On April 24, 1995, following a hearing, the Honorable John H. Pratt denied defendant's motion to suppress evidence. Later that day, Mr. xxxxxxx pled guilty to count one and the government dismissed count two of the indictment. On May 9, 1996, the Honorable John G. Penn sentenced Mr. xxxxxxx to 135 months imprisonment. (App. 13-16).

On May 17, 1996, Mr. xxxxxxx filed a notice of appeal. (App. 17). On October 16, 1996, this Court granted Mr. xxxxxxx's motion to hold his appeal in abeyance pending the filing and disposition of a motion pursuant to 28 U.S.C. § 2255. (App. 18). Mr. xxxxxxx filed that motion on October 28, 1996, asserting that his trial counsel was ineffective in failing to advise him that he had the right to testify at the evidentiary hearing on his motion to suppress evidence. (App. 19-29). On June 12, 1997, with the government's consent, the district court held a second suppression hearing. On August 8, 1998, in a memorandum opinion, the district court denied Mr. xxxxxxx's motion to suppress and denied his § 2255 motion as moot. (App. 30-36).

This case was returned to this Court's active docket on September 28, 1998. (App. 37).

Detective Fleming approached Mr. xxxxxxx, identified himself as a police officer looking for guns and drugs, and requested permission to search his luggage. Id. at 59-60, 103-04, 107, 120-21, 135, 145. Mr. xxxxxxx testified that he did not consent to a search; he froze and Detective Fleming grabbed the bag off his shoulder before he could respond. Id. at 120-21, 124, 139, 145, 147. According to Detective Fleming, Mr. xxxxxxx consented to a search of his bag. Id. at 60, 81, 103-04, 107. ⁽³⁾

Detective Fleming knelt down to search Mr. xxxxxxx's luggage. Id. at 39, 61, 121. He found a brown paper bag in the tote bag, inside of which he found a package wrapped in tape. Id. at 61, 107. The only specific description he gave of the package was that it had a "flat surface." Id. at 109. He could not see what was in the package through the tape. Id. at 111. He ripped a hole of about one and a half inches in the taped package and found a chunky white rock substance. Id. at 61-62, 110. He did not ask Mr. xxxxxxx's consent to tear open the package, nor did he ask him what was in the package. Id. at 61-62, 87, 108. Detective Fleming thought he had probable cause to open the package because he had seen taped packages of drugs on earlier occasions, but he did not identify any characteristics of this package that were similar to others. Id. at 108-09, 112. Detective Fleming testified that he had seen "that type package on numerous occasions." Id. at 109.

No evidence was presented that Mr. xxxxxxx or anyone else saw Detective Fleming tear open the taped package, or that any conversation took place about the package before the officer tore it open. Mr. xxxxxxx testified that when Detective Fleming knelt down to search his bag, he glanced over his shoulder and saw other members of the interdiction squad behind him. Id. at 121, 146. When Mr. xxxxxxx looked down again, he saw Detective Fleming open the paper bag and then "all of a sudden" the officer said "we got him." Id. at 124, 146. Detective Ronnie Hairston testified that Detective Fleming's search of the tote bag took two to three minutes. Tr. at 39. Both Detective Hairston and Mr. xxxxxxx were standing near Detective Fleming, who was kneeling to search the tote bag, and Detective Hairston did not see Detective Fleming take anything out of the tote bag. Id. at 38-39.

The officers arrested Mr. xxxxxxx. Id. at 62. The substance was later tested and found to be cocaine base.

1. The District Court Ruling

The district court found that Mr. xxxxxxx "did consent to the officer looking in his bag . . .[but] did not specifically [ ] consent to the officer [ ] opening the brown bag package containing the drugs wrapped in tape." (App. 34). The court did not reach the issue of whether Detective Fleming had probable cause to search the taped package. (App. 35). Instead the court ruled that Mr. xxxxxxx's "consent given for the search of the tote bag extends to the search of the brown paper bag and the taped package inside." (App. 35). The court did not discuss the legal relevance of the fact that the officer "tore the package open." (App. 34, 36).

SUMMARY OF ARGUMENT

Mr. xxxxxxx's consent to a search of his luggage extended to the paper bag inside the tote bag but did not extend to Detective Fleming's search of the taped package. That package was sealed when Detective Fleming tore it open to search it. A person who cannot afford an expensive briefcase with a lock may keep personal belongings in a sealed, taped package. Therefore, the privacy interest in such a package is equivalent to the privacy interest in a locked briefcase, and the Fourth Amendment extends to the protection of both.

