ORAL ARGUMENT NOT YET SCHEDULED





UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

_________________________________________________________________



No.

_________________________________________________________________

UNITED STATES OF AMERICA, Plaintiff-Appellee,



v.



PERNELL xxxxxxx, Defendant-Appellant.



_________________________________________________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA



________________________________________________________________



BRIEF OF DEFENDANT-APPELLANT

PERNELL xxxxxxx



_________________________________________________________________





A. J. KRAMER

FEDERAL PUBLIC DEFENDER



Sandra G. Roland

Assistant Federal Public Defender

Counsel for Defendant-Appellant

625 Indiana Avenue, N.W., Suite 550

Washington, D.C. 20004

(202) 208-7500

District Court







CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

Pursuant to Rule 11(a)(1) of the General Rules of this Court, Defendant-Appellant, Pernell xxxxxxx, hereby states as follows:

A. Parties and Amici:

The parties to this appeal are Defendant-Appellant, Pernell xxxxxxx, and Plaintiff-Appellee, The United States of America. There are no intervenors or amici.

B. Rulings Under Review:

This is an appeal by Mr. xxxxxxx of the ruling by the district court, the Honorable John Garrett Penn, on May 21, 1992, denying his motion to suppress evidence and statements.

C. Related Cases:

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



TABLE OF CONTENTS



TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . ii



STATUTES AND RULES 1



JURISDICTION 1



ISSUES PRESENTED 1



STATEMENT OF THE CASE 2



A. PROCEEDINGS BELOW 2



B. STATEMENT OF FACTS 2



SUMMARY OF ARGUMENTS . . . . . . . . . . . . . . . . . . . . . 11



ARGUMENT 12



I. MR. xxxxxxx WAS SEIZED IN VIOLATION OF THE FOURTH AMENDMENT WHERE THE ANONYMOUS TIP DID NOT PROVIDE THE REQUISITE DEGREE OF REASONABLE SUSPICION TO JUSTIFY THE SEIZURE 12



II. THE SEARCH OF MR. xxxxxxx WAS CONDUCTED IN VIOLATION OF THE FOURTH AMENDMENT BECAUSE MR. xxxxxxx'S

CONSENT WAS NOT FREELY AND VOLUNTARILY GIVEN . . . . 18



CONCLUSION 29



TABLE OF CASES AND AUTHORITIES

CASES



*Alabama v. White, 496 U.S. 325 (1990) . . . . . . 12, 13, 14, 18



Bailey v. United States, 389 F.2d 305 (D.C. Cir. 1967) . . . .16



Florida v. Bostick, ___ U.S. ___, 111 S.Ct. 2382 (1991) . 12, 23



Illinois v. Gates, 462 U.S. 213, reh'g denied, 463 U.S. 213 (1983) . . . . . . . . . . . . . . . . . . . 12



Katz v. United States, 389 U.S. 347 (1967) . . . . . . . . . .18



*Schneckloth v. Bustamonte, 412 U.S. 218 (1973) passim



Terry v. Ohio, 392 U.S. 1 (1968) . . . . . . . . . . . . .12, 18



United States v. Alston, 785 F.Supp. 1 (D.D.C. 1992) . . .28, 29



United States v. Battista, 876 F.2d 201 (D.C. Cir. 1989) .26, 29



United States v. Brady, 842 F.2d 1313 (D.C. Cir. 1988) . .27, 28



United States v. Caballero, 936 F.2d 1292 (D.C. Cir. 1991), cert. denied, 112 S.Ct. 943 (1992) . . . . . . . . . . . .28



*United States v. Clipper, 973 F.2d 944 (D.C. Cir.),cert. denied, 113 S.Ct. 1025 (1992) . . . . . . . 15, 17, 18



United States v. Cortez, 449 U.S. 411 (1981) . . . . . . . . .16



United States v. Garza, 980 F.2d 546 (9th Cir. 1992) . . . . .16



United States v. Hall, 969 F.2d 1102 (D.C. Cir.),

cert. denied, 113 S.Ct. 481 (1992) . . . . . . . . 18, 22-23



United States v. Lewis, 921 F.2d 1294 (D.C. Cir. 1990) passim



United States v. Lloyd, 868 F.2d 447 (D.C. Cir. 1989) . . . . 28



United States v. McClinnhan, 660 F.2d 500 (D.C. Cir. 1981)

. . . . . . . . . . . . . . . . . . . . . . . . . .15, 17



United States v. McGlynn, 671 F.2d 1140 (8th Cir. 1982) . . . 16





* Cases chiefly relied upon are marked with an asterisk





United States v. Mendenhall, 446 U.S. 544,

reh'g denied, 448 U.S. 908 (1980) . . . . . . . . . . . . 29



United States v. Rayborn, 872 F.2d 589 (5th Cir. 1989) . . . .16







STATUTES



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



UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

_______________________________________________________



No.



-------------------------------------------------------



UNITED STATES OF AMERICA, Plaintiff-Appellee,



v.



PERNELL xxxxxxx, Defendant-Appellant.



_____________________________________________



APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

_____________________________________________



BRIEF FOR DEFENDANT-APPELLANT

PERNELL xxxxxxx

_____________________________________________



STATUTES AND RULES



Pursuant to Fed. R. App. P. 28(f) and D. C. Cir. Rule 11(a)(3), pertinent statutes are set forth in the Addendum to this brief.

JURISDICTION

The District Court had jurisdiction under 18 U.S.C. 3231. A timely notice of appeal having been filed within the ten-day period of Fed. R. App. P. 4(b), this Court has jurisdiction under 28 U.S.C. 1291.

ISSUES PRESENTED

I. Whether Mr. xxxxxxx was seized in violation of the Fourth Amendment where the anonymous tip did not provide the requisite degree of reasonable suspicion to justify the seizure?

II. Whether the search of Mr. xxxxxxx was conducted in violation of the Fourth Amendment because Mr. xxxxxxx's consent was not freely and voluntarily given? STATEMENT OF THE CASE

A. Proceedings Below

On March 19, 1992, the Grand Jury returned a two-count indictment charging Mr. xxxxxxx with possession of a controlled substance (more than five grams of cocaine base) with intent to distribute in violation of 21 U.S.C. 841(a)(1) and 841(b)(1)(B) (iii), and possession of a controlled substance (more than five grams of cocaine base) with intent to distribute within one thousand feet of the real property of a public school in violation of 21 U.S.C. 860(a).

