UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
_____________________________________________
NO. 95-3181
_____________________________________________
THE UNITED STATES OF AMERICA,
Appellee,
v.
ALEJANDRO xxxxxxx,
Appellant.
_____________________________________________
APPEAL FROM
THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_____________________________________________
STATUTES
Pursuant to Fed. R. App. P. 28(f) and Circuit Rule 28 (a)(5),
pertinent statutes are set forth in the Addendum hereto.
JURISDICTION
The District Court had jurisdiction under 18 U.S.C. § 3231.
Notices of appeal having been timely filed, this Court has
jurisdiction pursuant to 28 U.S.C. § 1291.
ISSUES PRESENTED
1.Whether Mr. xxxxxxx was unlawfully seized under the
Fourth Amendment when a detective stood in the doorway of Mr.
xxxxxxx' private train compartment, scrutinized his ticket, and
interrogated him, when he had merely purchased a one-way passage to
New York with cash and given a disconnected call-back number, and
where the drug-sniffing dog had failed to alert.
2.Whether defense counsel was ineffective in stipulating that probable cause to arrest arose from the officer's mere
discovery in Mr. xxxxxxx' bag of four rectangular packages,
wrapped in brown tape, which the officer thought were "consistent
with" kilogram packages of cocaine.
STATEMENT OF THE CASE
Procedural Background
On April 11, 1995, members of the Metropolitan Police
Department's ("MPD") Narcotics and Special Investigations Division
Interdiction Unit arrested Alejandro xxxxxxx on an AMTRAK train,
bound for New York City, that was stopped in Union Station. The
Grand Jury indicted Mr. xxxxxxx on one count of unlawful
possession with intent to distribute 500 grams or more of cocaine,
in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(ii). On
August 22, 1995, following the judge's denial of Mr. xxxxxxx'
motion to suppress physical evidence, Mr. xxxxxxx conditionally
pled guilty. The judge sentenced Mr. xxxxxxx to a prison term of
70 months, to be followed by a period of four years of supervised
release.
The Suppression Hearing
The government presented its evidence at the suppression
hearing principally through the testimony of two detectives
involved in the arrest of Mr. xxxxxxx. The judge found that the
officers' testimony was credible, while Mr. xxxxxxx' significantly
conflicting testimony was not.
Detective Samuel Woodson
The government's first witness was Samuel Woodson, an MPD
narcotics detective who conducted drug interdiction activities.
Woodson received information from AMTRAK Police Department
Investigator Tom Cook that someone named Roger Phillips would be
travelling from New Orleans to New York City on a "suspicious
travel itinerary" (Tr.I 14).
According to Woodson, the specific
suspicious facts were that the passenger paid cash for one-way
travel and that the New York callback number given to the ticket
agent was out of service. Based on this information, Woodson, MPD
Detective Edward Hanson, and Investigator Cook boarded the train
while it was stopped in Union Station for a changeover from a
diesel to an electric powered engine. Cook took a narcotics
detection dog to the door of Mr. xxxxxxx' private roomette, but it
did not give a positive indication, or "alert," for the presence of
narcotics (Tr.I 15-16).
After the dog's negative response, Detective Woodson knocked
on the roomette's door. Detective Woodson testified that in
response, Mr. xxxxxxx answered the knock, "Yes?" and Woodson
replied by identifying himself as a police officer (Tr.I 17). Mr.
xxxxxxx then opened the door and Woodson displayed his police
credentials. Woodson was neither in uniform nor displaying his
weapon during the encounter with Mr. xxxxxxx. Although Woodson
stated on direct examination that the sun was shining outside, he
acknowledged on cross-examination that the lighting in the train
"was real dim . . . very dim" due to the train's use of auxiliary
power during the engine changeover (Tr.I 58).
While standing in the doorway to the darkened roomette (Tr.I
56) Woodson, six feet, one inch tall (Tr.I 69), asked Mr. xxxxxxx
a series of questions pertaining to his travel arrangements and
identity (Tr.I 20-21). Woodson did not testify that he said
anything that might have informed Mr. xxxxxxx that he had a right
to terminate the encounter. Woodson testified that during this
interaction, Detective Hanson was standing off to the side of the
doorway, three feet down the hall and out of Mr. xxxxxxx' sight
(Tr.I 24-25). Investigator Cook had left the train with the dog
(Tr.I 46).
Woodson first asked to see Mr. xxxxxxx' ticket and
identification, and he surrendered the ticket. On direct
examination, Woodson testified that he returned the ticket to Mr.
xxxxxxx immediately after examining it (Tr.I 21). On cross-examination, however, Woodson averred that he seized Mr. xxxxxxx'
ticket permanently from "inside of his shirt, inside his trousers,
in the compartment" (Tr.I 59-60). Although Woodson said that this
seizure was executed after Mr. xxxxxxx was formally arrested, he
testified unequivocally that the arrest took place outside the
compartment in the corridor and that Mr. xxxxxxx was never brought
back into the compartment (Tr.I 60). Thus, it is not clear from
Woodson's testimony that Mr. xxxxxxx possessed his ticket when he
allegedly consented to the search of his bag and left the
compartment. In contrast, Mr. xxxxxxx testified that Woodson took
his ticket at the outset and never returned it (Tr.II 118).
