ORAL ARGUMENT NOT YET SCHEDULED

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

NO. 93-3060

BRIEF OF APPELLANT

UNITED STATES OF AMERICA, Plaintiff-Appellee

xxxxxxx B. xxxxxxx, Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

A.J. KRAMER

Federal Public Defender

625 Indiana Avenue, Suite 550

Washington, D.C. 200004

(202) 208-7500

W. GREGORY SPENCER

Assistant Federal Public Defender

Counsel for Appellant

District Court

Cr. No. 92-417

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

Pursuant to Rule 11 of the General Rules of this Court, Appellant, xxxxxxx xxxxxxx, hereby states as follows:

A.Parties and Amici:

The parties below and on this appeal are the Defendant-Appellant, xxxxxxx xxxxxxx, and the Plaintiff-Appellee, the United States of America. There are no amici.

B.Rulings Under Review:

This is an appeal from the judgment of the district court (The Honorable Stanley Sporkin), dated April 16, 1993, adjudging appellant guilty upon a conditional guilty plea to the charge of possession with intent to distribute five grams or more of cocaine base. (App. 071) In this appeal, appellant seeks review of the district court's ruling, dated January 27, 1993, denying Mr. xxxxxxx's motion to suppress evidence (App. 067). That ruling is not reported.

C.Related Cases:

There are no related cases and this case has not previously been before this court.

TABLE OF CONTENTS

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . .iii

STATUTES AND REGULATIONS. . . . . . . . . . . . . . . . . . . . .1

JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . . 1

ISSUE PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . 2

SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . 6

ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

I. The Arrest of the Appellant and the Seizure of the

Evidence in this Case Violated the Fourth Amendment

where it was Based upn the Exchange of an Unknown

Object and an Unknown Amount of Currency. . . . . . . . 6

A. Standard of Review. . . . . . . . . . . . . . . . . . 6

B. The Arrest and Search of the Appellant was Without

Probable Cause. . . . . . . . . . . . . . . . . . . . . 6

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . .11

CERTIFICATE OF LENGTH . . . . . . . . . . . . . . . . . . . . . 12

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . 12

ADDENDUM

TABLE OF AUTHORITIES

CASES

Brinegar v. United States, 338 U.S. 160 (1949). . . . . . . 8

(Quoting Carroll v. United States, 267 U.S. 132, 162 (1925)

Coolidge v. New Hampshire, 403 U.S. 443 (1971). . . . . . . 7

Draper v. United States, 358 U.S. 307 (1958). . . . . . . . . 8

Johnson v. United States, 451 U.S. 204 (1981) . . . . . . . . 7

Katz v. United States, 389 U.S. 347 (1967) . . . . . . . . . 7

United States v. Davis, 561 F.2d 1014 (D.C. Cir. 1977). . . . 9

United States v. Davis, 458 F.2d 819 (D.C. Cir. 1972). . . . .9

United States v. Green, 670 F.2d 1148 (D.C. Cir. 1981) . . 8, 9

United States v. Harley, 990 F.2d 1340 (D.C. Cir. 1993)

cert. denied, 114 S.Ct. 236( 1992) . . . . . . . . 8

United States v. Jeffers, 342 U.S. 48 (1951). . . . . . . . . 7

United States v. Jenkins, 530 F.Sup. 8 (D.C. 1981). . . . . . 8

United States v. Lucas, 778 F.2d 885 (D.C. Cir.) (1985). . .. 9

United States v Patrick, 959 F.2d 991 (D.C. Cir. 1992). . . . 6

United States v. Watson, 423 U.S. 411 (1976). . . . . . . . . 8

United States v. White, 655 F.2d 1302 (D.C. Cir. 1981). . . . 9

STATUTES AND RULES

Federal Rules of App. P. Cir.28(a)(5). . . . . . . . . . . . . . 1

Federal Rules Cr. P. 11(a)(2). . . . . . . . . . . . . . . . . . 1

18 U.S.C. § 3231 . . . . . . . . . . . . . . . . . . . . . . . . 1

21 U.S.C. § 841(a)(1) . . . . . . . . . . . . . . . . . . . . . 1

21 U.S.C. § 841(b)(1)(B)(iii). . . . . . . . . . . . . . . . . . 1

28 U.S.C. § 1291. . . . . . . . . . . . . . . . . . . . . . . . .1

* Authorities principally relied upon are marked with an asterisk.