On May 20, 1992, a hearing was held on Mr. xxxxxxx's motion to suppress the drugs that were seized after police officers searched Mr. xxxxxxx's clothing. Following the denial of the motion on May 21, 1992, Mr. xxxxxxx entered a conditional plea of guilty to the charge of possession of a controlled substance (more than five grams of cocaine base) with intent to distribute. The second count in the indictment was dismissed. On August 4, 1992, Mr. xxxxxxx was sentenced to the minimum term of imprisonment permitted by the Sentencing Guidelines, 60 months. Mr. xxxxxxx filed a timely Notice of Appeal on August 14, 1992.

B. Statement of Facts

On February 21, 1992, at approximately 7:40 p.m., five officers from the Metropolitan Police Department stopped Mr. xxxxxxx as he was being pushed in his wheelchair along a city sidewalk. Three of the officers -- Mark Nassar, John Croson, and Michael Fulton -- testified at the hearing on appellant's motion to suppress physical evidence.

Prior to stopping Mr. xxxxxxx, all of the officers were in the 1400 block of First Street, S.W. (Tr. I at 9). (1) Although the officers had not actually seen any drug transactions, they left their police vehicles to clear the area of people standing in courtyards or on street corners because they viewed the area as a "high crime area" (Tr. I at 9, 13).

According to Officer Nassar, while he stood in the courtyard of the 1400 block of First Street, S.E., a woman approached him at his side and said, "The guy in the wheelchair with Erky Berk has a lot of dope" (Tr. I at 10, 21, 22, 23). Officer Nassar did not recognize the woman, did not know her name, and had never before received any information from her (Tr. I at 15). In Officer Nassar's own words, he "didn't pay no mind to her" (Tr. I at 25) because he believed this to be a false complaint. He explained that, in his experience as an officer, people lodge false complaints "all the time everyday" in an attempt to "get each other in trouble. . . ." (Tr. I at 25). Nassar explained, "That's how I took this complaint" (Tr. I at 25). He gave the court an example of a false complaint:



COURT: You get complaints about people trying to get each other in trouble?



NASSAR: Girlfriends boyfriends fighting, sir. You know, she calls, says, hey, her boyfriend has a gun. When you get there, he just was late coming home, stuff like that.



COURT: All right.



NASSAR: That's how I took this complaint. (Tr. I at 25).

Officer Nassar did not ask the woman any questions -- he did not inquire as to her name, did not ask for her address, did not inquire as to why she believed that the man in the wheelchair had possessed drugs, did not inquire as to whether she had actually seen drugs in the possession of the man in the wheelchair, and did not inquire as to where he might find the man in the wheelchair (Tr. I at 15, 16, 18, 22, 24). As well, Officer Nassar did not immediately report the woman's allegation to the other officers. Instead, he "continued on about [his] . . . business, you know in the courtyard" (Tr. I at 25), making no attempt to find the man in the wheelchair, although earlier that evening Erky Berk had pushed a man in a wheelchair past the uniformed officers (Tr. I at 9, 10, 15, 24, 26, 34).

All three of the officers knew a person nicknamed "Erky Berk," and knew his true name to be Eric Jones (Tr. I at 10, 34, 75). Officer Croson testified that he had stopped and searched Mr. Jones several times in the past, and explained the circumstances of those searches:

CROSON: He's in -- yeah, he's in a high drug area. I mean, I'm sure I've searched him plenty of times.



* * *



COUNSEL: That was because this was a high narcotics area?



CROSON: Yeah, where narcotics are bought and sold daily.



COUNSEL: So you search people that are in high narcotics areas?



CROSON: I mean not at random, I mean it happens sometimes.



* * *



COUNSEL: The routine procedure is that you searched him?



CROSON: Not really for narcotics, we pat him down for weapons for our own safety.



COUNSEL: And you had no information that he had any weapons, correct?



CROSON: Correct.



COUNSEL: And the prior occasions that you had done searches on him before, you did not have information that he had weapons on him at that time, right?



CROSON: Yes, Ma'am.



COUNSEL: That's true?



CROSON: True.



(Tr. I at 69-70). In response to the court's questioning, Officer Croson testified:

COURT: And when you searched Erky Berk before, what was the basis of the search?



CROSON: Pretty much he's in a high, you know, narcotics area, and we try to -- you know, try to move him on.



COURT: Yes.



CROSON: And really to search for weapons.



COURT: But you just search them randomly?



CROSON: We don't -- I mean, we don't just search anybody. I mean, the people that you see -- that you pretty much know are dealing drugs out of there, you know, day in and day out, you know.



COURT: You search them randomly?



CROSON: Not randomly, we try to move them on is what we try to do.



COURT: How does the search come into play?



CROSON: Like I say, sometimes we pat them down for weapons, for our own safety.



COURT: So when you -- I'm just trying to see if I understand this. When you pat them down for weapons, you mean you just walk up to someone and pat them down for weapons or you stop them or what?



CROSON: We walk up to them, engage in a conversation, ask them for identification, and you know, pretty much just pat them, to make sure they're not holding any weapons in their waistband or anything. And we usually run them through, to make sure there are no warrants on them.



(Tr. I at 73-74). According to Officer Croson, 99 percent of the people subjected to those searches are young, black men (Tr. I at 83-84).

