### The Honorable William G. Cambridge, Chief Judge, United 1 

### States District Court for the District of Nebraska. _____________ 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. Followinghis conditional plea of guilty to possessing a controlled sub stance with intent to distribute it, Gregory W. Hathcock appeals th e district c ourt's denial of his motion to suppress evidence obtained as a 1
resu lt of an encounter he had with an officer prior to his arrest. W e affirm.

I.

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

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conducting surveillance of flights arriving at Eppley Airfield in Omaha, Nebraska, from the we st coast. The officers were looking for individuals who were transporting drugs into Omaha. Gregory Hathcock arrived late tha t evening on a flight originating from the west coast and exited the plane withanother individual. The officers saw the two persons walk together
a fe w 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 someti mes 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.

Se rgeant Langan had observed Hathcock's behavior and had conclude d that Hath cock met the profile of a drug courier. The sergeant followe d Hat hcock and approached him at the taxi cab stand area. The sergean t showed his police bad ge, told Hathcock his name, and informed Hathcock he
was with t he Narcotics Unit of the Omaha Police Department. Sergean t Langan ask ed Hathcock if he would mind answering a few questions, an d 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 an d that this was his reason for wanting to talk to Hathcock. He asked whethe r Hathcock understood this; Hathcock replied that he did.

When aske d his name, Hathcock identified himself as "Greg Johnson." Sergea nt Langan asked to see Hathcock's airline ticket, and Hathcoc k produced a ticket issued to Greg Johnson. Langan then asked for permissio n to search Hathcock's duffel bag for drugs. Hathcock said that he firs t wanted to go to a res idence 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 identificatio n, and Hathcock replied that he did not. Langan then

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asked Hathcock whether he would show the officer his wallet. Hathcock too k out his wallet. When Langan asked whether he co uld look though the wallet for identification, Hathcock replied that that would be fine and handed th e wallet to the officer. Langan asked Hathcock a second time whether th e wallet contained any identification, and Hathcock again said no.

Sergeant Langan searched Hathcock's wallet. He found a traffi c 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 wa s Hathcock, and that he was only flying under the name of Gregory Johnson. Sergea nt Langan then placed Hathcock under arrest for providing "fals e information to a poli ce 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 warrant s for Hath cock. Langan then asked Hathcock for permission to searc h Hathcock's duffel bag. Hathcock told Langan he would consent, but his bag contained some fragile items. The sergeant saidhe would simply stand and watch if Hathcock would unzip the bag and remove the items himself

. Hathcock agreed to this.

Hathco ck unzipped his bag. He removed and ripped up a paper labe l 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 askedanother officer to watch Hathcock and went into the hallway, where he told a third officer, Officer Mark Lang, that he wa s going t o arrange for a drug dog to sniff Hathcock's duffel bag. Langa n left to make the arrangements.

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

### 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 While Lan gan was gone, Officer Lang entered the security office and asked Hathcock for permission to search the bag. Hathcock picked up the bag, lif ted it a short distance from the floor, and then threw it bac k dow n. He said, "Go ahead and search it. You're going to find what yo u 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 cocain e wrapped in plastic Poly tape.

Hathcock was charged under state law with possession with intent to deliver cr ack cocaine. Hathcock filed a motion to suppress the crac k cocaine

. The trial court granted Hathcock's motion, finding that th e initial encounter was a Terrystop 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 pro bable cause under Nebraska state law to arrest Hathcock, because th e officer was not worki ng on "an actual criminal matter" within the meaning of section 28-907(1)(a) of the Nebraska Revised Statutes (1989) when h e approached Hathcock. 2
Following the decision of the Nebraska Court of Appeals, Hathco ck was charged and indicted in federal court with intent to distribute crac k cocaine in violation of 21 U.S.C. § 841(a)(1) (1988). Hathcock again file d a motion to suppress the crack

### The Honorable Kathleen A. Jaudzemis, United States 3 

### Magistrate Judge for the District of Nebraska.
5 cocaine. At a hearing on this motion, Sergeant Langan testified that he had arrested Hathcock based on his belief that Hathcock had violate d 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 prosecuto r 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. I n support of his argument that he was arrested under state (not municipal) law, h e offered the opinion of the Nebraska Court of Appeals and th e testimony of the technician who had processed the paperwork when Hathcock was booked into jail.

