UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA :
:
v. : Case Number: 94-xxx-01 (CRR)
:
xxxxxxxxxxx :
MOTION TO SUPPRESS TANGIBLE EVIDENCE
AND INCORPORATED MEMORANDUM OF POINTS AND AUTHORITIES
xxxxxxx, through undersigned counsel, respectfully moves this Honorable Court to suppress as evidence against him at trial any and all tangible evidence seized by law enforcement agents in violation of the Fourth Amendment on May 24, 1994.
As grounds for this motion, Mr. xxxxxxxx, through counsel, states:
1. At the time Mr. xxxxxxxx was seized and searched, the arresting detectives had neither probable cause to believe that an offense had been committed and that Mr. xxxxxxxx had committed it, nor reasonable suspicion to conduct an investigatory stop.
2. There is no basis upon which this Court can find that Mr. xxxxxxxx validly consented to a search of the jacket from which the police recovered the contraband in this case.
3. Independent of any alleged consent to search the jacket, the police had no legal basis upon which to search and seize the jacket from which they ultimately recovered contraband.
STATEMENT OF FACTS
Mr. xxxxxxxx was arrested without a warrant on May 24, 1994, when he was seized by metropolitan police department officers Woodson, Jones, Lyles, and Centrella and an Amtrak officer, who thereafter seized him and a jacket, which they searched, finding cocaine inside. At the time this occurred, the police officers had boarded the Amtrak train on which Mr. xxxxxxxx was a passenger. They had engaged Mr. xxxxxxxx in the "familiar" colloquy of the Interdiction Unit of the Metropolitan Police Department. See United States v. Gibson, No. 93-3022, slip op. at 2 (D.C. Cir. April 1, 1994). Detective Woodson had identified himself as a police officer and showed Mr. xxxxxxxx his police identification badge. Mr. xxxxxxxx's ticket had been inspected by the police and he had been questioned about his destination. He was also questioned about his luggage. The police then contend that Mr. xxxxxxxx consented to their searching the cream-colored jacket from the luggage rack above his head.
At the time Mr. xxxxxxxx was seized and at the time the jacket was seized and searched, there was no probable cause to justify either seizure, nor was there articulable suspicion sufficient to justify any detention of Mr. xxxxxxxx.
ARGUMENT
The Fourth Amendment provides that "the right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated..." U.S. Const. Amend. IV. Because Mr. xxxxxxxx's seizure was effectuated without a warrant, the government bears the burden of proving that it was legal. Hayes v. Florida, 470 U.S. 811 (1985); United States v. Allen, 629 F.2d 51, 55 (D.C. Cir. 1980). Since Mr. xxxxxxxx's arrest was effectuated without a warrant, the government bears the burden of adducing sworn testimony sufficient to satisfy this Court that the facts and circumstances known to the arresting officers at the time they seized him justified that seizure. United States v. Jenkins, 530 F. Supp. 8, 10 (D.D.C. 1981), citing, Brinegar v. United States, 338 U.S. 160, 175 (1949). There is no information to suggest that Mr. xxxxxxxx was doing anything to justify the police's conduct. Probable cause requires a reasonable belief by the arresting officer that an offense had occurred and that the arrested person was the one who committed it. Clearly, "it is axiomatic that an incident search may not precede an arrest and serve as part of its justification." Sibron v. New York, 392 U.S. 40, 63 (1968).
In some cases where the police do not have probable cause for an arrest, they may temporarily detain citizens in investigatory stops. Terry v. Ohio, 392 U.S. 1 (1968). However, these investigatory stops must be justified by specific and articulable facts. United States v. Sokolow, U.S. , 109 S. Ct 1581 (1989). In Mr. xxxxxxxx's case his seizure was more than a stop because a reasonable person in his shoes would not have felt free to leave. United States v. Battista, 876 F.2d 201, 204-5 (D.C. Cir. 1989) ("'interview' with [accused] constituted a 'seizure'"); United States v. Berrios, 827 F.Supp. 829, 831 (D.D.C. 1993). Moreover, even if, arguendo, it was merely a stop, there was no articulable suspicion sufficient to justify stopping him at the time the police did so. In addition, any searches conducted during an investigative stop must be specifically limited to a protective search for weapons. Terry, 392 U.S. at 30. The Fourth Amendment does not permit a personal search for drugs of a suspect detained for questioning and investigation. United States v. Laing, 889 F.2d 281, 285 (D.C. Cir. 1989).
Mr. xxxxxxxx was clearly seized because the police had focused their attention upon him as a suspect. The Eleventh Circuit's en banc opinion in United States v. Robinson, 690 F.2d 869 (11th Cir. 1982), thoroughly discusses the realities of citizens confronted by police while travelling. See also United States v. Thompson, 712 F.2d 1356, 1359-1361 (11th Cir. 1983) (retention of suspect's driver's license constituted a seizure as it meant that the suspect was not free to leave).
