ORAL ARGUMENT NOT YET SCHEDULED





UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT





No.





BRIEF FOR APPELLANT







UNITED STATES OF AMERICA, Plaintiff-Appellee,



v.



DAVID xxxxxxx, Defendant-Appellant.

a/k/a JOHNNY xxxxxxx







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

625 Indiana Avenue, N.W.

Suite 550

Washington, D.C. 20004

(202) 208-7500







District Court

Criminal No.



CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES



Pursuant to Circuit Rule 28, appellant, David xxxxxxx, hereby states as follows:

A. Parties and Amici:

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

B. Ruling Under Review:

This is an appeal from the district court's (Honorable Thomas F. Hogan) November 6, 1992, ruling denying Mr. xxxxxxx's motion to suppress tangible evidence. The district court detailed its findings of fact and legal conclusions in an oral ruling following the hearing on the motion to suppress (A. 101-123).

C. Related Cases:

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

TABLE OF CONTENTS

TABLE OF AUTHORITIES iii

STATUTES AND RULES 1

JURISDICTION 1

ISSUE PRESENTED FOR REVIEW 1

STATEMENT OF THE CASE 6

I. Proceedings Below 2

II. Statement Of Facts 2

A. Government's Evidence 2

B. Defendant's Evidence 6

C. District Court's Ruling 6

SUMMARY OF ARGUMENT 7



ARGUMENT 8



WHEN THE POLICE OFFICER GRABBED AND SQUEEZED THE OBJECT STORED IN MR. xxxxxxx'S CROTCH HE EXCEEDED THE SCOPE OF THE CONSENT TO A TERRY PAT-DOWN AND EXCEEDED THE BOUNDS OF THE "PLAIN FEEL" DOCTRINE 8



A. Standard of Review 8



B. The Scope Of Mr. xxxxxxx's Consent Was Limited To A Pat-Down Frisk 8



C. The Search Of Mr. xxxxxxx's Crotch Cannot Be Justified Under The Plain Touch Doctrine 10



D. The District Court's Finding That The Object In Mr. xxxxxxx's Pants Could Have Been A Gun Was Clearly Erroneous 10

CONCLUSION 16

CERTIFICATE OF LENGTH 17

CERTIFICATE OF SERVICE 17



TABLE OF AUTHORITIES



CASES



Arizona v. Hicks, 480 U.S. 321 (1987) 10



Florida v. Jimeno, 500 U.S. 248 7, 9



Katz v. United States, 389 U.S. 347 (1967) 8



*Minnesota v. Dickerson, 113 S. Ct. 2130 (1993) 8, 10, 11



Minnesota v. Dickerson, 481 N.W.2d 840 (Minn. 1992) 7



People v. Sanchez, 38 N.Y.2d 72 (1975) 15



Sibron v. New York, 392 U.S. 40 (1968) 15



*Terry v. Ohio, 392 U.S. 1 (1968) 9, 10, 15



United States v. Clipper, 973 F.2d 944 (D.C. Cir. 1992),

cert. denied, 113 S. Ct. 1025 (1993) 15



United States v. Dichiarinte, 445 F.2d 126 (7th Cir. 1971) 9



United States v. Most, 876 F.2d 191 (D.C. Cir. 1989) 11



*United States v. Rodney, 956 F.2d 295 (D.C. Cir. 1992) 7, 9, 11



United States v. Springs, 936 F.2d 1330 (D.C. Cir. 1991) 9



United States v. Taylor, 997 F.2d 1551 (D.C. Cir. 1993) 8, 10



STATUTES AND RULES





21 U.S.C. 841(a)(1) 2



21 U.S.C. 841(b)(1)(B)(iii) 2





OTHER AUTHORITIES



W. LaFave, SEARCH & SEIZURE 9.4(c) at 521 (2d ed. 1987) 15











* Cases chiefly relied upon are marked with an asterisk.

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT





No.





BRIEF OF APPELLANT







UNITED STATES OF AMERICA, Plaintiff-Appellee,



v.



DAVID xxxxxxx, Defendant-Appellant.

a/k/a JOHNNY xxxxxxx





APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA





STATUTES AND RULES



Pursuant to Rule 28(f), Federal Rules of Appellate Procedure and D.C. Circuit Rule 28(a)(5), the pertinent statutes and rules 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 Rule 4(b), Federal Rules of Appellate Procedure, this Court has jurisdiction under 28 U.S.C. 1291.

