UNITED STATES COURT OF APPEALS
TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. SHETANI LYENA ACKLIN, Defendant-Appellant. No. 97-6244 (W. District of Oklahoma) (D.C. No. 97-CR-14)

ORDER Filed April 27, 1998

Before BALDOCK , EBEL, and MURPHY , Circuit Judges.

The order and judgment filed on March 13, 1998, contained a clerical error. The last paragraph of the order and judgment should read as follows: “ The judgment of the United States District Court for th e Western District of Oklahoma is hereby AFFIRMED .” Our mandate is recalled and the mandate as amen ded is reissued forthwith. Entered for the Court
PATRICK FISHER Clerk of Court* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata and coll ateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAR 13 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. SHETANI LYENA ACKLIN, Defendant-Appellant. No. 97-6244 (W. District of Oklahoma) (D.C. No. 97-CR-14)

ORDER AND JUDGMENT *

Before BALDOCK , EBEL, and MURPHY , Circuit Judges.

After examining the briefs and the appellate record , this three-judge panel has unanimously determined that oral argument wouldnot be of material assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The parties’ requests to submit th e case on the briefs are granted, and the case is ordered submitted without oral argument.-2-

Defendant Shetani L. Acklin entered a conditional g uilty plea to possession of cocaine with intent to distribute, a violation o f 21 U.S.C. § 841(a)(1). Acklin now brings this appeal claiming that the district c ourt erred when it refused to grant her pretrial motion to suppress. Specifically, Acklin contends that the United States violated her rights under the Fourth and Fifth Amendments during and encounter at Will Rogers World Airport in Oklah oma City, Oklahoma. This court exercises jurisdiction pursuant to 28 U.S.C. § 1291 and affirms. “When reviewing a district court’s denial of a moti on to suppress, we consider the totality of the circumstances and viewthe evidence in a light most favorable to the government.” United States v. Villa-Chaparro , 115 F.3d 797, 800-01 (10th Cir. 1997). This court accepts the di strict court’s factual findings unless those findings are clearly erroneous. Id. at 801. With that standard in mind, the relevant facts are as follows. On January 6, 1997, an Oklahoma City police officer in the Drug I nterdiction Unit received information from agents of the Denver Drug Enforcem ent Unit concerning a person believed to be carrying illegal drugs on a f light out of Denver, Colorado. The Denver drug enforcement officers advised the Ok lahoma City Division that a female by the name of Shetani Acklin had purchased a one-way ticket from California to Oklahoma City by way of Denver. Drugenforcement officers were provided with a description of the female suspect.-3-

Officers arrived at the airport in Oklahoma City an d observed an AfricanAmerican female exit the flight out of Denver as de scribed by the drug enforcement officer. Officers followed Acklin thro ugh the concourse of the airport, down to the lower level, and outside the d oors. At that time Officer David Rivers approached Acklin, identified himself as a police officer, advised her that she was not under arrest, and asked to spe ak with her. Acklin consented. Officer Rivers asked to see her airline ticket as w ell as any identification. Acklin produced her airline ticket and a California ID whi ch had the name Shetani Acklin. Acklin advised Officer Rivers that she was here to visit her grandmother. Officer Rivers then advised Acklin that he was a drug interdiction officer and asked if she was carrying any drugs. Acklin sa id no. Officer Rivers asked Acklin if his partner could look in her luggage andpurse; she agreed. No drugs were found in the luggage or purse. While Officer Rivers was looking through the purse, he continued question Acklin about her trip to Oklahoma City. Acklin informed Officer Rivers that she did not know her g randmother’s address or phone number. During his conversation with Acklin, Officer Rivers noticed a bulge in Acklin’s abdominal area. At that time Officer Rive rs stated that people sometimes carry drugs on their person, and asked Ac klin if she was carrying drugs on her. She said that she was not. Officer Rivers asked if the female officer who-4-

