CERTIFICATE AS TO PARTIES,

RULINGS, AND RELATED CASES

Pursuant to Rule 11 of the General Rules of this Court, appellee, Neil xxxxxx, hereby states as follows:

A. Parties and Amici: The parties below were the defendant-appellee, Neil xxxxxx, and the plaintiff-appellant, the United States of America. There are no amici.

B. Rulings Under Review: References to the ruling at issue appear in the Brief for Appellant.

C. Related Cases: The case has not been before this Court or any other court previously, nor is counsel aware of any related cases.

TABLE OF CONTENTS

ISSUES PRESENTED iii

STATUTES AND REGULATIONS iii

STATEMENT OF THE CASE 1

Statement of Facts 1

The Trial Court's Ruling 5

ARGUMENT 5

Summary of Argument 5

Standard Of Review 7

Discussion 8

I. The Trial Court Correctly Found That Mr. xxxxxx Was Arrested Without Probable Cause When Police Officers Chased, Tackled, Handcuffed And Transported Him To The Police Station After He Refused An Officer's Request To Speak With Him By Running Away 8

A. The Police Conduct In This Case Was Unreasonable 8

B. The Claims That Mr. xxxxxx Appeared To Be Nervous And That His Train Could Have Originated In A "Source City" Did Not Make Reasonable The Police Seizure Of Him 12

C. Mr. xxxxxx's Running Did Not Make The Police Officers' Conduct Reasonable 16

II. Even If Mr. xxxxxx's Seizure Did Not Constitute An Arrest, The Officers Did Not Have Reasonable Suspicion That Mr. xxxxxx Had Engaged In Criminal Activity, Nor That He Was Armed, Sufficient To Justify Stopping Him 23

III. Even If The Police Properly Stopped Mr. xxxxxx Under Terry, They Lacked Justification For Any Search Of His Person 29

IV. Officer Pena's Search Of Mr. xxxxxx's Person Exceeded The Scope Of A Limited Terry Frisk And Cannot Be Upheld Under The "Plain Touch" Doctrine 32

A. Officer Pena's Actions Exceeded A Limited Terry Frisk 32

B. Even If There Was A Pat-Down For Weapons, As Contemplated By Terry, The Record Does Not Support A Finding That The Contents Of Mr. xxxxxx's Pocket Made Themselves Immediately Apparent As Drugs 33

CONCLUSION 34

CERTIFICATE OF COMPLIANCE WITH D.C. CIRCUIT RULE 28(d)(1) 35

CERTIFICATE OF SERVICE 35

ISSUES PRESENTED

I. Whether the trial court correctly found that Mr. xxxxxx was arrested without probable cause when police officers chased, tackled, handcuffed and transported him to the police station after he refused an officer's request to speak with him by running away.

II. Whether the officers had reasonable suspicion that Mr. xxxxxx had engaged in criminal activity, or that he was armed, sufficient to justify their seizure of him where they had no information about how he had paid for his train ticket, at which stop he had boarded the train, where he was headed, what his name was, or anything else about him and where he asserted his right not to speak with the police by his actions.

III. Whether, even if Mr. xxxxxx was "stopped" under Terry, the investigative and security purposes of a Terry stop were exceeded in this case.

IV. Whether the record supports a finding that Officer Pena did a limited Terry frisk and identified drugs through "plain touch" where Mr. xxxxxx was precluded from demonstrating that, through his jacket pocket, the incriminating nature of the contents of his pocket could not be immediately apparent.

STATUTES AND REGULATIONS

All applicable statutes, rules, constitutional provisions and regulations are contained in the Brief for Appellant.

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No.

UNITED STATES OF AMERICA, Appellant,

NEIL xxxxxx Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

BRIEF FOR APPELLEE

STATEMENT OF THE CASE

Statement Of Facts

At about 4:30 p.m. on February 2, 1993, Neil xxxxxx was coming into Union Station in Washington, D.C. from an Amtrak Train that had originated in New York City. Tr. 4-5, 6, 17.⁽¹⁾ The train made a number of intermediary stops between New York and the District of Columbia but no evidence indicated at which of those stops Mr. xxxxxx had boarded the train. Tr. 17-18. Mr. xxxxxx was approached by Detective Centrella of the Metropolitan Police Department's Drug Interdiction Unit, who was dressed in plain clothes, Tr. 8, had no warrant for Mr. xxxxxx's arrest, knew nothing about Mr. xxxxxx, and had no knowledge regarding Mr. xxxxxx's travel plans. Tr. 4-5, 17-18, 33-34. Detective Centrella testified that, from the top of the stairway/escalator, he saw Mr. xxxxxx leave the group of persons who were boarding the escalator and instead take the stairs which run parallel to the escalator, Tr. 7, 16-17, jogging/walking up them. Tr. 9. According to Centrella, Mr. xxxxxx looked ahead toward the top of the stairs where he was standing. Tr. 7-8. See also Tr. 33, 34. Upon arriving at the top of the stairs and while passing Centrella, Mr. xxxxxx looked at him out of the corner of his eye. Tr. 8-9.

Centrella began following Mr. xxxxxx, Tr. 9, 38-39, and as Mr. xxxxxx followed the corridor around a corner, the detective had his identification folder in his hand. Tr. 9, 33. According to Centrella, before turning the corner, Mr. xxxxxx looked over his shoulder and began to slow down. Tr. 9. He then walked to a window which overlooks the train tracks and stayed in that area briefly. Tr. 9-10. It was at this point that Detective Centrella approached Mr. xxxxxx, based upon his contentions that 1) Mr. xxxxxx had "broke[n] away from the main flow of passengers," 2) was in a hurry, 3) disembarked a train that had originated in New York, a so-called "source city," 4) looked at Detective Centrella out of the corner of his eye and 5) changed his pace from a quick one to a slow one. Tr. 10-11.⁽²⁾

When Detective Centrella approached Mr. xxxxxx with his police identification folder in hand and asked to speak with him, Mr. xxxxxx stated that he had not done anything, dropped a tote bag he had been carrying, and started to run toward the exit.⁽³⁾ Tr. 11, 29, 40-41. Detective Centrella retrieved the bag and two other police officers, Detective Jeffrey Huffman and Officer Maria Pena, ran after Mr. xxxxxx for a few hundred yards yelling that they were police officers and for him to stop. Tr. 11-12, 30, 40-41. Officer Pena stated that while Mr. xxxxxx was running from the police he was making gestures with his right arm. Tr. 41-42.

Detective Huffman testified that the reason the police chased Mr. xxxxxx was because he ran away from Detective Centrella. Tr. 34. Mr. xxxxxx was stopped at a MacDonald's restaurant in Union Station, by Pena, who grabbed Mr. xxxxxx and struggled with him. Tr. 12, 30-31. Officer Pena did not ask Mr. xxxxxx any questions when she encountered him at the MacDonald's. Tr. 47-48.

