ORAL ARGUMENT NOT YET SCHEDULED
BRIEF FOR APPELLANT
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
NO. 93-3025
UNITED STATES OF AMERICA,PLAINTIFF-APPELLEE,
v.
JASON A. xxxxxxx,DEFENDANT-APPELLANT.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
A.J. KRAMER
FEDERAL PUBLIC DEFENDER
625 INDIANA AVENUE, N.W.
SUITE 550
WASHINGTON, D.C. 20004
(202) 208-7500
MICHAEL C. WALLACE, SR.
ASSISTANT FEDERAL PUBLIC DEFENDER
COUNSEL FOR APPELLANT
District Court
Criminal No. 92-0258-01
CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES
Pursuant to Rule 11(a)(1) of the General Rules of this Court, Defendant-Appellant, Jason A. xxxxxxx, hereby certifies the following:
Parties
Defendant-Appellant Jason A. xxxxxxx and Plaintiff-Appellee the United States of America appeared below and are the only parties before this Court. There are no amici.
Rulings Under Review
Appellant seeks review of the ruling of the district court (Honorable Thomas F. Hogan), on October 16, 1992, denying his motion to suppress evidence. That ruling has not been reported.
Related Cases
This case has never been before this Court or any other court. Counsel is unaware of any related cases pending in any court.
TABLE OF CONTENTS
CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES i
TABLE OF AUTHORITIESiii
STATUTES AND REGULATIONS 1
STATEMENT OF JURISDICTION 1
STATEMENT OF THE ISSUE 1
STATEMENT OF THE CASE 1
Proceedings Below 1
Statement of Facts 2
SUMMARY OF ARGUMENT 5
ARGUMENT 5
I.The second search of Mr. Edward's bag and seizure of the adapter,conducted without a warrant and after he was arrested and taken into custody, were not justified by the initial consent to search where the arrest was made without probable cause, no exigent circumstances existed, and the second search was not pursuant to an established inventory procedure. 5
II. The officer lacked probable cause to arrest the defendant for the narcotic found in the television when he had no idea that the adapter was the same kind, make or model for the
television. 14
CONCLUSION 15
CERTIFICATE OF SERVICE 15
ADDENDUM 15
CASES
Coolidge v. New Hampshire, 403 U.S. 443 (1971)10
Cupp v. Murphy, 412 U.S. 291 (1973)7
Gerstein vs. Pugh 420 U.S. at 111 12
Goirdenello v. United States, 357 U.S. 480 (1958)12
Henry v. United States, 361 U.S. 98 (1959)9
Illinois v. LaFayette, 462 U.S. 640 (1983)10
Michigan v. DeFillippo, 443 U.S.31 (1979)6, 12
Roaden v. Kentucky, 413 U. S. 496 (1973)6
Schneckloth v. Bustamonte, 412 U.S. 218 (1973)6, 11
South Dakota v. Opperman, 428 U.S. 364 (1976)6
Stoner v. California, 376 U.S. 483 (1964)6
United States v. Chadwick, 433 U.S. 1 (1977)8
United States v. Gorski, 852 F.2d 692 (2d Cir. 1988)7, 8
United States v. Place, 462 U.S. 698 (1983)9
United States v. Robertson, 833 F2d 777 (9th Cir. 1987)8
United States vs. Brown, 443 U.S. 47 (1979)12
Warden v. Hayden, 387 U.S. 294 (1967)9
Whiteley v. Warden, 401 U.S. 560 (1971)12
Wong Sun v. United States, 371 U.S. 471 (1963)11
CONSTITUTION, STATUTES, AND SENTENCING GUIDELINES
18 U.S.C. § 3742(a)1
21 U.S.C. §841(a)(1)1
D.C. Cir. R. 11(a)(3)1
Fed. R. App. P. 28(f)1
Pursuant to Fed. R. App. P. 28(f) and D.C. Cir. R. 11(a)(3), pertinent statutes are reproduced in the Addendum to this brief.