A person who consents to a police officer's search of personal property would not reasonably expect his or her consent to extend to the destruction of containers found within, whether the identified property is a house, a car, or a piece of luggage, and whether the container is a locked briefcase or a sealed, taped package. This is true even where the expressed object of the search is clear. A reasonable person would expect an officer conducting a consent-based search to leave his or her property intact and in one piece. At a minimum, a reasonable person would expect an officer to ask about a container before damaging it. Detective Fleming did not ask any questions about the taped package and there was no evidence that Mr. xxxxxxx knew that the officer was about to tear a hole in it. Therefore, Mr. xxxxxxx had no opportunity to object or to withdraw his consent to the search of the taped package.

Furthermore, Detective Fleming did not have probable cause to search the taped package. There was no evidence to support probable cause other than the taped package, and the contents of the package were not in plain view. The officer's testimony that he had seen that type of package used to transport drugs in the past does not support a finding of probable cause, particularly in the absence of evidence regarding the size, shape, weight or appearance of the package, the type and color of tape used, or some other information regarding the officer's ability to see, feel, smell or otherwise detect what the package contained. Moreover, even if the officer had probable cause to arrest Mr. xxxxxxx and seize the package, he would have been required to obtain a search warrant to open the package.

ARGUMENT

An individual who consents to a search of luggage does not simultaneously consent to the destruction of property inside that luggage.

The standard for measuring the scope of a suspect's consent under the Fourth Amendment is that of "objective" reasonableness--what would the typical reasonable person have understood by the exchange between the officer and the suspect?

Florida v. Jimeno, 500 U.S. 248, 251 (1991). In Jimeno, the Court held that consent to search an automobile included consent to open an unsealed paper bag inside the automobile, particularly where the officer explained that he was searching for drugs. The fact that the paper bag was unsealed, however, was crucial. As the Court explained, "[i]t is very likely unreasonable to think that a suspect, by consenting to the search of [the trunk of a car], has agreed to the breaking open of a locked briefcase within the trunk, but it is otherwise with respect to a closed paper bag." Id. at 251-52. ⁽⁴⁾

This Court should treat the taped package in question here as though it were a locked briefcase. The Fourth Amendment does not distinguish between "'worthy' and 'unworthy' containers." United States v. Ross, 456 U.S. 798, 822 (1982).

Even though such a distinction perhaps could evolve in a series of cases in which paper bags, locked trunks, lunch buckets, and orange crates were placed on one side of the line or the other, the central purpose of the Fourth Amendment forecloses such a distinction. For just as the most frail cottage in the kingdom is absolutely entitled to the same guarantees of privacy as the most majestic mansion, so also may a traveler who carries a toothbrush and a few articles of clothing in a paper bag or knotted scarf claim an equal right to conceal his possessions from official inspection as the sophisticated executive with the locked attache case.

Id.; ⁽⁵⁾ see also United States v. Fultz, 146 F.3d 1102, 1105 (9th Cir. 1998) (homeless person's expectation of privacy in closed cardboard boxes and plastic bags is equivalent to expectation of privacy in suitcase or purse). The Court in Jimeno rejected the argument that an unsealed paper bag should be treated the same as a locked briefcase, but it maintained the distinction between containers which are sealed or locked and those that can be opened without damaging them. A typical person would not reasonably expect his or her consent to search to authorize an officer to forcibly open sealed or locked containers found in the course of the search. Pursuant to Ross and Jimeno, a sealed bag or taped package should be treated like a locked trunk or briefcase and granted greater protection under the Fourth Amendment than a container that can be opened without destroying it.

This Court recognized this distinction in United States v. Springs, 936 F.2d 1330 (D.C. Cir. 1991), in which the search of a baby powder container was upheld after the defendant consented to a search of her luggage. The Court stated:

We do note, however, that the Supreme Court expressly distinguished the circumstances of Jimeno from the case in which the subcontainer is locked and cannot be searched without being broken open. . . . We appreciate the distinction but note that in the present case the evidence supports a view that the opening of the baby powder container did not depend upon possession of a key, knowledge of a combination, or anything other than removing its lid. Neither did the fact of its opening render it useless, any more than the opening of the folds destroyed the usefulness of the paper bag in Jimeno. Therefore, we await with the Supreme Court the day when the locked briefcase comes before us.