During the struggle, Mr. xxxxxx attempted to put his hand in his left breast jacket pocket. Officer Pena testified that she jumped and grabbed Mr. xxxxxx in the MacDonald's and that then Detective Huffman grabbed him from the back. Tr. 42. Officer Pena stated that when Detective Huffman grabbed Mr. xxxxxx, Mr. xxxxxx was trying to go toward his coat with his right hand and that she was concerned that he was trying to reach a weapon. Tr. 42. She stated that it was not until after that that she saw him try to put his hand into his left coat pocket. She then grabbed the left pocket by clenching her fist around it and heard a crunching noise and felt hard objects. Tr. 43-45, 48. Officer Pena again claimed that her concern was that he might have a weapon, although she admitted that she had not seen any bulges in the jacket and grabbed the pocket as an "automatic reaction". Tr. 42-43, 48. Detective Centrella grabbed his hand and he and his partner handcuffed Mr. xxxxxx with both hands behind his back. Tr. 13, 31, 42.

After the police had handcuffed both of Mr. xxxxxx's hands behind his back, they took him over one hundred yards, Tr. 17, to the Amtrak Police Substation, a "secure room," Tr. 31, in Union Station, where they searched his jacket and found drugs in the left breast pocket. Tr. 15, 31-32, 45-46. En route to the substation, Officer Pena stated that Mr. xxxxxx had "it" in his pocket. Tr. 13, 15. Other than that, from the time the police grabbed Mr. xxxxxx and handcuffed both his hands behind his back, transporting him over one hundred yards to the substation, until the time they searched his jacket, they did not ask his permission to search the jacket, they did not ask him any additional questions, and they knew no more at the police substation than they had known at the MacDonald's. Tr. 24-25, 49.

At the time the police arrested Mr. xxxxxx, they had no information about how he had paid for his train ticket, at which stop he had boarded the train, where he was headed, what his name was, Tr. 18, or anything else about him. Tr. 33-34.

The Trial Court's Ruling

After the conclusion of the testimony, Tr. 3-54, and argument by counsel, Tr. 55-63, the trial court ruled that "the contraband and the containers they [sic] were in" would be suppressed. Tr. 64. The trial court stated:

If I were a five-foot-five, 130 male, and a six-foot-one, 235, looks like a football player was following me down the aisle, I might well run when he started to approach me, and especially since the officer was white and the man he was approaching was black. In all the horror stories you get about what is in a black man's mind when he is approached by a white police officer, I don't see why he couldn't run. He has no reason to stay around, and I think they were out of line yelling, 'Stop, police.' What for?

In a sentence, they are saying that running is evidence, is sufficient evidence of guilt to give probable cause to stop. I think he was arrested as soon as Ms. Pena wrestled him to the floor, and anything that happened thereafter was not justified.

Tr. 64-65.

ARGUMENT

Summary of Argument

In his concurring opinion in Florida v. Royer, 460 U.S. 491, 513 (1983), Justice Brennan cautioned that "[w]e must not allow our zeal for effective law enforcement to blind us to the peril to our free society that lies in ... [the] disregard of the protections afforded by the Fourth Amendment." The government's selective interpretation and characterization of the facts in Mr. xxxxxx's case so that the police conduct in this case may be justified, reveal that the government's "zeal for effective law enforcement" has blinded it.⁽⁴⁾

Mr. xxxxxx was arrested without probable cause when police officers chased, tackled, handcuffed and transported him to a police substation because that was not reasonable conduct by the police given the totality of the circumstances surrounding the intrusion. The police had no knowledge about Mr. xxxxxx's point of origin, his destination, the manner in which he paid for his ticket, whether he had purchased a one-way or a round-trip ticket, nor the length of his trip and whether he was carrying an appropriate amount of luggage for a trip of that duration. His statement to the police that he had not done anything and his subsequent running from them was the functional equivalent of his assertion of his right not to speak with the police and to walk away from them.

Even if the seizure of Mr. xxxxxx was merely a "stop," rather than an arrest, it was not justified because the police lacked reasonable articulable suspicion, based upon objective facts and circumstances, to stop Mr. xxxxxx. Even if a stop of Mr. xxxxxx was warranted, the investigative and security purposes of a Terry stop were exceeded by the police actions once they had seized Mr. xxxxxx. Officer Pena did not testify that she saw any bulges that would suggest that Mr. xxxxxx was armed. Moreover, upon seizing him at the MacDonald's, the police failed to ask him his name or for identification; where he was coming from or where he was going; nor what was in his pocket and whether they could search him.

Finally, even if a limited Terry frisk was justified on the facts of this case, the record does not support a finding that by "plain touch" Officer Pena discerned that Mr. xxxxxx had drugs in his pocket, because the trial court denied Mr. xxxxxx the opportunity to demonstrate the fallacy of Pena's summary assertion that, through the coat, the drugs made themselves immediately apparent to her.

Standard Of Review

The district court's findings of fact supporting its legal conclusion that Mr. xxxxxx had been arrested may be reversed only if they were "clearly erroneous." United States v. Patrick, 959 F.2d 991 (D.C. Cir. 1992) (district court's finding that fourth amendment has been violated is reviewed de novo but findings in support of that conclusion are reviewed under the clearly erroneous standard); United States v. Rodney, 956 F.2d 295 (D.C. Cir. 1992) (clearly erroneous standard of review applies to district court's finding regarding voluntariness of consent); United States v. Lewis, 921 F.2d 1294 (D.C. Cir. 1990) (clearly erroneous standard of review applies to validity of consent to search); United States v. Thomas, 864 F.2d 843 (D.C. Cir. 1989) (where finding of abandonment depends on factual inquiry, appellate court will review that finding under clearly erroneous standard). The trial court's legal conclusion that Mr. xxxxxx was arrested when Officer Pena wrestled him to the floor of the MacDonald's is reviewed de novo by this Court. United States v. Wood, 981 F.2d 536 (D.C. Cir. 1992).

Discussion

A. The Police Conduct In This Case Was Unreasonable

The district court correctly found that when twenty-three year old, five-foot five-inch, one-hundred-thirty-pound Neil xxxxxx, Tr. 49-50, was wrestled to the floor and handcuffed by three police officers (one of whom was six-feet one-inch and weighed two-hundred twenty-five pounds, Tr. 26, and another of whom was five-foot eight inches and weighed two-hundred-fifteen pounds, Tr. 36) he had been arrested. Tr. 64-65. In its legal conclusion that Mr. xxxxxx had been arrested, the trial court made "implicit fact[ual] findings." United States v. Gooding, 695 F.2d 78, 82 (4th Cir. 1982). See also, United States v. xxxxxx, 953 F.2d 116, 121 (4th Cir. 1991) (whether "seizure occurred at all is an intensely fact-bound matter").