ISSUE PRESENTED

Whether, when the officer grabbed and squeezed the object stored in Mr. xxxxxxx's crotch, the search exceeded the scope of the consent to search and exceeded the bounds of the plain feel doctrine.

STATEMENT OF THE CASE

I. The Proceedings Below

On November 26, 1991, a federal grand jury sitting in the District of Columbia returned a one-count indictment charging Mr. xxxxxxx with possession with intent to distribute five grams or more of cocaine base, in violation of 21 U.S.C. 841(a)(1) and 841(b)(1)(B)(iii) (A. 1).

On January 9, 1992, Mr. xxxxxxx filed a motion to suppress all tangible evidence, contending that the search of his person by a law enforcement officer violated the Fourth Amendment (A. 2). On November 6, 1992, after conducting at two-day evidentiary hearing, the district court orally denied Mr. xxxxxxx's motion to suppress.

On that same day, November 6, 1992, Mr. xxxxxxx entered a conditional plea of guilty to the indictment, reserving his right to appeal the district court's denial of his motion to suppress. On April 22, 1993, the district court sentenced Mr. xxxxxxx to sixty months imprisonment, to be followed by a term of three years on supervised release, and a special assessment of $50.00. (A. 124-127). Mr. xxxxxxx filed a timely notice of appeal.

II. Statement Of Facts

A. Government's Evidence

At approximately 4:45 a.m. on October 31, 1991, Detective William Buss, a member of the Metropolitan Police Department's Narcotic Interdiction Unit, conducted a search of Mr. xxxxxxx on a Greyhound bus that had just arrived at the bus terminal in Washington, D.C. (A. 20). (1) A few minutes later, he participated in the arrest of Mr. xxxxxxx.

Between 4:30 and 4:45 a.m., Detective Buss observed a bus that had arrived from New York City (A. 21). He boarded the bus and acted in a back-up capacity observing other members of the Interdiction Unit interviewing passengers on the bus (A. 22, 35). Detective Buss observed Mr. xxxxxxx, a passenger on the bus, walking from the back toward the front of the bus while looking back over his shoulder. Mr. xxxxxxx appeared to be nervous (A. 22, 40). Buss confronted Mr. xxxxxxx on the bus, identified himself as a police officer and displayed his police identification folder (A. 22, 31, 38, 40). He displayed no weapon (A. 31). Buss asked Mr. xxxxxxx if he would answer a few questions, but never informed Mr. xxxxxxx that he had a right to refuse to talk or that he had a right to leave the bus (A. 22, 40-42).

According to Buss, Mr. xxxxxxx volunteered, without being asked, to show Buss his luggage (A. 23, 40). Mr. xxxxxxx directed the detective to his luggage (A. 23, 40). Mr. xxxxxxx placed two bags on a bus seat and waved his hand towards them, a gesture which Buss understood to be Mr. xxxxxxx's consent to search the bags (A. 24, 40-41).

Rather than search the bags, however, Buss asked Mr. xxxxxxx about his travel plans (A. 23, 41). Mr. xxxxxxx replied that he was travelling from New York to Danville, Virginia (A. 23-24). Buss requested Mr. xxxxxxx's ticket, inspected it, and returned it to Mr. xxxxxxx (Id.). The ticket confirmed the information that Mr. xxxxxxx had provided (A. 24). When asked where he lived, Mr. xxxxxxx first stated New York but then quickly changed it to Danville, and said that he had spent about two weeks in New York (A. 32). Buss explained the purpose of the Interdiction Unit and asked Mr. xxxxxxx if he was carrying any drugs or guns (A. 24-25). Mr. xxxxxxx stated that he was not (A. 25). Buss asked for and received permission to search Mr. xxxxxxx's bags. The bags contained no contraband (Id.).

Detective Buss asked Mr. xxxxxxx if he was carrying any guns or drugs on his person, to which Mr. xxxxxxx responded in the negative (A. 25, 42). Buss asked if he could search Mr. xxxxxxx's person (Id.). Mr. xxxxxxx responded by putting his hands out to his side and saying, "Yeah" (A. 25, 43). Mr. xxxxxxx was wearing pants and a sweatshirt that came down to his waist area (A. 44). In what both the prosecutor and Detective Buss described as a "standard Terry pat-down" or a "frisk" (A. 27, 43), Buss "patted down the upper torso of [Mr. xxxxxxx's] body under the armpits, the back, the entire waistband" (A. 26-27). Finding nothing, Buss "was confident that some of the danger areas where somebody would most likely carry a weapon, that in fact there was no weapon there. . . ." (A. 27). Having frisked the areas in which one would store a weapon, Buss "felt safe enough" (A. 44), to search Mr. xxxxxxx's legs and crotch area:

I swept my hands from the ankle all the way up to the crotch area, and it was at this point where I felt on my finger the hard object in his, his crotch, and I then, I grabbed ahold of that object with my fingers and thumb.