The Court has jurisdiction under 28 U.S.C. § 1291 over this direct appeal of a final judgment in a criminal case. The district court had jurisdiction over the case pursuant to 18 U.S.C. § 3231.
The defendant, Jason A. xxxxxxx, was charged in a one-count
indictment with possession with the intent to distribute cocaine
base, in violation of 21 U.S.C. §841(a)(1). [A-1]
The defendant
filed a motion to suppress tangible evidence and a hearing was held
on October 16, 1992, the Honorable Thomas F. Hogan, presiding. At
the conclusion of the government's case, the defendant submitted on
the record, and the court orally denied the motion to suppress.
[A-]
On November 13, 1992, the defendant entered a conditional guilty plea to the indictment reserving his right to appeal the court's denial of his suppression motion. [A- ] On February 22, 1993, the court sentenced Mr. xxxxxxx to the custody of the Attorney General for sixty months to be followed by a term of supervised release for a period of four years, and imposed a special assessment of $50.00. [A- ] On February 24, 1993, Mr. xxxxxxx gave timely notice of appeal. [A-]
On June 11, 1992, Mr. xxxxxxx was a passenger on an Amtrack Train, his destination Fayetteville, North Carolina. [A-] Officer William Buss, a Metropolitan Police Department Officer, boarded the train to conduct drug interdiction interviews. Officer Buss was accompanied by Amtrak Officers Thomas Cook, Ray Wright and Steve Butt. [A-]
Officers Buss and Butts walked to the back of the train car where Mr. xxxxxxx was seated. Officers Cook and Butt then stationed themselves in a place to observe the interview. [A-] According to Officer Buss, Mr. xxxxxxx was slumped down in his window seat with his head forward and his eyes to the right. [A-] When Buss showed his police identification and asked if he could speak with him, Mr. xxxxxxx replied affirmatively. [A-] Officer Buss asked Mr. xxxxxxx where was he going and whether he could see his ticket. Mr. xxxxxxx replied that he was traveling from "Newark to Fayetteville" and he showed the officer his ticket that confirmed his travel. [A-] Officer Buss stated that the ticket was in the name of "Lance Barnes" and then asked Mr. xxxxxxx for other identification. When the officer examined the driver's license provided by Mr. xxxxxxx, he noted that it was in the name of "Oliver Lawrence." [A-] Officer Buss returned the license and ticket to Mr. xxxxxxx. [A-] The officer asked Mr. xxxxxxx how long he would be in Fayetteville and Mr. xxxxxxx said "about a week." [A-]
Finally, when Buss asked him if he had any luggage, Mr. xxxxxxx got up from his seat, walked across the aisle, handed him a red tote bag and said, "you can check it if you want." [A-] Before examining the bag, the officer explained to Mr. xxxxxxx why he was talking to him and the problems of guns and drugs coming into the city by buses and trains. [A-] Officer Buss asked Mr. xxxxxxx if he was sure that he did not mind the search of his bag, to which xxxxxxx said "go ahead." [A-]
Buss, who testified that he was concerned that a bulge in Mr. xxxxxxx' pants may have been a weapon, asked for and received permission to search his person. The search did not disclose a weapon or any other kind of contraband. [A-] The officer then searched the red tote bag and found clothes and a small "adapter for an appliance." [A-] Officer Buss then noticed a small television sitting in back of the area where he had obtained the tote bag. [A-] He asked Mr. xxxxxxx if the television belonged to him, to which xxxxxxx replied "no". He then asked the passengers on the train, collectively, whether any of them owned the television. [A-] When no one claimed ownership of the television he requested Officer Cook to bring his drug sniffing dog. Buss then left the train and took the television with him, while Mr. xxxxxxx remained in the train.