Relying on this Court's decision in United States v. Jones, 973 F.2d 928 (D.C. Cir. 1992), cert. denied, U.S. (1994), and the Fourth Circuit's decision in United States v. Haye, 825 F.2d 32 (4th Cir. 1987), the government argues that Mr. xxxxxx was stopped, rather than arrested, when police officers physically restrained him. Gov't Brief at 7-10. Those cases do not support the government's argument because, Jones, properly construed, supports the trial court's determination that Mr. xxxxxx was arrested without probable cause when the police physically restrained him at the MacDonald's, and Haye is readily distinguishable from the facts of Mr. xxxxxx's case.

In Jones, this Court found that a suspect had been stopped, rather than arrested, when the police chased him, caught up with him, ordered him to the ground, handcuffed him and put him into a police car. 973 F.2d at 930-931. This Court held that "[a] Terry stop does not turn into a full arrest merely because the officers use handcuffs and force the suspect to lie down to prevent flight, so long as the police conduct is reasonable." Id. at 931 (italics supplied), citing United States v. Laing, 889 F.2d 281, 285 (D.C. Cir. 1989), cert. denied, 494 U.S. 1069 (1990). Thus, in this Circuit the test of whether a seizure was a stop or an arrest turns on the reasonableness of the police actions. Because the police actions in Mr. xxxxxx's case were not reasonable, based upon what they knew at the time Officer Pena caught up with him at the MacDonald's and wrestled him to the ground, the district court was correct in its ruling that Mr. xxxxxx had been arrested at that point, and that that arrest was made without probable cause. "[I]n the absence of justification" the police "persistence" in response to Mr. xxxxxx's expressed disinclination to be engaged was "proscribed by the Fourth Amendment." United States v. xxxxxx, 953 F.2d at 123.

In Jones, the police action was "reasonable" because the police reasonably suspected Mr. Jones of criminal activity at the point he was subdued. The police knew the city from which Mr. Jones had come, the destination to which he was going, and, most importantly, that his flight belied his previous representation that he would retrieve his ticket and student identification card from the bus on which he had been riding to show them to the police. By contrast, in Mr. xxxxxx's case, the police action in chasing him, grabbing him, handcuffing him and transporting him to the police substation was not reasonable because the officers did not have the same degree of knowledge about Mr. xxxxxx as the police had had about Mr. Jones when they apprehended him.

The Fourth Circuit's opinion in Haye is distinguishable for several reasons. First, the passengers in Haye had been on a plane which had only a single point of origin and therefore the officers knew that the suspects had come from a "source city." In contrast, the police did not even see Mr. xxxxxx disembark and they did not know whether he embarked in a "source city." Second, unlike the instant case, Haye involved two persons who behaved suspiciously by not walking together in the airport but joining one another outside the airport. Third, one of the two suspects in Haye was keeping the other "under constant observation." 825 F.2d at 33. In contrast, Mr. xxxxxx travelled alone and left the train platform by the normal route. Fourth, without specifying the basis for its assessment, the Fourth Circuit found that the passengers/suspects in Haye "exhibited some of the characteristics of the drug courier profile," 825 F.2d at 33, which, as the discussion below makes clear, is not a characterization that would fit Mr. xxxxxx. There was no information about Mr. xxxxxx's point of origin, his destination, the manner in which he paid for his ticket, whether he had purchased a one-way or a round-trip ticket, nor the length of his trip and whether he was carrying an appropriate amount of luggage for a trip of that duration.

Thus, the Fourth Circuit's decision in Haye is distinguishable on its facts from Mr. xxxxxx's case. Moreover, as discussed below, on facts more akin to Mr. xxxxxx's than those in Haye, subsequent to Haye, the Fourth Circuit held that the police officers lacked justification to seize a deplaning airport passenger from a so-called "source city." United States v. xxxxxx, 953 F.2d 116 (4th Cir. 1991).

B. The Claims That Mr. xxxxxx Appeared To Be Nervous

And That His Train Could Have Originated In A "Source City"

Did Not Make Reasonable The Police Seizure Of Him

Setting aside for a moment Mr. xxxxxx's running from the police, considering the other factors upon which Detective Centrella testified he relied, there was no incriminating information to support a finding that seizing Mr. xxxxxx was reasonable. Jones, 973 F.2d at 731. Moreover, as discussed below, the running was neither incriminating, nor evidence of consciousness of guilt; rather, it was Mr. xxxxxx's assertion of his right not to speak with the police. Even if Detective Centrella had seen Mr. xxxxxx arrive from a so-called "source city," that together with appearing nervous were not sufficient to make the police actions in this case reasonable. This Circuit's opinion in Jones teaches that the only reason grabbing, handcuffing and transporting the suspect in that case did not constitute an arrest was because it was "reasonable." Thus, because the police actions in Mr. xxxxxx's case were not "reasonable," the police grabbing, handcuffing and transporting him constituted an arrest.

From the point at which the officers seized Mr. xxxxxx in the MacDonald's, their conduct was unjustified and unreasonable. What the police knew about Mr. xxxxxx was that he had come up the stairs from a train that had originated in New York. "[N]o evidence was introduced in support of [the] classification" of New York as a so-called "source city." United States v. Westerbann-Martinez, 435 F.Supp. 690, 698 (E.D.N.Y. 1977). The police had no knowledge regarding at which of the many stops between New York and Washington Mr. xxxxxx had boarded the train. Tr. 17-18. Thus, while they knew that the train originated from what Detective Centrella concluded, without support, was a "source city," they did not know whether Mr. xxxxxx had originated from that so-called "source city." This is unlike the situation in Jones in which the police actually knew that Mr. Jones had come from New York and was going to Norfolk, Virginia, because they had had a conversation with him before chasing him. 973 F.2d at 929.

Moreover, unlike the situation in Jones, Mr. xxxxxx did not represent that he was going to do something and then behave inconsistently with that representation. In Jones, Mr. Jones had offered to show the police his student identification card and his bus ticket and was heading from the bus depot to the bus to retrieve them, when he began to run. Indeed, this Court held that "no seizure at all occurred until Jones's flight triggered pursuit culminating in his capture" after Jones had said he was going to retrieve certain items from the bus and then failed to do so. Id. at 930. In Mr. xxxxxx's case, however, rather than behaving inconsistently with his prior representations, he evidenced his disinclination to speak with the police from the outset by stating that he had not done anything wrong and then running from Detective Centrella. Thus, in essence, Mr. xxxxxx's actions were tantamount to his statement that "he had nothing to say" to Detective Centrella and that he wanted to "walk[] away." Id.