Woodson testified that when he asked Mr. xxxxxxx if he had
any luggage, xxxxxxx responded affirmatively, retrieved his bag
from the luggage rack, and placed it on the bed. At this point
Woodson explained to Mr. xxxxxxx that he was participating in a
drug interdiction mission, and that there was "a very serious
problem of individuals traveling on trains with guns and drugs and
contraband" (Tr.I 21).
Woodson next asked Mr. xxxxxxx whether he was carrying any
guns or contraband in his luggage, to which Mr. xxxxxxx responded
negatively (Tr.I 21). Woodson testified that he asked for
permission to search the bag, and Mr. xxxxxxx answered that
Woodson could search it (Tr.I 21). According to Woodson, just
before entering the roomette to conduct the search, he made two
further requests with which Mr. xxxxxxx complied. He asked Mr.
xxxxxxx to raise the shade to alleviate the "very dim" lighting in
the room, and he asked Mr. xxxxxxx to wait in the corridor during
the luggage search (Tr.I 21-22). Upon searching the bag, Woodson
discovered four rectangular packages wrapped in brown cellophane
tape, which he said were "consistent with" the packaging of
kilograms of cocaine (Tr.I 22), and he then told Detective Hanson
to arrest Mr. xxxxxxx (Tr.I 28-29).
Detective Edward Hanson
Detective Hanson testified that he and the other officers
based their April 11, 1995 drug interdiction activity on the fact
that an individual was "traveling in a sleeper, traveling one way,
had paid cash for his ticket," and that "when they attempted to
call the number back that was left with the reservation, the number
was disconnected" (Tr.II 9-10). Defense counsel asked Hanson on
cross-examination about other factors that typically lead police to
suspect an individual of transporting narcotics. Hanson stated
that factors such as travelling from a "source city" and taking a
short trip on a sleeper are additional factors (Tr.II 31-32).
Hanson stated that New Orleans, Mr. xxxxxxx' point of origin, was
"at one time" a source city for marijuana (Tr.II 31). Hanson also
admitted that New Orleans to New York is not "a short trip on a
sleeper" (Tr.II 32).
Hanson recounted the verbal exchange between Woodson and
xxxxxxx, noting that Woodson was "right in the doorway" during the
"interview" (Tr.II 36). Commenting on the lighting, Hanson noted
that it "was considerably a lot more dim than when connected to the
engine," that in the roomettes the lighting is "maybe a little
darker" than in the corridor (Tr.II 35-36), and that Woodson's
request that xxxxxxx raise the window shade was "because it was
dark in the room and he wanted to be able to see in the room"
(Tr.II 44). On direct examination, in reference to Woodson's
request that xxxxxxx step outside of the roomette, Hanson stated
that "he asked him if he could step out of the room while he
conducted the search because it was very cramped quarters" (Tr.II
16).
The District Court's Findings
The judge's findings included the following:
It's pretty well settled that police can approach a
citizen to ask questions briefly anywhere. Here, in my
view, were articulable suspicions that warranted
approaching the roomette and knocking on the door.
I am a little surprised--I don't attempt to do a lot
of research in these areas--but there are hundreds of
these interdiction cases coming out of the city where
just this sort of thing has happened: a ticket purchased
in cash, a callback number that doesn't work and whatnot;
and the police go to them and get consent.
So I'm surprised there isn't a case that indicates
the propriety of that; they certainly do implicitly
because it is so common.
* * *
I credit the testimony of Detectives Woodson, Hanson
and Pena. As I indicated, there is certainly no plot
here . . . and I find the testimony of Mr. xxxxxxx to be
inherently incredible. So I conclude that consent to the
search was voluntarily given prior to any seizure of
drugs or of the defendant; and there was no
constitutional violation in the search and subsequent
seizure of the narcotics and the arrest of the defendant.
(Tr.II 183-85).
SUMMARY OF ARGUMENT
Several circumstances at the time of Mr. xxxxxxx' encounter
with the police would cause a reasonable person to believe he was
not free to terminate the encounter and go about his business, thus
transforming the encounter into a seizure under the Fourth
Amendment. The police confronted Mr. xxxxxxx in a cramped, dimly
lit, non-public place--his roomette. A police officer more than
six feet tall stood blocking his doorway. The train was stopped in
a city that was neither his point of origin nor his destination.
After informing Mr. xxxxxxx of the mission of the Narcotics
Interdiction Unit, the officer in the doorway asked Mr. xxxxxxx
incriminating questions. Mr. xxxxxxx was not told that he could
terminate the encounter, and it is unclear whether his ticket was
returned to him after the police initially took and inspected it.
It is clear that the trial court erred in finding that no seizure
occurred prior to Mr. xxxxxxx' consent to search.
