United States v. Collins

108 F.4th 1080

UNITED STATES of America, Plaintiff-Appellee, v. Izeall T. COLLINS, Defendant-Appellant.

No. 23-1055

United States Court of Appeals, Eighth Circuit

Submitted: February 15, 2024

Filed: July 30, 2024

Appeal from United States District Court for the Western District of Missouri - Kansas City

Lance M. Haley, Overland Park, KS, for defendant-appellant.

Philip M. Koppe, Asst. U.S. Atty., Kansas City, MO (Teresa A. Moore, U.S. Atty., on the brief), for plaintiff-appellee.

Before LOKEN, COLLOTON,¹ and KELLY, Circuit Judges.

LOKEN, Circuit Judge.

A jury convicted Izeall Collins of possession of heroin with intent to distribute in violation 21 U.S.C. § 841(a)(1) and (b)(1)(A), and possession of a firearm in furtherance of drug trafficking in violation of 18 U.S.C. § 924(c)(1)(A). The district court² sentenced him to 228 months imprisonment. Collins appeals, arguing the district court erred in denying his motion to suppress and erred in denying his motion for acquittal at the close of evidence because the evidence was insufficient to sustain his conviction. See Fed. R. Crim. P. 29(a). Reviewing these predominantly legal issues de novo we affirm.

I. Background

On March 4, 2019, passenger Collins arrived at the Kansas City Greyhound bus terminal on a bus traveling from Los Angeles to New York City. Collins boarded the bus in Denver. His ultimate destination was Norfolk, Virginia. Members of the Missouri Western Interdiction & Narcotics Task Force (the MoWIN task force) were at the terminal when the bus arrived for cleaning and refueling. The MoWIN task force has seized large quantities of narcotics at the Kansas City terminal from passengers and luggage on Los Angeles to New York Greyhound buses.

At the Kansas City terminal, all passengers exited the bus. Detective Garcia, a member of the MoWIN task force, walked a drug detection dog around the bus to conduct an open-air sniff of the checked luggage compartments. Detective Wells, another member of the task force, watched the passengers from a nearby building. He noticed that Collins was watching Detective Garcia and the dog, and moved away from the protected smoking section in below-freezing temperatures to maintain a line of sight when Detective Garcia and the dog moved to the other side of the bus and then entered the bus. When Garcia and the dog left the bus, Collins reboarded. Suspecting Collins had reboarded to retrieve or dispose of contraband, Detective Wells positioned himself to see down the passenger aisle through the front windshield. Wells saw Collins walk down the aisle and inspect a seating area on the driver's side. Collins did not appear to deposit or retrieve anything.

When Collins exited the bus, Detective Wells described his observations of what he considered suspicious activity to other officers, including Detective Michael Nelson. Detective Nelson approached Collins, who was standing in line with other passengers waiting to reboard. Nelson smelled a strong odor of marijuana; in plain clothes, he presented his badge, explained that he was working in narcotics interdiction, and asked if he could speak with Collins. Collins said yes. Collins produced a Colorado driver's license and bus tickets. Detective Nelson asked Collins if he was carrying any contraband. Collins answered yes, and pulled out a tin can containing a "green, leafy substance" that Detective Nelson believed to be marijuana.

Detective Nelson asked if he could search Collins. Collins said yes. Inside Collins's front waistband, Detective Nelson felt a brick-like object he believed to be a package of illegal drugs. Nelson placed Collins under arrest and brought him to an office inside the Greyhound station. There, Nelson removed the brick-like object from Collins's pants and found what appeared to be drugs wrapped in cellophane and covered in duct tape. Another detective found U.S. currency and a live nine-millimeter bullet in Collins's jacket. Laboratory tests revealed that the package contained over one kilogram of heroin with a street value of $45,000 to $60,000.

Meanwhile, after finding no bags belonging to Collins with the bus's checked luggage, Detectives Wells and Garcia boarded the bus. They found a black backpack and blue cooler on an empty seat near where Wells saw Collins stop to look around when he first reboarded the bus. The backpack and cooler were not claimed by other reboarding passengers. Wells brought the backpack and cooler into the office, where Collins said they did not belong to him, and then back to the bus, where again no other passenger claimed them. A warrant search of the cooler yielded a loaded Kel-Tec 9-millimeter handgun that matched the 9-millimeter round found in Collins's jacket. The backpack contained duct tape, a letter signed by "Izeall Collins," and clothing that matched the brand of the jacket that Collins wore when he was arrested.

