The Honorable Jimm Larry Hendren, United States District

1

Judge for the Western District of Arkansas.

___________

No. 95-1794

___________

United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Western District of Arkansas.

George David McManus, *

*

Appellant. *

___________

 Submitted: September 12, 1995

 Filed: November 30, 1995

___________

Before WOLLMAN, MAGILL, and LOKEN, Circuit Judges.

___________

WOLLMAN, Circuit Judge.

George McManus entered a conditional plea of guilty to one count of

being a felon in possession of a firearm in violation of 18 U.S.C. § 922

(g)(1). He was sentenced to 84 months' imprisonment and fined $10,000.

On appeal, McManus contends that the district court should have granted

1

his motion to suppress evidence. We affirm.

I.

Because the identification number (VIN) listed on the inspection

sticker on his vehicle differed from the VIN contained on the registration

slip and the car itself, McManus was unable to re-register his vehicle.

A difference in a VIN can occur in two situations: (1) when a

typographical error has been made or (2)
 The National Crime Information Center (NCIC) is a department 2

within the Federal Bureau of Investigation which provides

computerized information to law enforcement concerning the vehicle

identification numbers of stolen vehicles, individual criminal

records, and outstanding warrants.

-2-

when the car has been stolen. When there is a problem with a VIN,

licensing officials refer the matter to the state police for investigation.

A form correcting the VIN is issued only after the police are satisfied

that the problem is merely technical. 

For the purpose of satisfying the Arkansas Department of Revenue's

registration requirements, McManus went to the Arkansas State Police

Headquarters in Clarksville on July 6, 1994, to verify the VIN on his

vehicle. Corporal Jerry Roberts assisted McManus in performing the VIN

verification. At Roberts' request, McManus produced the registration,

which listed him as the owner of the vehicle. Roberts then verified that

the VIN on the registration matched the VIN on the car. After verifying

the match, Roberts requested McManus's driver's license for proof of

identification. Roberts then ran three computer checks. First, he ran a

registration check on the vehicle's VIN and on the registration itself to

determine whether the vehicle was stolen. Next, he ran a driver's license

check to determine whether McManus's license was current. Finally, he ran

a National Crime Information Center (NCIC) check to further investigate

2

the possibility that the car was stolen, a procedure that he routinely

conducted in the course of verifying a VIN even though there was no written

policy requiring that that be done.

At some point during the foregoing sequence of events, McManus

started to leave the station in order to retrieve additional information

regarding the registration from his vehicle. Roberts, however, told him

to come back in and, in McManus's words, "have a seat," with the

indication, again in McManus's words, that "this wouldn't take too long."

The VIN and driver's license checks
 The Honorable Beverly R. Stites, United States Magistrate

3

Judge for the Western District of Arkansas.

-3-

cleared, but the NCIC search indicated that McManus was wanted for a felony

probation violation. Roberts confirmed that the warrant was valid and

placed McManus under arrest. During the ensuing inventory search of

McManus's vehicle, police officers discovered various firearms. 

McManus filed a motion to suppress, contending that he was seized in

violation of the Fourth Amendment when he was asked to turn over his

driver's license and told to take a seat. He also contended that the NCIC

search of his criminal history violated his Fourth Amendment rights. The

district court denied the motion, adopting the magistrate judge's report 3

and recommendation to that effect.

II.

We examine the district court's denial of the motion to suppress

under the clearly erroneous standard. United States v. Delaney, 52 F.3d

182, 186 (8th Cir.), cert. denied, 116 S. Ct. 209 (1995). We review de

novo the underlying question of whether a seizure has occurred and whether

the Fourth Amendment has been violated. Id.

McManus first argues that he was unlawfully detained by Roberts when

he turned over his driver's license and was told to have a seat. The

magistrate judge found that no seizure occurred because (1) the initial

contact between McManus and Roberts was consensual; (2) Roberts merely

requested -- rather than demanded -- the driver's license; and (3) Roberts

did not use coercive tactics.
-4-

Not every encounter between a law enforcement official and a citizen

involves a seizure. Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968). No seizure

occurs when a police officer simply questions an individual or asks to see

his identification, so long as the officer does not send a message that the

individual must comply with his request. Florida v. Bostick, 501 U.S. 429,

434 (1991). See also United States v. McKines, 933 F.2d 1412, 1419 (8th

Cir.) (en banc), cert. denied, 502 U.S. 985 (1991) (focusing on the nature

of police officer's questioning to determine whether a seizure had

occurred). 