The specific facts articulated by the officers in this case
are all fully consistent with innocent activity. Mr. xxxxxxx
purchased a one-way sleeper car ticket with cash and left a
disconnected phone number with the reservation agent. But these
two factors are only part of a profile that is considered
indicative of drug-courier activity--none of the other profile
factors was present here. The narcotics detection dog failed to
indicate the presence of drugs when brought to the door of Mr.
xxxxxxx' compartment. Mr. xxxxxxx was not traveling from a
"source" city, nor were the police aware that he was travelling
under an alias. Mr. xxxxxxx was not observed acting nervously; in
fact, he was not observed at all. He was a passenger behind a
closed door. Taken as a whole, these facts do not rise to the
level of reasonable suspicion to support an investigatory seizure.
Even if the officers here had enough suspicion to justify a
Terry stop in a public place, their level of suspicion did not
justify the intrusion on Mr. xxxxxxx' privacy in his roomette.
Mr. xxxxxxx paid an additional fee to travel in a private sleeper
compartment, to which he could lock the door. This created a
heightened expectation of privacy that was admittedly lower than
the expectation in one's home, but certainly higher than that of a
passenger traveling in coach. The police unreasonably violated Mr.
xxxxxxx' expectation of privacy.
Mr. xxxxxxx also argues that his defense counsel was
ineffective, in violation of his Sixth Amendment right to effective
assistance of counsel. The specific deficiency in Mr. xxxxxxx'
attorney's performance was the attorney's stipulation that Officer
Woodson's discovery of four rectangular packages wrapped in "brown
cellophane tape" gave him probable cause to arrest Mr. xxxxxxx
(Tr.I 27-28). If defense counsel had fulfilled his professional
duty to stay abreast of case law that was relevant to Mr. xxxxxxx'
case he would have been aware of the strong argument for a finding
that probable cause did not exist upon discovery of these four
packages. Defense counsel's performance was thus objectively
unreasonable, and there was a reasonable probability that the
evidence would have been suppressed, causing a different result in
the case.
ARGUMENT
I.MR. xxxxxxx WAS UNREASONABLY SEIZED UNDER THE FOURTH
AMENDMENT WHERE A DETECTIVE BLOCKED THE DOORWAY OF HIS
PRIVATE TRAIN ROOMETTE, SCRUTINIZED HIS TICKET, AND
INTERROGATED HIM WHEN THE DETAILS OF HIS TRAVEL WERE
FULLY CONSISTENT WITH INNOCENT ACTIVITY
A. Standard of Review
Whether the police unreasonably seized Mr. xxxxxxx within the
meaning of the Fourth Amendment is a legal question that is decided
by this Court de novo. United States v. Patrick, 959 F.2d 991, 996
n.6 (D.C. Cir. 1992).
B. In All Of The Circumstances Surrounding Mr. xxxxxxx' Encounter With The Police, A Reasonable Person Would Not Have Felt Free To Terminate The
Encounter And Go About His Business.
In Florida v. Bostick, 501 U.S. 429 (1991), the Supreme Court
articulated the proper analysis for determining whether the police
have seized an individual under the Fourth Amendment. The Court
stated that it is "clear that a seizure does not occur simply
because a police officer approaches an individual and asks a few
questions." Id. at 434. The Court cited California v. Hodari D.,
499 U.S. 621, 628 (1991), for the proposition that an encounter
with the police is consensual and reasonable suspicion unnecessary
"[s]o long as a reasonable person would feel free 'to disregard the
police and go about his business.'" Bostick, 501 U.S. at 434. The
appropriate inquiry is thus "whether a reasonable person would feel
free to decline the officers' requests or otherwise terminate the
encounter," id. at 436, or put another way, a person is seized
when, "taking into account all the circumstances surrounding the
encounter, the police conduct would 'have communicated to a
reasonable person that he was not at liberty to ignore the police
presence and go about his business.'" Id. at 437 (quoting Michigan
v. Chesternut, 486 U.S. 567, 569 (1988)).
In the case at bar, an analysis of "all the circumstances
surrounding the encounter" compels the conclusion that a reasonable
person would not have felt free to ignore the police presence. As
Detective Hanson testified, the roomette in which Mr. xxxxxxx was
traveling was very cramped and poorly lit (Tr.II 35-36). The
lighting was so poor that Woodson had to ask to raise the window
shade so he could see (Tr.II 44).
The non-public nature of the roomette made the encounter even
more coercive. In United States v. Ward, 961 F.2d 1526 (10th Cir.
1992), the Tenth Circuit stressed the significance of the isolated,
non-public nature of a train roomette as opposed to the public
coach passenger car. Id. at 1532. Although this Court apparently
did not consider the importance of the non-public nature of a
roomette in past cases involving similar circumstances, the Court
has not issued a published analysis of a roomette encounter between
the police and a citizen since the Supreme Court's Bostick
decision, which mandates a "totality of the circumstances"
approach, which necessarily includes consideration of the isolated
nature of the roomette. See Ward, 961 F.2d at 1532 n.5 (discussing
pre-Bostick decisions of this Court and criticizing its failure to
discuss peculiar characteristics of roomette).