Id. at 1334-1335 (emphasis added); see also United States v. Strickland, 902 F.2d 937, 941-42 (11th Cir. 1990) (consent to search car does not include consent to slash spare tire in trunk); United States v. Ibarra, 965 F.2d 1354, 1358 (5th Cir. 1992) (en banc, in evenly divided ruling) (consent to search house did not include consent to remove boards from ceiling to gain access to attic); United States v. Reeves, 798 F. Supp. 1459, 1468-69 (E.D. Wash. 1992) (oral consent to search car did not extend to locked briefcase in car, though more explicit written consent did), aff'd 6 F.3d 660 (9th Cir. 1993) (affirming on basis of written consent). ⁽⁶⁾ As in Jimeno and Springs, courts have generally upheld searches of containers or subcontainers found during consent-based searches of luggage or cars, provided the containers could be opened without destroying them. See, e.g., United States v. Kim, 27 F.3d 947, 957 (3d Cir. 1994) (sealed cans of vegetable protein that, like the baby powder container in Springs, could be opened without damage to container), cert. denied, 513 U.S. 1110 (1995); United States v. Smith, 901 F.2d 1116, 1118 (D.C. Cir.) (unsealed paper bag), cert. denied, 498 U.S. 863 (1990). The district court relied on Springs without discussing the circumstances distinguished in Springs and raised by the facts of this case -- where opening the container would "render it useless."

The district court also relied on United States v. Battista, 876 F.2d 201 (D.C. Cir. 1989), in which this Court upheld a search that included piercing plastic bags containing cocaine powder with a nail file, based on the defendant's consent to search the train compartment and suitcase where the plastic bags were found. However, the plastic bags in that case may have been clear, and the cocaine powder visible, possibly explaining why the Court did not discuss the legal relevance of the destruction of subcontainers. Because the Court did not discuss that issue, Battista does not apply here.

Battista does not control this case in any event because it involved numerous additional factors justifying the search, none of which is present here. In Battista, the police had reasonable suspicion to detain the defendant, because the defendant had paid cash for a one-way ticket from a city known to be a source of drugs and given a telephone number that, when called, was out of service, and also because a dog trained to detect drugs smelled the presence of drugs inside the defendant's sleeping compartment on a train. Id. at 203 & 205. Furthermore, the defendant's consent in Battista was clear and unambiguous because the officer told the defendant he did not have to consent, ⁽⁷⁾ and because the interaction between the officer and the defendant involved a chain of events in which the defendant repeatedly consented to the search and acted in cooperation with the search. ⁽⁸⁾ Therefore, the totality of the circumstances in that case supported the Court's belief that a reasonable person would not expect the officers to continue to ask repeatedly for additional consent:

In effect, Battista would turn the search of this bag into a game of "Mother-may-I," in which [the officer] would have to ask for new permission to remove each article from the suitcase to see what lay underneath.

Id. at 207. Mr. xxxxxxx does not suggest that Detective Fleming had an obligation to seek his permission to lift each of his personal items from the tote bag to see what was underneath. In addition, unlike Battista, this case involved no reasonable suspicion to detain Mr. xxxxxxx, no cooperation or other action demonstrating continued consent, no opportunity to withdraw consent, and no warning that defendant did not have to consent. Here, Mr xxxxxxx vigorously contested his consent.

This Court should not condone the actions of the officers in tearing open defendant's property. Jimeno and Springs support the conclusion that consent to search does not include consent to tear or break into subcontainers which cannot be opened without damaging them. As explained in Ross, defendant's taped package should not be given less protection just because it was not made of expensive leather and did not bear a sophisticated combination lock.

1. The Government Failed to Show that it Would Have Been Possible for Mr. xxxxxxx to Object or to Withdraw His Consent to the Search of the Taped Package

The record contains no evidence that Mr. xxxxxxx was aware that Detective Fleming was going to tear a hole in his taped package or knew that the officer was in the process of doing so. Based on the record, therefore, Mr. xxxxxxx had no opportunity to object to that action or withdraw his consent. Detective Hairston testified that he did not see the taped package or any items inside the bag. Tr. at 39, 41. Mr. xxxxxxx testified that after looking in the paper bag, "all of a sudden," Detective Fleming said "'we got him.'" Tr. at 39, 124, 126. The government has the burden of proving that, under the totality of the circumstances, a consent-based search was valid. See, e.g., Mendenhall, 446 U.S. at 557; United States v. Hodge, 19 F.3d 51, 53 (D.C. Cir. 1994), cert. denied, 516 U.S. 1181 (1996); American Fed'n of Gov't Employees v. Skinner, 885 F.2d 884, 894 (D.C. Cir. 1989), cert. denied, 495 U.S. 923 (1990). Here, the government failed to show that it would have been possible for Mr. xxxxxxx to object when the officer tore open his package.