(A. 27). When Buss grabbed the hard object "that was not consistent with the body part," he grabbed it with his "fingers and thumb and squeezed the object" (A. 25). The object rested below Mr. xxxxxxx's genitals (A. 45). Before squeezing the object, Buss had suspected that it was contraband but had not known exactly what the object was, and was not certain about the size of the object (A. 49, 56-59). Buss testified about his beliefs about the object after the initial frisk, but before he squeezed it:

Q: So when you felt with the top of your finger, you didn't really know what that was, right?



A: At that point, I knew it was something that was inconsistent with the body part.



Q: But you certainly didn't know that it was drugs or cocaine at that point; is that right?



A: Not until I grabbed it with my thumb and forefinger.



(A. 49). After squeezing it, however, the detective "had no question in [his] mind that they were drugs" (A. 25, 49-50, 56). In response to a question on re-cross-examination, Buss testified that until he squeezed the object there existed the "possibility [that] it could have been a gun in [Mr. xxxxxxx's] crotch" (A. 58).

The drugs were removed from their storage place below Mr. xxxxxxx's genitals, and Mr. xxxxxxx was arrested (A. 28-29). The crack cocaine, the majority of which was in one piece, measured "an inch, a couple-inch square," but was "thinner in structure than a heatseal" (A. 31, 51). It was contained in a plastic ziplock bag.

B. Defendant's Evidence

Mr. xxxxxxx testified that he consented to the search of his luggage but refused to give Detective Buss permission to search his body (A. 70). Nevertheless, Buss unbuckled Mr. xxxxxxx's belt and pulled down his pants and his jogging shorts, causing him to tumble into his seat (A. 74). Buss reached into Mr. xxxxxxx's underwear and seized the drugs stored behind his testicles (A. 73-75, 83).

The defense also called two passengers from the bus, Kordell Misenheimer and Calvin Attaway, both of whom testified that they saw a police officer pull down Mr. xxxxxxx pants on the bus (Tr. 76-77, 93-94). In the government's rebuttal case, Detective Kim Oxendine and Detective Buss testified that Mr. Attaway had been arrested and removed from the bus before Detective Buss searched Mr. xxxxxxx (A. 119, 121-123).

C. District Court's Ruling

The district court's factual findings essentially tracked Detective Buss's testimony. As to the scope of the search, the district court found that the search was "no more invasive than the typical patdown search for weapons . . . . [described] in Terry v. Ohio" (A. 116). The court found that during the initial pat-down Buss felt an object in Mr. xxxxxxx's crotch which was inconsistent with a body part and that Buss believed that the object was contraband (A. 111-112). The court acknowledged that it was only after Buss squeezed the object that he knew it was drugs, most likely crack cocaine (A. 112, 115). Although Buss merely speculated on cross-examination that the hard object could have been a gun, the court concluded that it could "have been the tip of the barrel of a gun; it could have been a lot of things" (A. 112). Explicitly referring to the "plain feel" exception discussed in Minnesota v. Dickerson, 481 N.W.2d 840 (Minn. 1992), (2) the district court held that when Buss first touched Mr. xxxxxxx's crotch during the pat-down and felt something that he believed to be contraband, he had a "reasonable basis . . . and suspicion to check further, and he did so" (A. 119).

SUMMARY OF ARGUMENT

The scope of Mr. xxxxxxx's consent to search was limited to a Terry-type pat-down frisk of the outer clothing. Because Detective Buss could not reasonably have believed that the object in Mr. xxxxxxx's crotch was a gun or other weapon, he lacked justification under Terry to conduct a further protective search. Florida v. Jimeno, 500 U.S. 248 (1990); United States v. Rodney, 956 F.2d 295 (D.C. Cir. 1992). Similarly, since the identity of the object was not immediately apparent to the officer, his actions in grabbing and squeezing it exceeded the limits of the Minnesota v. Dickerson, 113 S.Ct. 2130 (1993), plain touch doctrine. Finally, the district court's finding that the officer reasonably could have believed that the one-or-two inch long hard object was a gun was speculative and clearly erroneous. Therefore, the full search of Mr. xxxxxxx's person was conducted without probable cause in violation of his Fourth Amendment rights. Accordingly, the evidence seized as a result of this illegal search and seizure must be suppressed.