We consider the totality of the circumstances in determining whether

"the police conduct would have communicated to a reasonable person that he

was not free to decline the officer's request or otherwise terminate the

encounter." United States v. Angell, 11 F.3d 806, 809 (8th Cir. 1993),

cert. denied, 114 S. Ct. 2747 (1994). In United States v. Mendenhall, 446

U.S. 544, 554 (1980), the Supreme Court cited several circumstances that

might evidence a seizure: "[T]he 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." 

It was McManus who brought about his contact with the police.

Roberts' request to see McManus's driver's license was part of the routine

followed in verification situations. McManus, by his own free will, handed

over his license. Roberts did not threaten McManus or use any coercive

tactics. He did not display his weapon or physically detain Roberts. See

United States v. Archer, 840 F.2d 567, 572 (8th Cir.), cert. denied, 488

U.S. 941 (1988) (holding that no seizure occurred when officers merely

approached defendant and requested identification since officers did not

use coercive tactics, display weapons, or physically restrain defendant).

Roberts made a simple, good faith inquiry to ascertain
-5-

whether McManus was the owner of the vehicle, the failure to do which could

well have constituted negligence in the performance of Roberts' duties.

Roberts' direction that McManus come back in and have a seat did not

transform the encounter into a seizure, for McManus was not told that he

could not leave the station. Admittedly, Roberts' statement could have

been expressed in more precatory terms, e.g., by being prefaced with "Would

you please," or some similar language. Nevertheless, we cannot conclude

that a reasonable person would have felt compelled to remain in the station

based on this statement. See Angell, 11 F.3d at 809-10 (stating that

officer's statement to "Stay there" or "Hold it right there" did not

transform a consensual encounter into a seizure). Given these

circumstances, then, we hold that no seizure occurred. 

III.

McManus next asserts that Roberts violated his Fourth Amendment

rights when he conducted a search of his criminal history through the use

of the NCIC computer data base. To preserve the integrity and privacy of

the information contained in the NCIC data base, the Federal Bureau of

Investigation allows access only for criminal justice purposes, justice

employment, or security clearances. United States v. Pederson, 3 F.3d

1468, 1471 (11th Cir. 1993).

 

Roberts clearly had a legitimate criminal justice purpose in

accessing the NCIC. He stated that a discrepancy in the VIN raises a "red

flag" that a car may be stolen. Thus, he automatically checks the NCIC in

this type of situation. The undisputed purpose of the investigation was

to verify the VIN. To do this, Roberts had to determine that the car had

not been stolen.
-6-

McManus argues that once the VIN and driver's license checks cleared,

Roberts had completed the investigation necessary to verify the VIN.

Roberts testified, however, that a VIN check alone is insufficient to

determine whether a car is stolen. For example, a car with an altered VIN

would not show up as stolen in the VIN data base. Similarly, a car whose

VIN has been replaced with that from a junked vehicle would not be listed.

Based on his experience, Roberts believed that the NCIC check was necessary

in order to thoroughly investigate the matter. By conducting an NCIC

check, he could determine, for example, whether the person claiming

ownership of the vehicle had a record for stealing vehicles (although it

might seem counterintuitive that a person with a record of car thefts would

present himself at a police station to request assistance in verifying

vehicle registration, one might equally doubt that a person with an

outstanding warrant for felony probation violation would do the same).

Furthermore, the NCIC data base is commonly used in determining whether a

car has been stolen. See United States v. Harris, 528 F.2d 1327, 1330 (8th

Cir. 1975) (NCIC check justified when officer observed various scratches

and marks surrounding the VIN plate on car); United States v. Lopez, 777

F.2d 543, 546-48 (10th Cir. 1985) (NCIC check warranted when out-of-state

automobile was not registered in name of either passenger); United States

v. Diaz-Albertini, 772 F.2d 654 (10th Cir. 1985), cert. denied, 484 U.S.

822 (1987) (NCIC check authorized when driver's license and registration

did not match).

In addition, police frequently conduct NCIC checks during the course

of routine investigations. See United States v. Rubio-Rivera, 917 F.2d

1271, 1276 (10th Cir. 1990) (immigration agent authorized to conduct an

NCIC check as part of his normal inquiry at border checkpoint); United

States v. Fernandez, 18 F.3d 874, 877-78 (10th Cir. 1994) (during course

of routine traffic stop, officer may ask for a driver's license and vehicle

registration, and run a computer check) (citing United States v. Guzman,

864 F.2d 1512, 1519 (10th Cir. 1988)). 
-7-

We conclude that because Roberts' inquiry was directly related to the

scope of his investigation, he was justified in conducting an NCIC check.

Thus, no constitutional violation occurred even if the NCIC check

constituted a search within the meaning of the Fourth Amendment, a question

we need not decide in this case.

The judgment is affirmed.

A true copy.

Attest:

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