Only after the officers finished clearing the courtyard did Officer Nassar repeat to the other officers what the woman had said (Tr. I at 11, 26, 63). From where they stood the officers saw Mr. Jones ("Erky Berk") pushing Mr. xxxxxxx's wheelchair northbound on First Street, S.W., toward the officers (Tr. I at 11, 35, 64). At the corner of First and P Streets, Mr. Jones took a left turn onto P Street, still pushing appellant's wheelchair (Tr. I at 11, 64). (2)

Officers Fulton and Brown followed Mr. xxxxxxx and Mr. Jones on their police motorcycles, and Officers Nassar and Croson followed in their squad car (Tr. I at 34, 64). Fulton and Brown reached the pair first and instructed Mr. xxxxxxx to stop (Tr. I at 12, 43, 64). Mr. xxxxxxx "stopped when he was told" (Tr. I at 67-68). There was conflicting testimony about whether appellant would have been permitted to leave the crowd of officers. When asked whether appellant tried to get away, Officer Croson testified, "No, why would he try -- you know" (Tr. I at 68). In contrast, Officer Fulton testified that Mr. xxxxxxx could have refused to stop for the officers without repercussion (Tr. I at 49-50).

As soon as Mr. Jones and Mr. xxxxxxx were stopped by the police, Mr. Jones "assumed the position" to be searched by spreading his hands across the police cars, and said "Go ahead, do it, get it over with, I know you're going to do it" (Tr. I at 39, 51, 69, 79). Mr. Jones was searched (Tr. I at 47). No contraband was recovered.

Appellant was surrounded in his wheelchair by five police officers (Tr. I at 40, 47, 79, 81). Each of the officers was in full uniform and armed with a weapon (Tr. I at 60, 82). Officer Croson testified that while he stood behind appellant's wheelchair, the other officers stood in front of appellant's wheelchair (Tr. I at 68, 77). Officer Fulton testified that he stood on one side of Mr. xxxxxxx's wheelchair while Officer Brown stood in front of Mr. xxxxxxx's wheelchair (Tr. I at 37, 54). (3) The police car was parked twenty feet away, and the motorcycles were parked slightly ahead of Mr. xxxxxxx on P Street (Tr. I at 82).

Officer Fulton spoke to appellant after stopping him:

FULTON: I spoke to him, I asked him what his name was.



* * *



COUNSEL: What did he tell you?



FULTON: Gave me his name, Pernell xxxxxxx.



COUNSEL: Go ahead, continue.



FULTON: I asked him what he was doing outside. He replied something to the extent, 'I'm just hanging out.' We said -- I said something to the extent, 'Well, you know this is a high drug neighborhood,' and it was at this point, when the other officers had arrived, and -- so I asked him, 'What are you doing' -- I mean, excuse me, I'm nervous.



COUNSEL: Just take your time and speak slowly. Take your time, we're not in a race.



FULTON: Okay, I said, 'This is a high drug neighborhood. You know, the guy you're with, Eric Jones, is known to sell a lot of drugs,' blah de blah, that type of conversation, at which time Officer Croson interrupted our conversation.

(Tr. I at 38-39).

Simultaneous to, or immediately after the search of Mr. Jones, Officer Croson asked Mr. xxxxxxx if he minded if the officers searched him (Tr. I at 39, 51-52, 64-65, 80). (4) None of the officers informed Mr. xxxxxxx that he could refuse to be searched (Tr. I at 41, 44-45, 71, 80). Mr. xxxxxxx agreed with the officer's request and lifted himself up off of the seat of his wheelchair (Tr. I at 65). (5) Officer Fulton reached into the inner, left pocket of Mr. xxxxxxx's coat and recovered 63 small ziplocks of crack cocaine (Tr. I at 40, 44, 65). (6)

The court ruled orally that the stop of Mr. xxxxxxx was justified by the anonymous tip and that Mr. xxxxxxx voluntarily consented to the officers' search (Tr. II at 4-5, 6-7). Mr. xxxxxxx then entered a conditional plea of guilty, reserving the right to appeal the ruling on the motion, pursuant to Fed. R. Crim P. 11 (a)(2).

The court issued a written Memorandum Order, which is fully reproduced at Appendix 4-11. The court ruled that the anonymous tip and the officers' knowledge that the neighborhood was a high drug area justified a brief investigatory stop of Mr. xxxxxxx.

On the issue of whether Mr. xxxxxxx consented to be searched, the court voiced serious concerns about the conduct of the police officers working this neighborhood and the effect of that conduct on Mr. xxxxxxx. The court's comments concerning the illegal police practices are as follows:



It seems clear that some of the actions of the officers [in regularly stopping and searching citizens] go beyond what is legally permissible. . . . The Court need not delve into this issue except to note that the past actions of the officers in the community can be relevant to the question of whether the consent given by the defendant was voluntary. . . .



In short, it may be that this small community is conditioned by prior police practices to allowing a pat down or search without insisting upon their rights. If this is the case then, based upon the testimony of the officers alone, there is a serious question as to whether the defendant's consent was voluntary or just a reaction to the facts of life. . . .



Certainly, the background of stops, pat downs and searches in the neighborhood is such as to provide fertile ground for the Court to explore. . . .



(A. at 7-9).

Despite the court's expressed concerns, it limited its findings to those considered in United States v. Lewis, 921 F.2d 1294 (D.C. Cir. 1990). The trial court wrote,



. . . [A] court should consider whether there were any restrictions on the movement of the defendant, whether the defendant consented to the search without hesitation, whether the search exceeded the bounds of the defendant's consent and whether the testimony of the officer is challenged, and if so, whether it has been effectively rebutted.

(A. at 9). Tracking Lewis precisely, the court made the following findings: 1) there were restrictions on the movement of the defendant which were based upon the actions of the officers and not upon the defendant's location; 2) the defendant consented to the search without hesitation; 3) there is no indication that the search exceeded the bounds of the defendant's consent and there is no evidence that the defendant limited the area of the consent; and 4) there is no evidence that rebuts the testimony of the officers -- and since that testimony has not be[en] rebutted, it must be accepted as true and accurate (A. at 9-10). Based on these findings, the court ruled that Mr. xxxxxxx voluntarily consented to the search.

SUMMARY OF ARGUMENT

Because Mr. xxxxxxx was stopped on the basis of an anonymous tip that was not sufficiently reliable to give rise to a reasonable, articulable suspicion, the drugs obtained from the search of Mr. xxxxxxx should have been suppressed for taint stemming from the illegal seizure.

