UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 05-4175



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


DIALLO COBHAM,

                                              Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Alexander Williams, Jr., District Judge.
(CR-04-173-AW)


Submitted:   December 21, 2005            Decided:   February 2, 2006


Before LUTTIG, MICHAEL, and MOTZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


James Wyda, Federal Public Defender, Martin G. Bahl, Staff
Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Baltimore,
Maryland, for Appellant.    Rod J. Rosenstein, United States
Attorney, Michael R. Pauze, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

     A    grand   jury    charged   Diallo    Cobham     with    conspiracy     to

distribute cocaine in violation of 21 U.S.C.A. § 846 (West 1999),

possession with intent to distribute cocaine in violation of 21

U.S.C.A. § 841 (West 1999), and possession of a firearm after a

felony conviction in violation of 18 U.S.C.A. § 922(g) (West 2000).

Prior to trial, Cobham moved to suppress drugs and other evidence

recovered during a search of his truck at the Baltimore-Washington

International Airport (“BWI”).         After an evidentiary hearing, the

district court denied the motion.            A jury subsequently convicted

Cobham of all charges, and the district court sentenced him to a

240-month    term   of    imprisonment,      followed    by     eight   years   of

supervised release.        Cobham appeals his conviction, arguing that

the district court erred in denying his motion to suppress the

evidence.     He also appeals his sentence, contending that the

district court erred by enhancing his sentence based on his prior

drug-related offenses.       We affirm.

     In    February      2004,   Detective    Scott     C.    Parrish   received

information from a confidential informant in California identifying

Diallo Cobham as a “kilogram cocaine dealer.”                The source provided

information concerning the location of Cobham’s drug supplier,

Cobham’s method of transportation, and a detailed description of

how Cobham wrapped his supply of cocaine in black electrical tape

and then concealed it in dark clothing inside his baggage.                 After


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receiving this information, Det. Parrish investigated further and

discovered     that    Cobham   had   two   prior   felony    convictions   in

Maryland, in addition to arrests for drug charges in Los Angeles

and Maryland.

       On March 22, 2004, a Southwest Airline employee told Parrish

that Cobham was traveling from Los Angeles to BWI, going through

St. Louis, returning from a trip made to California the previous

day.    Det. Parrish also discovered that Cobham would often travel

to Los Angeles and spend less than 24 hours there.             Armed with all

this    information,     Det.   Parrish,    along   with     other   officers,

established surveillance at BWI airport.             When Cobham’s flight

landed, he left the plane carrying a backpack, went to baggage

claim to retrieve one checked suitcase, and then went to the

airline office to recover a second suitcase that had been damaged

in flight.     He then made his way to the parking garage.

       As   Cobham    reached   his   pickup   truck,   Det.    Darin   Cover,

approached and asked if he could speak to Cobham.             While other law

enforcement officers and a police canine were present in the

vicinity of the pickup, they all remained several feet away.

During the course of the conversation, Det. Cover, a 17-year

veteran of the police force, observed that Cobham acted in a

nervous manner, sweating, stuttering, and pacing. Det. Cover asked

Cobham for identification, which he provided.           Cobham then placed

his two suitcases and backpack in his truck and locked the vehicle.


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Det. Cover asked Cobham if he had any drugs on him and Cobham

replied that he did not, but Cobham refused to consent to a search

of his luggage.      Cobham then made a call on his cell phone and told

the detective that “my lawyer said I should leave.”           Det. Cover

told Cobham that he was free to leave, but that his truck “wasn’t

going anywhere.”      As Cobham began to walk away, the police canine

alerted on the driver’s side of the truck.              The police then

arrested Cobham and searched the truck, finding a brick of cocaine

wrapped in electrical tape and concealed in a pair of jeans.

     The Fourth Amendment permits law enforcement officers to seize

the person or property of another without a warrant or probable

cause when the officers have a “reasonable, articulable suspicion

that the person has been, or is about to be engaged in criminal

activity.”      United States v. Place, 

, 702 (1983)

(citing Terry v. Ohio, 

, 22 (1968)).          This exception is

limited to those circumstances in which a substantial governmental

interest supports the seizure and the detention only minimally

intrudes.    Place, 462 U.S. at 703.         “[W]here the authorities

possess specific and articulable facts warranting a reasonable

belief   that    a    traveler’s   luggage   contains    narcotics,   the

governmental interest in seizing the luggage briefly to pursue

further investigation is substantial.”       Id.

     We agree with the district court that the officers did not

seize Cobham when they approached him in the airport parking lot.


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No violation of the Fourth Amendment occurs when police merely

approach an individual and ask some questions of him, even when an

officer identifies himself as a law enforcement agent. See Florida

v. Royer, 

, 497 (1983).          A seizure takes place only

when a reasonable person under the circumstances would not feel

free to leave or otherwise terminate the encounter. See Florida v.

Bostick, 

, 434 (1991).           Here, Det. Cover identified

himself    as    a   law   enforcement   officer   and   received   Cobham’s

permission to speak with him.        All other officers in the vicinity

remained several feet away.         Det. Cover did not retain Cobham’s

identification or ticket stub but rather returned them both after

briefly inspecting them.        See Royer, 460 U.S. at 504.    When Cobham

refused to consent to a search, Detective Cover told him he was

free to leave.       Given the brevity of the encounter and that Det.

Cover explicitly gave Cobham permission to leave, a reasonable

person in this situation would have felt free to terminate the

encounter.       Therefore, we conclude that no seizure of Cobham

occurred.

     The law enforcement officers at BWI did seize Cobham’s truck,

however.        The only questions are whether the officers had a

reasonable suspicion to justify their seizure, and whether the

seizure was properly limited in scope. Cover seized Cobham’s truck

based on a tip from a confidential source, Cobham’s frequent travel

to a source state for one night, Cobham’s locking his luggage into


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his truck while in the presence of a police officer, his sweating,

stuttering, and pacing, and his prior arrests on drug charges. The

totality of these circumstances create a reasonable, articulable

suspicion that Cobham was carrying drugs in his luggage, thus

justifying the seizure of his property.

     Additionally, we believe that the seizure of the truck was

properly limited in its scope.    A police canine arrived at the

truck while Cobham was walking away; after circling the truck, the

dog alerted within minutes of the initial encounter. The detention

of the property lasted only a few minutes prior to Cobham’s arrest,

was minimally intrusive, and was therefore appropriate in scope.

See, e.g. Royer, 460 U.S. at 505-06; Place, 462 U.S. at 705-06.

Accordingly, no violation of the Fourth Amendment occurred.

     Finally, we reject Cobham’s Sixth Amendment claim that the

district court improperly enhanced his sentence based on his prior

convictions.   As Cobham concedes, the Supreme Court has held that

prior convictions do not constitute elements of an offense, which

must be found beyond a reasonable doubt by a jury.      See United

States v. Almendarez-Torres, 

, 243 (1998). The Court’s

recent holding in United States v. Booker, 

 (2005)

does not require a different result.   See United States v. Cheek,

, 354 (4th Cir. 2005).

     We therefore affirm the judgment of the district court.    We

dispense with oral argument because the facts and legal contentions


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are adequately presented in the materials before the court and

argument would not aid the decisional process.

                                                      AFFIRMED




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