ARGUMENT

WHEN THE POLICE OFFICER GRABBED AND SQUEEZED THE OBJECT STORED IN MR. xxxxxxx'S CROTCH HE EXCEEDED THE SCOPE OF THE CONSENT TO A TERRY PAT-DOWN AND EXCEEDED THE BOUNDS OF THE "PLAIN FEEL" DOCTRINE.

A. Standard of Review.

In reviewing a denial of a motion to suppress, the district court's findings of fact are reviewed under a clearly erroneous standard and its legal conclusions are reviewed de novo. United States v. Taylor, 997 F.2d 1551, 1553 (D.C. Cir. 1993).

B. The Scope Of Mr. xxxxxxx's Consent Was Limited To A Pat-Down Frisk.

A suspect's consent to search is one of the "few specifically established and well delineated exceptions" to the Fourth Amendment's prohibition against warrantless searches. Katz v. United States, 389 U.S. 347, 357 (1967). A search based upon the suspect's consent, however, is limited to the bounds of the actual consent given. Florida v. Jimeno, 500 U.S. 248, 255 (1990); United States v. Springs, 936 F.2d 1330, 1334 (D.C. Cir. 1991).

The scope of the consent is determined by how a reasonable person would have understood the request from the officer. Jimeno, 500 U.S. at 252; United States v. Rodney, 956 F.2d 295, 297-98 (D.C. Cir. 1992) (officer's request to conduct body search for drugs reasonably included pat-down search of trousers covering crotch area). Although the expressed object of a search generally defines the scope of consent, Jimeno, 500 U.S. at 251, the scope of consent to a body search is generally narrower than consent to search luggage or a premises, Rodney, 956 F.2d at 298, and the individual giving the consent can limit its scope. United States v. Dichiarinte, 445 F.2d 126, 129-130 (7th Cir. 1971).

In the instant case, Detective Buss testified that Mr. xxxxxxx responded to a request for search by holding his hands out and saying, "Yeah" (A. 25, 43). Buss understood that he had permission to conduct a "standard Terry pat-down" or a "frisk" (A. 27, 43). Both the prosecutor and Detective Buss described Buss's initial search as no more than a "standard Terry pat-down" (A. 27, 43), and the district court specifically found that it was "a typical patdown search for weapons. . . ." as approved in Terry v. Ohio, 392 U.S. 1 (1968) (A. 116). A Terry-type pat-down is strictly limited to that which is necessary to discover weapons which might be used to harm the officer or others. Id. at 26; United States v. Taylor, 997 F.2d 1551, 1554 (D.C. Cir. 1993). Thus, by his actions Mr. xxxxxxx limited the scope of the consent to a Terry-type pat-down frisk of the outside of his clothing rather than a full body search.

C. The Search Of Mr. xxxxxxx's Crotch Cannot Be Justified Under The Plain Touch Doctrine.

Where a pat-down is authorized, an officer may under certain circumstances seize contraband under the "plain touch" doctrine, a corollary to the "plain view" doctrine. Under the plain view doctrine, a "truly cursory inspection -- one that involves merely looking at what is exposed to view, without disturbing it -- is not a 'search' for Fourth Amendment purposes." Arizona v. Hicks, 480 U.S. 321, 328 (1987) (police conducted "search" by moving stereo to locate identification number). Similarly, under the plain touch analysis, only a truly cursory touching to search for weapons is authorized. Minnesota v. Dickerson, 113 S.Ct. 2130 (1993). Thus, although simply touching an object might not be considered a search for Fourth Amendment purposes, further manipulation of the object, especially once it has been determined that it is not a weapon, would constitute a search. Id. at 2138-39.