II. Suppression Issues

Collins moved to suppress evidence seized at the time of his arrest, arguing the MoWIN task force officers conducted a warrantless investigatory stop and search of his person without reasonable suspicion of criminal activity in violation of his Fourth Amendment rights. Following an evidentiary hearing, Magistrate Judge Lajuana M. Counts filed a Report and Recommendation concluding that Collins's Fourth Amendment rights had not been violated. The district court adopted the Report and Recommendation and denied the motion to suppress. We review the district court's legal conclusions de novo and its factual findings for clear error. United States v. Mitchell, 55 F.4th 620, 622 (8th Cir. 2022).

At the suppression hearing, Detective Wells testified that MoWIN task force officers regularly interdict Greyhound buses on the Los Angeles to New York route, which stops in Las Vegas and Denver, cities where large volumes of narcotics distributed throughout the United States originate. They have often seized contraband at the Kansas City terminal using the investigative procedures that resulted in the seizure of drugs and a firearm from Collins in this case.

Wells testified that he watched Collins exit the bus with the other passengers, then move around in sub-freezing weather to watch Detective Garcia's dog sniffing the checked luggage compartments, then move to where he could see down the passenger aisle when Garcia and the dog entered the bus. Detective Wells testified that Collins's behavior was consistent with other bus passengers he had arrested when working interdiction; suspects visually inspect the area where they were sitting after a drug dog enters the bus to determine if "bags had been manipulated or if law enforcement had become aware of the contraband."

Detective Wells testified that he communicated his observations of this suspicious activity to other task force officers including Detective Nelson, who then approached Collins to speak with him as he was in line with other passengers to reboard the bus. Detective Nelson testified that he detected a strong odor of marijuana as he approached Collins. Nelson testified he identified himself and asked if he could speak to Collins, who said yes. Detective Nelson asked to see Collins's bus ticket and identification. Collins handed over the ticket and a Colorado driver's license. Detective Nelson observed that Collins appeared nervous, his hands were shaking, and he was sweating profusely despite the cold weather.

Detective Nelson explained to Collins that he was part of a unit which interdicts marijuana, cocaine, heroin, and fentanyl and asked Collins if he possessed any of those drugs. Collins said he possessed a small amount of marijuana and pulled a tin box containing what appeared to be marijuana out of his coat. Because of the marijuana, Detective Nelson decided to investigate further. Believing a search for weapons was necessary for safety purposes, he asked Collins if he could search him for weapons; Collins said yes. Reaching into Collins's front waistband area, Nelson felt a brick-shaped object that he recognized as illegal narcotics. He placed Collins under arrest. The brick-shaped object was found to contain approximately one kilogram of heroin. After Collins's arrest, Detective Wells went back on the bus and recovered items that another passenger indicated belonged to Collins.

Detective Nelson testified that he did not raise his voice, give an "aggressive command," use handcuffs, or display a weapon during his conversation with Collins. Detective Nelson determined that Collins was not free to go because of the marijuana on his person but did not communicate this to Collins. While he was being searched, Collins was heard saying on his cell phone, "They got me, they're arresting me now." The testimony of Detectives Wells and Nelson at trial was less extensive but consistent with their suppression hearing testimony.

On appeal, Collins does not point to contradictory trial evidence nor does he challenge the district court's findings of fact in denying his motion to suppress. Rather, he argues that "[t]he targeting of Mr. Collins as a subject of interest from the moment he stepped off the bus," and the officers ignoring reasonable alternative explanations for why he reboarded the bus after Detective Garcia and his dog exited, made this an "investigatory stop" without reasonable suspicion that criminal activity was afoot, an unreasonable seizure in violation of his Fourth Amendment rights.

As the district court recognized, the critical issue in this case is when the Fourth Amendment seizure occurred. The Supreme Court has explained:

[A] seizure does not occur simply because a police officer approaches an individual and asks a few questions. So long as a reasonable person would feel free 'to disregard the police and go about his business' . . . the encounter is consensual and no reasonable suspicion is required.

Florida v. Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) (citation omitted); see United States v. Lillich, 6 F.4th...