Even if the seizure was lawful, the government failed to prove, under the totality of the circumstances, that Mr. xxxxxxx voluntarily consented to be searched. Thus, the drugs obtained from the warrantless, non-consensual search of Mr. xxxxxxx should have been suppressed. Since Mr. xxxxxxx's conviction rested on evidence that should have been suppressed because it was obtained by the police through an unlawful search and seizure, his conviction must be reversed.

ARGUMENT

I. MR. xxxxxxx WAS SEIZED IN VIOLATION OF THE FOURTH AMENDMENT WHERE THE ANONYMOUS TIP DID NOT PROVIDE THE REQUISITE DEGREE OF REASONABLE SUSPICION TO JUSTIFY THE SEIZURE.





The Fourth Amendment prohibits law enforcement officers from seizing individuals, no matter how briefly, unless the officers have "specific and articulable facts," Terry v. Ohio, 392 U.S. 1, 21 (1968), reasonably supporting the inference that the individual may be engaged in or about to engage in criminal conduct. (7) Reasonable suspicion to conduct a stop is "dependent on both the content of information possessed by the police and its degree of reliability." Alabama v. White, 496 U.S. 325, 330 (1990).

An investigative stop of an individual by law enforcement officers may properly be based on an anonymous tip only if the information carries sufficient indicia of reliability. Alabama v. White, 496 U.S. at 330. The degree of reliability -- the quantity and quality of the information -- is considered in the totality of the circumstances. Id.; Illinois v. Gates, 462 U.S. 213, reh'g denied, 463 U.S. 213 (1983).

The trial court erred in ruling there was adequate justification for the police officers to stop Mr. xxxxxxx. The anonymous tip did not supply the officers with a sufficient quantity of specific and articulable facts, the information did not demonstrate any special knowledge that made it sufficiently reliable, the officers made no independent observations from which they could entertain a reasonable suspicion that Mr. xxxxxxx was engaged in criminal activity, and the officer who received the tip did not believe it to be reliable in light of his experience as a law enforcement officer.

The information provided by the anonymous tipster was woefully inadequate to support a finding of reasonable suspicion. The woman reported only that "The guy in the wheelchair with Erky Berk has a lot of dope" (Tr. I at 10, 21-23). The tip provided only two easily observed pieces of information -- that the man was confined to a wheelchair and the name of his companion -- and did not provide any "inside" information or predict any future behavior.

This tip is in stark contrast to that provided in Alabama v. White, 496 U.S. 325 (1990). In White, an anonymous telephone caller told police that a named person would be leaving a particular address, at a particular time, and would be travelling to a second particular address. In addition, the caller described the color, made and model of the car, and particular damage to the car. Finally, the caller described the color and type of bag that the suspect would carry, and alleged that the bag would contain a particular amount of cocaine. The Supreme Court found that "[s]imply put, a tip such as this one, standing alone, would not 'warrant a man of reasonable caution in the belief' that [a stop] was appropriate." Id. at 331 (citations omitted). In White, the stop was supported by reasonable suspicion, however, because the tip predicted future behavior and each prediction, except for the presence of the bag and the suspect's name, was verified by the police before the defendant was stopped.

Here, the information was neither predictive, nor indicative of special knowledge. The woman's tip contained only two items of information, each relating "just to easily obtained facts and conditions existing at the time of the tip," id. at 331, -- that the suspect was confined to a wheelchair and that he was accompanied by a particular person. Because those two facts could have been reported by absolutely anyone standing near the 1400 block of First Street, S.W., they were virtually meaningless. "What was important" in White, and entirely absent here, "was the caller's ability to predict respondent's future behavior, because it demonstrated inside information -- a special familiarity with respondent's affairs." Id. at 332 (emphasis supplied by Court).

Because the tip in this case provided only non-predictive, easily observed facts, corroboration of those facts did not imbue the tip with reasonable suspicion. The Court in White discounted the police officer's corroboration that the described car was parked at a particular location because, "[a]nyone could have 'predicted' that fact because it was a condition presumably existing at the time of the call." Id. at 331. Here, the police only corroborated what anyone could have seen and reported; that Mr. xxxxxxx was confined to a wheelchair and was accompanied by Mr. Jones.

In addition, Officer Nassar testified that tips are sometimes fabricated to get others "in trouble" with the police. This Court in United States v. Clipper, 973 F.2d 944, 951 (D.C. Cir. 1992), cert. denied, 113 S.Ct. 1025 (1993), was "mindful 'that it is possible for anyone with a grudge to fabricate a tip . . . [comprised of] neutral details, such as clothing or location . . . .'" Id. (quoting United States v. McClinnhan, 660 F.2d 500, 502 (D.C. Cir. 1981)), but had before it in that case no "evidence to suggest that the District of Columbia police have reason to discredit anonymous tips." Id. Here, affirmative evidence was offered to suggest that abuses are, in fact, commonplace. Officer Nassar "didn't pay no mind to [the anonymous tipster]," because:

NASSAR: . . . I took this as just a complaint. I mean, we get them all the time everyday, people trying to get each other in trouble, and that was it.



COURT: You get complaints about people trying to get each other in trouble?



NASSAR: Girlfriends boyfriends fighting, sir. You know, she calls, says, hey, her boyfriend has a gun. When you get there, he just was late coming home, stuff like that.



COURT: All right.



NASSAR: That's how I took this complaint.

(Tr. I at 25).

Officer Nassar's on-the-scene determination that this tip was not worthy of pursuit also defeats a finding that the officers acted upon reasonable suspicion. A police officer's evaluation of whether probable cause or reasonable suspicion exists, in light of his or her training and experience, is one factor to be considered under the totality of the circumstances. See United States v. Cortez, 449 U.S. 411, 419 (1981) ("when used by trained law enforcement officers, objective facts, meaningless to the untrained, can be combined with permissible deductions from such facts to form a legitimate basis for suspicion"); United States v. Garza, 980 F.2d 546, 550 (9th Cir. 1992) (law enforcement officers may draw upon their experience and expertise in determining the existence of probable cause); United States v. Rayborn, 872 F.2d 589, 593 (5th Cir. 1989) (while the standard for probable cause is an objective one, it is determined by taking into account the expertise and experience of the police officer); United States v. McGlynn, 671 F.2d 1140, 1144 (8th Cir. 1982) (the arresting officer is entitled to assess the circumstances in light of his experience); Bailey v. United States, 389 F.2d 305, 309 (D.C. Cir. 1967) (probable cause must be judged in the light of the officer's experience and training).