Here, Detective Buss discovered the identity of the crack cocaine in Mr. xxxxxxx's crotch not by virtue of plain touch, but rather by squeezing the object between his fingers. That squeezing was beyond the bounds of Terry v. Ohio, 392 U.S. 1 (1968), and its progeny because the incriminating character of the object hidden in Mr. xxxxxxx's crotch was not immediately apparent through a mere frisk. Compare Rodney, 956 F.2d at 296 (as officer passed hand over defendant's crotch area it was immediately apparent that small, rock-like objects were crack cocaine). Therefore, seizure of the crack cocaine was unjustified and constitutionally invalid.

The Supreme Court held in Minnesota v. Dickerson, 113 S.Ct. at 2130, that police officers may seize "nonthreatening contraband" detected during a protective pat-down search "so long as the officer's search stays within the bounds marked by Terry." Dickerson, 113 S.Ct. at 2136. (3) In Dickerson, the officer did not claim that he suspected the object in the respondent's jacket pocket was a weapon. Id. at 2138. The officer lawfully felt the lump because Terry permitted a frisk of the suspect's outer garments, but the "incriminating character of the object was not immediately apparent to him." Dickerson, 113 S.Ct. at 2139. Only after his further unauthorized search, which consisted of "squeezing, sliding and otherwise manipulating" the pocket's contents, did the officer conclude that the object was contraband. Id. at 2138. Under those circumstances, the officer overstepped the bounds of a "strictly circumscribed" Terry search for weapons. Id.

Similarly, the incriminating character of the object in Mr. xxxxxxx's crotch was not immediately apparent to Detective Buss. He felt a hardness that "was inconsistent with the body part," and that he believed was "contraband," but until he grabbed the object and squeezed it he did not know with any certainty that it was crack cocaine (A.49, 56-59). The district court's finding that Buss had a "reasonable basis" to grab and squeeze the object whose incriminating character was not immediately apparent was erroneous (A. 119). By grabbing and squeezing the object, Detective Buss overstepped the bounds of a strictly circumscribed Terry search. Because the search exceeded a mere pat-down frisk, it also exceeded the scope of the limited consent given by Mr. xxxxxxx. The seizure of the cocaine, therefore, cannot be upheld under the plain touch or consent-to-search doctrines.

D. The District Court's Finding That The Object In Mr. xxxxxxx's Pants Could Have Been A Gun Was Clearly Erroneous.

The district court's finding that Detective Buss might reasonably have feared that the hardness in Mr. xxxxxxx's crotch was a gun was clearly erroneous: the crack cocaine could not reasonably have been mistaken by Detective Buss as a gun or other weapon. The district court expressed skepticism that Detective Buss reasonably could have believed that the object was a gun, but ultimately filled in the blanks left by Detective Buss and speculated about the ways in which the object might reasonably have been mistaken for a gun:

It's a little hard to understand how it could be a weapon. It was a very small, hard object and this object was apparently no more than about an inch long, a hard object which turned out to be white rocks of crack cocaine. But in any event, the officer testified that he thought it could possibly be a gun, but he knew it was some type of contraband because -- the court will accept that for this reason: While it's not rational to believe that he could have felt the whole object and believe it was a gun, because it was only about an inch long, obviously, but that when he first brushed against it with the top of his index fingers, as he indicated, all he did was hit something hard, something like which could conceivably be metal. It could have been the tip of the barrel of a gun; it could have been a lot of things. He knew it was contraband at that point, therefore, he indicated, his next step was to squeeze the area that he felt with his hand, and that that was determined to him by that touch, he knew then at that point it was drugs, and crack cocaine most likely, and intended to arrest the defendant.

(A. 111-112). The district court's speculative findings in the face of claims that were admittedly "hard to understand" were clearly erroneous. As the court itself noted, the object was very small. The court's finding that the object could have been the "tip of the barrel of a gun" was a post-hoc rationalization, one in which even Detective Buss did not engage. There is no gun that is less than two inches long, that is as thin as the plastic of a ziplock bag, and that can fit neatly under a man's genitals. Indeed, as Detective Buss testified, a gun would likely be stored on one's torso, and after frisking Mr. xxxxxxx's torso and waistband Buss felt safe bending down to frisk his legs and crotch: he felt confident that there was no weapon in "the danger areas where somebody would most likely carry a weapon. . . ." (A. 26-27).

Moreover, in his narrative on direct examination, Detective Buss never suggested that the hard object felt like "the tip of the barrel of a gun," or even that it felt as hard as metal. Not until defense counsel raised the specter of a gun did Detective Buss venture that "it was a possibility" that it was a gun:

Q: I mean, you said the, the first time you thought it was contraband. When you say contraband, that could have been something other than drugs; is that what you're saying?