Nothing in the Supreme Court's decision in Florida v. Bostick, U.S. , 111 S.Ct. 2382 (1991), changed the test regarding when someone is "seized" as occurring when "a reasonable person would [not] feel free 'to disregard the police and go about his business.'" 111 S. Ct. at 2386, citing California v. Hodari, U.S. , 111 S.Ct. 1547, 1551 (1991). All the Supreme Court held in Bostick was that questioning within the confines of a bus was not, solely by reason of the location of such questioning, a seizure and that it would be possible for a suspect to give valid consent to search under such circumstances.(1) The Supreme Court specifically "refrain[ed] from deciding whether a seizure occurred" on the facts of Bostick and, instead, remanded the case for the state court to decide whether a reasonable person in Bostick's position would have felt free to leave. 111 S.Ct. at 2388.
Mr. xxxxxxxx's Alleged Consent To A Search Of The Jacket
Was Invalid Because It Was The Fruit Of His Illegal Detention
and The Illegal Seizure Of The Bag
Since any alleged consent by Mr. xxxxxxxx to a search of the jacket that already had been seized illegally by the police was the fruit of its illegal seizure as well as of Mr. xxxxxxxx's illegal detention, such consent was, therefore, invalid. Wong Sun v. United States, 371 U.S. 471 (1963); United States v. Timberlake, 896 F.2d 592, 595 (D.C.Cir. 1990) (consent invalid when tainted by Fourth Amendment violation that was not attenuated); United States v. Thompson, 712 F.2d 1356 (11th Cir. 1983); United States v. Gooding, 695 F.2d 78, 84 (4th Cir. 1982) ("illegal seizure tainted all that ensued in the investigative encounter" including consent); United States v. Taheri, 648 F.2d 598, 601 (9th Cir. 1981) (consent resulting from unconstitutional conduct and not attenuated from that conduct was insufficient to justify seizure of contraband); United States v. Sanchez-Jaramillo, 637 F.2d 1094, 1099-1100 (7th Cir.), cert. denied 101 S.Ct. 166 (1980). Since the drugs seized from Mr. xxxxxxxx's jacket were the tainted fruit of an illegal search, they must be suppressed. Wong Sun v. United States, 371 U.S. 471 (1963).
The Warrantless Search Of The Jacket Was Illegal
Because Mr. xxxxxxxx Did Not Give His Consent To The Search
The issue of valid consent need only be addressed if this Court determines that Mr. xxxxxxxx was not seized by the police before they searched the jacket. United States v. Maragh, 894 F.2d 415, at 419-420 (D.C. Cir. 1990). Although a warrantless search, when conducted after voluntarily given consent, is valid, Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973), Mr. xxxxxxxx never validly consented to the search of the jacket. Without his valid consent, the search was a clear violation of his Fourth Amendment rights. If the government chooses to justify the search of Mr. xxxxxxxx's jacket by arguing that he had consented to its being searched, it bears the burden of proving both that the consent was given and that it was freely and voluntarily given. Bumper v. North Carolina, 391 U.S. 543, 548 (1968). To determine if consent was given freely and voluntarily the Court must undertake a fact-based analysis of the totality of the circumstances. United States v. Lloyd, 868 F.2d 447, 451 (D.C. Cir. 1989).
Acquiescence to authority has been recognized as an insufficient basis upon which to justify a search. Bumper v. North Carolina, 391 U.S. at 548-49. Cf. Buffkins v. City of Omaha, Douglas County Nebraska, 922 F.2d 465 (8th Cir. 1990); United States v. Berry, 670 F.2d at 596; United States v. Anile, 352 F. Supp. 14, 18 (N.D.W.Va. 1973).
In Higgins v. United States, 209 F.2d 819, 820 (D.C. Cir. 1954), the District of Columbia Circuit held that a suspect who allowed police to enter his room and "look around," resulting in the discovery of marijuana, had not consented. Rather, the court stated, the suspect merely had acquiesced. On this basis, the court held that an "occupant's words or signs of acquiescence in the search, accompanied by a denial of guilt, do not show consent; ... in the absence of some extraordinary circumstance..." 209 F.2d at 820. Likewise, in United States v. Judd, 190 F.2d 649 (D.C. Cir. 1951), the District of Columbia Circuit held that an arrestee's statement to the police that he "had nothing to conceal or hide" and his permission to the police to "go out to [his home]" after the police told him that they were looking for tools and a pair of shoes relevant to a burglary, did not constitute a consent to the search. The Court recognized that "[n]on-resistance to the orders or suggestions of the police is not infrequent ...; true consent, free of fear or pressure, is not so readily to be found." 190 F.2d at 651. See also United States v. Jones, 641 F.2d 425, 429 (6th Cir. 1981) ("the mere expression of approval to [a] search" is insufficient to constitute a valid consent).
