United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                ________________

                                   No. 00-3116
                                ________________

United States of America,                 *
                                          *
             Appellee,                    *
                                          *       Appeal from the United States
      v.                                  *       District Court for the
                                          *       District of Nebraska.
Juan C. Mendoza-Cepeda,                   *
                                          *
             Appellant.                   *

                                ________________

                                Submitted: February 13, 2001
                                    Filed: May 18, 2001
                                ________________

Before RICHARD S. ARNOLD, LAY, and HANSEN, Circuit Judges.
                        ________________

HANSEN, Circuit Judge.

       Juan Mendoza-Cepeda appeals the district court's1 judgment entered upon his
conditional guilty plea to possession with intent to distribute methamphetamine. We
affirm.

                                          I.


      1
      The Honorable Joseph F. Bataillon, United States District Judge for the District
of Nebraska.
        Mendoza-Cepeda arrived in Omaha, Nebraska, on May 10, 1999, on a flight
from Phoenix, Arizona. Sergeant Burns and Investigator Rasgorshek of the
Commercial Interdiction Unit observed Mendoza-Cepeda exit the plane with a carry-on
bag and decided to follow him. Mendoza-Cepeda did not claim any checked luggage,
and he proceeded to the taxi stand. There, Sergeant Burns approached Mendoza-
Cepeda, displayed his badge, and asked to speak with him. Mendoza-Cepeda handed
his plane ticket and passport to Sergeant Burns. After returning the ticket and passport
to Mendoza-Cepeda, Sergeant Burns began to explain his purpose at the airport.
Mendoza-Cepeda told Sergeant Burns that he did not speak English. Using his
rudimentary Spanish, Sergeant Burns asked Mendoza-Cepeda if he had any drugs.
Mendoza-Cepeda repeated that he did not speak English. Sergeant Burns then asked
if he could search Mendoza-Cepeda’s carry-on bag. Mendoza-Cepeda handed his bag
to Sergeant Burns and Investigator Rasgorshek searched the bag. No drugs were
found. Sergeant Burns asked Mendoza-Cepeda if he could search him. Mendoza-
Cepeda did not respond. Sergeant Burns then used gestures while asking Mendoza-
Cepeda in Spanish if he could search Mendoza-Cepeda's boots. Mendoza-Cepeda held
out one foot at a time for Sergeant Burns to search. Next, Sergeant Burns asked
Mendoza-Cepeda if he could search Mendoza-Cepeda's torso. Mendoza-Cepeda did
not respond. Sergeant Burns asked Mendoza-Cepeda "yes" or "no" in Spanish while
pointing at Mendoza-Cepeda's torso. Mendoza-Cepeda raised his arms and allowed
Sergeant Burns to touch his torso. Sergeant Burns felt bundles taped around Mendoza-
Cepeda's waist. Sergeant Burns arrested Mendoza-Cepeda and took him back to an
office where the bundles were revealed to contain methamphetamine.

       A Spanish-speaking Immigration and Naturalization Service agent was contacted
to help with questioning Mendoza-Cepeda. Agent Wardy read Mendoza-Cepeda his
Miranda rights in Spanish and translated the questions and answers between
Investigator Krans and Mendoza-Cepeda. Agent Wardy testified that Mendoza-
Cepeda indicated that he understood his rights. Mendoza-Cepeda sought to suppress
the evidence seized and the statements he made. His motion to suppress was denied.

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Mendoza-Cepeda entered a conditional guilty plea, reserving his right to appeal the
denial of his motion to suppress, and was sentenced to 70 months of imprisonment
followed by five years of supervised release. Mendoza-Cepeda appeals.

                                          II.

       We review the question of whether a seizure has occurred de novo and the
district court's determination of voluntariness for clear error. United States v. White,

, 779-80, (8th Cir.), cert. denied, 

(1996).

       Mendoza-Cepeda asserts that the encounter at the airport with the officers of the
Commercial Interdiction Unit was an investigatory stop which, under the Fourth
Amendment, required reasonable suspicion. We disagree. Although a person may not
be seized without a reasonable suspicion of criminal activity, "the [Fourth] Amendment
is not triggered by a consensual encounter between an officer and a private citizen."
United States v. Perez-Sosa, 

, 1084 (8th Cir. 1998), cert. denied, 

(1999). A consensual encounter, however, may become a seizure if there
is a "threatening presence of several officers, [a] display of a weapon by an officer,
some physical touching of the person of the citizen, or the use of language or tone of
voice indicating that compliance with the officer's request might be compelled." United
States v. Hathcock, 

, 718-19 (8th Cir.)(quoting United States v. White,

, 779 (8th Cir. 1996)), cert. denied, 

(1997). Here, only two
officers of the Commercial Interdiction Unit were present, no weapon was displayed,
Mendoza-Cepeda was not physically touched until after he consented to the touching
of his torso, and the language used by Sergeant Burns does not indicate that Mendoza-
Cepeda's compliance was compelled. The encounter was in a public place, and
Mendoza-Cepeda was not in custody at the time. The encounter between Sergeant
Burns and Mendoza-Cepeda at the taxi stand did not constitute a seizure.