Just as an officer's training and experience is one factor in determining whether reasonable suspicion is aroused by a tip, that training and experience must also be a factor when the officer determines that an anonymous tip does not give rise to reasonable suspicion. In Officer Nassar's experience as a police officer he received false tips "everyday." He explained that this anonymous tip appeared to him to be another example of an unfounded accusation, testifying, "That's how I took this complaint" (Tr. I at 25) (emphasis added). Because his experience led him to discount the anonymous tipster's accusation, Officer Nassar did not attempt to learn anything about the tipster or her basis of knowledge. He simply paid "no mind to her" and did not attempt to pursue the tip until Mr. xxxxxxx entered his field of vision (Tr. I at 25).

Finally, this Court has differentiated tips regarding weapons from tips regarding possession of drugs. United States v. Clipper, 973 F.2d at 944; United States v. McClinnhan, 660 F.2d at 500. The Court recently held in Clipper that one factor to be considered is whether verifiable facts alerted the police "to an imminent danger that the police cannot ignore except at risk to their personal or the public's safety." 973 F.2d at 950. The Court reasoned that where the tip involves a gun, the government's interest in protecting its police officers and the public can outweigh an individual's interest in avoiding seizure by the police. Citing the disturbing statistics concerning police officers killed by firearms, the Court reasoned that:



[t]his element of imminent danger distinguishes a gun tip from one involving possession of drugs. If there is any doubt about the reliability of an anonymous tip in the latter case, the police can limit their response to surveillance or engage in 'controlled buys.' Where guns are involved, however, there is the risk that an attempt to 'wait out' the suspect might have fatal consequences.

Clipper, 973 F.2d at 951. Here, of course, there was no imminent danger to police officers or to the public; the tip involved only an allegation that the suspect possessed drugs. As suggested by the Court in Clipper, the police could have attempted to bolster the tip by surveilling Mr. xxxxxxx or engaging in a controlled buy. Under these circumstances, Mr. xxxxxxx's legitimate interest in avoiding an "intrusion upon cherished personal security," Terry, 392 U.S. at 25, outweighed the government's interests in protecting its officers and the public. The Fourth Amendment, as interpreted in Alabama v. White and United States v. Clipper, prohibited the law enforcement officers from stopping Mr. xxxxxxx based on this anonymous tip.



II. THE SEARCH OF MR. xxxxxxx WAS CONDUCTED IN VIOLATION OF THE FOURTH AMENDMENT BECAUSE MR. xxxxxxx'S CONSENT WAS NOT FREELY AND VOLUNTARILY GIVEN.

It is axiomatic that a search conducted without a warrant is "per se unreasonable, . . . subject only to a few specifically established and well-delineated exceptions. Katz v. United States, 389 U.S. 347 (1967). Consent to search, when given freely and voluntarily, is one such exception. Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). Voluntariness depends on an assessment of whether the consent was "'the product of an essentially free and unconstrained choice,' or alternatively, whether the defendant's 'will was overborne and his capacity for self-determination critically impaired' so as to render his consent not truly voluntary.'" United States v. Hall, 969 F.2d 1102, 1106 (D.C.Cir.), cert. denied, 113 S.Ct. 481 (1992) (citations omitted). The determination requires assessing the totality of the circumstances, including both "the nature of the police activity towards the defendant" id, and the "possibly vulnerable subjective state of the person who consents." Id. (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 229 (1973)).

The Supreme Court recently observed that "'[c]onsent' that is the product of official intimidation or harassment is not consent at all." Florida v. Bostick, 111 S.Ct. 2382, 2388 (1991). Intimidation or harassment can be explicit or implicit, and can come in subtle forms:



[T]he Fourth and Fourteenth Amendments require that a consent not be coerced, by explicit or implicit means, by implied threat or covert force. For, no matter how subtly the coercion was applied, the resulting 'consent' would be no more than a pretext for the unjustified police intrusion against which the Fourth Amendment is directed.

Bustamonte at 228.

In the instant case, the "consent" was obtained against a backdrop of commonplace illegal searches and seizures in this neighborhood. The trial court observed that "[i]t seems clear that some of the actions of the officers go beyond what is legally permissible." Id. at 4. The court noted, In short, it may be that this small community is conditioned by prior police practices to allowing a pat down or search without insisting upon their rights. If this is the case then, based upon the testimony of the officers alone, there is a serious question as to whether the defendant's consent was voluntary or just a reaction to the facts of life.

A. at 8.

The officers' testimony makes clear that the residents of this Southwest, Washington community were well aware of the police practices in their neighborhood. As they did on this day, the residents regularly "move[d] on" in response to the officers' "clearing the block" by instructing people to leave (Tr. I at 9). One of the officers testified that the very sight of the officers caused people to "start dispersing" (Tr. I at 42). According to Officer Croson, it was "standard practice" in this neighborhood for the police to conduct pat down searches of residents in an effort to "try to move them on" (Tr. I at 73-74, 75, 81).

Further, it is clear that appellant's companion, Mr. Jones, a resident of the neighborhood, also knew what to expect. Upon being stopped and questioned, Mr. Jones immediately "assumed the position" to be searched, and said "Go ahead, do it, get it over with, I know you're going to do it" (Tr. I at 6, 51). According to Officer Croson, Mr. Jones behaved as though being searched by the police "was a routine to him or something" (Tr. I at 69). And indeed, it was routine. Officer Croson testified that he had searched Mr. Jones "plenty of times" in an effort "to move him on" because he lived in "a high drug area" (Tr. I at 69, 73). Like Mr. Jones, Mr. xxxxxxx was a resident of that Southwest, Washington community, having lived in the 1300 block of First Street, S.W. for at least eight years prior to his arrest. (8)

The uncontroverted evidence that Fourth Amendment violations were "standard practice" in this neighborhood illustrates the need for the often-repeated admonition in Bustamonte: "[T]he Fourth and Fourteenth Amendments require that a consent not be coerced, by explicit or implicit means, by implied threat or covert force." Id. at 228. In a neighborhood where the police regularly intrude upon persons to conduct illegal searches, Mr. xxxxxxx could hardly expect to be treated specially by the police. Implicit in the "standard practice" of the police in this neighborhood is that no one would be exempt from these intrusions. Certainly Mr. xxxxxxx was not.