Therefore, this case differs from United States v. Maldonado, 38 F.3d 936, 940-41 (7th Cir. 1994), cert. denied, 516 U.S. 876 (1995), and United States v. Garcia Hernandez, 955 F. Supp. 1361, 1373-76 (D. Utah 1996), aff'd, 153 F.3d 729 (10th Cir. 1998). In Maldonado, the court upheld a search in a train station of taped juicer boxes where the defendant clearly consented to the search of his luggage by bending down and unlocking the bag in which the boxes were found. Id. at 940. When they found the taped boxes, the officers asked for further consent to search them. Id. at 938. The officers testified that the defendant consented or nodded in consent. Id. The defendant testified that he asked the officers not to open the boxes because the items inside were gift-wrapped. Id. The court found that the defendant's conduct, by cooperating and nodding, included consent to search the taped boxes. Id. at 940. The court also found that the defendant did not withdraw his consent though he limited the parameters of the search to avoid damage to gift wrapped packages inside the boxes. Since there were no gift wrapped boxes inside, those parameters were not exceeded. Id. at 941-42 & n.3. In this case, in contrast, the officer did not request additional consent to search the taped package or ask what was in it, there was no evidence of additional consent to search the taped package, and there was no evidence Mr. xxxxxxx had an opportunity to withdraw consent.

In Garcia Hernandez, 955 F. Supp. at 1373-76, the officer was searching a car with the defendants' consent when he saw a package wrapped in duct tape and opened it with a knife already in the car. The court held that, under Jimeno, consent to search the vehicle did not encompass cutting into the package. Id. at 1375. However, the court found that consent to cut into the package could be implied from the defendants' failure to object to the continued search when the officer asked three times what was inside the package. Id. at 1375-76.

The search of Mr. xxxxxxx's taped package was invalid because, not only was there no consent to search it, there was no showing that it would have been possible for Mr. xxxxxxx to have objected or withdrawn consent. Therefore, the facts of this case do not support a finding of implied consent from Mr. xxxxxxx's failure to withdraw consent.

1. The Police Officer Did Not Have Probable Cause to Tear Open Mr. xxxxxxx's Taped Package

Detective Fleming testified that he tore into the taped package not because defendant's consent extended to ripping open the package but because he had probable cause to tear open the package. Tr. at 108-09, 112. However, nothing in the record supports a finding of probable cause. Moreover, the District Court did not reach this question.

Even after extensive questioning by the Court, Detective Fleming could cite no reason for questioning Mr. xxxxxxx. Id. at 92-102. Detective Fleming did not testify that he had any information about the contents of the package based on its size, shape, or weight, the color or type of tape, or his ability to see, feel or smell the contents through the packaging. Id. at 108-110. ⁽⁹⁾ His explanation that he had seen taped packages containing drugs before, Tr. at 109, is not sufficient to support a finding of probable cause. Furthermore, even if Detective Fleming had probable cause to arrest Mr. xxxxxxx and seize the package based on its appearance, the Fourth Amendment would have required that he obtain a warrant before cutting it open and searching it. See, e.g., Arkansas v. Sanders, 442 U.S. 753, 766 (1979); United States v. Chadwick, 433 U.S. 1, 15 (1977); United States v. $639,558.00 in U.S. Currency, 955 F.2d 712, 716-18 (D.C. Cir. 1992).

Detective Fleming did not testify that this package was consistent with, for example, a "kilo brick," such as the one seized in United States v. Prandy-Binett, 995 F.2d 1069, 1071 (D.C. Cir.), cert. denied, 510 U.S. 1167 (1994). In Prandy-Binett, this Court found probable cause to search a taped package but numerous other factors in that case supported that finding. In that case, that defendant moved more quickly through the train station after making eye contact with detectives, and he gave deceptive information about where he had come from, how long he had been there, and where he lived (conflicting, respectively, with his ticket, the amount of luggage he was carrying, and his driver's license). Id. at 1069-70. The defendant stated that he did not have to consent to a search of his luggage, supporting the finding that the search was voluntary. Id. at 1070. That case involved a rectangular package wrapped in silver duct tape, and the Court considered extensive evidence regarding the bulk and shape of the package and the type and color of tape, in addition to the frequency in which kilogram-sized quantities of cocaine powder are packaged in exactly that size and shape package, in silver duct tape. Id. at 1071-72.

Prandy-Binett involved cocaine powder. In contrast, this case involved cocaine base, usually found in the form of irregularly-shaped rocks. There is no evidence that crack cocaine is typically formed into "kilo bricks" or any other size package, or that the package involved here was any particular size and shape or wrapped in any particular type of tape. Taped packages do not necessarily contain drugs. See United States v. Prandy-Binett, 995 F.2d at 1074 (D.C. Cir.) (Edwards, J., dissenting) ("I have wrapped packages in duct tape, carried them in a tote bag in train stations, and never once thought that I might be subject to arrest"). In his dissent in Prandy-Binett, Judge Edwards decried his fellow jurists' "distinct lack of empathy for some members of our society -- those without much disposable income, for example -- who . . . might very well wrap a gift with whatever packaging material is on hand, including duct tape." Id. at 1077 n.4.