Before he ran, all Detective Centrella knew was that Mr. xxxxxx had "broke[n] away from the main flow of passengers who had been on a train that had originated in a "source city," "was in a hurry," and that he had looked at Detective Centrella out of the corner of his eye and changed his pace from a quick one to a slow one. Tr. 10-11. In United States v. Gooding, 695 F.2d 78 (4th Cir. 1982), the Fourth Circuit observed that the problem with reliance on such factors is that they can be "subjectively administered" and thereby allow seizures on the very "random basis" the Fourth Amendment was designed to prevent. 695 F.2d at 83. In Gooding, the Fourth Circuit held that there were inadequate grounds for a stop of a passenger arriving from New York on the air shuttle where the passenger was dressed in casual clothes on a businessperson's flight, made several telephone calls and looked all around the concourse after deplaning, appeared to notice the law enforcement agents, and behaved nervously. In relevant part the Fourth Circuit stated:

The overall weakness of these factors in generating a reasonable suspicion of individual wrongdoing -- independent of any force derived from their use in demonstrating helpful law enforcement 'profiles' -- is obvious upon reflection. The first four, separately or in combination would include such a number of presumably innocent persons as to approach a subjectively administered, random basis for stopping and interrogating passengers ... Seizures on any such random basis are of course one of the precise evils at which the fourth amendment was aimed.

695 F.2d at 83, citing Delaware v. Prouse, 440 U.S. 648 (1979).

Similarly, in United States v. Westerbann-Martinez, 435 F.Supp. 690 (E.D.N.Y. 1977), the trial court granted a suppression motion involving drugs seized from a passenger arriving at LaGuardia Airport in New York from Chicago. Discussing the problems inherent in relying on law enforcement agents' subjective impressions of suspects, the court stated:

The danger in placing too much reliance on an agent's perception as to the nature of a person's attitude is that in the absence of stronger objective evidence ..., to do so would be to short-circuit the requirement of 'specific and articulable facts and inferences therefrom to support an investigative stop.' See Terry v. Ohio, [392 U.S. 1 (1969)]. This court is not prepared to usher in the day in this country when, without stronger objective incriminatory evidence, any person may be subject to a police stop after arriving by plane in an airport merely because an agent subjectively concludes that repeated looking around is a manifestation of nervousness. It is not too difficult to see the eventual result of such a decision. When it becomes known that looking around will justify a conclusion of nervousness which in turn may justify an investigative stop, narcotics couriers will then deplane and proceed to their destinations without looking around. At that point, the government will presumably argue that people who look straight ahead after deplaning are subject to investigative stops.

435 F.Supp. at 699 (citations omitted). Applying those admonitions to Mr. xxxxxx's case it is readily apparent that Detective Centrella took Mr. xxxxxx's use of the stairs rather than the escalator, his near-jogging up the stairs, his looking at Detective Centrella, the change in his gait, and his glancing out to the window to the train sitting on the tracks below as somehow suspicious. Yet it makes perfect sense to jog up stairs if one's aim is to arrive more quickly than the stationary people standing on the escalator⁽⁵⁾ and it is not unusual to look up in the direction toward which one is ascending. That Detective Centrella was at the top of the stairs and therefore necessarily within Mr. xxxxxx's upward line of vision meant that his looking at Detective Centrella had less to do with his state of mind than with Detective Centrella's election to position himself in that location. Moreover, there is nothing unusual or suspicious about looking out the window which overlooks the tracks to see the train below; indeed, the windows were put into the station for precisely such a purpose.

It is beyond peradventure that Mr. xxxxxx's action in looking over his shoulder at Detective Centrella was insignificant, particularly since all three of the police officers in this case were dressed in casual clothes, thereby giving no indication that they were law enforcement agents. Thus, there can be no import to Mr. xxxxxx having glanced behind him at Detective Centrella. Cf., United States v. Wood, 981 F.2d 536, 537, 540 (D.C. Cir. 1992) (no articulable suspicion sufficient for stop where police saw suspect walk away from group of nine or ten men, cradling something in his arms and looking behind him at armed and uniformed police officer following him).

C. Mr. xxxxxx's Running Did Not Make The

Police Officers' Conduct Reasonable

In Jones this Court noted that the fact that the police "'escorted' or 'followed'" the suspect back to the bus from the depot after the suspect had offered to show the officer his bus ticket and student identification card (which were located inside the bus) was not "significant" for its fourth amendment analysis. 973 F.2d at 930. Stating that it would "leave [the] question to a case that raises it," this Court suggested that such an action by the police officer might have had significance if the suspect had told the police officer "that he had nothing to say and had begun walking away." Id. Mr. xxxxxx's is the case that raises this question because Mr. xxxxxx's comment that he had not done anything, Tr. 11, 29, was tantamount to his telling Detective Centrella that he had nothing to say, and his running was the "functional equivalent" of walking away.⁽⁶⁾ In sum, by his actions, Mr. xxxxxx asserted his right not to answer questions and to be left alone by the police, a right the government conceded below that he had. See Tr. 57 ("[Mr. xxxxxx] could have told this police officer, 'I don't care to talk to you,' and walked away").

Because Mr. xxxxxx's running from Detective Centrella was an assertion of his right not to speak with the police, it could not properly be used as part of the calculus supporting his seizure at the MacDonald's. Florida v. Bostick, U.S. , 111 S.Ct. 2382, 2387 (1991) ("refusing to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure"). See also United States v. White, 890 F.2d 1413 (8th Cir. 1989), cert. denied, 498 U.S. 825 (1990); United States v. Brown, 731 F.2d 1491 (11th Cir. 1984). As the Supreme Court has explicitly acknowledged:

The person approached, ... need not answer any question put to him; indeed, he may decline to answer the questions at all and may go on his way. ... He may not be detained even momentarily without reasonable, objective grounds for doing so; and his refusal to listen or to answer does not, without more, furnish those grounds.

Florida v. Royer, 460 U.S. 491, 497-498 (1983) (italics supplied), citing Terry v. Ohio, 392 U.S. 1, 32-33 (1968) (Harlan, J., concurring); id. at 34 (White, J., concurring); United States v. Mendenhall, 446 U.S. 544, 556 (1980) (opinion of Stewart, J.). Thus, Mr. xxxxxx's running from the police in this case was nothing more than his refusal to listen to the police and his effort to go on his way, as the trial court correctly ruled he was properly entitled to do. Tr. 64. See also Tr. 57.

