cause under Nebraska state law to arrest Hathcock, because the
officer was not working on "an actual criminal matter" within the meaning
of section 28-907(1)(a) of the Nebraska Revised Statutes (1989) when he
approached Hathcock.2


        Following the decision of the Nebraska Court of Appeals, Hathcock was
charged and indicted in federal court with intent to distribute crack
cocaine in violation of 21 U.S.C. § 841(a)(1) (1988).      Hathcock again filed
a motion to suppress the crack




        2
      Section 28-907(1)(a) of the Nebraska Revised Statutes
states:

                    (1) A person commits the offense of false
               reporting if he or she:
                    (a) Furnishes material information he or
               she knows to be false to any peace officer or
               other official with the intent to instigate
               an investigation of an alleged criminal
               matter or to impede the investigation of an
               actual criminal matter[.]

                                         4
cocaine.   At a hearing on this motion, Sergeant Langan testified that he
had arrested Hathcock based on his belief that Hathcock had violated
section 20-26 of the Omaha Municipal Code, which prohibits providing false
information to an officer.    Sergeant Langan also testified that he did not
specifically tell either Officer Lang or, later, the state court prosecutor
that he had arrested Hathcock on the basis of a violation of the municipal
code rather than the state code.


     Hathcock also presented evidence at the suppression hearing.                In
support of his argument that he was arrested under state (not municipal)
law, he offered the opinion of the Nebraska Court of Appeals and the
testimony of the technician who had processed the paperwork when Hathcock
was booked into jail.


     The   magistrate   judge3   concluded     that   the   crack     cocaine   was
admissible.    First, she determined that the state appellate court's
decision was not dispositive on this federal constitutional question.
Second, applying an objective standard to determine whether Langan had
probable cause to arrest Hathcock, she found that the arrest was valid,
regardless of whether Sergeant Langan's subjective intent was to arrest
under state or municipal law.        Finally, she found that Hathcock had
voluntarily consented to Officer Lang's search of his bag.              Thus, she
recommended that the district court deny Hathcock's motion to suppress.


     The   district   court   adopted   the   magistrate    judge's    report   and
recommendation and denied Hathcock's motion to suppress.            Hathcock then
entered a conditional plea of guilty, reserving the right to appeal the
district court's denial of his motion to suppress.           He now brings that
appeal.




     3
      The Honorable Kathleen A. Jaudzemis, United States
Magistrate Judge for the District of Nebraska.

                                        5
                                      II.


      Hathcock first argues the initial encounter between himself and
Sergeant Langan was not a consensual stop, but rather a Terry stop that was
not supported by reasonable suspicion.      See Terry v. Ohio, 392 U.S. 1, 20-
27 (1968).      In addressing this issue, we review the historical facts for
clear error and the ultimate legal conclusions de novo.     Ornelas v. United
States, 116 S. Ct. 1657, 1663 (1996).


      A consensual encounter between an officer and a private citizen does
not implicate the Fourth Amendment.    Florida v. Bostick, 501 U.S. 429, 434-
35 (1991).   The line between a consensual encounter and a Terry stop is not
a bright line but depends upon the facts of the case.        United States v.
McKines, 933 F.2d 1412, 1419 (8th Cir.) (en banc), cert. denied, 502 U.S.
985   (1991).     A consensual encounter becomes a Terry stop when the
questioning is so "intimidating, threatening or coercive that a reasonable
person would not have believed himself free to leave."          Id.; see also
Bostick, 501 U.S. at 434-35.      Circumstances that might indicate when an
encounter becomes a seizure include "the threatening presence of several
officers, the display of a weapon by an officer, some physical touching of
the person of the citizen, or the use of language or tone of voice
indicating that compliance with the officer's request might be compelled."
United States v. White, 81 F.3d 775, 779 (8th Cir.) (internal quotations
omitted), cert. denied, 117 S. Ct. 518 (1996).


