UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 95-5125

CARLOS TYRONE HENDERSON,

Defendant-Appellant.

Appeal from the United States District Court

for the Middle District of North Carolina, at Greensboro.

Frank W. Bullock, Jr., Chief District Judge.

(CR-94-221-2)

Submitted: December 19, 1995

Decided: May 14, 1996

Before WILKINSON, Chief Judge, and HALL and NIEMEYER,

Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Charles Jackson Alexander, II, MORROW, ALEXANDER, TASH &

LONG, Winston-Salem, North Carolina, for Appellant. Walter C.

Holton, Jr., United States Attorney, Douglas Cannon, Assistant

United States Attorney, Greensboro, North Carolina, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Appellant Carlos Tyrone Henderson was indicted for possession

with intent to distribute cocaine base. See 21 U.S.C. § 841(a) (1988).

Henderson moved unsuccessfully to suppress the introduction of the

drugs and subsequently pled guilty to the indictment, reserving his

right to appeal the suppression ruling. Henderson now appeals, contending that the district court erred in admitting the drugs seized in

connection with his arrest. We affirm.

I.

On August 31, 1994, Detectives Eddie Hoover and C. L. Piner

were conducting narcotics interdiction at the Piedmont Triad International Airport in Greensboro, North Carolina. The officers observed

Henderson exit a plane which arrived from Newark, New Jersey. The

New York area is a source city for drugs for Greensboro. Henderson,

who is African American, was dressed in street clothes and carrying

a garment bag.

As Henderson walked past the officers, he made eye contact with

Hoover and then quickly averted his eyes and ducked his head. After

passing the officers, Henderson looked back twice. The officers followed Henderson out of the airport and approached him and two other

men as they stood by a car in front of the terminal.

The officers identified themselves as law enforcement officers and

displayed their badges and identification cards. Two other officers

were in the area but were not involved in the encounter. Piner advised

Henderson that they were conducting a drug investigation and asked

Henderson for his airline ticket and some identification.

Henderson gave Piner his driver's license. There was conflicting

testimony at the suppression hearing as to whether Piner gave Hen-

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derson his license back, but for purposes of its decision, the district

court assumed that the license was not returned. Piner then asked for

consent to search Henderson's luggage, and Henderson acquiesced.

The officers found a quantity of crack cocaine in Henderson's bag.

The officers did not inform Henderson that he was free to refuse the

search.

Henderson was charged in a one-count indictment with possession

with intent to distribute crack cocaine in violation of 21 U.S.C.

§ 841(a). Henderson moved to suppress the drugs recovered from his

luggage by the officers. The district court denied the motion, concluding that the encounter with the officers was consensual and that the

officers did not initially approach Henderson on the basis of his race.

Accordingly, Henderson's motion to suppress the introduction of the

drugs was denied.

On appeal, Henderson contends that the district court erred in its

determination that the consensual encounter never developed into a

seizure. According to Henderson, he was seized without reasonable

suspicion when Officer Piner failed to return his driver's license.

Henderson also asserts that the officers' initial decision to approach

him was made with discriminatory intent in violation of the Equal

Protection Clause.

II.

The first issue is whether the encounter between the officers and

Henderson ceased to be consensual at some point and became a seizure. Consensual encounters do not implicate the Fourth Amendment,

but seizures do. See Florida v. Bostick, 501 U.S. 429, 434 (1991). The

Supreme Court has consistently held, however, "that a seizure does

not occur simply because a police officer approaches an individual

and asks a few questions." Id.; see also INS v. Delgado, 466 U.S. 210,

216 (1984) (interrogation relating to one's identity or a request for

identification does not, by itself, implicate the Fourth Amendment).

As the Supreme Court explained in Terry v. Ohio , 392 U.S. 1, 19

n.16 (1968):

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Obviously, not all personal intercourse between policemen

and citizens involves "seizures" of persons. Only when the

officer, by means of physical force or show of authority, has

in some way restrained the liberty of a citizen may we conclude that a "seizure" has occurred.

Only when the circumstances of the encounter become"so intimidating as to demonstrate that a reasonable person would have believed

he was not free to leave" does the encounter become a seizure.

Delgado, 466 U.S. at 216. It is also clear that the encounter does not

become a seizure merely because the officers do not tell the defendant

that he is free to leave or that he may refuse to comply with their

requests. United States v. Analla, 975 F.2d 119, 124 (4th Cir. 1992),

cert. denied, ___ U.S. ___, 61 U.S.L.W. 3714 (U.S. Apr. 19, 1993)

(No. 92-6891).

We find that Henderson was not seized when the officers

approached him and asked to see his license. Further, Henderson's

cooperation with the officers did not convert the encounter into a seizure, even though the officers did not tell Henderson that he was free

to leave or to refuse the request. Neither officer had a gun drawn, and

there is no evidence of any use or threat of physical force. See United

States v. Flowers, 912 F.2d 707, 712 (4th Cir. 1990) (seizure cannot

occur in the absence of threats, offensive contact, or similar circumstances), cert. denied, 501 U.S. 1253 (1991).

In addition, Piner's retention of Henderson's license did not

amount to a seizure. Piner did not take Henderson's license to the

squad car or retain it for an extended period of time. Henderson was

free to request that his license be returned and to leave the scene. See

Analla, 975 F.2d at 124.

We thus conclude that the district court's finding that a seizure did

not occur was not clearly erroneous. See United States v. Gooding,

695 F.2d 78, 82 (4th Cir. 1982) (determination of whether a seizure

occurred is generally one of fact). Because Henderson was not seized

within the meaning of the Fourth Amendment when the police

searched his bag and he does not dispute the district court's finding

that he voluntarily consented to the search, the evidence obtained was

properly admitted.

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III.

Henderson next claims that he was denied equal protection because

he was approached by the officers solely on the basis of his race.

Without deciding whether selecting persons for consensual interviews

based solely on race raises equal protection concerns, we find that the

district court's factual determination that the officers approached

Henderson based on other factors besides race was not clearly erroneous. Though certainly not dispositive, Hoover testified that race was

not a factor. In addition, Hoover testified that Henderson arrived from

a drug-source city, refused to make eye contact, and glanced back at

the officers twice as he walked out of the terminal. We thus conclude

that Henderson failed to show discriminatory intent on the part of the

officers; this failure forecloses any equal protection claim. See

McCleskey v. Kemp, 481 U.S. 279, 292 (1987) (a defendant who

alleges an equal protection violation has the burden of proving the

existence of purposeful discrimination).

The judgment of the district court is therefore affirmed. We dispense with oral argument in view of our prior order directing that this

appeal proceed on the briefs.

AFFIRMED

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