United States of America v. Kashiema Alston

*The Honorable Glen M. Williams, Senior United States District
Judge for the W estern D istrict of Virginia, sitting by designation.
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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0209P (6th Cir.)
File Name: 04a0209p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KASHIEMA ALSTON,
Defendant-Appellant.
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No. 03-3134
Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 02-00054—Solomon Oliver, Jr., District Judge.
Submitted: June 10, 2004
Decided and Filed: July 7, 2004
Before: MARTIN and SUTTON, Circuit Judges;
WILLIAMS, Senior District Judge.*
2 United States v. Alston No. 03-3134
_________________
COUNSEL
ON BRIEF: Wesley A. Dumas, Sr., Cleveland, Ohio, for
Appellant. David P. Folmar, Jr., ASSISTANT UNITED
STATES ATTORNEY, Cleveland, Ohio, for Appellee.
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OPINION
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BOYCE F. MARTIN, JR., Circuit Judge. Kashiema Alston
was convicted by a jury of possession with intent to distribute
cocaine under 21 U.S.C. § 841(a)(1)(B). On appeal, Ms.
Alston asserts that the district court erred in denying her
motion to suppress because she was illegally seized in
violation of her rights under the Fourth Amendment. Ms.
Alston also argues that the district court erred in denying her
proposed jury instruction, stating that the jury should not give
more credibility to the testimony of law enforcement officers
than other witnesses solely because of their status. We hold
that the encounter between Ms. Alston and the officers did not
rise to the level of a seizure for purposes of the Fourth
Amendment. Thus, we affirm the district court's denial of the
motion to suppress. We also hold that the district court did
not abuse its discretion in denying Ms. Alston's last-minute
request for a jury instruction, and we affirm the judgment of
the district court.
I.
Ms. Alston was arrested on January 14, 2002, in Cleveland
International Airport after her carry-on luggage was searched,
and officers found cocaine inside the lining of a coat
contained in her luggage. Ms. Alston was traveling from Los
Angeles, California, to Hartford, Connecticut, her hometown.
Officers in Cleveland received information from a drug task

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No. 03-3134 United States v. Alston 3
force in Houston, Texas, stating that Ms. Alston was traveling
from Los Angeles to Hartford and that the circumstances
surrounding the purchase of her ticket indicated that she
might be involved in illegal drug transportation.
An investigation by officers in Cleveland revealed that Ms.
Alston's ticket was purchased by Robert Taylor, a man who
produced no identification and paid the fare in cash. Ms.
Alston departed on January 11, 2002, and was scheduled to
return on January 20, 2002. Late in the evening on
January 13, 2002, the return ticket was changed to depart on
January 14, 2002. The fee for this change was paid in cash.
The investigation revealed that Ms. Alston was traveling
alone and that she checked no baggage in Los Angeles. The
officers learned that her plane was scheduled to land in
Cleveland, where she would change planes, and that she was
seated near the center of the plane arriving from Los Angeles.
Officers Brian Johnston, Debra Harrison, and Kirk Johns
were assigned to locate Ms. Alston when she landed in
Cleveland. After approaching one individual and determining
that she was not Ms. Alston, the officers observed Ms. Alston
deplane. Although they did not know her specific age or have
a physical description of her, the officers were able to locate
her as a single female traveler in the middle of the plane. The
officers observed her as she left her gate, purchased a cup of
coffee, and purchased food. Ms. Alston then approached a
bank of telephones. The three officers, who were all dressed
in plain clothes and not showing weapons, decided to
approach her before she made a telephone call.
Officer Johnston approached Ms. Alston, and after showing
her his identification, he told her that he was a drug-task-force
officer and asked if he could speak with her. Office Johnston
testified at the suppression hearing that he told Ms. Alston
that she was not under arrest and was free to leave at anytime.
Ms. Alston initially consented, but she went to ask the gate
agent a question regarding her flight, leaving her carry-on
luggage at the phone bank. Ms. Alston returned, and Officer
4 United States v. Alston No. 03-3134
Johnston again asked if he could speak with her. She again
consented, and Officer Johnston asked her name and asked for
identification. Ms. Alston produced identification, and after
a brief inspection, Officer Johnston returned it to her. Then,
Officer Johnston asked to inspect her boarding pass. Again,
Ms. Alston produced the boarding pass, and after a brief
inspection, Officer Johnston returned it. During this time,
Officer Harrison stood a distance behind Officer Johnston,
and Officer Johns pretended to be a traveler talking on the
telephone.
Officer Johnston then asked if he could have permission to
search her carry-on baggage. Again, Ms. Alston consented.
Officer Harrison approached in order to search the bag and
found that it was sealed by a lock. Officer Johnston asked
Ms. Alston if she had a key, and she said no. Officer
Harrison proceeded to open the bag by separating the zipper.
During the search of Ms. Alston's luggage, Officer Harrison
picked up a coat and noticed that it was quite heavy. She
began to pat down the coat and felt what she believed to be
contraband in the lining of the coat. Officer Johns then
approached and offered Officer Harrison a knife with which
to cut the lining of the coat. After Officer Harrison retrieved
packets of cocaine from the lining of the coat, Ms. Alston was
arrested.
After Ms. Alston was indicted, she filed a motion to
suppress, claiming that the officers illegally seized her and
that the evidence obtained from the seizure should be
suppressed. The district court held a suppression hearing in
which the motion to suppress was denied orally. A jury found
Ms. Alston guilty, and she was sentenced to sixty-three
months imprisonment.
II.
This Court reviews a district court's factual findings in a
suppression hearing for clear error and reviews a district