In United States v. xxxxxx, the Fourth Circuit observed:

Despite his best efforts, xxxxxx was unable to 'terminate the encounter,' to ignore the police presence and go about his business,' or to 'go on his way.' The coercive effect of the policemen's actions must be evaluated in light of xxxxxx's response. No one would seriously dispute that xxxxxx had a right to attempt to fend off his inquisitors in the manner he did, and it is not contended that it was unreasonable for him to do so.

953 F.2d at 122. Similarly, in the instant case, Mr. xxxxxx was entitled not to have to speak with Detective Centrella and his comrades; that he exercised that entitlement should not be held against Mr. xxxxxx as part of the basis justifying his seizure.

Mr. xxxxxx's flight from the police does not end the inquiry. In Jones, this Circuit specifically stated that it would "not address the government's argument that the entire transaction -- from the moment of capture to the moment, ten to thirty minutes later, when the officers opened Jones's tote bag back at the bus station -- was a Terry stop justified by the suspiciousness of Jones's flight." 973 F.2d at 930-931. Instead the Court analyzed the situation in Jones as two separate phases, "first a Terry stop and then an arrest." 973 F.2d at 931.

Similarly, in xxxxxx, the Fourth Circuit, discussing the Supreme Court's decision in California v. Hodari, U.S. , 111 S.Ct. 1547 (1991), acknowledged that, "[p]hysical movement alone does not negate the possibility that a seizure may nevertheless have occurred." 953 F.2d at 122-123. Accord United States v. Adebayo, 985 F.2d 1333, 1338 n. 3 (7th Cir. 1993) (recognizing that if a suspect flees and is then caught by the police, a seizure has occurred).

The Third Circuit has indicated that "[f]light at the approach of law enforcement officers, when coupled with specific knowledge relating the suspect to evidence of a crime, is a proper factor to be considered in the decision to make an arrest." United States v. Cruz, 910 F.2d 1072, 1077 (3rd Cir. 1990) (italics supplied), citing Delaware v. Prouse, 392 U.S. 40, 66-67 (1968), cert. denied, 498 U.S. 1039 (1991). In Cruz, however, the specific evidence which, when coupled with flight, was sufficient to support the police seizure of the suspect was that the suspect went to a store purchased by a known convicted drug dealer, made a u-turn in front of it, looked into the store window and reached into his pocket as if to look for a key. This is far more specific and objective information than that which Detective Centrella had about Mr. xxxxxx. In Mr. xxxxxx's case the police lacked any specific information whatsoever relating him to evidence of a crime.

In United States v. Green, 670 F.2d 1148 (D.C. Cir. 1981), this Court acknowledged its time-honored view that "flight is not a 'reliable indicator of guilt without other circumstances to make its import less ambiguous.'" 670 F.2d at 1152, quoting Hinton v. United States, 424 F.2d 876, 879 (D.C. Cir. 1969). In Green this Court stated that "'"when coupled with specific knowledge on the part of the officer relating the suspect to the evidence of crime," [flight or evasion] may properly be considered...'". Id. quoting Hinton v. United States, 424 F.2d at 879, quoting, Sibron v. New York, 392 U.S. 40, 66 (1968).

The district court found that Mr. xxxxxx's running was an understandable response for a young and slight African-American approached by a large white police officer. Tr. 64. The government errs in stating that there is no basis for an African-American to be wary of white police officers. Gov't Brief at 15-17. To the contrary, there is ample support for such a response based upon the historical experiences of African-Americans in their encounters with law enforcement agents in this country. See generally, Developments In The Law: Race and The Criminal Process, "Racial Discrimination On The Beat: Extending The Racial Critique To Police Conduct," 101 Harv. L. Rev 1494 (1988); "The Id, The Ego, and Equal Protection: Reckoning With Unconscious Racism," 39 Stan. L. Rev. 317 (1987). Indeed, the Department of Justice has an entire division, the Civil Rights Division, devoted to the violation of civil rights, often of minorities, by persons often employed by law enforcement agencies. Moreover, in Terry v. Ohio, the Supreme Court acknowledged the "wholesale harassment by certain elements of the police community, of which minority groups, particularly [African-Americans], frequently complain." 392 U.S. at 14.

Notably absent from the cases the government cites on the value of flight in the "reasonable suspicion" calculus, are any cases from this Circuit. Gov't Brief at 12-16.⁽⁷⁾ Moreover, none of the cases cited by the government involved a factual situation analogous to Mr. xxxxxx's. In each of the cases cited by the government for the proposition that flight from the police supports reasonable suspicion of criminal activity, the flight was an indicia of consciousness of guilt. By contrast, Mr. xxxxxx's flight must be read in context as it occurred contemporaneously with his statement that he had not done anything wrong. Thus, it was, by action, a reaffirmation of his assertion of innocence, the precise opposite of the flights in the government's cases, all of which, when seen in context, evidenced a consciousness of guilt.⁽⁸⁾

Moreover, the cases cited by the government are distinguishable on their facts and all involved flight in more incriminating circumstances than those in Mr. xxxxxx's case. For example, in United States v. Willis, 967 F.2d 1220 (8th Cir. 1992), the police had more of a suggestion of criminal activity because a taxi driver had made a call for assistance to the police. Likewise in Tom v. Voida, 963 F.2d 952 (7th Cir. 1992), the flight occurred in a high-crime neighborhood (a description which does not fit Union Station) after the police officer saw the suspect with a "'fairly nice'" bicycle, 963 F.2d 957, which she presumably viewed as incongruous with the neighborhood. In United States v. Lender, 985 F.2d 151 (4th Cir. 1991), the "evasive conduct" occurred at 1:00 a.m. in an area known for drug trafficking and the suspect "engaged in behavior [the police] suspected to be a drug transaction." 985 F.2d at 154. Thus, in context, the flight had more meaning than Mr. xxxxxx's running as an assertion of his right not to speak with the police.

Like the flight in Jones, 973 F.2d 928 (D.C. Cir. 1992), the flight in United States v. Thompkins, 998 F.2d 629 (8th Cir. 1993), was inconsistent with the suspect's earlier cooperative efforts to accommodate the police. Accordingly, unlike Mr. xxxxxx's flight in this case, it was indicative of consciousness of guilt. Similarly, the flight in United States v. Chaidez, 919 F.2d 1193 (7th Cir. 1990), was not contemporaneous with the suspect's assertion of innocence, but rather occurred after she had been seen with a known narcotics dealer and had been subject to extensive surveillance. So, too, in United States v. Lane, 909 F.2d 895 (6th Cir. 1990), without any explanation for the running, as Mr. xxxxxx gave when he stated that he had done nothing wrong, four men in a building known for drug activity, ran as uniformed police officers enter the building based on an informant's tip. Thus, in context of what the police knew before the flight began, it was reasonable to infer that it was a manifestation of the suspects' consciousness of guilt. In contrast, because the police had no such knowledge about Mr. xxxxxx with which to couple his flight, it lacked significance supporting his seizure.