While waiting for the drug sniffing dog, Officer Buss shook the television. It made a sound that he believed was not consistent with a television. [A-] He noticed that the screws on the back of the television appeared to have been tampered with. [A-19] Within minutes, Officer Cook arrived with the dog and it alerted to the television. [A-] An Amtrack officer had a phillips screw-driver and opened the back of the television where he discovered two plastic vials. The contents of the vials were field-tested and reacted positive for the presence of cocaine.
[A-]
After testing the substance, Officer Buss returned to the train. Mr. xxxxxxx was still seated where he had been when interviewed by the officers. [A-] Buss informed him that he was under arrest, handcuffed him immediately, and seized the red tote bag. [A-] Mr. xxxxxxx was taken off the train and to the Amtrack police station where the tote bag was turned over to Detective Huffman, who removed the adapter from it. Officer Buss then learned for the first time that the adapter fit the television.
[A-]
At the hearing on the motion to suppress, Mr. xxxxxxx argued that the adapter should be suppressed because the officers should have obtained a search warrant to conduct the second search of the tote bag after he was arrested and taken into custody. [A-] The court denied the motion, finding that Mr. xxxxxxx had abandoned the television and that the officers had reasonably concluded that the adapter found in the tote bag fit the television in which the drugs were discovered and did not need a warrant to go back into the bag to seize the adapter. [A-]
The police officer's failure to obtain a search warrant to conduct a second search of Mr. Edward's bag and to seize the adapter from it violated the Fourth Amendment. Mr. Edward's consent to search was given upon the implicit understanding that only a single search would be made. Moreover, the evidence seized in the second search was tainted by the intervening arrest of xxxxxxx without probable cause. Thus, the earlier consensual search of the tote bag did not authorize the subsequent warrantless search following the unlawful arrest of Mr. xxxxxxx. Under the unusual circumstances in this case--where an illegal arrest occurred following the initial consent--that consent did not continue to justify the second search. Since none of the other exceptions to the warrant requirement applies, such as exigent circumstances or a valid inventory search, the second search of Mr. Edward's bag and the seizure of the adapter were unlawful, thereby requiring suppression of the adapter as evidence against Mr. xxxxxxx.
I.The second search of Mr. Edward's bag and seizure of the adapter,conducted without a warrant and after he was arrested and taken into custody, were not justified by the initial consent to search where the arrest was made without probable cause, no exigent circumstances existed, and the second search was not pursuant to an established inventory procedure.
Under the Fourth Amendment a search conducted by law enforcement officers must rest upon a search warrant, Stoner v. California, 376 U.S. 483 (1964), unless it clearly falls within a recognized exception. See Schneckloth v. Bustamonte, 412 U.S. 218 (1973) (consent); Roaden v. Kentucky, 413 U.S. 496 (1973) (exigent circumstances plus probable cause); Michigan v. DeFillippo, 443 U.S.31 (1979) (search incident to lawful arrest); Warden v. Hayden, 387 U.S. 294 (1967) (hot pursuit); South Dakota v. Opperman, 428 U.S. 364 (1976) (inventory). The second search of Mr. xxxxxxx' tote bag conducted at the police station, following his arrest on less than probable cause, was not justified by his initial consent to search and did not fall within any of the exceptions to the warrant requirement.
SUBSECTION A TO BE INSERTED
B. A warrant was required for the police to conduct the second search of the bag and to seize the adapter. Where no exigent circumstances justified the intrusion.
During the initial consensual search of Mr. Edward's bag, the police observed an adapter which at that time, did not appear to have any evidentiary value and was not seized. It was only after drugs were found in the television did officer Buss suspect that the adapter might be evidence if it fit the television. Thus, after arresting and handcuffing Mr. xxxxxxx, the police seized the bag and took it to the Amtrak Police station, where they conducted a second, nonconsensual search. During this second search, the police seized the adapter and fit it to the television. At that time, Mr. xxxxxxx was handcuffed and in police custody. Thus, no exigent circumstances, such as imminent danger of destruction of evidence or a threat to the safety of the officers existed. Cf. Cupp v. Murphy, 412 U.S. 291, 294-96 (1973)(exigent circumstances justified warrantless search of fingernails when destruction of evidence feared); Warden v. Hayden, 387 U.S. 294, 298-99 (1967)(exigent circumstances justified warrantless search of house for suspect and weapons where officers' lives endangered).