For these reasons, this Court should rule that the officer did not have probable cause or, in the alternative, remand this case to the district court for a ruling on that issue.

CONCLUSION

For the reasons stated above, defendant respectfully requests that this Court reverse the district court's denial of his motion to suppress evidence and vacate his conviction.

Respectfully submitted,

A.J. KRAMER,

FEDERAL PUBLIC DEFENDER

Beverly G. Dyer

ASSISTANT FEDERAL PUBLIC DEFENDER

Counsel for Appellant

625 Indiana Avenue, NW

Suite 500

Washington, D.C. 20004

(202) 208-7500

CERTIFICATE OF LENGTH

I hereby certify that the foregoing brief for appellant, Cosley A. xxxxxxx, does not exceed the number of words permitted pursuant to D.C. Circuit Rule 28(d).

Beverly G. Dyer

CERTIFICATE OF SERVICE

I hereby certify that on December 18, 1998, two copies of the foregoing brief for appellant Cosley A. xxxxxxx and one copy of the accompanying Appendix were served by hand on John R. Fisher, Chief, Appellate Section, Criminal Division, United States Attorney's Office, 555 4th Street, N.W., Washington, D.C. 20001.

Beverly G. Dyer

1. Mr. xxxxxxx's name has been misspelled as "Pinock" in this Court and the district court. He testified at his suppression hearing that the correct spelling is xxxxxxx. Transcript of June 12, 1997, Suppression Hearing (Appendix, Tab A) (hereinafter referred to as "Tr.") at 113.

2. "App." refers to the Appendix of Appellant filed with this brief.

3. There were numerous other conflicts between the officers' testimony and Mr. xxxxxxx's testimony, such as whether the search occurred inside the Greyhound station or outside on First Street, but the district court believed the testimony of the officers with respect to the critical areas of dispute.

4. Mr. xxxxxxx does not contest the officer's opening of the paper bag containing the taped package.

5. Ross originated in this Court, where a majority of the Court, on en banc review, disagreed with the distinction a panel of the Court had drawn between a paper bag and a zippered leather pouch. The Court rejected the argument that "some containers are fair game . . . because they are too small, too insecure, or too cheaply made to burden the time of a magistrate." United States v. Ross, 655 F.2d 1159, 1170 (D.C. Cir. 1981) (en banc). "[I]f quality of material is what counts, on what side of the line would one place the variety of parcels people carry? . . . Would a Tiffany shopping bag rank with one from the local supermarket? . . . [A]n "unworthy container" rule . . . would ensnare those without the means or the sophistication to use worthy containers." Id.

6. In United States v. Sanchez, 32 F.2d 1330 (8th Cir. 1994), cert. denied, 513 U.S. 1158 (1995), the court upheld a search of sealed boxes inside a truck based on consent to search the truck but did not discuss the issue presented here.

7. The officer's warning that the defendant did not have to consent to a search was significant to the Court in Battista. 876 F.2d at 207. Other courts have found a similar warning, though not required, to be highly relevant. See, e.g., United States v. Mendenhall, 446 U.S. 544, 558-59 (1980); United States v. Guapi, 144 F.3d 1393, 1394-95 (11th Cir. 1998); United States v. Dyer, 784 F.2d 812, 815 (7th Cir. 1986).

8. In Battista, the officer requested the defendant's consent to search his roomette and a hanging suitbag, and informed him that he was not required to consent to the search. 876 F.2d at 203 & 207. The defendant consented and further cooperated by taking the suitbag down from a rack and placing it in the hall for the officers to search. Id. at 203. The defendant then stepped into the hall. When the officer found a locked suitcase under a bed, he asked if the defendant knew the combination. The defendant stepped back into the room, turned the numbers of the combination lock, and opened the suitcase himself. Id. at 203 & 207. The police found a plastic bag containing two packages inside the suitcase, pierced them with a nail file, and discovered drugs inside them. Id. at 203.

9. Therefore, the search of Mr. xxxxxxx's package was not valid under a "plain view" exception to the warrant requirement. See, e.g., United States v. Doe, 61 F.3d 107 (1st Cir. 1995); United States v. Gibson, 19 F.3d 1449, 1451 (D.C. Cir. 1994); United States v. Miller, 769 F.2d 554 (9th Cir. 1985); see also Henry v. United States, 361 U.S. 98, 104 (1959).