      Under this legal standard, we have no trouble concluding that the
encounter between Langan and Hathcock at the taxi stand was consensual.
Langan simply introduced himself and explained his reasons for talking to
Hathcock.    He displayed no weapon and made no attempt to physically limit
Hathcock's mobility through any touch.         The encounter took place in a
public area.    Although the officer did not specifically advise Hathcock of
his right to walk




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away, this fact alone does not elevate the encounter to a seizure, absent
some other evidence of coercion or restricted freedom.             United States v.
Dennis, 933 F.2d 671, 673 (8th Cir. 1991).            The record in this case is
devoid of any evidence of threats or coercion, and the entire exchange
lasted   only   about   three   minutes.       Considering   the   totality   of   the
circumstances, we conclude that this was a consensual encounter, not a
Terry stop, until Langan arrested Hathcock for providing false information.
See White, 81 F.3d at 779 ("A seizure does not occur simply because a law
enforcement officer approaches an individual and asks a few questions or
requests permission to search an area -- even if the officer has no reason
to suspect the individual is involved in criminal activity -- provided the
officer does not indicate that compliance with his request is required.");
United States v. Thompkins, 998 F.2d 629, 633 (8th Cir. 1993) (stating
defendant not seized during an encounter at a bus stop, until chased and
grabbed);   United States v. Robinson, 984 F.2d 911, 913 (8th Cir. 1993)
(holding no seizure in train depot during cooperative, nonthreatening
encounter between officer and private citizen).


     When Hathcock admitted he had lied to Langan, Langan had probable
cause, under Omaha Code § 20-26, to arrest Hathcock.4          For purposes of our
Fourth Amendment analysis, it is of no moment whether Langan intended to
arrest Hathcock under state or municipal law, for the circumstances of the
arrest, viewed objectively, indicate that probable cause for the arrest
existed under the municipal law.       See Whren v. United States, 116 S. Ct.
1769, 1774 (1996); United States v. Sherrill, 27 F.3d 344, 347 (8th Cir.),
cert. denied, 115 S. Ct. 647 (1994).           For the same reason,




     4
      Hathcock argues for the first time that the Omaha ordinance
is unconstitutionally vague and overbroad. We do not address
these issues, because he waived them when he failed to submit
them in the first instance to the district court. Kramer v.
Kemna, 21 F.3d 305, 308 (8th Cir. 1994).

                                           7
Hathcock's    argument      that   the      arrest    was    pretextual,    and   therefore
unconstitutional, fails.


     Finally, Hathcock argues that the district court erred in finding
that he voluntarily consented to the search of his duffel bag.                       "[T]he
question of whether a consent to search was in fact `voluntary' or was the
product of duress or coercion, expressed or implied, is a question of fact
to be determined from the totality of all circumstances."                   Schneckloth v.
Bustamonte, 412 U.S. 218, 227 (1973).                We have set out some individual
characteristics that aid in the determination of whether consent is
voluntary:    (1) age; (2) general intelligence and education; (3) whether
an individual was under the influence of drugs, alcohol or otherwise; (4)
whether an individual was informed of his or her Miranda rights prior to
the consent; and (5) whether an individual had experienced prior arrests
so that he or she was aware of the protections the legal system affords to
suspected criminals.        United States v. Chaidez, 906 F.2d 377, 381 (8th Cir.
1990).   We also look at the environment in which individuals give consent,
considering    (1)    the    period   of     time    the    individual   was   detained    or
questioned; (2) whether the police threatened, physically intimidated, or
punished     the     individual;      (3)     whether       police   made      promises    or
misrepresentations, upon which the individual relied; (4) whether the
individual was in custody or under arrest at the time consent was given;
(5) whether the consent occurred in a public or a secluded place; and (6)
whether the individual stood by silently while the search occurred.                       Id.
We review the district court's determination that Hathcock voluntarily
consented to the search of his bag under the clearly erroneous standard.
United States v. Heath, 58 F.3d 1271, 1276 (8th Cir.), cert. denied, 116
S. Ct. 240 (1995).


     The district court did not clearly err in concluding that Hathcock's
consent was voluntary.        Hathcock was a sober, 23-year old male with three
years of high school education.             Although he was in the security office,
a secluded spot, at the time of his




                                              8
consent, he had been detained for only about three minutes at the taxi
stand.   The record contains no evidence of coercion, intimidation, or
misrepresentation      by   Officer   Lang   in   obtaining   Hathcock's   consent.
Hathcock clearly granted his consent, apparently believing the officers
would inevitably detect the illegal substances.        We agree with the district
court that, in view of the totality of the circumstances, this consent was
voluntary.


                                        III.


     The district court properly denied Hathcock's motion to suppress the
evidence of drugs found in his duffel bag, because the initial encounter
was consensual, the subsequent arrest was supported by probable cause, and
the ultimate search of Hathcock's bag was a result of Hathcock giving his
voluntary consent. Accordingly, we affirm the judgment of the district
court.


     A true copy.


             Attest:


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




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