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

NO. 93-3060

UNITED STATES OF AMERICA,

Plaintiff-Appellee;

xxxxxxx B. xxxxxxx,

Defendant-Appellant.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

BRIEF OF APPELLANT

STATUTES AND REGULATIONS

Pursuant to Rule 28(f) of the Federal Rules of Appellate Procedure and Circuit Rule 28(a)(5), pertinent statutes and rules are set forth in the addendum to this brief.

STATEMENT OF JURISDICTION

This court has jurisdiction pursuant to 28 U.S.C. § 1291 over this direct appeal of a final judgment in a criminal case. The district court had jurisdiction over the case pursuant to 18 U.S.C. § 3231.

ISSUE PRESENTED

1.WHETHER THE DISTRICT COURT ERRED IN DENYING APPELLANT'S MOTION TO SUPPRESS EVIDENCE, WHERE THE POLICE ARRESTED THE APPELLANT AFTER WITNESSING THE TRANSFER OF AN UNKNOWN WHITE OBJECT FOR AN UNKNOWN AMOUNT OF CURRENCY?

STATEMENT OF THE CASE

A.Proceedings Below

Appellant, xxxxxxx B. xxxxxxx, was charged in a two- count indictment with unlawful possession with intent to distribute five grams or more of cocaine base, in violation of 21 U.S.C. §§841(a)(1) and 841(b)(1)(B)(iii), and, unlawful possession with intent to distribute cocaine base within 1000 feet of a school, in violation of 21 U.S.C. §860(a). (App. 006) On January 25, 1993, the Honorable Stanley Sporkin, United States District Court Judge, denied Mr. xxxxxxx's motion to suppress physical evidence and statements. Upon the denial of his motion to suppress, Mr. xxxxxxx entered a conditional guilty plea to count one of the indictment, pursuant to Rule 11(a)(2), of the Federal Rules of Criminal Procedure, reserving his right to appeal the district court's denial of his motion. On April 14, 1993, Judge Sporkin sentenced Mr. xxxxxxx to 71 months' imprisonment, four years of supervised release, and a $50.00 special assessment. xxxxxxx xxxxxxx appeals the denial of his motion to suppress.

B.Statement of Facts

1.The Motion Hearing

On October 4, 1992, Officer Michael Cuz, of the Metropolitan Police Department, was present in an "observation post" on the roof of the buildings located at 2707, 2709, and 2711 Robinson Place, S.E., Washington, DC. (App. 014, 017) The roofs of the aforementioned buildings are attached and they form a "U". (App. 017) Officer Cuz was positioned on top of 2711 and his partner, Officer Phillip McNichol, was on top of 2707. (App. 018) Although Officer Cuz described the area as a "hot area for narcotic trafficking," he had made only 10 to 20 arrests for drug offenses in this area during his three years as a police officer. (App. 015). At approximately 12:00 a.m., xxxxxxx xxxxxxx arrived in the area in a station wagon. (App. 019) From three stories high, Officer Cuz observed Mr. xxxxxxx and about six other black males "hanging out" around the car and mixing drinks. (App. 019, 021) Officer Cuz saw Mr. xxxxxxx and a juvenile enter the car. (App. 025) From some place in the car, Mr. xxxxxxx retrieved a plastic bag and placed it in his pants. (App. 025) Officer Cuz could not see what was in the bag. (App. 025, 038) Mr. xxxxxxx got out of the car and went into a wooded lot across the street. (App. 027, 039) Officer Cuz did not see what Mr. xxxxxxx did in the woods, however, he had speculated to the grand jury that Mr. xxxxxxx may have gone to the bathroom in the woods. (App. 039)