Other Supreme Court decisions highlight the significance of
public versus non-public encounters with the police. In Florida v.
Royer, 460 U.S. 491 (1983), the Court weighed heavily the fact that
the police took Royer to "a small room--a large closet--equipped
with a desk and two chairs," and went on to state that "[w]hat had
begun as a consensual inquiry in a public place had escalated into
an investigatory procedure in a police interrogation room." Id. at
502-3. Consistent with Royer's suggestion that a small, cramped
room is coercive, the Court held in Berkemer v. McCarty, 468 U.S.
420 (1984), that in the situation of a traffic stop, "exposure to
public both reduces the ability of an unscrupulous policeman to use
illegitimate means to elicit self-incriminating statements and
diminishes the motorist's fear that, if he does not cooperate, he
will be subjected to abuse." Id. at 438. The importance that the
Supreme Court has given the public or non-public nature of police
encounters clearly requires the weighing of the non-public nature
of a roomette among "all the circumstances of the encounter" in the
case at bar. When this factor is viewed together with the other
intimidating elements in Mr. xxxxxxx' encounter with the police,
it is clear that a reasonable person would not have felt free to
terminate this non-public encounter, and that Mr. xxxxxxx was
seized within the meaning of the Fourth Amendment.
In Ward, the Tenth Circuit noted the intimidating effect of a
non-public atmosphere when coupled with "focused, potentially
incriminating questions." 961 F.2d at 1532. Precisely these types
of questions were asked in the case at bar. When such questioning
is combined with the constraining physical conditions of the
encounter, a reasonable person would not feel free to terminate the
encounter. See id. (in public setting reasonable person is "less
likely to feel unable to decline the officers' requests and
terminate the encounter").
The intimidating atmosphere was intensified by the fact that
Officer Woodson stood in the doorway while questioning Mr.
xxxxxxx. For Mr. xxxxxxx to "decline the officer's requests, or
otherwise terminate the encounter," the positioning of Woodson
would have required Mr. xxxxxxx to push his way past Woodson or to
force the door of the roomette closed with him standing in the
doorway.
It might be argued that United States v. Savage, 889 F.2d
1113, 1116-18 (D.C. Cir. 1989), precludes the argument that a
blocked exit prevents an individual from feeling free to terminate
an encounter with the police. Savage did hold that a blocked
entrance to a roomette would not cause a person to feel unfree to
leave. Id. Savage, however, relied on INS v. Delgado, 466 U.S.
210 (1984), which is clearly distinguishable on the ground that the
subjects of the investigation in Delgado were confronted in a
public place, a factory, and in the view of their co-workers. Id.
at 217 n.5. The Tenth Circuit, in Ward, stated that "[i]t is
obvious that the Savage court overlooked the fact that in Delgado
the factory workers were in the presence of other workers . . . and
apparently in some cases even were free to leave the factory
without being questioned." 961 F.2d at 1533 n.5. These facts led
the Supreme Court to "apply to factory encounters 'the same
considerations attending contacts between the police and citizens
in public places.'" Id. (citing Delgado at 217 n.5 (emphasis in
original).
A "public" police encounter, such as that in Delgado, is not
found either in Savage or the case at bar. Further, Savage
predates the Supreme Court's Bostick decision, which mandates a
"totality of the circumstances" approach to determine whether a
seizure has occurred within the meaning of the Fourth Amendment.
Bostick, 501 U.S. at 437. Thus, the effective blocking of the
roomette door here must be afforded due weight in determining
whether Mr. xxxxxxx should have felt free to send the police away.
Savage and Delgado do not defeat Mr. xxxxxxx' argument that the
police seized him prior to obtaining his consent to search his
luggage.
One factual issue that the judge never resolved was whether
Officer Woodson returned Mr. xxxxxxx' ticket to him following
Woodson's initial examination of it. Mr. xxxxxxx testified that
Woodson took his ticket from the outset and never returned it
(Tr.II 118). Failure to return the ticket clearly would have
prevented Mr. xxxxxxx from terminating the encounter and would
therefore have been dispositive on the issue of seizure. Florida
v. Royer, 460 U.S. at 501-02 (retention of interviewee's travel
papers during questioning and failure to indicate freedom to depart
caused detainee to be "effectively seized" for Fourth Amendment
purposes). On direct examination Woodson testified that he
returned the ticket to xxxxxxx immediately after examining it
(Tr.I 21). On cross-examination, however, Woodson stated that he
seized Mr. xxxxxxx' ticket permanently from "inside of his shirt,
inside his trousers, in the compartment" (Tr.I 59-60) after Mr.
xxxxxxx was formally arrested. Woodson testified unequivocally,
however, that the arrest took place outside the compartment in the
corridor and that Mr. xxxxxxx was never brought back into the
compartment (Tr.I 60). Thus, Woodson's testimony was quite unclear
as to whether he or Mr. xxxxxxx possessed the ticket at the time
when he agreed to Woodson's search of his bag.