Many factors go into the determination of valid consent. In Bustamonte, in justifying searches that absent consent would violate the Fourth Amendment, the Court acknowledged that, "consent searches will normally occur on a person's own familiar territory". 412 U.S. at 247. The very circumstances under which Mr. xxxxxxxx was approached suggest that his purported willingness to have the jacket searched was not borne of his valid consent, but rather of his mere acquiescence to authority. Florida v. Royer, 460 U.S. 491, 497 (1983) ("where the validity of a search rests on consent, the State has the burden of proving that the necessary consent was freely and voluntarily given, a burden that is not satisfied by showing a mere submission to a claim of lawful authority") (citations omitted). Cf. Cipres v. United States, 343 F.2d 95 (9th Cir. 1965), cert. denied, 385 U.S. 826, 87 S.Ct. 58 (1966) (verbal assent to search of luggage not sufficient to establish consent and permission to search bag "'obtained under color of the badge'" was "presumptively coerced") (citations omitted) cited in United States v. Kelly, 913 F.2d 261, 266-67 (6th Cir. 1990).
Even if the government could show that Mr. xxxxxxxx consented to the search, that consent must be shown to have been given freely and voluntarily. Bumper, 391 U.S. at 548. The government must show that there was no coercion, threat, or use of force or authority to persuade Mr. xxxxxxxx to consent to a search. Id. at 550. In determining the validity of any alleged consent it is relevant whether the accused was told he did not have to permit the officers to search the jacket, see Florida v. Bostick U.S. , 111 S.Ct. 2382, 2385 (1991) (among the factors significant in finding that suspect's encounter with the police was consensual was the fact that he was "specifically advised that he could refuse to consent"); United States v. Battista, 876 F.2d at 207 (police informing accused that he has right to refuse to consent to search is relevant to determination of voluntariness of consent); United States v. Recalde, 761 F.2d 1448, 1452 (10th Cir. 1985); United States v. Maragh, 756 F. Supp. 18, 21-22 (D.D.C. 1991); whether he was advised of his Miranda rights, see United States v. McCaleb, 552 F.2d 717, 721 (6th Cir. 1977); and whether there was a "custodial atmosphere." See United States v. Jones, 846 F.2d 358, 361 (6th Cir. 1988) (invalid consent where suspect not given Miranda warnings nor told of right to refuse consent and considered himself under arrest and obligated to comply with police officers' requests); United States v. Maragh, 756 F.Supp. at 21 (one officer holding suspect's arm and another holding his bag rendered it more likely than not that suspect considered himself to be under arrest).
In United States v. Alston, 785 F.Supp. 1 (D.D.C. 1992), Judge June Green held that consent by an individual who "believed that she had no option other than consenting to the interview and search, and was not informed of another option," id., was not voluntary, thereby vitiating the validity of the ensuing search and mandating suppression of the fruits of that search. The court recognized that the suspect's background and upbringing which caused her to believe that she had no choice but to acquiesce to a search, "when combined with the coercive nature of the circumstances surrounding the interview and search, lead to the conclusion that the defendant's consent was involuntary." Id. The same conclusion is compelled on the facts of Mr. xxxxxxxx's case.
Since the government cannot demonstrate that any alleged consent was valid, the evidence obtained as a result of it must be suppressed.
WHEREFORE, for all the foregoing reasons, and for any other reasons this Court may deem just and proper, and which may appear in supplemental pleadings, which Mr. xxxxxxxx explicitly reserves the right to file, William xxxxxxxx, through counsel, respectfully requests that this motion be granted and that any and all tangible evidence in this case be suppressed.
Respectfully submitted,
A.J. Kramer
FEDERAL PUBLIC DEFENDER
Santha Sonenberg
Assistant Federal Public Defender
On Behalf of xxxxxxxx
625 Indiana Avenue, N.W.
Washington, D.C. 20004
(202) 208-7500
CERTIFICATE OF SERVICE
This is to certify that a copy of the foregoing Motion To Suppress Tangible Evidence and the Incorporated Memorandum of Points and Authorities In Support Thereof has been served upon the Office of the United States Attorney, 555 Fourth Street, N.W., Washington, D.C. 20001 this 21st day of July, 1994 for Assistant United States Attorney Kevin Carwile by first-class postage pre-paid mail.
Santha Sonenberg
1. Significant to the Supreme Court's decision, in Bostick, the suspect in that case was advised that he could refuse to consent to a search, which did not occur in this case. See also United States v. Berrios, 827 F.Supp. at 831; United States v. Alston,785 F.Supp. 1 (D.D.C. 1992).