This case is very similar to the case of United States v.
Gorski, 852 F.2d 692 (2d Cir. 1988). In Gorski, the court held
that a warrantless search of a bag in the defendant's possession at
the time of his arrest was not justified by exigent circumstances.
The defendant Gorski along with other defendants were under
surveillance by agents of the Federal Bureau of Investigation. The
agents had learned of a narcotics deal that was to take place.
After observing the individuals that they were seeking, the agents,
with their guns drawn, moved in and arrested Mr. Gorski. At the
time of the arrest Mr. Gorski was carrying a black bag. He was
immediately handcuffed and secured. An agent opened the black bag
Gorski was carrying and found a quantity of a controlled substance.
In reversing Gorski's conviction and remanding the case to the
district court for further findings on the inventory search and
inevitable discovery issues, the court pointed out that under the
circumstances of the defendant's arrest, the bag was not accessible
to him because he was handcuffed and in the presence of several
agents. Id. Therefore, the police should have obtained a warrant
before searching the bag. Id. at 694-95.
Similarly, in United States v. Chadwick, 433 U.S. 1, 15 (1977), the Court, held "[o]nce law enforcement officers have reduced luggage or other personal property not immediately associated with the person of the arrestee to their exclusive control, and there is no longer any danger that the arrestee might gain access to the property to seize a weapon or destroy evidence, a search of that property is no longer incidental to the arrest." Thus, the warrantless search of a footlocker, seized upon arrest, was invalid because the police had exclusive custody and could have obtained a warrant.
Like the defendants in Chadwick and Gorski, Mr. xxxxxxx was completely secured when the tote bag was searched for the second time. In this situation, the officers could not claim that the second search was conducted because of a fear for their safety. Having already searched the bag only minutes earlier, Officer Buss knew that it did not contain a weapon and, prior to xxxxxxx' arrest, the officers had determined that he was not armed. Therefore, there was no threat to the officers safety and no danger that the evidence in the bag would be destroyed. Under these circumstances a warrant was required to conduct the second search of the bag. See United States v. Robertson, 833 F2d 777, 785-86 (9th Cir. 1987)(warrantless search of legally detained backpack not justified by exigency exception to warrant requirement when no danger defendant would destroy contents or threaten officers' safety).
(b)Officer Buss concluded that the tote bag Mr. xxxxxxx had in his possession contained evidence that linked him to the narcotics found in the television, giving him probable cause to arrest.
Compelling circumstances such as "exigent circumstance" and
"probable cause" may justify a warrantless search and arrest in
limited circumstances. Henry v. United States, 361 U.S. 98 (1959),
Warden v. Hayden, 387 U.S. 294 (1967). There were no exigent
circumstances present to serve as an exception to the fourth
amendment warrant requirement. However, if probable cause
was
sufficiently established to arrest Mr. xxxxxxx for the narcotics
found in the television it does not reach the level to justify the
warrantless search of his tote bag.
In United States v. Place, 462 U.S. 698, 701 (1983), the Court held that "[w]here law enforcement authorities have probable cause to believe that a container holds contraband or evidence of a crime, but have not secured a warrant, the Court has interpreted the Amendment to permit seizure of the property, pending issuance of a warrant to examine its contents." The officers after placing Mr. xxxxxxx under arrest never sought to obtain a search warrant. The officer seized the tote bag and took Mr. xxxxxxx to the police station where they then opened the tote bag to remove the adapter.
(d) The record in this case is barren of facts to sustain an argument that the post-arrest search at the station was part of routine police procedure.