Woodson's initial testimony on the whereabouts of the ticket
may have been due to his admitted awareness that certain facts, in
light of case law, would result in "losing the case" (Tr.I 50). If
he retained the ticket throughout the encounter, in light of the
intimidating atmosphere, there was indisputably a seizure. United
States v. Battista, 876 F.2d 201 (D.C. Cir. 1989) ("if the
identification is not returned to the detainee we find it difficult
to imagine that any reasonable person would feel free to leave
without it"); see also Florida v. Royer, 460 U.S. at 501-2
(retention of interviewee's travel papers during questioning and
failing to indicate freedom to depart caused detainee to be
"effectively seized" for Fourth Amendment purposes).
This Court, in United States v. Savage, 889 F.2d 1113 (D.C.
Cir. 1989), stated that the retention of Savage's ticket during
questioning would not have meant he was seized. Id. at 1117 n.5.
The Savage Court's reasoning, however, was based on the weight of
the factors present there as compared to those in Battista. Id.
In Battista, the "minimal show" of police authority and the
"peculiar time [the police woke Battista from early morning sleep]
and setting," combined with the retention of the identification,
led to the finding of a seizure. Id. In Savage, the Court found
that the environment was simply not the equivalent of that in
Battista, in part because the police approached Savage in the
afternoon. Id. In the case at bar, the intimidating factors
clearly equalled or surpassed those that existed in Battista. Mr.
xxxxxxx stated, and it was not disproved, that he was asleep when
the police knocked on his roomette door (Tr.II 101); his situation
was thus similar to Battista in this respect, and distinguishable
from Savage. If the police failed to return Mr. xxxxxxx' ticket
during an encounter in these intimidating circumstances, it clearly
effected a seizure. Because the district court failed to make a
finding on this critical point, if this Court does not conclude
otherwise that an unlawful seizure occurred under the totality of
the circumstances, a remand for further findings is necessary.
C.The Factors Relied On By The Police Were Fully Consistent With Innocent Activity and Failed To Provide The Requisite Reasonable Suspicion To
Seize Mr. xxxxxxx.
The police, having seized Mr. xxxxxxx under the Fourth
Amendment prior to obtaining his consent to search his luggage,
lacked the requisite suspicion to do so. In order to make a legal
investigative stop under Terry v. Ohio, 392 U.S. 1 (1968), the
officer making the stop must be able to justify this action through
specific, articulable facts that support a finding of reasonable
suspicion. Id. at 22. The specific facts articulated by the
officers in this case, paying cash for a one way sleeper-car ticket
and leaving a disconnected phone number with the ticket agent, are
not at all inconsistent with innocent activity. While these two
elements of Mr. xxxxxxx' travel fit within a profile of drug-courier activity, they were also indicative of the travel
arrangements of the vast number of individuals who cannot make
purchases on credit or with checks due to their inability to obtain
credit. When courts have discussed facts such as these in finding
reasonable suspicion of drug courier activity, they have always
been part of a larger complex of suspicious facts--none of which
was present here. Such facts include unusual nervousness,
travelling from a drug source city, associating with a well-known
drug trafficker, unusual travel itinerary, and travelling under a
false name. See United States v. Tartaglia, 864 F.2d 837, 839 (D.C.
Cir. 1989) (listing suspicious facts).
In United States v. Battista, 876 F.2d at 201, the defendant
was travelling from a "source city," paid cash, was in a sleeper
compartment, and gave an out-of-service phone number to AMTRAK.
Given these factors, the Court concluded that "[o]nce the dog
alerted at Battista's door, the officer had reasonable suspicion to
make an investigative detention." Id. at 206 (emphasis added). In
contrast, the narcotics detection dog failed to indicate the
presence of drugs when brought to the door of Mr. xxxxxxx'
compartment (Tr.I 15-16). Mr. xxxxxxx was not traveling from a
"source" city, and in fact, Hanson admitted that New Orleans was at
one time, but was impliedly no longer, a source for marijuana
(Tr.II 31). In light of Battista, it is clear that the police
lacked a reasonable suspicion to seize Mr. xxxxxxx. The Battista
court held that the facts known to the police, which were greater
in number and more suspicious than the facts known in the case at
bar, led to reasonable suspicion only after the dog alerted. The
policemen, standing outside Mr. xxxxxxx' roomette, armed with
weaker facts than in Battista and a drug-sniffing dog, clearly
lacked reasonable suspicion when the dog failed to alert.
D. The Officers' Level Of Suspicion Did Not Justify
The Degree Of Their Intrusion On Mr. xxxxxxx'
Privacy.
Courts have recognized an expectation of privacy in temporary
dwelling places that are similar to train roomettes. In United
States v. Gooch, 6 F.3d 673, 678 (9th Cir. 1993), the court
recognized that a tent on a campground is non-public and entitled
to the same protection as a hotel room. In United States v.