Other than the running, the government argues that the "confluence of a number of "facts and inferences" amounted to "reasonable suspicion" justifying Mr. xxxxxx's seizure. Gov't Brief at pp. 11-12. According to the government, the factors upon which Detective Centrella relied were: Mr. xxxxxx's having arrived from a so-called "source city" (although as set forth in note 10, infra, there was no evidence either that Mr. xxxxxx had come from New York, nor that New York was a "source city"), that he seemed to notice Detective Centrella watching him, changed the pace at which he was walking and kept watching Detective Centrella, that he went to a window which overlooked the train tracks, and that upon being approached by Detective Centrella and after the latter had identified himself as a police officer, he threw down his tote bag, stated he had done nothing wrong and ran from the officer. Gov't Brief at 11-12.

These purported "facts and inferences" amount to nothing more than "inchoate and unparticularized suspicion[s] or 'hunch[es]'" based upon subjective impressions. Terry v. Ohio, 392 U.S. at 27. The government would have this Court believe that Mr. xxxxxx's behavior was subject to only one interpretation: that Mr. xxxxxx clearly telegraphed that he was carrying drugs. In fact, however, stripped of the one-sided interpretation the government proposes, Mr. xxxxxx's behavior was consistent "with a very large category of presumably innocent travelers." Reid v. Georgia, 448 U.S. 438 (1980) (per curiam).

In its brief, the government improperly engages in speculation regarding Mr. xxxxxx's state of mind, which the trial court disallowed the police officers from doing during their testimony. Tr. 7. See Gov't Brief at 12 ("when a suspect betrays nervousness after apparently noticing that he is under observation, abruptly slows to a virtual stand-still when the observer, who politely identifies himself as a police officer, reacts violently by abandoning his luggage, gratuitously proclaiming his innocence and fleeing through an occupied station in defiance of repeated orders of pursuing officers that he stop..."). Like the trial court, this Court should not allow the government to impute consciousness of guilt to Mr. xxxxxx as if that is the only interpretation supported by the record. As in xxxxxx, supra, the facts recited by the government, combined with running from the police, were not enough to justify a seizure. Cf., United States v. Millan, 912 F.2d 1014, 1018 (8th Cir. 1990) (drug courier profile characteristics insufficient to justify seizure).

In xxxxxx, on facts stronger than those in the instant case, the Fourth Circuit held that the police lacked reasonable suspicion to stop a deplaning airplane passenger, and accordingly reversed the district court's denial of the motion to suppress. In xxxxxx the police had observed a suspect, with a bulge in his pocket, arrive from a "source city,"⁽⁹⁾ make eye contact with the law enforcement agent several times as he ascended the escalator, give a false statement regarding his point of origin, fail to produce any identification except a check-cashing card, and refuse the officer's request to search his pocket. 953 F.2d at 120-121. Nonetheless, the Fourth Circuit ruled that the police seized the suspect in that case when they "persist[ed]" in their efforts to have the suspect allow them to search his pocket despite his expressed desire to terminate the encounter. 953 F.2d at 122-123. The Fourth Circuit noted that "[s]uch persistence may be the functional equivalent of physical restraint, which, in the absence of justification, is proscribed by the Fourth Amendment." 953 F.2d at 123. Likewise, in Mr. xxxxxx's case, his running from the police and stating that he had not done anything wrong were his efforts to terminate the encounter to the police, and their persistence "strongly convey[ed]" their "'intention not to desist.'" 953 F.2d at 123 (citation omitted). Just as there was no reasonable suspicion on the facts of xxxxxx, there was none here and accordingly, the purported "pat-down" of Mr. xxxxxx was the tainted fruit of his illegal seizure.

In United States v. Wood, 981 F.2d 536 (D.C. Cir. 1992), this Court held that a stop of a suspect was not based upon articulable suspicion where police officer in full uniform and armed had observed a suspect walk away from a group of nine or ten men towards an apartment building while "'cradling'" an undiscernible object in his arms, and looking behind him at the uniformed officer. 981 F.2d at 537. Because the officers in Wood were in uniform, the suspect's looking behind him to monitor the officers' whereabouts arguably had greater significance as evidence of his concern about being surveilled by law enforcement agents. This is unlike the situation in Mr. xxxxxx's case where his glancing behind him at a person unbeknownst to him to be a police officer (because he was dressed in plain clothes) had no import. In Mr. xxxxxx's case the police had even less of a specific and objective articulable basis for seizing Mr. xxxxxx than the officers in Wood had for seizing the defendant there. Accordingly, as did the court in Wood, this Court should hold that Mr. xxxxxx's seizure violated the Fourth Amendment.

In United States v. Millan, supra, the police had observed a passenger disembark a plane and observed two bulges in the pockets of his jacket which they suspected were drugs. The Eighth Circuit held that the law enforcement agents lacked anything more than an "'unparticularized hunch or suspicion'" for stopping and questioning the accused at the airport, therefore finding that the Fourth Amendment had been violated because the police "belief that [the suspect's] pockets contained narcotics could not have been anything more than a hunch." 912 F.2d at 1017. The Eighth Circuit therefore ruled that all that flowed from the stop had to be suppressed. The same logic applies to Mr. xxxxxx's case.

In United States v. Buenaventura-Ariza, 615 F.2d 29 (2d Cir. 1980), the Second Circuit held that observations made by law enforcement agents who had seen suspects arrive from a "source city" and appear nervous and walk separately in the airport, did not justify an airport stop of the suspects. The Second Circuit held that the fact that "appellants [had] arrived from a source city and seemed nervous to [the law enforcement agent ... was] wholly insufficient to constitute 'specific and articulable' facts supporting a reasonable suspicion that they were involved in drug trafficking." 615 F.2d at 36. The Second Circuit noted the absence of "other objective facts which, when viewed in conjunction with nervous behavior and arrival from a source city, raise the complex of conduct to a level justifying reasonable suspicion of criminal activity." Id. Likewise, Detective Centrella lacked objective facts regarding Mr. xxxxxx to justify reasonable suspicion that he was engaged in criminal activity.

In Mr. xxxxxx's case, Detective Centrella did not even know whether Mr. xxxxxx had arrived from a "source city" or whether the train from which he presumably disembarked⁽¹⁰⁾ had merely originated from a "source city." As in Buenaventura-Ariza, in Mr. xxxxxx's case there was "an eloquent absence ... of necessary objective facts even remotely to suggest that [Mr. xxxxxx was] involved in drug trafficking." Id. (emphasis in original). That being the case, even if the seizure was no more than a Terry stop, it was not justified by reasonable suspicion.

