April 25, 2017
from the United States District Court for the Central
District of Illinois. No. 4:15-cr-40066 - Sara Darrow, Judge.
Posner, Kanne, and Hamilton, Circuit Judges.
POSNER, Circuit Judge.
defendant, Regina Radford, was convicted of possession of
heroin with intent to distribute at least 100 grams of the
drug, in violation of 21 U.S.C. § 841(a)(1) -a crime
that normally (though not in this case, as we'll see)
subjects the offender to a minimum prison term of five years.
Id. § 841(b)(1)(B). She argues that the search
of her handbags was the product of an unlawful seizure of her
-a seizure not authorized by warrant or probable cause-and
that she did not consent to the search. The district judge,
however, agreed with the government that Radford had not been
seized and had consented to the search, and if this is right
then she was rightly convicted of violating section
841(a)(1). But if the police found the heroin not because (as
they argue and the judge found) Radford permitted them to
search her handbags, but because by seizing her they left her
with no choice but to consent to their searching her bags,
she is entitled to be acquitted, for in the circumstances
that she posits, the search of the bags was the product of
warrantless and therefore unauthorized coercion.
story begins in September 2015, when Radford boarded an
Amtrak train in Flagstaff, Arizona, planning (we now know) to
deliver heroin to a person in Toledo, Ohio. The train made a
stop in Galesburg, Illinois, and while it was stopped there a
Galesburg police officer named Mings, having studied
Radford's travel schedule (he testified that he goes
every day to the Amtrak station to study the travel plans of
passengers who booked roomettes on trains stopping at the
station), noted several potential indicators that she was
engaged in drug trafficking: she had purchased a one-way
ticket two days before the trip, had paid a premium for a
roomette, and was traveling between locations that Mings
understood to be sources of illegal drugs: Flagstaff and
Chicago being source cities and Ohio a source state. He
checked government records for possible criminal history and
learned that Radford had been arrested more than seven years
earlier for assisting undocumented aliens and for possessing
marijuana, but he didn't know whether the arrest had led
to prosecution, conviction, and punishment. And so he decided
to accost her during the train's brief stop in Galesburg.
defendant was sitting in a roomette measuring 3 Vi
feet by 6 Vi feet (for a video of an Amtrak roomette
see Amtrak, "Video Tour of Amtrak Roomette/'
(visited May 16, 2017)). Mings, in full police uniform,
knocked on the door. The defendant, without having to stand,
opened it. Mings remained standing in the hallway. He
identified himself as an officer of the Galesburg Police
Department and the Drug Enforcement Administration, and told
her that they (there was another officer with him, although
that officer didn't speak to Radford) were doing
"security checks" to "check for people
transporting illegal narcotics on trains." He requested
her to show him her identification and train ticket. She had
only an electronic train ticket, which was on her phone, but
she handed him her identification, which he examined and
returned. He asked whether her luggage was in the roomette
and then told her he was going to ask her a series of
"security questions." He asked: "Did you pack
your own bags? Did anyone ask you to transport anything for
them? Are you transporting any illegal narcotics? Are you
transporting any large sums of currency? And do you have any
weapons?" She said that she had packed her own bags but
answered no to the other questions. Last and critically he
asked her whether he and the other officer could search her
luggage "to confirm all statements were true."
Radford responded, "I guess so. You're just doing
your job." He then asked her to step out of the roomette
so that he could search her luggage, and she complied.
the interview Mings spoke in what the district court
determined was a "conversational tone." But he
never advised Radford that she could refuse to speak with him
or to deny his request to search her bags. The search, to
which she consented, revealed 707 grams of heroin contained
in capsules in her makeup bag and her purse.
indicted and moved to suppress the evidence of the heroin on
the ground that it was the fruit of an unlawful seizure.
After a hearing the district judge denied her motion on the
ground that her encounter with Mings had been consensual
rather than a seizure and that she had voluntarily consented
to the search. She then pleaded guilty, reserving however a
right to appeal the denial of her motion to suppress. The
judge found Radford eligible for safety-valve relief from the
five-year statutory minimum sentence, see 21 U.S.C. §
841(b)(1)(B); 18 U.S.C. § 3353(f), and sentenced her to
12 months' imprisonment.
when law enforcement officers have no basis for suspecting a
particular individual, they may pose questions, ask for
identification, and request consent to search
luggage-provided they do not induce cooperation by coercive
means, " United States v. Drayton, 536 U.S.
194, 201 (2002), and a seizure hasn't taken place so long
as "a reasonable person would feel free to decline the
officers' requests or otherwise terminate the encounter,
" Florida v. Bostick, 501 U.S. 429, 436 (1991);
see also Schneckloth v. Bustamonte, 412 U.S. 218,
227 (1973); United States v. Notorianni, 729 F.2d
520, 522-23 (7th Cir. 1984); United States v.
Savage, 889 F.2d 1113, 1116-17 (D.C. Cir. 1989).
however, argues that she was intimidated by Mings, primarily
because the roomette was small, Mings weighed 170 pounds and
was fully uniformed and equipped (he was wearing a holster
with a gun in it), he was white and she was black, he was
standing and she was sitting, he said he was investigating
drug trafficking but didn't tell her she had a right to
refuse to answer his questions or consent to a search of her
argument exaggerates the situation. Mings didn't enter
the roomette before she consented to the search, his uniform
with its accouterments established his identity as a police
officer, he told her why he wanted to search her, there
can't be a rule that a police officer is forbidden to
speak to a person of another race, and since he didn't
tell her that she had to answer his questions and didn't
threaten her with arrest there was no need to tell her that
she didn't have to answer his questions or consent to a
search-that was implicit in his asking her questions without
telling her that she was required to answer them.
argument that her Fourth Amendment rights were violated is
weaker than that of the two defendants in United States
v. Drayton, supra, 536 U.S. at 197-98. There the police
officer's face was only 12 to 18 inches from the face of
one of the defendants when the officer questioned him on a
bus, two other officers being stationed at the front and back
of the bus and thus visible to the defendants. The officer
displayed his badge before asking to search their bags and
persons and telling them they were investigating drugs and
weapons on the bus. Id. at 198-99. The Supreme Court
held that the defendants had not been seized; it rejected
their argument that their being in a bus, confronted by
police displaying badges and with other officers standing at
the bus doors, would make a reasonable person feel coerced.
Id. at 203-05. For similar cases see Florida v.
Bostick, supra, 501 U.S. at 433, 436-37; Schneckloth
v. Bustamonte, supra, 412 U.S. at 227; and the
Notorianni and Savage cases, also cited
especially close to the present one is United States v.
Goodwin,449 F.3d 766 (7th Cir. 2006), where three
police officers had stood outside the defendant's
roomette on a train about to leave and asked him whether he
was "willing to answer some questions."
Id. at 767. When he said yes, they requested his
tickets and identification, asked whether he was
"carrying weapons, narcotics, or large amounts of
money" and asked for permission to search his bags.