The specific circumstances of the encounter demonstrate that Mr. xxxxxxx's consent was not voluntarily given. The officers approached Mr. xxxxxxx in a squad car and on motorcycles (Tr. I at 82). The motorcycle officers parked their cycles in front of Mr. xxxxxxx and Mr. Jones (Tr. I at 46). The officers ordered the pair to stop, which they did (Tr. I at 67-68). Five police officers surrounded Mr. xxxxxxx (Tr. I at 40, 47, 79, 81). The officers stood above and around Mr. xxxxxxx, who was confined to his wheelchair. Each of the five officers was in uniform, and each was armed with a weapon (Tr. I at 60, 82). Officer Fulton opened his conversation with Mr. xxxxxxx by asking him "what he was doing outside" and telling him that his companion, Mr. Jones "is known to sell a lot of drugs" (Tr. I at 38-39, 47). Mr. Jones, anticipating the usual search, "assumed the position" and was searched by the officers. It was only after all of these events that 'consent' to search was requested and granted (Tr. I at 39, 51-52, 64-65, 80). None of the officers informed Mr. xxxxxxx that he did not have to consent (Tr. I at 41-44-45, 71-80).

The determination of whether a consent to search was voluntary requires consideration of the totality of the circumstances, including, inter alia,  factors such as the accused's age, poor education or low intelligence, lack of advice concerning his constitutional rights, the length of any detention before consent was given, repeated and prolonged nature of the questioning and the use of physical punishment.

United States v. Battista, 876 F.2d 201, 207 (D.C. Cir. 1989), (quoting Schneckloth v. Bustamonte, supra). Although the instant case does not involve any physical punishment, other factors illustrate the more subtle pressures used to obtain Mr. xxxxxxx's consent.

First, the intimidating actions by the police worked to coerce Mr. xxxxxxx to acquiesce to the officers' authority. See United States v. Brady, 842 F.2d 1313, 1315 (D.C. Cir. 1988) (intimidating actions by law enforcement officers is factor to be considered under totality of circumstances). Five police officers completely surrounded Mr. xxxxxxx's wheelchair so that he could not move. The officers were aware of the obvious fact that Mr. xxxxxxx could not stand, turn, run, or ambulate in any way. Despite Mr. xxxxxxx's inability to move at all (with the exception of rolling in his wheelchair), the five officers surrounded him entirely. This Court in United States v. Lewis, supra, held that one factor to be considered in determining the voluntariness of a consent to search is whether the police surrounded the person or otherwise restricted his ability to leave. Id. at 1299, 1301. In Lewis, the restrictions on the defendant's freedom of movement were the result of his own choice to be on a bus and were not the result of any actions by the police. In the instant case, Mr. xxxxxxx's ability to move was restricted when five police officers surrounded him and thus was, as the trial court found, based "upon the actions of the officers and not upon the defendant's location." (A. at 9). Furthermore, because Mr. xxxxxxx was permanently confined to a wheelchair, and because the officers stood all around him, the encounter took place under extremely confining conditions. Second, the officers presented a daunting and intimidating law enforcement presence; all five officers wore full police uniform and all five officers possessed weapons. In the context of interdiction searches and seizures, this Court has often noted that when the officers dress in plain clothes and carry only concealed weapons, a suspect is less likely to be intimidated by the officers' authority. See, e.g., United States v. Caballero, 936 F.2d 1292, 1297 (D.C. Cir. 1991), cert. denied, 112 S.Ct. 943 (1992). Particularly in conjunction with the officers' intimidating actions in surrounding Mr. xxxxxxx, and with the officers' aggressive questioning, the presence of so many armed and uniformed officers contributed to the coercion brought to bear on Mr. xxxxxxx.

Third, Officer Fulton's aggressive questioning of Mr. xxxxxxx, including asking him "what he was doing outside," and telling him that "[T]he guy you're with, Eric Jones, is known to sell a lot of drugs" (Tr. I at 38-39, 47), contributed to the coercive atmosphere created by the officers. Thus, the facts of the instant case are distinguishable from those in United States v. Lloyd, 868 F.2d 447, 451-452 (D.C. Cir. 1989) and United States v. Brady, 842 F.2d at 1315, where, in both cases, this Court found voluntary consent in the absence of any evidence of aggressive questioning or intimidating actions by the police.

Fourth, Mr. xxxxxxx was aware that another person, Mr. Jones, was being searched by the police. In United States v. Alston, 785 F.Supp. 1, 2 (D.D.C. 1992), the district court held that "the police officers' tactics of interviewing and searching a number of the bus's occupants in plain view of fellow passengers and of hemming a passenger in her seat during the course of a 'consensual' interview, were, at the very least, subtly coercive." Id. at 2. Here, Mr. xxxxxxx was aware that the police had accused his companion of being a drug dealer, was aware that Mr. Jones expected to be searched, and was aware that the police officers did indeed search Mr. Jones. These facts worked to create a coercive atmosphere in which Mr. xxxxxxx had no choice but to acquiesce to the officers' request to search.

Lastly, Mr. xxxxxxx was not informed by the officers that he did not have to consent to the search. While this Court has recognized that the police are not required to give such a warning, "its presence can be probative of the voluntariness of the consent." United States v. Battista, 876 F.2d at 207. See also United States v. Mendenhall, 446 U.S. 544, 558-59, reh'g denied, 448 U.S. 908 (1980) (in finding voluntary consent, Court found it "especially significant" and "highly relevant" that defendant consented only after being told twice that she was free to refuse).