Alfonso, 759 F.2d 728, 738 (9th Cir. 1985), the court analogized
the private living quarters of a ship to a private dwelling. The
Supreme Court itself has noted that "society expects at least as
much privacy in these places as in a telephone booth--'a
temporarily private place whose momentary occupants' expectations
of freedom from intrusion are recognized as reasonable.'"
Minnesota v. Olson, 495 U.S. 91, 99 (1990) (quoting Katz v. United
States, 389 U.S. 347, 361 (1967) (Harlan, J. concurring)).
Certainly, if one creates an expectation of privacy by closing the
glass door of a phone booth, one creates an even greater
expectation of privacy by closing and locking the opaque door of a
roomette. The expectation of privacy in the roomette, while lesser
than the expectation of privacy in one's home, Tartaglia, 864 F.2d
at 841, was greater than the expectation of a passenger travelling
in coach. See Ward, 961 F.2d at 1531-32 (roomette passenger has
"higher expectation of privacy than an individual traveling in a
public passenger car of the train").
It might be argued that the accessibility of roomettes to
train conductors negates the privacy expectation of roomette
passengers. Such reasoning, however, would conflict with Supreme
Court precedent. In Stoner v. California, 376 U.S. 483, 489-90
(1964), the Court held that the right of access to hotel rooms by
management and housekeeping does not negate the privacy interest of
the occupant. Similarly, in Chapman v. United States, 365 U.S.
610, 616 (1961), a landlord's authority to enter the house and
inspect the tenant's waste did not diminish the tenant's privacy
expectation when the police executed a search unrelated to waste.
Thus, access to the roomette by conductors checking for tickets
does not negate the passenger's expectation of privacy vis-a-vis
the police. Moreover, a roomette occupant could be said to have a
greater expectation of privacy than the defendants in Stoner and
Chapman because a housekeeper in a hotel, or a landlord checking
for waste, would not need permission to enter the premises, whereas
a conductor on a train obviously has no right to barge into a
roomette to check a passenger's ticket.
The heightened expectation of privacy in a sleeping
compartment increases the intrusiveness of any police
investigation, thus requiring a stronger showing of reasonable
suspicion from the outset. United States v. Chaidez, 919 F.2d
1193, 1197 (7th Cir. 1990), cert. denied, 502 U.S. 872 (1991). In
Terry, the Court's statement that, in order to justify "the
particular intrusion the police officer must be able to point to
specific and articulable facts which, when taken together with
rational inferences from those facts, reasonably warrant that
intrusion," Terry, 392 U.S. at 21, suggests that "the exact amount
of 'reasonable suspicion' required in a particular case depends on
the precise extent to which the intrusion falls short of a full-fledged arrest." 4 Wayne R. LaFave, Search and Seizure §9.4(c) (3d
ed. 1996).
The circumstances of an encounter like the one Mr. xxxxxxx
had with the police place it somewhere between a Terry stop and a
traditional arrest. The Chaidez court correctly noted that
attempting to fit every police encounter into the two categories
"stop" and "arrest" "is not only impossible but also unnecessary
when the text of the Constitution calls for inquiry into
'reasonableness.'" Chaidez, 919 F.2d at 1197 (citations omitted).
The court went on to quell any fears of its refinement of Fourth
Amendment analysis: "Considering the extent of intrusion makes the
calculus by the police marginally more complicated . . . [and the
terms] 'probable cause' and 'reasonable suspicion' are themselves
standards rather than rules, so the existence of a middle ground
does not blur a rule that is now sharp." Id. at 1198.
This Court should recognize that there is a broad spectrum of
police intrusion into privacy that necessitates the application of
a correspondingly graded suspicion requirement. As the level of
the privacy invasion increases, police should be required to
justify the greater invasion with greater suspicions. In Mr.
xxxxxxx' situation, he was travelling in a compartment for which
he paid extra money to obtain privacy. He had a door that he could
close and lock, thereby excluding the public. Mr. xxxxxxx thus
had an expectation of privacy that, while lesser than the
expectation of privacy in one's home, Tartaglia, 864 F.2d at 841,
was greater than the expectation of a passenger travelling in
coach. See Ward, 961 F.2d at 1531-32 (roomette passenger has
"higher expectation of privacy than an individual traveling in a
public passenger car of the train").
The expectation of privacy in Mr. xxxxxxx' roomette made the
intrusion by the police far greater than an ordinary investigatory
stop in public. This factual situation falls somewhere on the
spectrum between a Terry stop and arrest. For the Fourth Amendment
to truly protect against unreasonable police conduct, this Court
must require a greater level of suspicion in such circumstances
than for a standard Terry stop. This level of suspicion was
clearly not reached by the police in the case at bar.
The unconstitutional seizure tainted the consent of Mr.
xxxxxxx to the search and the evidence should be suppressed as the
fruit of the illegal seizure. Wong Sun v. United States, 371 U.S.
471, 484-85 (1963). If the evidence is not ordered suppressed, the
case should be remanded and the suppression hearing ordered
reopened for testimony, argument, and findings to resolve the
ambiguity as to the location of the train ticket during the
encounter, and for further findings as to of the reasonableness of
the officers' suspicion.