A: That's correct.



Q: It certainly wasn't a gun, though, right?



A: Until I felt it, I wasn't sure. That was a possibility. As I testified to earlier, all I knew for sure, that it was not consistent with a body part.



*****



A: It was a hard object. I couldn't tell what the size of it was until I felt it with my finger and thumb.



*****



A: [I] said the first time I felt it with the top of my finger, I felt it was contraband. When I actually grabbed the object with my fingers and thumb, I believed it to be drugs. I ruled out other types of contraband. I knew it wasn't a gun. But the first time I felt it, I believed that there was a possibility it could have been a gun in his crotch. All I knew, it was a hard object that wasn't consistent with his body part.

(A. 56-58).

Although Buss seized on defense counsel's attempt to establish that the object could not have been a gun, he was entirely unable to elaborate on the "possibility" that it was a gun. This Court in United States v. Clipper, 973 F.2d 944 (D.C. Cir. 1992), cert. denied, 113 S.Ct. 1025 (1993), explained that,

when an officer retrieves an object that is not a weapon, the question to ask is whether the officer reasonably believed it to be one -- that is, 'whether there was anything in the officer's perception to indicate it was not a weapon either because of its size or density.'

Id. at 952, citing 3 W. LaFave, SEARCH & SEIZURE 9.4(c) at 521 (2d ed. 1987) (internal quotation marks and citation omitted). Here, Buss never testified about in what way the "hard object" may have felt like a weapon. He provided no factual basis, other than the hardness of the object, that would have led to a reasonable belief that the object might be a gun. In short, Detective Buss could not point to any particular facts from which one could draw a reasonable inference that Mr. xxxxxxx posed any imminent danger to himself or the other officers. Terry, 392 U.S. at 24; Sibron v. New York, 392 U.S. 40, 64 (1968). See also People v. Sanchez, 38 N.Y.2d 72, 74 (1975) (fact that officer felt a "hard object" in defendant's jacket pocket while two others, one of whom was holding a knife, were standing in lobby of building, insufficient grounds for a reasonable suspicion of danger).

Because Detective Buss could not reasonably have believed that the object in Mr. xxxxxxx's crotch was a gun or other weapon, he lacked justification under Terry to conduct a further protective search. Similarly, since the identity of the object was not immediately apparent to the officer, his actions in grabbing and squeezing it exceeded the limits of the Dickerson plain touch doctrine. Therefore, the full search of Mr. xxxxxxx's person was conducted without probable cause in violation of his Fourth Amendment rights. Accordingly, the evidence seized as a result of this illegal search and seizure must be suppressed.

CONCLUSION

For the foregoing reasons, the district court's denial of Mr. xxxxxxx's motion to suppress physical evidence should be reversed.



Respectfully submitted,





A.J. Kramer

Federal Public Defender







Sandra Roland

Assistant Federal Public Defender

625 Indiana Avenue, N.W.

Suite 550

Washington, D.C. 20004

(202) 208-7500







Also on the Brief:







Richard Eisenberg

D.C. Bar No. 435053





CERTIFICATE OF LENGTH



I hereby certify, in accordance with Rule 28(d)(1) of the General Rules of this Court, that this brief contains no more than 12,500 words.





Sandra Roland







CERTIFICATE OF SERVICE



I hereby certify that two copies of the Appellant's Brief and one copy of the accompanying Appendix have been served by hand-delivery to John R. Fisher, Esquire, Appellate Division, United States Attorney's Office, 555 4th Street, N.W., Washington, D.C. 20001, on this 19th day of August, 1994.







Sandra Roland

1. The numbers preceded by "A." refer to the pages of the transcripts of the motions hearing held on November 5-6, 1992. The transcripts of the hearing are reproduced in full in the Appendix filed with this brief.

2. At the time of the district court's findings, the Supreme Court had granted certiorari in Minnesota v. Dickerson, but had not yet decided the case (A. 118).

3. This Court has held that the plain touch doctrine applies to a narrow range of situations where "police are authorized to perform a limited inspection, but not to conduct a full-scale search." United States v. Most, 876 F.2d 191, 195 (D.C. Cir. 1989). As the court in Most indicated, the doctrine does not allow officers to erode the essential elements of the Fourth Amendment by performing warrantless searches one level at a time until an incriminating item emerges. Id. at 195.