Cummings, Chief Judge, and Eschbach and Coffey, Circuit Judges.
The sole issue presented for review in this Court is whether the district court erred in denying defendant Virginia Morgan's motion to suppress evidence seized pursuant to an allegedly unlawful stop and search at O'Hare airport in Chicago. The court held that based on the events as presented, a Drug Enforcement Agency ("DEA") agent and Chicago policemen working with him had enough reasonable suspicions to approach defendant and engage her in consensual conversation. During this conversation, which (as will be seen in Part III infra) was not a "seizure," the district court found that the defendant was asked to consent to a search of her baggage, after being informed she did not need to consent. Defendant consented each time to two baggage searches, and the second search produced cocaine. After a bench trial she was convicted of possession of cocaine with intent to distribute and was sentenced to five years' probation with the first three months to be served in a work release program. For the following reasons, we affirm the conviction.
About 2:15 P.M. on September 23, 1983, a DEA agent and Chicago police officers dressed in plain-clothes were at O'Hare airport observing an incoming flight from Orlando, Florida. The first person to leave the plane was a white male, Gary Steuwe, who ran from the gate to the main terminal. He stopped at some wall phones, looked back in the direction from which he had come and then observed a flight monitor or surveillance of Steuwe's fellow passengers being conducted by DEA agent Labik and three Chicago policemen.*fn1
The defendant deplaned approximately ten to fifteen passengers later. She met Steuwe and they walked to the terminal together and were followed by agents. Steuwe looked over his shoulder several times. The couple then separated and went into their respective washrooms. Steuwe emerged first, made eye contact with one of the pursuing agents and left the terminal. Two of the agents stopped him, identified themselves and asked to talk. Steuwe agreed but appeared nervous. He said he was travelling alone and had no luggage. He eventually agreed to a search of the handbag he was carrying which produced $1,000 in currency but no contraband and then left for a parking lot. The agents returned to the terminal to find that the defendant, standing in an enclosure between two exit doors, had already claimed two bags, one of which she would later identify as Steuwe's.
Two of the agents approached the defendant, identified themselves and asked to speak to her. She agreed. The defendant testified at the suppression hearing that the DEA agent told her she fit the description of a narcotics courier. He asked defendant if she would mind moving to a spot away from the flow of pedestrian traffic and into an area between the terminal entrance and exit doors. She agreed and moved her bags. When asked for identification, the agents testified that she produced her own driver's license and an airplane ticket with the names Mr. and Mrs. Steuwe. Morgan testified that the ticket was in her own name and she was travelling with Steuwe on business and was waiting for him to pick her up in his car. The agents thought that Morgan appeared nervous and frightened throughout the questioning.
The DEA agent testified that he informed Morgan that he was conducting a narcotics investigation and asked if she would agree to let him search the two bags she had claimed. He testified that he told her she had the right to refuse. Morgan testified that the agent told her he "had to" look into her bags and did not tell her she could refuse or even ask for her consent. At that time, a search of her bags produced nothing although the DEA agent noticed a sanitary napkin box in one of her bags.
The DEA agent left to make a phone call. The defendant testified that she asked to make a phone call but was told by the remaining agent that she had to remain where she was. The agent denies that this conversation took place. The defendant continued to look outside for Steuwe to arrive. The remaining agent suggested she go look for the car. The defendant went outside to look, leaving her luggage with the agent. Outside the terminal another agent asked if he could help her. Morgan testified that he accompanied her from the terminal out to the street but that testimony was controverted. After looking in vain for Steuwe's car, Morgan returned to the foyer where the DEA agent had returned. The DEA agent asked if she would consent to another search, indicating again that she could refuse. He testified that Morgan consented. Morgan testified that she neither was asked to nor did she consent to a search. During the second search of the luggage, the agent looked inside the box of sanitary napkins where he found cocaine in the center of the box. Defendant was then placed under arrest. A search of her person produced a small vial which contained traces of cocaine.
The district court found that the defendant voluntarily consented to both searches. The court credited the testimony of the agents over that of the defendant. The court found that the defendant was asked for permission to search her baggage for both searches; that she was told of her right to refuse on both occasions; and that she agreed to both of the searches. The court, after observing the demeanor of the witnesses, came to the conclusion that there was nothing presented that convinced him that the defendant was more credible than the agents. The court believed the agents' version of the conversations and concluded that both searches of defendant's luggage were made after defendant gave her informed, free and voluntary consent. The determination on the part of Judge Aspen as to what conversations actually took place is essentially a factual one and we cannot say that his determination is clearly erroneous. The determination of whether the consent was free and voluntary must be made with reference to the totality of the circumstances. United States v. Mendenhall, 446 U.S. 544, 100 S. Ct. 1870, 64 L. Ed. 2d 497; Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041, 36 L. Ed. 2d 854. There was ample evidence presented to support the court's determination that Morgan's consent was voluntary. Although the fact that Morgan was told she had the right to refuse is not dispositive of the determination of voluntariness, it is highly relevant. United States v. Mendenhall, 446 U.S. at 558-59, 100 S. Ct. at 1879-80. Under the totality of the circumstances, the district court properly found that Morgan freely and voluntarily consented to both searches.
Our inquiry does not end with a determination that Morgan's consent was voluntary, for if the agents had improperly "seized" the defendant, her consent to a search would have been tainted and the evidence should have been suppressed. Florida v. Royer, 460 U.S. 491, 103 S. Ct. 1319, 75 L. Ed. 2d 229. The district court found that no "seizure" had occurred because at all times the defendant was free to leave. We agree with the district court that no seizure had occurred. This Circuit has adopted Justice Stewart's "reasonable person" test as articulated in United States v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 1877, 64 L. Ed. 2d 497 (Rehnquist, J., concurring):
a person has been "seized" within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would ...