II.DEFENSE COUNSEL WAS INEFFECTIVE IN STIPULATING THAT
PROBABLE CAUSE TO ARREST AROSE FROM THE OFFICER'S MERE
DISCOVERY IN MR. xxxxxxx' BAG OF FOUR RECTANGULAR
PACKAGES, WRAPPED IN BROWN TAPE, WHICH THE OFFICER
THOUGHT WERE "CONSISTENT WITH" KILOGRAM PACKAGES OF
COCAINE.
A. Standard of Review
An appellate court must find a violation of the Sixth
Amendment right to the effective assistance of counsel if it is
shown (1) that defense counsel's performance was objectively
unreasonable under prevailing professional norms, and (2) that
there is a "reasonable probability that, but for counsel's
unprofessional errors, the result . . . would have been different."
Strickland v. Washington, 466 U.S. 668, 687-694 (1984). On the
scale of evidentiary burdens, a reasonable probability is less than
a preponderance of the evidence--a possibility "sufficient to
undermine confidence in the outcome." Id. at 693-694. As this
Court has recently reiterated, a claim of ineffective assistance of
counsel may be raised on direct appeal, without a prior hearing in
the District Court, when that court's record demonstrates defense
counsel's inexcusable lapse. United States v. Fennell, 53 F.3d
1296, 1303-1304 (D.C. Cir. 1995), citing United States v. Pinkney,
543 F.2d 908, 915 (D.C. Cir. 1976).
Under these circumstances,
the de novo standard of appellate review should be applied. See
Scarpa v. DuBois, 38 F.3d 1, 9 (1st Cir. 1994), cert. denied 115
S.Ct. 940 (1995).
B.Reasonably Competent Counsel Would Have
Relied Upon Recent Case Law Supporting a
Challenge to the Government's Claim of Probable Cause.
A criminal defense attorney has an obvious and crucial duty to
stay abreast of the case law that may affect his or her clients'
rights. See, e.g., Scarpa v. DuBois, 38 F.3d at 10 (defense theory
irrelevant under current law); United States v. Hinton, 631 F.2d
769, 780 (D.C. Cir. 1980) (counsel's choices must be "the product
of deliberate and informed decision, not oversight and
inadvertence" [footnoted citation omitted]); ABA Standards for
Criminal Justice (1980), Standard 4-5.1(a) (recognizing attorney's
duty to advise client "after informing himself or herself fully on
the facts and the law"); ABA Model Rules of Professional Conduct
(1995) Rule 1.1 ("Competent representation requires the legal
knowledge, skill, thoroughness, and preparation reasonably
necessary for the representation.") and Comment ("To maintain the
requisite knowledge and skill, a lawyer should engage in continuing
study and education."). The right to effective assistance of
counsel "may in a particular case be violated by even an isolated
error of counsel if that error is sufficiently egregious." Murray
v. Carrier, 477 U.S. 478, 496 (1986), citing United States v.
Cronic, 466 U.S. 648, 657 n.20 (1984). The failure to make a
meritorious Fourth Amendment claim here, where the Government's
proof of drug possession required admission of the physical
evidence seized, would necessarily satisfy both the deficient
performance prong and the prejudice prong of Strickland. See
Kimmelman v. Morrison, 477 U.S. 365, 375 (1986).
The historical events at issue here took place on April 11,
1995. At the August, 1995 hearing on Mr. xxxxxxx' motion to
suppress, when the prosecutor began what he called "the process of
trying to establish a probable cause basis [sic] on [Detective
Woodson's] experience and ability to identify what those things
were with a field test not done until they arrived at the station,"
defense counsel interrupted the testimony and agreed to stipulate
that the four rectangular packages wrapped in "brown cellophane
tape" were contraband and that the witness' recovery of the
packages gave him probable cause to arrest Mr. xxxxxxx (Tr.I 27-28). This concession was surprising because the officer had only
testified that the packaging was "consistent with" that of kilogram
packages of cocaine (Tr.I 22). He had not specified the dimensions
and other characteristics of the packages in question or explained
how they might have compared with other packages he had encountered
in his experience of one and one-half to two years (Tr.I 12) in the
Metropolitan Police Department's Interdiction Unit.
Undoubtedly, the prosecutor knew that probable cause was not
self-evident here because this Court had recently issued two
important decisions concerning police perceptions about packages
during interdiction stops: United States v. Prandy-Binett, 995
F.2d 1069 (D.C. Cir. 1993), rehearing and suggestion for rehearing
en banc denied, 5 F.3d 558, 560 (D.C. Cir. 1993), cert. denied, 114
S.Ct. 1196 (1994); and United States v. Gibson, 19 F.3d 1449 (D.C.
Cir. 1994).
