UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-4127

RUDDY A. FABIAN DE CEDENO,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Virginia, at Richmond.

Robert R. Merhige, Jr., Senior District Judge.

(CR-95-78)

Submitted: December 19, 1996

Decided: January 3, 1997

Before ERVIN and MOTZ, Circuit Judges, and BUTZNER,

Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Robert J. Wagner, WAGNER & WAGNER, Richmond, Virginia, for

Appellant. Helen F. Fahey, United States Attorney, Stephen W. Miller, Assistant United States Attorney, Richmond, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Ruddy Fabian de Cedeno pled guilty to possession of more than

fifty grams of crack cocaine with intent to distribute, 21 U.S.C.A.

§ 846 (West Supp. 1996), but reserved his right to appeal the district

court's denial of his motion to suppress evidence seized from him at

arrest and statements he made shortly afterward. De Cedeno now

appeals that order and his 135-month sentence. We affirm.

On July 18, 1995, de Cedeno traveled by train from New York City

to Richmond, Virginia. According to de Cedeno, his mother boarded

the train in Delaware. In Washington, D.C., an agent of the Amtrak

Police Department approached them while their train was stopped

and, with their consent, searched the two large tweed suitcases which

they identified as the only baggage they had with them. Although no

contraband was found, the agent later alerted police in Richmond

because he thought de Cedeno had shown unusual nervousness during

the encounter.

Henrico County Police investigators John Riani and Doug Perry

observed de Cedeno and his mother get off the train in Richmond and

noticed that, while each was carrying one of the large suitcases,

de Cedeno was also carrying a black tote bag and a radio and his

mother had a plastic grocery bag. De Cedeno and his mother set their

luggage down in two piles about ten feet apart on the sidewalk in

front of the terminal. When de Cedeno went back into the terminal to

get change, his mother retrieved the black tote bag and put it with her

things. The officers approached de Cedeno and identified themselves.

De Cedeno agreed to speak with them. He said his mother was just

someone he had met on the train and that all the bags had been

searched in Washington. When Riani asked if he could search the

black bag, de Cedeno showed him the radio, opened it, and loudly

stated that it too had been searched. When Riani again asked to look

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in the black bag, de Cedeno opened the bag himself and began moving objects around, saying, "See, nothing." The investigator knelt

beside him, intending to look in the bag, but de Cedeno held up his

hands to stop him. Riani moved back and, as de Cedeno pulled a pair

of jeans part way out of the bag, a clear plastic corner bag containing

white powder fell onto the sidewalk. De Cedeno was then arrested. In

the black bag were two bundles of crack totaling 489 grams wrapped

in duct tape, a pager, and a cellular phone. The small plastic corner

bag contained one gram of heroin.

At the train station, de Cedeno was advised of his Miranda1 rights.

He stated that the black bag and the drugs belonged to him, but asked

for an attorney when the investigators challenged his story that he

first met Ms. de Cedeno on the train. The interrogation ceased, and

de Cedeno and his mother were taken to the Henrico County Public

Safety Building.2 They were seated apart in the same room while

Riani completed paperwork. After about twenty minutes, de Cedeno

asked if he could sit next to his mother. Riani asked why and

de Cedeno responded that he wanted to console her because she did

not know anything about the drugs. Riani asked which drugs he meant

and a conversation ensued in which de Cedeno stated that a group of

Colombians had fronted him the cocaine. He said he had come to Virginia to set up a cocaine distribution operation and owed the Colombians $12,000. He refused to provide information about the

Colombians for fear of harm to his family.

De Cedeno unsuccessfully sought suppression of the drugs seized

on the ground that he was detained without reasonable suspicion

when the investigators approached him outside the terminal in Richmond. The district court did not make specific findings of fact; consequently, we will uphold the denial of the motion to suppress if any

reasonable view of the evidence, taken in the light most favorable to

the government, will sustain the denial. United States v. Bethea, 598

F.2d 331, 333-34 (4th Cir.), cert. denied, 444 U.S. 860 (1979).

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1 Miranda v. Arizona, 384 U.S. 436 (1966).

2 Ms. de Cedeno was arrested after she said she met de Cedeno on the

train, changed her story several times, and finally admitted he was her

son. She was not charged in the offense.

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The government argues, as it did in the district court, that

de Cedeno was not detained when he was approached by the investigators in Richmond, but that the investigators had a reasonable suspicion of wrongdoing which would have supported an investigative stop

at that point. A person is not seized within the meaning of the Fourth

Amendment when he is merely approached by law enforcement officers in public and asked questions to which he is willing to listen.

Florida v. Royer, 460 U.S. 491, 497 (1983). De Cedeno contends that

the officers' approach signalled to him that he was the subject of a

drug investigation because it followed closely his encounter with

Amtrak police in Washington and that, therefore, he did not feel free

to leave. We are not persuaded. The officers did nothing before the

discovery of the heroin packet to indicate that de Cedeno was not free

to decline to answer questions or to terminate the conversation. The

district court commented that de Cedeno searched the black bag of his

own accord; we agree.

Even if we were to find that de Cedeno was detained briefly by the

officers, no Fourth Amendment violation occurred. A limited investigative detention must be supported by reasonable, articulable suspicion that the individual so detained is engaged in criminal activity.

United States v. Sokolow, 490 U.S. 1, 7 (1989). In determining

whether a basis for reasonable suspicion existed, the court must consider the totality of the circumstances. Id. at 8. The investigators here

knew that de Cedeno's demeanor during his encounter with the

Amtrak police in Washington had aroused enough concern to elicit a

warning to them. They knew that de Cedeno and his mother had

asserted that they were carrying only the two tweed bags, but saw

them get off the train in Richmond with several other items, principally the black tote bag which de Cedeno had over his shoulder. They

saw de Cedeno's mother display protectiveness toward the black bag

by placing it with her suitcase when de Cedeno went inside the terminal. Moreover, one of de Cedeno's first statements--that he had just

met Ms. de Cedeno on the train--was inconsistent with what he told

the Amtrak police. We find that the combination of these factors created a reasonable, articulable suspicion that de Cedeno was involved

in criminal activity. The district court did not err in denying his

motion to suppress.3

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3 De Cedeno does not challenge the denial of his motion to suppress his

statements at the Public Safety Building.

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At sentencing, de Cedeno requested a two-level reduction in his

offense level and a sentence below the ten-year mandatory minimum

under the safety valve guidelines. USSG §§ 2D1.1(b)(4), 5C1.2.4 The

government argued that he had not complied with the fifth requirement of USSG § 5C1.2 because he had not provided truthful information about the offense. De Cedeno testified at the sentencing hearing

that a drug trafficker in New York, known only to him as "Columbia,"

first asked him to transport a television set to Richmond, then gave

him the packet of heroin and the bag containing the crack, the cellular

phone, and the pager. His testimony conflicted with his statements to

police following his arrest. De Cedeno insisted that his mother knew

nothing about the drugs and that he had related everything he knew

about the offense. The district court did not find his testimony credible and found that he did not qualify for the reduction under USSG

§ 2D1.1(b)(4). Given that the district court did not credit de Cedeno's

testimony, the court did not clearly err in finding that he had not truthfully provided all the information he possessed about the offense and

in denying him the reduction.

The conviction and sentence are therefore affirmed. We dispense

with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument

would not aid the decisional process.

AFFIRMED

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4 United States Sentencing Commission, Guidelines Manual (Nov.

1995).

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