was accompanying him could conduct a pat-down searc h to make sure there were no drugs. Acklin replied that she didn’t want anyo ne touching her. At that point Officer Rivers said, “You have drugs on you, don’t you?” Acklin nodded her head and said yes. At that point Acklin was arrested and advised of her Miranda rights. After Acklin was indicted on drug charges, she brou ght a motion to suppress both the drugs confiscated at the airport and the statements she made to the officers during the encounter at the airport. Acklin argued she was “arrested” at the time the officers first approached her in th e airport and the officers had no probable cause to make an arrest at that time. As the basis for this assertion, Acklin pointed to grand jury testimony of several o fficers that they held a subjective but unexpressed belief they had sufficie nt probable cause to hold Acklin based on the drug profile information. Ackl in further argued that because she was placed under arrest at the time the officer s first approached her, the encounter was custodial in nature and she was entitled to Miranda warnings. As the officers did not read Acklin her Miranda rights, she contended all statements made to the officers during the encounter had to be suppressed. The district court flatly rejected Acklin’s content ion that she was seized by the officers at some point before she admitted she was carrying drugs. Ruling from the bench, the district court found and held a s follows:-5- Well, as we all know, the issue before the Court is whether the Fourth Amendment is violated by this stop in the ai rport and whether or not the stop amounted to a seizure of the defend ant’s person such that either probable cause or an arrest warrant wou ld be necessary for such a seizure. Well, it’s my finding that this was a consensual st op. Defendant was in a public place with many people co ming and going. She was advised by the officer that--I find she was advised by the officer that she was not under arrest, that she was free to go. I don’t know what more he could have told her. He was not in uniform-- none of the police officers were in uniform. There were no weapons drawn. There’s no evidence of any kind of coercion . No intimidation. She was not arrested until such time as she told the police officers that she did, in fact, have drugs o n her, and the fact that one or more of the police officers, in their m ind, had concluded that hey had probable cause, and perhaps they didn’ t, does not change the fact that this had not been conveyed to the defendant, and the defendant was, for all intents and purposes--no t for all intents and purposes, but was free to leave, in her own min d, or should have been free to leave, in her own mind, from what had been conveyed to her. So I am going to overrule the motion to suppress an d that will be the order of the Court. Applt. App. at 8-9. On appeal, Acklin continues to assert, based solelyon the uncommunicated subjective mind set of the officers, that the encounter at the airport constituted a seizure. As noted by the United States, Acklin has seriously misapprehended the controlling precedent in this area. This court has previously summarized the law applicable to Acklin’s claims as follows:

The Fourth Amendment protects citizens from unreaso nable searches and seizures by government actors. Burdeau v. McDowell , 256 U.S. 465, 475 (1921). Not all interaction betw een a police officer and a citizen involves a seizure, however. Florida v. Bostick ,-6-

501 U.S. 429, 434 (1991). A seizure occurs only wh en a police officer, “by means of physical force or show of authority . . . in some way restrain[s] the liberty of a citizen.” Terry v. Ohio , 392 U.S. 1, 19 n.16 (1968). The proper inquiry is an objective one: “[a]s long as a reasonable innocent person, as opposed to a perso n knowingly carrying contraband, would feel free to leave, suchencounters are consensual and need not be supported by reasonable suspicion of criminal activity.” United States v. Laboy , 979 F.2d 795, 798 (10th Cir. 1992). The subjective intentions or state of mind of either the defendant or police is irrelevant to Fourth Amendme nt analysis. Whren v. United States , 116 S. Ct. 1769, 1773-74 (1996); United States v. Madrid , 30 F.3d 1269, 1276 (10th Cir. 1994).

United States v. Sanchez , 89 F.3d 715, 717-18 (10th Cir. 1996). Accordingly, it is clear that the officers’ unexpressed subjective bel iefs are irrelevant to the question of whether the encounter with Acklin const ituted a seizure. Because Acklin’s argument on appeal is based entire ly on the subjective state of mind of the officers and because the uncha llenged factual findings of the district court amply support the conclusion that a reasonable person in Acklin’s position would have felt free to leave at any pointduring the encounter, we affirm the district court’s conclusion that the encounter between Acklin and the officers was consensual. Thus, the protections of the Fourth Amendment were not implicated during the encounter. United States v. Ward , 961 F.2d 1526, 1529 (10th Cir. 1992) (holding that “voluntary encounter s, which are not seizures[,] do not implicate the Fourth Amendment”).-7-

Our conclusion that Acklin’s consensual encounter w ith Officer Rivers did not amount to a seizure also disposes of Acklin’s Miranda -based Fifth Amendment claim. See United States v. Glover , 104 F.3d 1570, 1578 (10th Cir. 1997) (holding that defendant is not in custody for purposes of Miranda warnings unless objective person standing in defendant’s position would reasonably believe her freedom of movement had been curtailed to a deg ree associated with formal arrest). The judgment of the United States District Court fo r the Western District of Oklahoma is hereby AFFIRMED

. ENTERED FOR THE COURT: Michael R. Murphy Circuit Judge