The trial court ruled that appellant's consent to search was given voluntarily, citing this Court's decision in United States v. Lewis, 921 F.2d 1924 (1990). The court's analysis and its ruling were erroneous. The trial court's ruling failed to consider the totality of the circumstances but, rather, applied only the "factors" enumerated in Lewis. Noting that the focus of the determination must be on the particular individual, the trial court interpreted Lewis quite literally to read that, . . . a court should consider whether there were any restrictions on the movement of the defendant, whether the defendant consented to the search without hesitation, whether the search exceeded the bounds of the defendant's consent and whether the testimony of the officer is challenged, and if so, whether it has been effectively rebutted.

(A. at 9). The court then applied those factors, and no others, to Mr. xxxxxxx's encounter with the police officers. This approached ignored the Supreme Court's teaching that it is only by analyzing all the circumstances of an individual consent that it can be ascertained whether in fact it was voluntary or coerced. It is this careful sifting of the unique facts and circumstances of each case that is evidenced in our prior decisions involving consent searches.

Bustamonte, 412 U.S. at 233 (emphasis added). By applying only the determinative facts of Lewis, the court failed to consider the unique facts and circumstances of this case. In short, the trial court's ruling failed to consider the totality of the circumstances. (9)

The holding in Lewis was dependent on the unique facts and circumstances of that case. The defendant in Lewis was a passenger on a bus when one of three officers asked to see his ticket and identification. The officers wore plain clothes, no weapons were visible, and they spoke in low, conversational tones. After returning Mr. Lewis' papers and explaining the purpose of the interdiction campaign, the officer asked for permission to search Mr. Lewis. Mr. Lewis agreed and stood up from his seat to be searched. Drugs were discovered in Mr. Lewis' clothing. Id. at 1296.

The defendant in Lewis moved to suppress the drugs, arguing that the cramped confines of the bus overbore his will to deny the officer's request to search. This Court rejected the proposition that searches and seizures on buses are inherently coercive. The Court noted that Mr. Lewis' freedom of movement had not been restricted by police action and that Mr. Lewis was cooperative throughout the encounter and consented without hesitation. Id. at 1301. The Court also observed that the trial court had found the only witness at the hearing -- the searching officer -- to be credible and that there was no suggestion that an issue might be raised as to the scope of the search. Id. The Court held that, "[i]n short, the record offers no support for the conclusion that Lewis's consent was involuntary." Id.

The trial court in the instant case converted the Court's discussion of the facts in Lewis, and its observations about the state of the record, into talismanic factors upon which voluntariness will rise or fall.

Two of the Lewis "factors" considered by the trial court were not relevant under the Supreme Court's totality of the circumstances test. Rather, they were observations abut the state of the record in Lewis. First, the trial court transformed the Court's observation in Lewis that the record did not support any suggestion that the search exceeded the bounds of the consent into a factor to be to be considered in determining the voluntariness of the Mr. xxxxxxx's consent. The observation in Lewis was just that: an observation that no issue was raised as to the scope of the consent. In the instant case, such a finding does not in any way advance the assessment of whether Mr. xxxxxxx's consent to search at all was voluntary. This is particularly true since Mr. xxxxxxx did not, and has not, raised a question about the scope of the search. Secondly, the trial court erred by considering whether the defendant presented evidence in support of his motion. Again, the trial court transformed this Court's comment upon the state of the record in Lewis into a talismanic factor to be weighed. The Court in Lewis noted that "[n]o one else testified at the hearing, and the judge described the officer as 'a credible' witness. In short, the record offers no support for the conclusion that Lewis's consent was involuntary." Id. at 1301. Although a trial court must make credibility determinations so that it may make factual findings, whether a witness' testimony is challenged or effectively rebutted is not itself a fact to be considered in the assessment of voluntariness. The point is not whether a witness' testimony is challenged, but whether the testimony supports a finding of voluntariness. Here, the officers' testimony, although not technically "rebutted," does not justify a conclusion that the government met its burden of proving voluntary consent. It is the officers' own testimony, fully credited, that defeated the government's ability to prove by a preponderance of the evidence that Mr. xxxxxxx gave his consent voluntarily. Unlike in Lewis, the record did include evidence supporting the conclusion that Mr. xxxxxxx's consent was involuntary. The source of that evidence -- whether a government or defense witness -- is irrelevant.

Thus, the trial court's legal conclusion that Mr. xxxxxxx freely and voluntarily consented to the search was predicated on two findings; one which tends to support the conclusion that Mr. xxxxxxx's 'consent' was the product of coercion, and one which tends to support the conclusion that Mr. xxxxxxx's consent was voluntary. The trial court found First, there were restrictions on the movement of the defendant. The defendant was confined to a wheelchair and the two motor scooter officers pulled slightly in front of the defendant. One officer testified that the defendant was surrounded at or about the time he gave his consent and the search took place. The restrictions on the defendant's movement were based upon the actions of the officers and not upon the defendant's location.

(A. at 9) (citations omitted). Secondly, the trial court found that "the record reflects that the defendant consented to the search without hesitation." (A. at 9).

When boiled to its essence, the trial court's legal conclusion rests solely on its finding that Mr. xxxxxxx did not hesitate before he agreed to the officer's request. Standing alone this fact is ambiguous. Immediate acquiescence is as likely to be the result of coercion as voluntariness. And, hesitation might well indicate that the individual's will is not overborne, but is asserting itself at least momentarily. See United States v. Hall, 969 F.2d 1102, 1108 (D.C. Cir.), cert. denied, 113 S.Ct. 481 (1992) (fact that defendant "did not docilely submit to police authority in answering all of Officer['s] questions" demonstrated a capacity to make autonomous decisions in the face of police questioning). Even if an immediate grant of consent tends to support a finding of voluntariness, this Court has never predicated a conclusion that a defendant voluntarily waived his constitutional right to be free from a government sponsored bodily search on such a slender reed. Moreover, the result here flies in the face of the Supreme Court's demand that lower courts use "the most careful scrutiny" in admitting evidence obtained from allegedly voluntary searches. Schneckloth v. Bustamonte, 412 U.S. at 229. A careful review of the record illustrates that the government failed to prove by a preponderance of the evidence that Mr. xxxxxxx's consent was voluntary, rather than the result of coercive action by the five police officers.