In Illinois v. LaFayette, 462 U.S. 640 (1983), the Court upheld the warrantless search of defendant's shoulder bag as part of a routine inventory of arrested person. In that case, the defendant LaFayette was arrested for breach of the peace. While going through the booking process he placed his shoulder bag on the police processing counter. One of the officer went through the bag and found a controlled substance. The court in rejecting the defendant's claim that the search violated the Fourth Amendment pointed out that an inventory search is permissible. The Court held that if as part of a routine procedure incident to incarcerating an individual a search of any container or articles in his possession is permitted so long as the search is in accordance with "established inventory procedures." 462 U.S. at 648. However, in this case, no testimony was elicited from any officers that the tote bag was inventoried nor was there testimony that such a practice was consistent with the Metropolitan Police Department procedures.
Moreover, the police knew in advance of the arrest of Mr. xxxxxxx that the tote-bag may have contained evidence or a link of evidence that connected him to the narcotic found in the television. As pointed out in Coolidge v. New Hampshire, 403 U.S. 443 (1971), the necessity of a warrant is of most importance especially where the police know in advance the location of evidence of a crime.
(a) The earlier consensual search of Mr. Edward's bag did not authorize the subsequent warrantless search and seizure of the adapter following his unlawful arrest.
The leading commentator on the Fourth Amendment states that "[e]xcept in unusual circumstances, it would seem that a consent to search may be said to be given upon the understanding that the search will be conducted forthwith and that only a single search will be made." 3 WAYNE R. LAFAVE, SEARCH AND SEIZURE: A TREATISE ON THE FOURTH AMENDMENT § 8.1(C) AT 170 (2D ED. 1987). In the instant case, the single search authorized by Mr. xxxxxxx ended when officer Buss finished looking through the bag, zipped it up, and returned it to the luggage rack. [A-] No "unusual circumstances" existed. Thus, the second search of the bag conducted at the Amtrak police station after Mr. xxxxxxx' arrest was not justified by his initial consent. Under the circumstances, the district court erred in finding that the second search was valid because it was covered by Mr. xxxxxxx' initial consent.
Even if Mr. xxxxxxx' consent to the initial search of his bag
would have carried over to the second search of his bag, because
illegally arrested following the initial consent, that consent
could not continue to justify the second search.
Mr xxxxxxx'
arrest was illegal because the police lacked p.c. at the moment he
was taken into custody.
"[P]robable cause to justify an arrest means facts and circumstances within the officer's knowledge that are sufficient to warrant a prudent person, or one of reasonable caution, in, believing in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense." After finding the drugs in the television. Michigan vs. DeFillippo 443 U.S. 31,40 (1979);
When Officer Buss went back on the train and immediately arrested Mr. xxxxxxx, he had no more than a mere suspicion that Mr. xxxxxxx may have been the owner of the television. Since he had not yet determined that the adapter fit the television. Mere suspicion or a general conclusion is insufficient to warrant a prudent officer to arrest on less than probable cause. See, Giordenello v. United States, 357 U.S. 480 (1958).
In this regard, Officer Buss testified that when he searched Mr. xxxxxxx' tote bag, "he was carrying an adapter for an appliance in his bag." [A- 17]. At the time, Buss had not seized the television and had no reason to suspect that the adapter fit it. Buss never testified at the suppression hearing that he believed that the adapter was the same type, model or kind that fit the television. The Court in Whiteley v. Warden, 401 U.S. 560, 566 (1971), pointed out that there is no less stringent standard for reviewing a officer's discretion in effecting a warrantless arrest than for reviewing a magistrate's assessment of probable cause for the issuance of a warrant. Based on the facts known to the officers at the time of Mr. xxxxxxx' arrest, present no magistrate could have found probable cause to issue an arrest warrant for Mr. xxxxxxx. The officers merely assumed that the adapter would fit the television and made the arrest. A prudent officer would have obtained Mr. xxxxxxx' permission to take the adapter out of the bag to confirm his suspicion. Instead the officers reached a conclusion without any supportive facts and prematurely arrested Mr. xxxxxxx.