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No. 03-3134 United States v. Alston 5
court's conclusions of law de novo. United States v. Waldon,
206 F.3d 597, 602 (6th Cir. 2000).
Ms. Alston argues that the encounter with the officers on
January 14, 2002, amounted to a seizure, and that the seizure
was unconstitutional because the officers had neither
reasonable suspicion nor probable cause to detain her.
Because we believe that a reasonable person in Ms. Alston's
circumstances would have felt free to leave, we hold that Ms.
Alston was not seized for purposes of the Fourth Amendment.
Further, because Ms. Alston does not challenge the district
court's holding that her consent to search was freely and
voluntarily given, we hold that the evidence obtained by the
officers was properly admitted by the district court.
"Under the Fourth Amendment, there are three types of
permissible encounters between police and citizens:
consensual encounters in which contact is initiated by a police
officer without any articulable reason whatsoever and the
citizen is briefly asked some questions; a temporary
involuntary detention or Terry stop which must be predicated
upon 'reasonable suspicion;' and arrests which must be based
on probable cause." United States v. Bueno, 21 F.3d 120, 123
(6th Cir. 1994). The first of these encounters is permissible
without any particularized suspicion because no seizure has
occurred for purposes of the Fourth Amendment. A seizure
occurs when "under the totality of the circumstances, a
reasonable person would have believed that he or she was not
free to walk away." United States v. Saperstein, 723 F.2d
1221, 1225 (6th Cir. 1983).
This Court has been asked to address this issue many times,
and while the facts of each case are different, we do not see
anything in this case that would make us think that a
reasonable person in Ms. Alston's circumstances would not
have felt free to terminate the encounter. Ms. Alston was
approached by officers in plain clothes and asked if she would
speak to them. After responding that she would, Officer
Johnston asked for her identification and boarding pass.
6 United States v. Alston No. 03-3134
Officer Johnston spoke in a non-threatening manner and did
not display a weapon. Furthermore, the atmosphere was not
police dominated. Although there were three officers on the
scene, only Officer Johnston approached the defendant while
the other officers remained some distance away. Officer
Johnston testified that he told Ms. Alston she was free to walk
away, but Ms. Alston did not choose to do so. The encounter
was very brief, and Ms. Alston was not asked to accompany
the officers to a different location. Nothing in the record
suggests that a reasonable person would not have felt free to
leave. The district court did not provide us findings of fact,
and cases like this generally turn on credibility determinations
made by the district judge at the suppression hearing.
However, even viewing the facts in the light most favorable
to Ms. Alston, we find nothing that would lead us to conclude
that a reasonable person would not have felt free to leave.
Therefore, there was no seizure for purposes of the Fourth
Amendment.
Defendant's brief does not challenge the district court's
holding that Ms. Alston's consent to search was voluntary,
and, thus, we will not review this finding.
III.
Ms. Alston alleges that the district court erred in not
instructing the jury that it should not lend more credibility to
the testimony of law enforcement officials solely because of
their status. "We will reverse a conviction for failure to give
a requested jury instruction only when: (1) the requested
instruction is a correct statement of the law; (2) the requested
instruction is not substantially covered by other delivered
instructions; and (3) the failure to give the instruction impairs
the defendant's theory of the case." United States v. Chesney,
86 F.3d 564, 573 (6th Cir. 1996).
The district court committed no error in denying Ms.
Alston's proposed instruction on witness credibility. The jury
was given lengthy instructions on considerations to make

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No. 03-3134 United States v. Alston 7
when determining witness credibility. A portion of these
instructions told the jurors to "[a]sk yourself if the witness
had any relationship to the government or the defendant, or
anything to gain or lose from the case, that might influence
the witness's testimony. Ask yourself if the witness had any
bias or prejudice or reason for testifying that might cause the
witness to lie or to slant their testimony in favor of one side
or the other." App. 244. In addition, the district court
instructed the jury that "the instructions . . . apply to each
witness, regardless of who they are or which side may have
called them." We believe the above instruction invites jurors
to think about whether witnesses, such as the officers, may be
biased because of their relationship with the government. Ms.
Alston's concern that the officers' testimony would be given
greater deference because of their status was adequately
addressed by this instruction and other jury instructions as a
whole, and the district court did not abuse its discretion.
For these reasons, we AFFIRM the judgment of the district
court.

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