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United States v. Persley

filed: March 18, 1993.


Appeal from the United States District Court for the Central District of California. D.C. No. CR 90-234-RMT. Robert M. Takasugi, District Judge, Presiding

Before: Poole, Wiggins, and Leavy, Circuit Judges.



Appellant Antoine Dewayne Persley appeals his conviction for possession of cocaine with intent to distribute, a violation of 21 U.S.C. § 841(a)(1). Persley asserts that the law enforcement officers who stopped him at the Los Angeles International Airport had no reasonable suspicion upon which to justify his detention, and argues that he did not consent to a warrantless search of his luggage. By Order dated March 19, 1992, this court remanded the case for clarification of the district court's findings on whether Persley consented to the luggage search. In a Response to Order of Remand received January 13, 1993, the district court indicated that it found the search consensual. We now affirm.


On March 15, 1990 at approximately 4:30 p.m., Drug Enforcement Administration agent Rick Wammack observed Persley purchase an airline ticket at the Delta Airlines ticket window at Los Angeles International Airport (LAX). Persley purchased the ticket with a wad of cash. He was carrying one suitcase and a plastic shopping bag. Persley then walked to LAX Gate 51A to wait for his boarding call.

Wammack followed Persley to the gate area and fifteen minutes later confronted him. Wammack tapped Persley on the shoulder from behind and then used his badge to identify himself as a law enforcement officer. Persley responded to the unexpected tap on his shoulder by raising his arms in the air. According to Persley, agent Wammack told him that "he should not make a big scene out of the situation." Wammack testified that Persley agreed to speak with him. Wammack also informed Persley that he was not under arrest and was free to leave. Persley told Wammack he understood this.

Persley testified that while he was lowering his arms another individual -- Los Angeles police officer Jeff Christ -- performed a "pat down" search. Persley asserts that as a result of this, he agreed to speak with the agents. Wammack asked Persley to produce identification and his plane ticket, and Persley handed over an Ohio identification card and a one-way ticket from Los Angeles to Cincinnati. The ticket was issued in Persley's name, had a face value of $520, and was purchased with cash. The defendant's flight was scheduled to depart at 5:55 p.m. Wammack returned both the identification card and the ticket to Persley.

Agent Wammack then pursued a Discussion of Persley's travel plans. Persley explained that he had come to the Los Angeles area to visit a friend residing in Long Beach, but did not give any other details about his friend. In response to Persley's request to explain why the agent was asking him questions, Wammack responded that he was conducting narcotics surveillance and asked Persley if he was carrying drugs or large sums of money.

The parties dispute who broached the subject of a search of Persley's bags. Persley maintains that Wammack asked him if he would consent to a search. The government, on the other hand, asserts that Persley offered to allow Wammack to conduct the search and pushed the bags toward the agent. Persley also maintains that one of the agents began searching inside the bags before the request was made and that he responded, "why do you ask me that, you are doing it already."

In response to Wammack's question about large sums of money, Persley replied that he was carrying several thousand dollars, and showed the money to one of the agents. The money consisted of a large number of small denomination bills.

Inside Persley's suitcase Wammack found a plane ticket receipt for a prior trip from Cincinnati to Los Angeles in the name "Lutie Reed." The ticket's value was $520 and had been purchased with cash. Persley explained that it had been issued in a friend's name because the friend had made the reservation for him. One of the agents then asked to frisk Persley, and Persley agreed. In an attempt to find more money on Persley's person, the agent patted down defendant's clothing in the area of his pockets and the small of his back.

Wammack then asked Persley if he would accompany the agents to the airport's DEA office. Wammack explained that the office was located near Gate 51A and that Persley would still be able to catch his flight. During the subsequent walk together, Wammack asked Persley if the money belonged to him. Persley said it did, explaining that it was a loan from a friend named Tyrone. Persley was not able to provide Tyrone's last name.

Once inside the DEA office, Wammack looked inside a shoe box he found inside Persley's shopping bag. Concealed in a pair of shoes Wammack found a shipping receipt from Greyhound, Inc. The receipt showed that a package had been sent that afternoon ...

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