In his concurring opinion in Terry v. Ohio Justice Harlan noted:

[I]n the absence of state authority, policemen have no more right to 'pat-down' the outer clothing of passers-by or of persons to whom they address casual questions, than does any other citizen ...

*******

In the first place, if the frisk is justified in order to protect the officer during an encounter with a citizen, the officer must first have constitutional grounds to insist on an encounter, to make a forcible stop. Any person, including a policeman, is at liberty to avoid a person he considers dangerous. If and when a policeman has a right instead to disarm such a person for his own protection, he must first have a right not to avoid him but to be in his presence. That right must be more than the liberty (again, possessed by every citizen) to address questions to other persons...

392 U.S. at 32. See Adams v. Williams, 407 U.S. 143, 146 (1972) (weapons search is only permitted if the police officer has reason to believe the suspect is armed and dangerous). There were no "specific and articulable facts which, taken together with rational inferences from those facts warrant[ed]" the pat-down or search of Mr. xxxxxx. Terry v. Ohio, 392 U.S. at 21. See also Brown v. Texas, 443 U.S. 47, 51-52 (1979) (where citizen "look[ed] suspicious" but officer could not articulate "specific, objective facts" which underpinned that hunch, stop and frisk was illegal). Since there was no justification for the police to have patted Mr. xxxxxx down nor to have searched him, the drugs seized from his person must be suppressed. United States v. Most, 876 F.2d 191, 195 (D.C. Cir. 1989) (to allow search based on plain touch "initial contact [must be] determined to be lawful"). Cf. United States v. Millan, 912 F.2d 1014 (8th Cir. 1990).

III. Even If The Police Properly Stopped Mr. xxxxxx Under Terry, They Lacked Justification For Any Search Of His Person

In moving directly from catching up with Mr. xxxxxx at the MacDonald's to immediately wrestling him to the ground, handcuffing him and moving him over a hundred yards to a secure police substation⁽¹¹⁾ the police "did not handle the stop properly" and accordingly, "it became an arrest without their thinking about the totality of what was happening." United States v. Novak, 870 F.2d 1345, 1352 (7th Cir. 1989). Moreover, the police evidenced their true purpose in seeking to confirm their hunches and suspicions by searching Mr. xxxxxx for drugs. Upon catching up with Mr. xxxxxx, Officer Pena never asked him his name or for identification; where he was coming from or where he was going; nor what was in his pocket and whether she could search it; instead, the police sought "to verify their suspicions by means that approach[ed] the conditions of an arrest." Florida v. Royer, 460 U.S. at 499. Compare United States v. Smith, 574 F.2d 882, 883-885 (6th Cir. 1978) (where suspect exhibited drug courier characteristics "plus" showed a bulge around her abdomen, police officer was justified in stopping her, and asking her for identification, and plane ticket) (emphasis in original), with United States v. Millan, 912 F.2d at 1018 (police officers' belief that suspect's "pockets contained narcotics [was] 'too slender a reed' to justify the seizure"), citing Reid v. Georgia, 448 U.S. at 441. In sum, the police failed to use "investigative methods ...[that were] the least intrusive means reasonably available to verify or dispel the officer's suspicions in a short period of time." Florida v. Royer, 460 U.S. at 500. As the Seventh Circuit explained in Novak, "[t]o qualify as a Terry stop, a detention must be limited in scope and executed through the least restrictive means." 870 F.2d at 1352.

Officer Pena never testified that she saw a bulge or had any reason to suspect that Mr. xxxxxx was "armed and dangerous," as she had to to justify patting him down. Quite to the contrary, she testified that she had not seen any particular bulges in the pocket area of the jacket. Tr. 48 (no bulge in Mr. xxxxxx's jacket because it was "bulky"). Instead, she admitted that her grabbing of the left top coat pocket was an "automatic reaction," Tr. 48, although, in a conclusory fashion without any factual basis upon which the court could review her assessment, she claimed that she thought Mr. xxxxxx had a weapon. Tr. 41, 42-43. Cf., United States v. Millan, 912 F.2d at 1017 ("The bulges [the officer] noticed were in [the suspect's] pockets, not in an unusual location, and [the suspect] could have been carrying his wallet, gloves, or a hat in those pockets. Reasonable suspicion requires some particularized suspicion about the individual that is more than just a hunch").

It is axiomatic that "a basis for seizure [must be] assessed independently of the police officer's subjective assertions, if the courts rather than the police are to be the ultimate enforcers of the principle [that suspicion must be more than a mere hunch]." United States v. Gooding, 695 F.2d 78, 82 (4th Cir. 1982), citing Brown v. Texas, 443 U.S. 47, 52 (1979). As such, Officer Pena's claim that she was concerned that Mr. xxxxxx might have a weapon was belied by the evidence at the suppression hearing. Thus, the search of Mr. xxxxxx cannot be justified as a valid search for weapons.

IV. Officer Pena's Search Of Mr. xxxxxx's Person Exceeded The Scope Of A Limited Terry Frisk And Cannot Be Upheld Under The "Plain Touch" Doctrine

When Officer Pena felt an object in Mr. xxxxxx's pocket, at most, she had the right to question Mr. xxxxxx or to investigate further. Her actions in this case went beyond a frisk of Mr. xxxxxx and instead constituted a full-blown search of his person.

A. Officer Pena's Actions Exceeded A Limited Terry Frisk

Once Mr. xxxxxx had been grabbed, restrained and handcuffed by three officers, the need for a pat-down had evaporated. The purpose of a Terry frisk was not advanced since, at that point, the officers no longer needed to concern themselves with any danger Mr. xxxxxx presented as he was then unable to reach any objects that might have been contained within his pocket. At this point the officers should have questioned Mr. xxxxxx to determine more information that might determine whether there was probable cause to search him.

In its brief the government argues that the search of Mr. xxxxxx could be justified under the plain touch doctrine, see Gov't Brief at 19-21; however, in the district court Mr. xxxxxx was precluded from demonstrating that Officer Pena was not truly able to discern that the substance in Mr. xxxxxx's jacket pocket was crack cocaine. See Tr. 51-52.⁽¹²⁾

B. Even If There Was A Pat-Down For Weapons, As Contemplated

By Terry, The Record Does Not Support A Finding That The

Contents Of Mr. xxxxxx's Pocket Made Themselves

Immediately Apparent As Drugs

The drugs within Mr. xxxxxx's pocket were discovered by the police not by virtue of "plain touch," but rather based upon a full search. Officer Pena testified about clenching her hand over Mr. xxxxxx's left breast pocket. Tr. 48. Clearly, however, based upon the items recovered from Mr. xxxxxx's pocket, they could not have been mistaken by Officer Pena as a possible weapon.⁽¹³⁾ There is no knife, or any other weapon, that feels like small objects in cellophane and there is no weapon which approximates in size and appearance small hard objects wrapped in cellophane paper.