After Mr. xxxxxxx rejoined the males around the car, two unknown women joined the group. (App. 027) The women began talking to all of the men present. (App. 027) Officer Cuz was not able to hear the conversation between the women and the men. (App. 040) One of the unknown women and Mr. xxxxxxx left the group and walked around the 2707 building toward a parking lot. (App. 028) As they walked around the building, Officer Cuz lost sight of them and he radioed Officer McNichol to "watch them." (App. 028, 029) After a short wait, Officer McNichol indicated that he believed a drug transaction had occurred between Mr. xxxxxxx and the woman. (App. 030) The officers radioed look-outs for Mr. xxxxxxx and the woman to the arrest teams. (App. 030)

The unknown woman remained in the area of the observation post building and Mr. xxxxxxx walked toward the next building, 2713 Robinson Place, S.E., Washington, DC. (App. 031) While Mr. xxxxxxx was talking to another woman and two of the males from the car, the arrest team arrived on the scene. (App. 031) Upon the arrival of the police, one of the males ran but Mr. xxxxxxx "just stood there." (App. 031) As Mr. xxxxxxx turned around to place his hands on a wall, he ran. (App. 032) After a brief chase, Mr. xxxxxxx was arrested and searched. The search of xxxxxxx resulted in the recovery of 12.2 grams of cocaine base and $60.00. (App. 036-037, 056, 062) The unknown woman that had walked around the building with Mr. xxxxxxx was never caught and it was never determined what, if anything, she received from Mr. xxxxxxx. (App. 042)

Officer Phillip McNichol testified that he was with Officer Cuz on the roofs of 2707, 2709, and 2711 Robinson Place, S.E., Washington, D.C. (App. 043) His post was on the corner of the 2707 building at least three and one-half stories above the ground. (App. 044) Officer McNichol saw an unknown woman approaching Mr. xxxxxxx and the group of young males. (App. 046) Mr. xxxxxxx and the woman walked beneath a tree that was beside the building. (App. 046) From his position, Officer McNichol was looking directly down upon Mr. xxxxxxx and the woman but he could not hear any of their conversation. (App. 047, 053) Without the assistance of binoculars, Officer McNichol glimpsed a sandwich bag in Mr. xxxxxxx's hand. (App. 047) Officer McNichol noticed that the bag had a "whitish tint" on the bottom (App. 047). After Mr. xxxxxxx placed the bag in the woman's hand, Officer McNichol saw two "rocks" in her hand. (App. 047-048) The rocks appeared to be "crack cocaine" and the woman was moving them around with her finger before putting them in her purse. (App. 048-049) She handed Mr. xxxxxxx an undetermined amount of paper money which he put into his pants pocket. (App. 049) Officer McNichol broadcast a "look-out" for Mr. xxxxxxx and the woman. (App. 050) As a result of the "look-out" broadcasts, Mr. xxxxxxx was stopped and searched, however, the woman was never apprehended and it was never determined what she received from Mr. xxxxxxx. (App. 054)

The district court denied Mr. xxxxxxx's suppression motion, finding that the officers observed "what clearly appeared to be a drug sale." (App. 068) Thus, the court ruled that "the police

acted appropriately in arresting and searching" Mr. xxxxxxx. (App. 069)

SUMMARY OF ARGUMENT

The Fourth Amendment's protection against unreasonable searches and seizures precludes the arrest and search of a citizen without warrant. One of the exceptions to this constitutional protection is where the officer's actions are based upon probable cause to believe that a crime has been committed. In this case, the district court erred in concluding that an otherwise casual contact between two citizens involving the exchange of an unknown item for currency, without more, amounted to probable cause to arrest and search the participants.

ARGUMENT

I.THE ARREST OF THE APPELLANT AND THE SEIZURE OF THE EVIDENCE

IN THIS CASE VIOLATED THE FOURTH AMENDMENT WHERE IT WAS BASED

UPON THE EXCHANGE OF AN UNKNOWN OBJECT AND AN UNKNOWN AMOUNT

OF CURRENCY.