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        Mendoza-Cepeda relies on two cases, United States v. Eustaquio, 

(8th Cir. 1999), and United States v. Tovar-Valdivia, 

(8th Cir. 1999),
to support his proposition that the encounter at the taxi stand was a detention which
lacked reasonable suspicion. Tovar-Valdivia was stopped and questioned by an officer
after arriving in Kansas City, Missouri, on a Greyhound bus. The officer asked to see
his bus ticket and to search his bag. Upon noticing bulges under his shirt, the officer
reached out and felt the bulges without Tovar-Valdivia's consent. 

. Similarly, Eustaquio was stopped at the taxi stand at the Eppley Airfield
in Omaha, Nebraska, and questioned by two members of the Commercial Interdiction
Unit. Eustaquio allowed the officer to search her luggage and her jacket. Then, the
officer asked her to pull her shirt tight against her upper body. Eustaquio did the
opposite and pulled her shirt away from her body. The officer reached out and poked
what he believed to be a bulge under her shirt. 

. Both of
these cases can be distinguished on the basis of consent. Unlike Mendoza-Cepeda,
neither Tovar-Valdivia nor Eustaquio consented to the officers' physical contact with
their torsos. The district court found that Mendoza-Cepeda, however, did consent and
that consent prevented his encounter with the officers from escalating into a seizure.

        Next, Mendoza-Cepeda contends that the search of his torso was not valid
because it was performed without a warrant and without voluntary consent. Mendoza-
Cepeda argues that his inability to understand English prevented him from being able
to consent to the search. The voluntariness of one's consent to a search depends upon
the totality of the circumstances. United States v. Garcia, 

, 1226 (8th
Cir. 1999). The district court considered the following factors when determining the
totality of the circumstances: the defendant's age, intelligence and education; whether
the defendant was chemically intoxicated; whether the defendant knew that he did not
have to consent; the length of the encounter; police intimidation; whether the defendant
relied upon promises or misrepresentations made by the police; whether the defendant
was in custody; whether the encounter occurred in a public or secluded place; and


                                           4
whether the defendant objected to the search. United States v. Sanchez, 

,
878 (8th Cir. 1998).

       The district court found that Mendoza-Cepeda is an adult, who did not appear
to be under the influence of any substance at the time he was questioned by Sergeant
Burns. The district court recognized the fact that Mendoza-Cepeda was not told that
he did not have to consent, but despite this fact the district court concluded that
Mendoza-Cepeda was not intimidated into consenting by the officers and that no
promises were made. Additionally, the district court relied on the fact that the
encounter occurred in public and that Mendoza-Cepeda did not object to the search.
The district court did not believe that Mendoza-Cepeda's purported inability to speak
English negated his voluntariness because Mendoza-Cepeda appeared to understand
Sergeant Burns' request, both verbal and through the use of gestures, to search his
carry-on bag and his torso. The district court recognized a statement made at the
suppression hearing where Sergeant Burns noted that Mendoza-Cepeda spoke clearly
when he told Sergeant Burns that "I don't speak English," and Sergeant Burns did not
detect any accent. (Dist. Ct. Mem. Op. and Order at 2). Finally, the district court
concluded that the Fourth Amendment "requires only that the police reasonably believe
the search to be consensual," 

(quoting 

), and that in
considering the totality of the circumstances, the officers could have reasonably
believed that Mendoza-Cepeda consented to the search. We are not convinced that the
district court's finding of voluntariness is clearly erroneous.

       Lastly, Mendoza-Cepeda argues that because he was in custody at the time of
the questioning at the taxi stand, he should have been given his Miranda warnings. As
already addressed earlier, we do not believe that Mendoza-Cepeda was in custody at
the time he was questioned or searched at the taxi stand in front of the airport.
Consequently, no Miranda warnings were required. See United States v. Rorex, 

, 755 (8th Cir. 1984).


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                                  III.

For the foregoing reasons, we affirm the judgment of the district court.

A true copy.

      Attest:

               CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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