The m agistrate judge concluded that the crack cocaine wa s 3 admiss ible. First, she determined that the state appellate court' s decisio n was not dispositive on this federal constitutional question

. Second , applying an objective standard to determine whether Langan ha d probable cause to arrest Hathcock, she found that the arrest was valid , regard less of whether Sergeant Langan's subjective intent was to arres t under sta te or municipal law. Finally, she found that Hathcock ha d voluntaril yconsented to Officer Lang's search of his bag. Thus, sh e recommended that the district court deny Hathcock's motion to suppress.

The district court adopted the magistrate judge's report an d
recomm endation and denied Hathcock's motion to suppress. Hathcock the n entered a conditional plea of guilty, reserving the right to appeal th e district court's denial of his motion to suppress. He now brings tha t appeal.

### 6 II.

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

A consensual encounter between an of ficer 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 no t
a bri ght line but depends upon the facts of the case. United States v

. McKines , 933 F.2d 141 2, 1419 (8th Cir.) (en banc), cert. denied , 502 U.S. 985 (199 1). A consensual encounter becomes a Terrystop when th e questioning is so "intimidating, threatening or coercive that a reasonable per son would not have believed himself free to leave." Id. ; see als o Bostick , 501 U.S. at 434-35. Circumstances that might indicate when a n 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 o f the citizen, or the use of language or tone of voic e indicating that compliance with the officer's re quest 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 th e
enc ounter between Langan and Hathcock at the taxi stand was consensual

. Langan simply introdu ced himself and explained his reasons for talking to Hathcock. He display ed 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 speci fically advise Hathcock of his right to walk

### Hathcock argues for the first time that the Omaha ordinance 4 

### 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 away, this fact alone does not elevate the encounter to a seizure, absent
some other evidence of coercion or restricted freedom. United States v. Denn is , 933 F.2d 671, 673 (8th Cir. 1991). The record in this case i s devoi d of any evidence of threats or coercion, and the entire exchang e laste d only about three minutes. Considering the totality of th e 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 crimina l activity -- provided the officer does not indicate that compliance with h is request is required."); Unite d States v. Thompkins , 998 F.2d 629, 633 (8th Cir. 1993) (statin g 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 ) (holdin g no seizure in train depot during cooperative, nonthreatenin g encounter between officer and private citizen).

When Hathcock admitted he had lied to Langan, Langan had probabl e cause, under Omaha Code § 20-26, to a rrest Hathcock. For purposes of our 4 FourthAmendment analysis, it is of no moment whether Langan intended to arrest Hathcock under state or municipal law, fo r the circumstances of the arrest , viewed objectively, indicate that probable cause for the arres t 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,

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Hat hcock's argument that the arrest was pretextual, and therefor e unconstitutional, fails.
Finally, Hathcock argues that the district court erred in findin g that he voluntarily consented to the search of his duffel bag. "[T]h e question of whether a consent to search was in f act `voluntary' or was the product of duress or coercion, expressed or impl ied, 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 individua l charac teristics that aid in the determination of whether consent i s voluntary: (1) age; (2) general intelligence and education; (3) whether an individual was und er 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 t he 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, consi dering (1) the period of time the individual was detained o r questioned; (2) wheth er the police threatened, physically intimidated, or pu nished the individual; (3) whether police made promises o r misrepr esentations, upon which the individual relied; (4) whether th e individual was in custody or under arrest at the time consent was given; (5) whether the conse nt occurred in a public or a secluded place; and (6) whether the individual stood by silently while the search occurred. Id. We r eview the district court's determination that Hathcock voluntaril y 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 e rr 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

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consent, he had been detained for only about three minutes at the tax i stand. The record contains no evidence of coercion, intimidation, o r misrepresentation by Officer Lang in obtaining Hathcock's consent

. Hathcock clearly granted his consent, apparently believing the officer s would inevitably detect the illegal substances. We agree with the distric t court that, in view of the totality of the circumstances, this consent was voluntary.

III.
The district court properly denied H athcock's motion to suppress the evidence of drugs found in his duffel bag, because the initial encounter was consensual, the subsequent arrest was suppor ted by probable cause, and the ultimate search o f Hathcock's bag was a result of Hathcock giving his volunt aryconsent. Accordingly, we affirm the judgment of the distric t court.

A true copy.

Attest:

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