A.Standard of Review

The district court's decision that the arrest and search did not violate the Fourth Amendment is reviewed de novo, however, its findings to support its decision are reviewed under the clearly erroneous standard. United States v. Patrick, 959 F.2d 991 (D.C. Cir. 1992).

B.The Arrest and Search of the Appellant was Without

Probable Cause

The Fourth Amendment to the United States Constitution provides, "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . ." It has long been recognized that police actions "conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment--subject only to a few specifically established and well-delineated exceptions." Katz v. United States, 389 U.S. 347, 357 (1967). This requirement, that the police receive prior approval from a judicial officer, permits an independent determination as to whether the police have probable cause to arrest and search. As the Supreme Court stated in Johnson v. United States, 333 U.S. 10, 13-14 (1948):

[t]he point of the Fourth Amendment . . . is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.

Thus, the warrant requirement acts as a "checkpoint between the Government and the citizen," Steagald v. United States, 451 U.S. 204, 212 (1981), to correctly weigh the strength of the information offered in support of the police action against the person's liberty interest. Id. at 212.

In the present case, the police arrested and searched Mr. xxxxxxx without a warrant. Without that neutral, detached determination that he had committed an offense, the police action against Mr. xxxxxxx was per se unreasonable and the government bears the burden of establishing that one of the exceptions to the warrant requirement applies. Coolidge v. New Hampshire, 403 U.S. 443, 455 (1971); United States v. Jeffers, 342 U.S. 48, 51 (1951).

One of the exceptions to the warrant requirement permits the police to make warrantless arrests where there is probable cause to believe that the person is involved in the commission of a crime. United States v. Watson, 423 U.S. 411 (1976); Draper v. United States, 358 U.S. 307 (1958). As has been stated many times in many ways, "[p]robable cause exists where `the facts and circumstances within their [the officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that' an offense has been or is being committed." Brinegar v. United States, 338 U.S. 160, 175-176 (1949) (quoting Carroll v. United States, 267 U.S. 132, 162 (1925)). "Mere suspicion however is not sufficient; the standard the government must satisfy is that of probable cause." United States v. Jenkins, 530 F. Supp. 8, 10 (D.D.C. 1981).

While "a sequence of events which is typical of a common form of narcotics transaction may create a suspicion in a police officer's mind," United States v. Green, 670 F.2d 1148, 1151 (D.C. Cir. 1981), it does not always rise above the level of suspicion and permit the officer to arrest without a warrant. Id. at 1151. Although, [t]his Court has never held that the observance of a suspicious transaction, without more, provides probable cause for arrest," id. at 1151, it has on several occasions permitted the warrantless arrests of individuals when the officers reasonably concluded that they had observed drug transactions. In United States v. Harley, 990 F.2d 1340 (D.C. Cir. 1993), cert. denied, 114 S.Ct. 236 (1993), this Court upheld the warrantless arrest of the defendant after the officers had observed the passenger in his car, on three separate occasions in a high drug area, hand an object to an individual in exchange for money prior to getting into the defendant's car. In United States v. Lucas, 778 F.2d 885 (D.C. Cir. 1985) (per curiam), the Court upheld the warrantless arrest of the defendant which was based upon three separate transactions under circumstances which corroborated the anonymous tip that had been received by the officer. In United States v. White, 655 F.2d 1302 (D.C. Cir. 1981), the Court upheld the warrantless arrest of the defendant after he had been observed, in a high drug area, having contact with a car that had been previously visited by numerous known drug addicts. See also United States v. Green, 670 F.2d 1148 (D.C. Cir. 1981) (probable cause for arrest existed based upon combination of factors involving sequence of events typical of sophisticated two-party narcotics transaction in a neighborhood "notorious" for trafficking, concealment of object of transaction and appearance of evasion by defendant); United States v. Davis, 561 F.2d 1014 (D.C. Cir. 1977) (probable cause existed where officers observed three transactions involving pink tablets in five minute period of time); United States v. Davis, 458 F.2d 819 (D.C. Cir. 1972) (per curiam) (probable cause for arrest where the defendant involved in a transaction and in company of individuals obviously under the influence of drugs).