In Prandy-Binett, the Court found that probable cause was just
barely established where the defendant exited a train from New
York, a drug "source city," produced a one-way ticket purchased
with cash as well as identification which did not corroborate his
claimed D.C. residence, appeared to have insufficient clothes in
his bag for his claimed one-week absence from home, and said his
Elizabeth Taylor Perfume shopping bag contained a gift when, in
fact the object proved to be a rectangular block, wrapped in silver
duct tape, which Detective John Centrella of the Interdiction Unit
testified was the distinctive size, shape, and packaging of a
kilogram of cocaine. 995 F.2d at 1070-1073. Centrella said that
he had seen "several hundred" similar packages wrapped in silver
duct tape, and they all had contained drugs, and, in fact, that
about 95 percent of the kilograms of cocaine he personally had
seized had been "so packaged." Id. at 1072. Thus, in the
extensive experience of one of Detective Woodson's Interdiction
Unit colleagues, only five percent of all kilograms of cocaine were
packaged in something other than silver duct tape. Obviously,
therefore, Woodson might have had only a hunch--a suspicion not
rising to the level of probable cause to believe--that Mr.
xxxxxxx' differently-wrapped packages contained cocaine.
In Gibson, the Court recognized the inadequacy of a hunch by
AMTRAK Investigator Thomas Cook (who prompted the investigation and
handled the non-alerting dog in the instant case). Mr. Gibson was
en route from New York City to South Carolina, had paid for his
ticket with cash only five minutes before departure, had given a
New York "business" telephone number which Cook had called
unsuccessfully, and had in his bag no clothes that seemed
appropriate for the funeral he claimed he had attended in New York.
19 F.3d at 1449-50. When Cook patted Mr. Gibson down, he felt in
his pants pocket a hard, flat, angular object that Cook thought
there was a "good possibility" "might be some sort of contraband,"
and about which Mr. Gibson gave an ambiguous explanation
(Transcript of October 7, 1992 at 15). The Court held that, as in
Prandy-Binett, 995 F.2d at 1071, the information gathered by the
officer before the search amounted to less than probable cause, and
in contrast to the facts in that earlier case, the officer "related
nothing from his experience to correlate objects of this sort with
criminal activity." 19 F.3d at 1451. The Court concluded, "The
Fourth Amendment stands in the way of the police arresting people
simply because they appear suspicious and may be hiding something."
Id. at 1452.
In the instant case, the pre-search grounds for suspicion were
weaker than those in either Prandy-Binett or Gibson. As discussed
in Point I, above, Mr. xxxxxxx was traveling to, not from, a
"source city" (which also happens to be the nation's largest city
and therefore presumably the most common destination of innocent
travelers), the drug-sniffing dog had not alerted outside his
roomette, and Mr. xxxxxxx' answers to Woodson's questions were
unremarkable. Accordingly, defense counsel should have seen, as
the prosecutor evidently did, that in light of Prandy-Binett and
Gibson, probable cause could well be difficult for the Government
to establish. Counsel should not have interrupted Woodson's
testimony and stipulated but, rather, should have held the
Government to its burden of establishing probable cause to believe
that the packages in Mr. xxxxxxx' bag contained illegal drugs.
A "reasonable probability" obviously exists that absent
defense counsel's lapse, the result of the instant suppression
hearing would have been different. Beyond Gibson and Prandy-Binett, defense counsel could have cited, among other cases, United
States v. Doe, 61 F.3d 107, 108, 112 n.8 (1st Cir. 1995), published
more than two weeks before the conclusion of the suppression
hearing, where the court held that there was neither probable cause
nor an exigency justifying the warrantless seizure and search of
six "blocks" found in an airport security search of a carry-on bag,
which were wrapped in "opaque beige and brown tape," were
"immediately suspected" of being cocaine, and turned out to be six
kilograms of that substance.
Given these circumstances, counsel
could not reasonably have thought his stipulation was in Mr.
xxxxxxx' strategic interest. Accordingly, if the evidence is not
to be ordered suppressed for the reasons argued in Point I, the
case should be remanded and the suppression hearing ordered
reopened for testimony, argument, and findings as to whether the
government established probable cause justifying the warrantless
seizure and search of the four packages and Mr. xxxxxxx' arrest.
CONCLUSION
For the reasons stated in Point I, the judgment should be
vacated and the evidence ordered suppressed; in the alternative,
for the reasons stated in Points I and II, the case should be
remanded for a further suppression hearing.
Respectfully submitted,
A. J. KRAMER
FEDERAL PUBLIC DEFENDER
ALLEN E. BURNS
Assistant Federal Public Defender
Counsel for Appellant
625 Indiana Avenue, N.W.
Suite 550
Washington, D.C. 20004
(202) 208-7500
CERTIFICATE AS TO LENGTH OF BRIEF
I HEREBY CERTIFY that pursuant to Circuit Rule 28(d), the
foregoing brief contains fewer than 12,500 words.
Allen E. Burns
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on July 30, 1996, two copies of the
foregoing individual brief for appellant xxxxxxx and one copy of
the Appendix were served by hand, upon the United States Attorney's
Office, John R. Fisher, Chief, Appellate Division, 555 Fourth
Street, N.W., Room 10-435, Washington, D.C. 20001.
________________________________
Allen E. Burns