In Minnesota v. Dickerson, U.S. , 113 S.Ct. 2130 (1993), the Supreme Court held that contraband discovered through the sense of touch had to be suppressed where "the officer who conducted the search was not acting within the lawful bounds of Terry v. Ohio, 392 U.S. 1 (1968)]." Like the officer in Dickerson, Officer Pena did not determine that the "lump was contraband [until] after 'manipulating the contents of [Mr. xxxxxx's] pocket' -- a pocket which the officer already knew contained no weapon." Accordingly, because Officer Pena's actions fell outside the scope of the "plain touch" doctrine explained by the Supreme Court in Dickerson, they constituted an unlawful search of Mr. xxxxxx.

CONCLUSION

For the foregoing reasons, the trial court's ruling suppressing the evidence in Mr. xxxxxx's case should be affirmed.

Respectfully submitted,

Santha Sonenberg

Assistant Federal Public Defender

On Behalf of Neil xxxxxx 625 Indiana Avenue, N.W.

Washington, D.C. 20004

(202) 208-7500

CERTIFICATION OF BRIEF LENGTH

Pursuant to D.C. Circuit Rule 28(d)(1), undersigned counsel hereby certifies that this brief includes no more than 12,500 words.

Santha Sonenberg

CERTIFICATE OF SERVICE

This is to certify that on this day of January, 1994, two copies of the foregoing Brief for Appellee were served upon the Office of the United States Attorney, 555 Fourth Street, N.W., Washington, D.C. 20001 by hand for Assistant United States Attorney Ann Simon.

Santha Sonenberg

1. "Tr." refers to the 65-page transcript of the suppression hearing before the Honorable Samuel P. King, Visiting United States District Court Judge, on September 20, 1993, which is contained in the record materials relied upon by appellee and submitted with this brief.

2. Some of the significant details upon which Detective Centrella relied as the grounds which made him suspicious of Mr. xxxxxx were conspicuously absent from any of the recordations of the encounter prepared by or testified to by Detective Centrella soon after the incident. Tr. 21-24 (establishing that the incident occurred seven months before Detective Centrella's testimony at the motions hearing, that he had worked on many cases since then, and that the facts that Mr. xxxxxx remained in the window area and looked over his shoulders were not in prior police reports prepared the day of the arrest nor in any transcripts of Detective Centrella's prior testimony before the grand jury or at the preliminary hearing).

3. There was no contraband in the tote bag. Tr. 25.

4. Under the thinly veiled guise of reciting the course of the proceedings below, the government improperly calls to this Court's attention Mr. xxxxxx's prior record. See Gov't Brief at p. 1, n. 1; Rec. Mat. Tab B. Clearly this has no relevance to the issue this Court must decide. As the government well knows:

It is not the function of this court, even when guilt may be obvious, to ignore clearly unconstitutional actions by the police in order to assist them. That is so even if the unconstitutional police effort was not in bad faith, only misguided. If the police go about their work constitutionally, this court will fully support their critical efforts. There are, however, in this case too many police lapses and inconsistencies. The government bore the burden of proof, and it could not explain away the unconstitutional actions.

United States v. Novak, 870 F.2d 1345, 1353 (7th Cir. 1989) (italics supplied).

5. See Tr. 60.

6. United States v. xxxxxx, 953 F.2d at 123.

7. The government's brief quotes a portion of this Court's decision in United States v. Winston, 892 F.2d 112 (D.C. Cir. 1986), regarding some persons' sense of civic or moral duty to cooperate with the police. See Gov't Brief at 15-16. Yet even in xxxxxx this Court acknowledged that not everyone has such a sense. 892 F.2d at 116 ("a person's awareness of the duties of police officers ...' will often [not always] lead a reasonable person to cooperate with law enforcement officers'") (italics supplied).

8. Clearly, that the police ultimately recovered drugs from Mr. xxxxxx cannot be used to support a suggestion that his running evidenced his consciousness of guilt. Cf., United States v. DiRe, 332 U.S. 581 (1948) (search not made legal by what it uncovers); Sibron v. New York, 392 U.S. at 63 (search may not be part of justification for seizure to which it was incident).

9. It is significant that xxxxxx involved the air shuttle from New York, a direct flight. Therefore, unlike Mr. xxxxxx's case, all passengers had to have boarded in New York. In contrast, the instant case involves a train which made a number of intermediary stops, and from which Mr. xxxxxx himself was never actually seen disembarking, so that no determination could be made that he had actually been a passenger on that train, nor even if he had been, whether he had boarded it at a "source city."

10. There was no evidence adduced that Mr. xxxxxx actually came off the train to which Detective Centrella referred. The only testimony was that he came up the stairs from the tracks at which that train had arrived. Thus, as far as the police knew, Mr. xxxxxx just as well could have been in the District of Columbia before the train arrived and walking up the stairs after looking for someone who was to have arrived on that track.

11. From the time the police grabbed Mr. xxxxxx and handcuffed both his hands behind his back, transporting him over one hundred yards to the substation, until the time they searched his jacket, they did not ask his permission to search the jacket, they did not ask him any additional questions, and they knew no more at the police substation than they had known at the MacDonald's. Tr. 24-25, 49. Cf. Sibron v. New York, 392 U.S. 40, 63 (1968) (police officer "obtained no new information in the interval between his initiation of the encounter ... and his physical seizure and search of Sibron outside").

12. The record in this case is not sufficient for this Court properly to determine whether Officer Pena immediately recognized the objects in Mr. xxxxxx's pocket because in the trial court Mr. xxxxxx was not permitted to demonstrate that, through the jacket, it was not possible to tactually discern whether the objects in his pocket were drugs or any one of a number of other objects that feel similar. Therefore, if this Court decides that the plain touch determination is critical to its decision in this case, a remand to the district court for a further evidentiary hearing on this issue would be required.

13. Officer Pena's testimony that she thought the objects could have been a knife, Tr. 42-42, is patently absurd since there is no knife that feels like two small packages of cellophane with hard objects within them, weighing an aggregate of approximately 25 grams. Officer Pena cannot have it both ways: either she felt small unidentifiable objects in cellophane (in which case they clearly were not weapons and she was not entitled to seize them, but only to investigate further), or she felt objects she believed to be weapons (which makes no sense in light of the objects at issue) and was entitled to take them if she thought Mr. xxxxxx was armed and dangerous.