By contrast, in this case, the police did not have any prior information concerning Mr. xxxxxxx. Neither he, nor any of the other young men standing around the car, appeared to be under the influence of drugs. Although the officer described the area as a high drug area, he had made only 10 to 20 arrests for drug offenses in this area during his three years as a police officer. (App. 015) During the period of observation prior to his arrest, Mr. xxxxxxx was involved in only one suspicious contact with another person and that person was not known to the police as a drug user. The police were not aware of the nature of the relationship and did not hear the conversation between Mr. xxxxxxx and the woman. Finally, while Officer McNichol's opinion that the "two rocks" observed in the unknown woman's hand appeared to be "crack cocaine" (App. 048) was important to the district court's decision on probable cause (App. 068), the failure of the officers to retrieve the substance prior to the arrest of Mr. xxxxxxx also gave the district court some concern. (App. 011, 012, 035, 059) This is especially so in light of the evidence that the substance recovered from Mr. xxxxxxx was packaged in individual ziplocks, which had not been seen by Officer McNichol (App. 44-45,48), and that the amount of money seized from Mr. xxxxxxx did not equal the amount of the sale which McNichol believed he had witnessed. (App. 48-49) Thus, where none of the factors, previously identified as being important to the probable cause determination are present, the officer's opinion that an unknown substance appears to be drugs does not automatically equate with probable cause. Therefore, the mere observation of an exchange of an unknown item for currency, without

more, albeit suspicious in character, did not amount to probable cause.

CONCLUSION

As all of the evidence against Mr. xxxxxxx was obtained as a result of the illegal police conduct, it is respectfully requested that his conviction be reversed.

Respectfully submitted,

W. GREGORY SPENCER

Assistant Federal Public Defender

625 Indiana Avenue, N.W., Suite 550

Washington, DC 20004

(202) 208-7500

CERTIFICATE OF LENGTH

I hereby certify that the foregoing brief for appellant,

xxxxxxx xxxxxxx, does not exceed the number of words permitted Rule 28(d) of the General Rules of this Court.

W. GREGORY SPENCER

Assistant Federal Public Defender

CERTIFICATE OF SERVICE

I hereby certify that two copies of the foregoing Brief of the Appellant and one copy of the accompanying Appendix was served by first class mail, postage prepaid, upon the Office of the United States Attorney, Appellate Division, 555 Fourth Street, N.W., Washington, DC 20001, this 15th day of July, 1994.

W. GREGORY SPENCER

Assistant Federal Public Defender

DATE:

ADDENDUM

ORAL ARGUMENT NOT YET SCHEDULED

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

NO. 93-3060

UNITED STATES OF AMERICA,

Appellee

xxxxxxx B. xxxxxxx,

Appellant.

ON APPEAL FROM

THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

APPENDIX OF APPELLANT

xxxxxxx B. xxxxxxx

A.J. KRAMER

Federal Public Defender

625 Indiana Avenue, Suite 550

Washington, D.C. 200004

(202) 208-7500

W. GREGORY SPENCER

Assistant Federal Public Defender

Counsel for Appellant

Criminal No. 92-0417

APPENDIX TABLE OF CONTENTS

DOCKET ENTRIES . . . . . . . . . . . . . . . . . . . . . . . . .

INDICTMENT . . . . . . . . . . . . . . . . . . . . . . . . . . .

TRANSCRIPT . . . . . . . . . . . . . . . . . . . . . . . . . . .

DISTRICT COURT'S OPINION . . . . . . . . . . . . . . . . . . . .

JUDGMENT AND COMMITMENT ORDER . . . . . . . . . . . . . . . . .