The government failed to meet its burden to prove by a preponderance of the evidence that coercion was not applied to Mr. xxxxxxx or that, in light of the totality of the circumstances, the resulting consent was given freely and voluntarily. For these reasons, the evidence obtained as a result of the warrantless, non-consensual search of Mr. xxxxxxx should have been suppressed.

CONCLUSION

Since Mr. xxxxxxx's conviction rested on evidence that should have been suppressed because it was obtained by the police through an unlawful search and seizure, his conviction must be reversed.



Respectfully submitted,



A. J. KRAMER

FEDERAL PUBLIC DEFENDER



_______________________________





_________________________________

Sandra G. Roland

Assistant Federal Public Defender

Counsel for Defendant-Appellant

625 Indiana Avenue, N.W.,

Suite 550

Washington, D.C. 20004

(202) 208-7500







UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

_________________________________________________________________



No.

_________________________________________________________________





APPENDIX FOR DEFENDANT-APPELLANT

PERNELL xxxxxxx



___________________________________________________________________

UNITED STATES OF AMERICA, Appellee,



v.



PERNELL xxxxxxx, Defendant-Appellant.



_________________________________________________________________



APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA





_________________________________________________________________





A. J. KRAMER

FEDERAL PUBLIC DEFENDER



Sandra G. Roland

Assistant Federal Public Defender

Counsel for Defendant-Appellant

625 Indiana Avenue, N.W. Suite 550

Washington, D.C. 20004

(202) 208-7500











District Court

Cr. No.











ADDENDUM



Pursuant to Fed. R. App. P. 28(f) and General Rule 11(a)(3) of this Court, appellant here reproduces the following in pertinent part:

STATUTES

21 U.S.C. 841(a) and 841(b)(1)(A) and (B) . . . . . . . . . A-1



APPENDIX

TABLE OF CONTENTS

PRETRIAL SERVICES REPORT. . . . . . . . . . . . . . . . . . . . 1

INDICTMENT . . . . . . . . . . . . . . . . . . . . . . . . . . 2

ORDER DENYING MOTION TO SUPPRESS . . . . . . . . . . . . . . . 4

JUDGMENT IN A CRIMINAL CASE . . . . . . . . . . . . . . . . .12

TRANSCRIPT OF SUPPRESSION HEARING . . . . . . . . . . . . . . .16

TRANSCRIPT OF COURT'S ORAL RULING ON MOTION TO SUPPRESS . . .119



CERTIFICATE OF SERVICE





I HEREBY CERTIFY that two copies of the foregoing Brief and Addendum for Appellant have been delivered by hand to the United States Attorney's Office, John R. Fisher, Esq., Appellate Division, Room 4229, 555 Fourth Street, N.W., Washington, D.C. 20001, this 1st day of March, 1993.





____________________________________

Sandra G. Roland

1. Numbers preceded by "Tr. I" refer to pages in the transcript of the suppression hearing on May 20, 1992, which is set forth in full in the Appendix ("A"). Numbers preceded by "Tr. II" refer to pages in the transcript of the trial court's oral ruling on the suppression hearing on May 21, 1992, which is set forth in full in the Appendix ("A").

2. Officers Nassar and Croson did not know appellant's name, and had never before arrested appellant, but testified that three days or a week earlier had accepted his offer to sell them drugs. No sale was completed because appellant left the scene and did not return (Tr. I at 27, 28, 30, 72).

3. Officer Fulton agreed that Mr. xxxxxxx was "surrounded" by police officers at the time that consent to search was requested, but thought that officers stood only in front of, and to the side of, Mr. xxxxxxx's wheelchair, and not to the back of the wheelchair (Tr. I at 48). Fulton testified that the only direction in which Mr. xxxxxxx could have rolled, had he tried, was two feet backwards on the sidewalk in the wheelchair (Tr. I at 48-49).

4. The officers testified that they did not search for weapons, but for drugs (Tr. I at 56, 79).

5. The officers were vague about the exact wording of the request made by Officer Croson and the answer given by Mr. xxxxxxx.

Officer Croson testified first that, "I asked the defendant would he mind if we searched him, searched him and his belong -- his bag and his wheelchair" and that Mr. xxxxxxx responded by saying "[S]ure" (Tr. I at 64-65). Croson later testified that he asked "Would you mind if, you know, we patted you down and went, you know, through your belongings" and that Mr. xxxxxxx replied by shaking his head "yep," and said, "Go ahead" (Tr. I at 76-77). When the court pointed out that an affirmative answer would have indicated a refusal to be searched, Officer Croson explained that Mr. xxxxxxx "shook his head, you know, okay" (Tr. I at 77).



Officer Fulton testified that Officer Croson asked Mr. xxxxxxx, "Do you mind if we search you?" and that Mr. xxxxxxx replied, "Yes" (Tr. I at 39-40).

The officers also contradicted each other regarding Mr. xxxxxxx's physical movement. Officer Fulton testified that appellant lifted himself up off of the seat of the wheelchair to allow the officers to "look underneath him" (Tr. I at 52). Officer Croson testified that Mr. xxxxxxx lifted his hands above his head (Tr. I at 65).

6. Sergeant James Manning testified regarding statements that Mr. xxxxxxx made after he was taken into custody (Tr. I at 85-95). The trial court ruled that Mr. xxxxxxx had knowingly and voluntarily waived his Miranda rights (A. at 10). That ruling is not a subject of this appeal.

7. A seizure has occurred when the words and actions of law enforcement officers would convey to a reasonable person that he or she is not free to leave. Florida v. Bostick, 111 S.Ct. 2382, 2389 (1991). The government conceded, and the trial court found, that Mr. xxxxxxx was seized by the officers for purposes of investigation (Tr. I at 101; A. at 6).

8. See Pretrial Services Agency Report (A. at 1). According to the report, Mr. xxxxxxx moved to the Southeast section of the Washington, D.C. three months prior to his arrest.

9. While the trial court did "note that the past actions of the officers in the community can be relevant to the question of whether the consent given by the defendant was voluntary," (A. at 8) when the court applied the law to the facts, it addressed only those factors relied upon in Lewis.