At the suppression hearing, the government asserted that Mr. xxxxxxx' initial search carried over to the second search of the bag and the seizure of the adapter. [A-] However, the intervening circumstances-- arrest without probable cause, the seizure of the tote bag, the amount of time and separation of Mr. xxxxxxx from his bag between consent and the second search and the seizure of the adapter at the police station-- vitiated the initial consent.
In United States v. Ibarra, 955 F.2d 1405, 1411 (10th Cir. 1992), the police stopped the defendant's car, which had been intermittently weaving, to determine whether he was intoxicated. After discovering that Ibarra's license had expired and that the ownership of the vehicle was in doubt, the officers obtained his consent to search the car. Id. at 1407. After searching the car without discovery anything unusual, the police impounded the car by having it towed away. Id. At the location where the car was towed, the police renewed their search and discovered drugs int he trunk. Id. at 1407-08. The court affirmed the district court's ruling suppressing the evidence on the grounds that the impoundment constituted an unlawful seizure and the evidence found during the subsequent search of the car was the fruit of the illegal seizure. Id. at 1410-11. In reaching its decision, the appellate court rejected the government's contention that the defendant's consent to search carried over to the second search because the illegal seizure terminated the initial consent. Id. at 1411.
Similarly, in the instant case, Mr. xxxxxxx consented to the search of his bag inside the train before the police seized the television and found the drug . He was then arrested without probable cause, as the police had not yet connected the adapter to the television. Without requesting consent to conduct a second search of the bag, the police seized it, took it to the station, and searched it again-- this time seizing the adapter. As in Ibarra, the intervening illegality-- here, the arrest without probable cause-- terminated the initial consent. Therefore, the second search was unlawful and the adapter must be suppressed as the fruit of that illegality. See also United States v. Maher, 724 F.supp 1348 (D.Wyo. 1989)(defendant's verbal consent to initial search of van and trailer vitiated by totality of coercive circumstances, such as impoundment of trailer, occurring prior to second search of trailer).
II. The officer lacked probable cause to arrest the defendant for the narcotic found in the television when he had no idea that the adapter was the same kind, make or model for the television.
For the foregoing reasons, since Mr. xxxxxxx' conviction rested on physical evidence that the police obtained through an unlawful search and seizure, his conviction must be reversed.
Respectfully submitted,
A.J. Kramer
Federal Public Defender
Michael C. Wallace, Sr.
625 Indiana Avenue, N.W.
Suite 550
Washington, D.C. 20004
(2020 208-7500
CERTIFICATE OF SERVICE
I hereby certify that on the day of June, 1993, two copies of the foregoing Brief of Appellant Jason A. xxxxxxx, together with the Addendum and the Appendix were served by hand on John R. Fisher, Esquire, Appellant Division, Office of the United States Attorney for the District of Columbia, and one copy mailed to the Appellant, Jason A. xxxxxxx by first-class mail, postage prepaid.
Michael C. Wallace, Sr.
ORAL ARGUMENT NOT YET SCHEDULED
APPENDIX FOR APPELLANT
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
NO. 93-3025
UNITED STATES OF AMERICA,PLAINTIFF-APPELLEE,
v.
JASON A. xxxxxxx,DEFENDANT-APPELLANT.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
A.J. KRAMER
FEDERAL PUBLIC DEFENDER
625 INDIANA AVENUE, N.W.
SUITE 550
WASHINGTON, D.C. 20004
(202) 208-7500
MICHAEL C. WALLACE, SR.
ASSISTANT FEDERAL PUBLIC DEFENDER
COUNSEL FOR APPELLANT
District Court
Criminal No. 92-0258-01
APPENDIX
TABLE OF CONTENTS
Indictment1
Motion to Suppress2
Transcript Suppression Hearing8
Judgement47
Notice of Appeal49
Docket Sheet55
ADDENDUM
Pursuant to Rule 11(a)(1), of the Court of Appeals for the
District of Columbia Circuit the appellant here reproduces the
following in pertinent part: