NO. 95-3181





   ALEJANDRO xxxxxxx,








Pursuant to Fed. R. App. P. 28(f) and Circuit Rule 28 (a)(5), pertinent statutes are set forth in the Addendum hereto.


The District Court had jurisdiction under 18 U.S.C. § 3231. Notices of appeal having been timely filed, this Court has jurisdiction pursuant to 28 U.S.C. § 1291.


1.Whether Mr. xxxxxxx was unlawfully seized under the Fourth Amendment when a detective stood in the doorway of Mr. xxxxxxx' private train compartment, scrutinized his ticket, and interrogated him, when he had merely purchased a one-way passage to New York with cash and given a disconnected call-back number, and where the drug-sniffing dog had failed to alert.

2.Whether defense counsel was ineffective in stipulating that probable cause to arrest arose from the officer's mere discovery in Mr. xxxxxxx' bag of four rectangular packages, wrapped in brown tape, which the officer thought were "consistent with" kilogram packages of cocaine.



Procedural Background

On April 11, 1995, members of the Metropolitan Police Department's ("MPD") Narcotics and Special Investigations Division Interdiction Unit arrested Alejandro xxxxxxx on an AMTRAK train, bound for New York City, that was stopped in Union Station. The Grand Jury indicted Mr. xxxxxxx on one count of unlawful possession with intent to distribute 500 grams or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(ii). On August 22, 1995, following the judge's denial of Mr. xxxxxxx' motion to suppress physical evidence, Mr. xxxxxxx conditionally pled guilty. The judge sentenced Mr. xxxxxxx to a prison term of 70 months, to be followed by a period of four years of supervised release.

The Suppression Hearing

The government presented its evidence at the suppression hearing principally through the testimony of two detectives involved in the arrest of Mr. xxxxxxx. The judge found that the officers' testimony was credible, while Mr. xxxxxxx' significantly conflicting testimony was not.



Detective Samuel Woodson

The government's first witness was Samuel Woodson, an MPD narcotics detective who conducted drug interdiction activities. Woodson received information from AMTRAK Police Department Investigator Tom Cook that someone named Roger Phillips would be travelling from New Orleans to New York City on a "suspicious travel itinerary" (Tr.I 14). Footnote According to Woodson, the specific suspicious facts were that the passenger paid cash for one-way travel and that the New York callback number given to the ticket agent was out of service. Based on this information, Woodson, MPD Detective Edward Hanson, and Investigator Cook boarded the train while it was stopped in Union Station for a changeover from a diesel to an electric powered engine. Cook took a narcotics detection dog to the door of Mr. xxxxxxx' private roomette, but it did not give a positive indication, or "alert," for the presence of narcotics (Tr.I 15-16).

After the dog's negative response, Detective Woodson knocked on the roomette's door. Detective Woodson testified that in response, Mr. xxxxxxx answered the knock, "Yes?" and Woodson replied by identifying himself as a police officer (Tr.I 17). Mr. xxxxxxx then opened the door and Woodson displayed his police credentials. Woodson was neither in uniform nor displaying his weapon during the encounter with Mr. xxxxxxx. Although Woodson stated on direct examination that the sun was shining outside, he acknowledged on cross-examination that the lighting in the train "was real dim . . . very dim" due to the train's use of auxiliary power during the engine changeover (Tr.I 58).

While standing in the doorway to the darkened roomette (Tr.I 56) Woodson, six feet, one inch tall (Tr.I 69), asked Mr. xxxxxxx a series of questions pertaining to his travel arrangements and identity (Tr.I 20-21). Woodson did not testify that he said anything that might have informed Mr. xxxxxxx that he had a right to terminate the encounter. Woodson testified that during this interaction, Detective Hanson was standing off to the side of the doorway, three feet down the hall and out of Mr. xxxxxxx' sight (Tr.I 24-25). Investigator Cook had left the train with the dog (Tr.I 46).

Woodson first asked to see Mr. xxxxxxx' ticket and identification, and he surrendered the ticket. On direct examination, Woodson testified that he returned the ticket to Mr. xxxxxxx immediately after examining it (Tr.I 21). On cross-examination, however, Woodson averred that he seized Mr. xxxxxxx' ticket permanently from "inside of his shirt, inside his trousers, in the compartment" (Tr.I 59-60). Although Woodson said that this seizure was executed after Mr. xxxxxxx was formally arrested, he testified unequivocally that the arrest took place outside the compartment in the corridor and that Mr. xxxxxxx was never brought back into the compartment (Tr.I 60). Thus, it is not clear from Woodson's testimony that Mr. xxxxxxx possessed his ticket when he allegedly consented to the search of his bag and left the compartment. In contrast, Mr. xxxxxxx testified that Woodson took his ticket at the outset and never returned it (Tr.II 118).

Woodson testified that when he asked Mr. xxxxxxx if he had any luggage, xxxxxxx responded affirmatively, retrieved his bag from the luggage rack, and placed it on the bed. At this point Woodson explained to Mr. xxxxxxx that he was participating in a drug interdiction mission, and that there was "a very serious problem of individuals traveling on trains with guns and drugs and contraband" (Tr.I 21).

Woodson next asked Mr. xxxxxxx whether he was carrying any guns or contraband in his luggage, to which Mr. xxxxxxx responded negatively (Tr.I 21). Woodson testified that he asked for permission to search the bag, and Mr. xxxxxxx answered that Woodson could search it (Tr.I 21). According to Woodson, just before entering the roomette to conduct the search, he made two further requests with which Mr. xxxxxxx complied. He asked Mr. xxxxxxx to raise the shade to alleviate the "very dim" lighting in the room, and he asked Mr. xxxxxxx to wait in the corridor during the luggage search (Tr.I 21-22). Upon searching the bag, Woodson discovered four rectangular packages wrapped in brown cellophane tape, which he said were "consistent with" the packaging of kilograms of cocaine (Tr.I 22), and he then told Detective Hanson to arrest Mr. xxxxxxx (Tr.I 28-29). Footnote

Detective Edward Hanson

Detective Hanson testified that he and the other officers based their April 11, 1995 drug interdiction activity on the fact that an individual was "traveling in a sleeper, traveling one way, had paid cash for his ticket," and that "when they attempted to call the number back that was left with the reservation, the number was disconnected" (Tr.II 9-10). Defense counsel asked Hanson on cross-examination about other factors that typically lead police to suspect an individual of transporting narcotics. Hanson stated that factors such as travelling from a "source city" and taking a short trip on a sleeper are additional factors (Tr.II 31-32). Hanson stated that New Orleans, Mr. xxxxxxx' point of origin, was "at one time" a source city for marijuana (Tr.II 31). Hanson also admitted that New Orleans to New York is not "a short trip on a sleeper" (Tr.II 32).

Hanson recounted the verbal exchange between Woodson and xxxxxxx, noting that Woodson was "right in the doorway" during the "interview" (Tr.II 36). Commenting on the lighting, Hanson noted that it "was considerably a lot more dim than when connected to the engine," that in the roomettes the lighting is "maybe a little darker" than in the corridor (Tr.II 35-36), and that Woodson's request that xxxxxxx raise the window shade was "because it was dark in the room and he wanted to be able to see in the room" (Tr.II 44). On direct examination, in reference to Woodson's request that xxxxxxx step outside of the roomette, Hanson stated that "he asked him if he could step out of the room while he conducted the search because it was very cramped quarters" (Tr.II 16).

The District Court's Findings

The judge's findings included the following:

It's pretty well settled that police can approach a citizen to ask questions briefly anywhere. Here, in my view, were articulable suspicions that warranted approaching the roomette and knocking on the door.

I am a little surprised--I don't attempt to do a lot of research in these areas--but there are hundreds of these interdiction cases coming out of the city where just this sort of thing has happened: a ticket purchased in cash, a callback number that doesn't work and whatnot; and the police go to them and get consent.

So I'm surprised there isn't a case that indicates the propriety of that; they certainly do implicitly because it is so common.


* * *


I credit the testimony of Detectives Woodson, Hanson and Pena. As I indicated, there is certainly no plot here . . . and I find the testimony of Mr. xxxxxxx to be inherently incredible. So I conclude that consent to the search was voluntarily given prior to any seizure of drugs or of the defendant; and there was no constitutional violation in the search and subsequent seizure of the narcotics and the arrest of the defendant.


(Tr.II 183-85).


Several circumstances at the time of Mr. xxxxxxx' encounter with the police would cause a reasonable person to believe he was not free to terminate the encounter and go about his business, thus transforming the encounter into a seizure under the Fourth Amendment. The police confronted Mr. xxxxxxx in a cramped, dimly lit, non-public place--his roomette. A police officer more than six feet tall stood blocking his doorway. The train was stopped in a city that was neither his point of origin nor his destination. After informing Mr. xxxxxxx of the mission of the Narcotics Interdiction Unit, the officer in the doorway asked Mr. xxxxxxx incriminating questions. Mr. xxxxxxx was not told that he could terminate the encounter, and it is unclear whether his ticket was returned to him after the police initially took and inspected it. It is clear that the trial court erred in finding that no seizure occurred prior to Mr. xxxxxxx' consent to search.

The specific facts articulated by the officers in this case are all fully consistent with innocent activity. Mr. xxxxxxx purchased a one-way sleeper car ticket with cash and left a disconnected phone number with the reservation agent. But these two factors are only part of a profile that is considered indicative of drug-courier activity--none of the other profile factors was present here. The narcotics detection dog failed to indicate the presence of drugs when brought to the door of Mr. xxxxxxx' compartment. Mr. xxxxxxx was not traveling from a "source" city, nor were the police aware that he was travelling under an alias. Mr. xxxxxxx was not observed acting nervously; in fact, he was not observed at all. He was a passenger behind a closed door. Taken as a whole, these facts do not rise to the level of reasonable suspicion to support an investigatory seizure.

Even if the officers here had enough suspicion to justify a Terry stop in a public place, their level of suspicion did not justify the intrusion on Mr. xxxxxxx' privacy in his roomette. Mr. xxxxxxx paid an additional fee to travel in a private sleeper compartment, to which he could lock the door. This created a heightened expectation of privacy that was admittedly lower than the expectation in one's home, but certainly higher than that of a passenger traveling in coach. The police unreasonably violated Mr. xxxxxxx' expectation of privacy.

Mr. xxxxxxx also argues that his defense counsel was ineffective, in violation of his Sixth Amendment right to effective assistance of counsel. The specific deficiency in Mr. xxxxxxx' attorney's performance was the attorney's stipulation that Officer Woodson's discovery of four rectangular packages wrapped in "brown cellophane tape" gave him probable cause to arrest Mr. xxxxxxx (Tr.I 27-28). If defense counsel had fulfilled his professional duty to stay abreast of case law that was relevant to Mr. xxxxxxx' case he would have been aware of the strong argument for a finding that probable cause did not exist upon discovery of these four packages. Defense counsel's performance was thus objectively unreasonable, and there was a reasonable probability that the evidence would have been suppressed, causing a different result in the case.












A. Standard of Review


Whether the police unreasonably seized Mr. xxxxxxx within the meaning of the Fourth Amendment is a legal question that is decided by this Court de novo. United States v. Patrick, 959 F.2d 991, 996 n.6 (D.C. Cir. 1992).

B. In All Of The Circumstances Surrounding Mr. xxxxxxx' Encounter With The Police, A Reasonable Person Would Not Have Felt Free To Terminate The

   Encounter And Go About His Business.


In Florida v. Bostick, 501 U.S. 429 (1991), the Supreme Court articulated the proper analysis for determining whether the police have seized an individual under the Fourth Amendment. The Court stated that it is "clear that a seizure does not occur simply because a police officer approaches an individual and asks a few questions." Id. at 434. The Court cited California v. Hodari D., 499 U.S. 621, 628 (1991), for the proposition that an encounter with the police is consensual and reasonable suspicion unnecessary "[s]o long as a reasonable person would feel free 'to disregard the police and go about his business.'" Bostick, 501 U.S. at 434. The appropriate inquiry is thus "whether a reasonable person would feel free to decline the officers' requests or otherwise terminate the encounter," id. at 436, or put another way, a person is seized when, "taking into account all the circumstances surrounding the encounter, the police conduct would 'have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.'" Id. at 437 (quoting Michigan v. Chesternut, 486 U.S. 567, 569 (1988)).

In the case at bar, an analysis of "all the circumstances surrounding the encounter" compels the conclusion that a reasonable person would not have felt free to ignore the police presence. As Detective Hanson testified, the roomette in which Mr. xxxxxxx was traveling was very cramped and poorly lit (Tr.II 35-36). The lighting was so poor that Woodson had to ask to raise the window shade so he could see (Tr.II 44).

The non-public nature of the roomette made the encounter even more coercive. In United States v. Ward, 961 F.2d 1526 (10th Cir. 1992), the Tenth Circuit stressed the significance of the isolated, non-public nature of a train roomette as opposed to the public coach passenger car. Id. at 1532. Although this Court apparently did not consider the importance of the non-public nature of a roomette in past cases involving similar circumstances, the Court has not issued a published analysis of a roomette encounter between the police and a citizen since the Supreme Court's Bostick decision, which mandates a "totality of the circumstances" approach, which necessarily includes consideration of the isolated nature of the roomette. See Ward, 961 F.2d at 1532 n.5 (discussing pre-Bostick decisions of this Court and criticizing its failure to discuss peculiar characteristics of roomette).

Other Supreme Court decisions highlight the significance of public versus non-public encounters with the police. In Florida v. Royer, 460 U.S. 491 (1983), the Court weighed heavily the fact that the police took Royer to "a small room--a large closet--equipped with a desk and two chairs," and went on to state that "[w]hat had begun as a consensual inquiry in a public place had escalated into an investigatory procedure in a police interrogation room." Id. at 502-3. Consistent with Royer's suggestion that a small, cramped room is coercive, the Court held in Berkemer v. McCarty, 468 U.S. 420 (1984), that in the situation of a traffic stop, "exposure to public both reduces the ability of an unscrupulous policeman to use illegitimate means to elicit self-incriminating statements and diminishes the motorist's fear that, if he does not cooperate, he will be subjected to abuse." Id. at 438. The importance that the Supreme Court has given the public or non-public nature of police encounters clearly requires the weighing of the non-public nature of a roomette among "all the circumstances of the encounter" in the case at bar. When this factor is viewed together with the other intimidating elements in Mr. xxxxxxx' encounter with the police, it is clear that a reasonable person would not have felt free to terminate this non-public encounter, and that Mr. xxxxxxx was seized within the meaning of the Fourth Amendment.

In Ward, the Tenth Circuit noted the intimidating effect of a non-public atmosphere when coupled with "focused, potentially incriminating questions." 961 F.2d at 1532. Precisely these types of questions were asked in the case at bar. When such questioning is combined with the constraining physical conditions of the encounter, a reasonable person would not feel free to terminate the encounter. See id. (in public setting reasonable person is "less likely to feel unable to decline the officers' requests and terminate the encounter").

The intimidating atmosphere was intensified by the fact that Officer Woodson stood in the doorway while questioning Mr. xxxxxxx. For Mr. xxxxxxx to "decline the officer's requests, or otherwise terminate the encounter," the positioning of Woodson would have required Mr. xxxxxxx to push his way past Woodson or to force the door of the roomette closed with him standing in the doorway.

It might be argued that United States v. Savage, 889 F.2d 1113, 1116-18 (D.C. Cir. 1989), precludes the argument that a blocked exit prevents an individual from feeling free to terminate an encounter with the police. Savage did hold that a blocked entrance to a roomette would not cause a person to feel unfree to leave. Id. Savage, however, relied on INS v. Delgado, 466 U.S. 210 (1984), which is clearly distinguishable on the ground that the subjects of the investigation in Delgado were confronted in a public place, a factory, and in the view of their co-workers. Id. at 217 n.5. The Tenth Circuit, in Ward, stated that "[i]t is obvious that the Savage court overlooked the fact that in Delgado the factory workers were in the presence of other workers . . . and apparently in some cases even were free to leave the factory without being questioned." 961 F.2d at 1533 n.5. These facts led the Supreme Court to "apply to factory encounters 'the same considerations attending contacts between the police and citizens in public places.'" Id. (citing Delgado at 217 n.5 (emphasis in original).

A "public" police encounter, such as that in Delgado, is not found either in Savage or the case at bar. Further, Savage predates the Supreme Court's Bostick decision, which mandates a "totality of the circumstances" approach to determine whether a seizure has occurred within the meaning of the Fourth Amendment. Bostick, 501 U.S. at 437. Thus, the effective blocking of the roomette door here must be afforded due weight in determining whether Mr. xxxxxxx should have felt free to send the police away. Savage and Delgado do not defeat Mr. xxxxxxx' argument that the police seized him prior to obtaining his consent to search his luggage.

One factual issue that the judge never resolved was whether Officer Woodson returned Mr. xxxxxxx' ticket to him following Woodson's initial examination of it. Mr. xxxxxxx testified that Woodson took his ticket from the outset and never returned it (Tr.II 118). Failure to return the ticket clearly would have prevented Mr. xxxxxxx from terminating the encounter and would therefore have been dispositive on the issue of seizure. Florida v. Royer, 460 U.S. at 501-02 (retention of interviewee's travel papers during questioning and failure to indicate freedom to depart caused detainee to be "effectively seized" for Fourth Amendment purposes). On direct examination Woodson testified that he returned the ticket to xxxxxxx immediately after examining it (Tr.I 21). On cross-examination, however, Woodson stated that he seized Mr. xxxxxxx' ticket permanently from "inside of his shirt, inside his trousers, in the compartment" (Tr.I 59-60) after Mr. xxxxxxx was formally arrested. Woodson testified unequivocally, however, that the arrest took place outside the compartment in the corridor and that Mr. xxxxxxx was never brought back into the compartment (Tr.I 60). Thus, Woodson's testimony was quite unclear as to whether he or Mr. xxxxxxx possessed the ticket at the time when he agreed to Woodson's search of his bag.

Woodson's initial testimony on the whereabouts of the ticket may have been due to his admitted awareness that certain facts, in light of case law, would result in "losing the case" (Tr.I 50). If he retained the ticket throughout the encounter, in light of the intimidating atmosphere, there was indisputably a seizure. United States v. Battista, 876 F.2d 201 (D.C. Cir. 1989) ("if the identification is not returned to the detainee we find it difficult to imagine that any reasonable person would feel free to leave without it"); see also Florida v. Royer, 460 U.S. at 501-2 (retention of interviewee's travel papers during questioning and failing to indicate freedom to depart caused detainee to be "effectively seized" for Fourth Amendment purposes).

This Court, in United States v. Savage, 889 F.2d 1113 (D.C. Cir. 1989), stated that the retention of Savage's ticket during questioning would not have meant he was seized. Id. at 1117 n.5. The Savage Court's reasoning, however, was based on the weight of the factors present there as compared to those in Battista. Id. In Battista, the "minimal show" of police authority and the "peculiar time [the police woke Battista from early morning sleep] and setting," combined with the retention of the identification, led to the finding of a seizure. Id. In Savage, the Court found that the environment was simply not the equivalent of that in Battista, in part because the police approached Savage in the afternoon. Id. In the case at bar, the intimidating factors clearly equalled or surpassed those that existed in Battista. Mr. xxxxxxx stated, and it was not disproved, that he was asleep when the police knocked on his roomette door (Tr.II 101); his situation was thus similar to Battista in this respect, and distinguishable from Savage. If the police failed to return Mr. xxxxxxx' ticket during an encounter in these intimidating circumstances, it clearly effected a seizure. Because the district court failed to make a finding on this critical point, if this Court does not conclude otherwise that an unlawful seizure occurred under the totality of the circumstances, a remand for further findings is necessary.

C.The Factors Relied On By The Police Were Fully Consistent With Innocent Activity and Failed To Provide The Requisite Reasonable Suspicion To

   Seize Mr. xxxxxxx.

The police, having seized Mr. xxxxxxx under the Fourth Amendment prior to obtaining his consent to search his luggage, lacked the requisite suspicion to do so. In order to make a legal investigative stop under Terry v. Ohio, 392 U.S. 1 (1968), the officer making the stop must be able to justify this action through specific, articulable facts that support a finding of reasonable suspicion. Id. at 22. The specific facts articulated by the officers in this case, paying cash for a one way sleeper-car ticket and leaving a disconnected phone number with the ticket agent, are not at all inconsistent with innocent activity. While these two elements of Mr. xxxxxxx' travel fit within a profile of drug-courier activity, they were also indicative of the travel arrangements of the vast number of individuals who cannot make purchases on credit or with checks due to their inability to obtain credit. When courts have discussed facts such as these in finding reasonable suspicion of drug courier activity, they have always been part of a larger complex of suspicious facts--none of which was present here. Such facts include unusual nervousness, travelling from a drug source city, associating with a well-known drug trafficker, unusual travel itinerary, and travelling under a false name. See United States v. Tartaglia, 864 F.2d 837, 839 (D.C. Cir. 1989) (listing suspicious facts).

In United States v. Battista, 876 F.2d at 201, the defendant was travelling from a "source city," paid cash, was in a sleeper compartment, and gave an out-of-service phone number to AMTRAK. Given these factors, the Court concluded that "[o]nce the dog alerted at Battista's door, the officer had reasonable suspicion to make an investigative detention." Id. at 206 (emphasis added). In contrast, the narcotics detection dog failed to indicate the presence of drugs when brought to the door of Mr. xxxxxxx' compartment (Tr.I 15-16). Mr. xxxxxxx was not traveling from a "source" city, and in fact, Hanson admitted that New Orleans was at one time, but was impliedly no longer, a source for marijuana (Tr.II 31). In light of Battista, it is clear that the police lacked a reasonable suspicion to seize Mr. xxxxxxx. The Battista court held that the facts known to the police, which were greater in number and more suspicious than the facts known in the case at bar, led to reasonable suspicion only after the dog alerted. The policemen, standing outside Mr. xxxxxxx' roomette, armed with weaker facts than in Battista and a drug-sniffing dog, clearly lacked reasonable suspicion when the dog failed to alert.

D. The Officers' Level Of Suspicion Did Not Justify

 The Degree Of Their Intrusion On Mr. xxxxxxx'


Courts have recognized an expectation of privacy in temporary dwelling places that are similar to train roomettes. In United States v. Gooch, 6 F.3d 673, 678 (9th Cir. 1993), the court recognized that a tent on a campground is non-public and entitled to the same protection as a hotel room. In United States v. Alfonso, 759 F.2d 728, 738 (9th Cir. 1985), the court analogized the private living quarters of a ship to a private dwelling. The Supreme Court itself has noted that "society expects at least as much privacy in these places as in a telephone booth--'a temporarily private place whose momentary occupants' expectations of freedom from intrusion are recognized as reasonable.'" Minnesota v. Olson, 495 U.S. 91, 99 (1990) (quoting Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J. concurring)). Certainly, if one creates an expectation of privacy by closing the glass door of a phone booth, one creates an even greater expectation of privacy by closing and locking the opaque door of a roomette. The expectation of privacy in the roomette, while lesser than the expectation of privacy in one's home, Tartaglia, 864 F.2d at 841, was greater than the expectation of a passenger travelling in coach. See Ward, 961 F.2d at 1531-32 (roomette passenger has "higher expectation of privacy than an individual traveling in a public passenger car of the train").

It might be argued that the accessibility of roomettes to train conductors negates the privacy expectation of roomette passengers. Such reasoning, however, would conflict with Supreme Court precedent. In Stoner v. California, 376 U.S. 483, 489-90 (1964), the Court held that the right of access to hotel rooms by management and housekeeping does not negate the privacy interest of the occupant. Similarly, in Chapman v. United States, 365 U.S. 610, 616 (1961), a landlord's authority to enter the house and inspect the tenant's waste did not diminish the tenant's privacy expectation when the police executed a search unrelated to waste. Thus, access to the roomette by conductors checking for tickets does not negate the passenger's expectation of privacy vis-a-vis the police. Moreover, a roomette occupant could be said to have a greater expectation of privacy than the defendants in Stoner and Chapman because a housekeeper in a hotel, or a landlord checking for waste, would not need permission to enter the premises, whereas a conductor on a train obviously has no right to barge into a roomette to check a passenger's ticket.

The heightened expectation of privacy in a sleeping compartment increases the intrusiveness of any police investigation, thus requiring a stronger showing of reasonable suspicion from the outset. United States v. Chaidez, 919 F.2d 1193, 1197 (7th Cir. 1990), cert. denied, 502 U.S. 872 (1991). In Terry, the Court's statement that, in order to justify "the particular intrusion the police officer must be able to point to specific and articulable facts which, when taken together with rational inferences from those facts, reasonably warrant that intrusion," Terry, 392 U.S. at 21, suggests that "the exact amount of 'reasonable suspicion' required in a particular case depends on the precise extent to which the intrusion falls short of a full-fledged arrest." 4 Wayne R. LaFave, Search and Seizure §9.4(c) (3d ed. 1996).

The circumstances of an encounter like the one Mr. xxxxxxx had with the police place it somewhere between a Terry stop and a traditional arrest. The Chaidez court correctly noted that attempting to fit every police encounter into the two categories "stop" and "arrest" "is not only impossible but also unnecessary when the text of the Constitution calls for inquiry into 'reasonableness.'" Chaidez, 919 F.2d at 1197 (citations omitted). The court went on to quell any fears of its refinement of Fourth Amendment analysis: "Considering the extent of intrusion makes the calculus by the police marginally more complicated . . . [and the terms] 'probable cause' and 'reasonable suspicion' are themselves standards rather than rules, so the existence of a middle ground does not blur a rule that is now sharp." Id. at 1198.

This Court should recognize that there is a broad spectrum of police intrusion into privacy that necessitates the application of a correspondingly graded suspicion requirement. As the level of the privacy invasion increases, police should be required to justify the greater invasion with greater suspicions. In Mr. xxxxxxx' situation, he was travelling in a compartment for which he paid extra money to obtain privacy. He had a door that he could close and lock, thereby excluding the public. Mr. xxxxxxx thus had an expectation of privacy that, while lesser than the expectation of privacy in one's home, Tartaglia, 864 F.2d at 841, was greater than the expectation of a passenger travelling in coach. See Ward, 961 F.2d at 1531-32 (roomette passenger has "higher expectation of privacy than an individual traveling in a public passenger car of the train").

The expectation of privacy in Mr. xxxxxxx' roomette made the intrusion by the police far greater than an ordinary investigatory stop in public. This factual situation falls somewhere on the spectrum between a Terry stop and arrest. For the Fourth Amendment to truly protect against unreasonable police conduct, this Court must require a greater level of suspicion in such circumstances than for a standard Terry stop. This level of suspicion was clearly not reached by the police in the case at bar.

The unconstitutional seizure tainted the consent of Mr. xxxxxxx to the search and the evidence should be suppressed as the fruit of the illegal seizure. Wong Sun v. United States, 371 U.S. 471, 484-85 (1963). If the evidence is not ordered suppressed, the case should be remanded and the suppression hearing ordered reopened for testimony, argument, and findings to resolve the ambiguity as to the location of the train ticket during the encounter, and for further findings as to of the reasonableness of the officers' suspicion.








A. Standard of Review

An appellate court must find a violation of the Sixth Amendment right to the effective assistance of counsel if it is shown (1) that defense counsel's performance was objectively unreasonable under prevailing professional norms, and (2) that there is a "reasonable probability that, but for counsel's unprofessional errors, the result . . . would have been different." Strickland v. Washington, 466 U.S. 668, 687-694 (1984). On the scale of evidentiary burdens, a reasonable probability is less than a preponderance of the evidence--a possibility "sufficient to undermine confidence in the outcome." Id. at 693-694. As this Court has recently reiterated, a claim of ineffective assistance of counsel may be raised on direct appeal, without a prior hearing in the District Court, when that court's record demonstrates defense counsel's inexcusable lapse. United States v. Fennell, 53 F.3d 1296, 1303-1304 (D.C. Cir. 1995), citing United States v. Pinkney, 543 F.2d 908, 915 (D.C. Cir. 1976). Footnote Under these circumstances, the de novo standard of appellate review should be applied. See Scarpa v. DuBois, 38 F.3d 1, 9 (1st Cir. 1994), cert. denied 115 S.Ct. 940 (1995).

B.Reasonably Competent Counsel Would Have

   Relied Upon Recent Case Law Supporting a

  Challenge to the Government's Claim of Probable Cause.

A criminal defense attorney has an obvious and crucial duty to stay abreast of the case law that may affect his or her clients' rights. See, e.g., Scarpa v. DuBois, 38 F.3d at 10 (defense theory irrelevant under current law); United States v. Hinton, 631 F.2d 769, 780 (D.C. Cir. 1980) (counsel's choices must be "the product of deliberate and informed decision, not oversight and inadvertence" [footnoted citation omitted]); ABA Standards for Criminal Justice (1980), Standard 4-5.1(a) (recognizing attorney's duty to advise client "after informing himself or herself fully on the facts and the law"); ABA Model Rules of Professional Conduct (1995) Rule 1.1 ("Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.") and Comment ("To maintain the requisite knowledge and skill, a lawyer should engage in continuing study and education."). The right to effective assistance of counsel "may in a particular case be violated by even an isolated error of counsel if that error is sufficiently egregious." Murray v. Carrier, 477 U.S. 478, 496 (1986), citing United States v. Cronic, 466 U.S. 648, 657 n.20 (1984). The failure to make a meritorious Fourth Amendment claim here, where the Government's proof of drug possession required admission of the physical evidence seized, would necessarily satisfy both the deficient performance prong and the prejudice prong of Strickland. See Kimmelman v. Morrison, 477 U.S. 365, 375 (1986).

The historical events at issue here took place on April 11, 1995. At the August, 1995 hearing on Mr. xxxxxxx' motion to suppress, when the prosecutor began what he called "the process of trying to establish a probable cause basis [sic] on [Detective Woodson's] experience and ability to identify what those things were with a field test not done until they arrived at the station," defense counsel interrupted the testimony and agreed to stipulate that the four rectangular packages wrapped in "brown cellophane tape" were contraband and that the witness' recovery of the packages gave him probable cause to arrest Mr. xxxxxxx (Tr.I 27-28). This concession was surprising because the officer had only testified that the packaging was "consistent with" that of kilogram packages of cocaine (Tr.I 22). He had not specified the dimensions and other characteristics of the packages in question or explained how they might have compared with other packages he had encountered in his experience of one and one-half to two years (Tr.I 12) in the Metropolitan Police Department's Interdiction Unit.

Undoubtedly, the prosecutor knew that probable cause was not self-evident here because this Court had recently issued two important decisions concerning police perceptions about packages during interdiction stops: United States v. Prandy-Binett, 995 F.2d 1069 (D.C. Cir. 1993), rehearing and suggestion for rehearing en banc denied, 5 F.3d 558, 560 (D.C. Cir. 1993), cert. denied, 114 S.Ct. 1196 (1994); and United States v. Gibson, 19 F.3d 1449 (D.C. Cir. 1994).

In Prandy-Binett, the Court found that probable cause was just barely established where the defendant exited a train from New York, a drug "source city," produced a one-way ticket purchased with cash as well as identification which did not corroborate his claimed D.C. residence, appeared to have insufficient clothes in his bag for his claimed one-week absence from home, and said his Elizabeth Taylor Perfume shopping bag contained a gift when, in fact the object proved to be a rectangular block, wrapped in silver duct tape, which Detective John Centrella of the Interdiction Unit testified was the distinctive size, shape, and packaging of a kilogram of cocaine. 995 F.2d at 1070-1073. Centrella said that he had seen "several hundred" similar packages wrapped in silver duct tape, and they all had contained drugs, and, in fact, that about 95 percent of the kilograms of cocaine he personally had seized had been "so packaged." Id. at 1072. Thus, in the extensive experience of one of Detective Woodson's Interdiction Unit colleagues, only five percent of all kilograms of cocaine were packaged in something other than silver duct tape. Obviously, therefore, Woodson might have had only a hunch--a suspicion not rising to the level of probable cause to believe--that Mr. xxxxxxx' differently-wrapped packages contained cocaine.

In Gibson, the Court recognized the inadequacy of a hunch by AMTRAK Investigator Thomas Cook (who prompted the investigation and handled the non-alerting dog in the instant case). Mr. Gibson was en route from New York City to South Carolina, had paid for his ticket with cash only five minutes before departure, had given a New York "business" telephone number which Cook had called unsuccessfully, and had in his bag no clothes that seemed appropriate for the funeral he claimed he had attended in New York. 19 F.3d at 1449-50. When Cook patted Mr. Gibson down, he felt in his pants pocket a hard, flat, angular object that Cook thought there was a "good possibility" "might be some sort of contraband," and about which Mr. Gibson gave an ambiguous explanation (Transcript of October 7, 1992 at 15). The Court held that, as in Prandy-Binett, 995 F.2d at 1071, the information gathered by the officer before the search amounted to less than probable cause, and in contrast to the facts in that earlier case, the officer "related nothing from his experience to correlate objects of this sort with criminal activity." 19 F.3d at 1451. The Court concluded, "The Fourth Amendment stands in the way of the police arresting people simply because they appear suspicious and may be hiding something." Id. at 1452.

In the instant case, the pre-search grounds for suspicion were weaker than those in either Prandy-Binett or Gibson. As discussed in Point I, above, Mr. xxxxxxx was traveling to, not from, a "source city" (which also happens to be the nation's largest city and therefore presumably the most common destination of innocent travelers), the drug-sniffing dog had not alerted outside his roomette, and Mr. xxxxxxx' answers to Woodson's questions were unremarkable. Accordingly, defense counsel should have seen, as the prosecutor evidently did, that in light of Prandy-Binett and Gibson, probable cause could well be difficult for the Government to establish. Counsel should not have interrupted Woodson's testimony and stipulated but, rather, should have held the Government to its burden of establishing probable cause to believe that the packages in Mr. xxxxxxx' bag contained illegal drugs.

A "reasonable probability" obviously exists that absent defense counsel's lapse, the result of the instant suppression hearing would have been different. Beyond Gibson and Prandy-Binett, defense counsel could have cited, among other cases, United States v. Doe, 61 F.3d 107, 108, 112 n.8 (1st Cir. 1995), published more than two weeks before the conclusion of the suppression hearing, where the court held that there was neither probable cause nor an exigency justifying the warrantless seizure and search of six "blocks" found in an airport security search of a carry-on bag, which were wrapped in "opaque beige and brown tape," were "immediately suspected" of being cocaine, and turned out to be six kilograms of that substance. Footnote Given these circumstances, counsel could not reasonably have thought his stipulation was in Mr. xxxxxxx' strategic interest. Accordingly, if the evidence is not to be ordered suppressed for the reasons argued in Point I, the case should be remanded and the suppression hearing ordered reopened for testimony, argument, and findings as to whether the government established probable cause justifying the warrantless seizure and search of the four packages and Mr. xxxxxxx' arrest.



For the reasons stated in Point I, the judgment should be vacated and the evidence ordered suppressed; in the alternative, for the reasons stated in Points I and II, the case should be remanded for a further suppression hearing.







Respectfully submitted,





Assistant Federal Public Defender

Counsel for Appellant

625 Indiana Avenue, N.W.

Suite 550

Washington, D.C. 20004

(202) 208-7500


I HEREBY CERTIFY that pursuant to Circuit Rule 28(d), the foregoing brief contains fewer than 12,500 words.


Allen E. Burns


I HEREBY CERTIFY that on July 30, 1996, two copies of the foregoing individual brief for appellant xxxxxxx and one copy of the Appendix were served by hand, upon the United States Attorney's Office, John R. Fisher, Chief, Appellate Division, 555 Fourth Street, N.W., Room 10-435, Washington, D.C. 20001.


   Allen E. Burns