IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA
MITCHELL xxxxxxx, SR.,)
v.) APPEAL NO.
CASE NO. 92-158
UNITED STATES OF AMERICA, THE HONORABLE THOMAS F. HOGAN
APPELLEE) PRESIDING JUDGE
SUPPRESSION MOTION APPEAL
F.R.C.P. RULE 12(E).
APPELLANT'S SUPPLEMENTAL BRIEF.
Comes now the appellant, Mitchell xxxxxxx, Sr., and respectfully submits the foregoing supplemental brief.
The jurisdiction of this court is invoked pursuant to 28 U.S.C. Section 1291; and appeals court Rule 11. Appellant's notice of appeal was filed on .
PARTIES AND STATEMENT OF INTEREST
The parties to this appeal are: (1) Mitchell xxxxxxx, Sr., and the United States of America, and not disqualification interest can be presently ascertained.
TABLE OF CONTENTS
PARTIES AND STATEMENT OF INTEREST i
TABLE OF AUTHORITIESiii
STATEMENT OF FACTS 1
HISTORY OF THE CASE 3
ARGUMENTS/STANDARD OF REVIEW 6
APPELLANT'S PRAYER FOR RELIEF 8
CERTIFICATE OF SERVICE 9
TABLE OF AUTHORITIES
Alabama v. White, 110 S.Ct. 2412 (1990)7
California v. Hodari, 111 S.Ct. 1547 (1991)6
Florida v. Riley, 448 U.S. 445
S.Ct. 693, 102 L.Ed2d 835 (1990)5
Henry v. United States, 361 U.S. 98
S.Ct. 168, 4 L.Ed2d 134 (1959)6
M.S. v. Samuels, 938 F.2d 210 (D.C. Cir. 1991)5
New York v. Harris, 110 S.Ct. 164 (1990)7
Rios v. United States, 4 L.Ed2d 1688 (1960)6
Schneckloth v. Bustamonte, 412 U.S. 218
S.Ct. 2041, 2057, 35 L.Ed2.d 854 (1973)4
Taylor v. Alabama, 73 L.Ed2d 314 (1982)7
Terry v. Ohio, 20 L.Ed2d 889 (1968)6
U.S. v. Tavolarri, 985 F.2d 1423 (D.C. Cir. 1990)6
United States v. Baskin, 886 F.2d 383 (D.C Cir. 1989)5, 7
United States v. Crews, 445 U.S. 463 (1980)5
United States v. Mendenhall, 446 U.S. 544
S.Ct. 1870, 64 L.Ed2d 497 (1980)6-8
United States v. Savage, 889 F.2d 1113 (D.C. Cir. 1989)6
United States v. Timberlake, 896 F.2d 592 (D.C. Cir. 1990)8
United States v. Williams, 951 F.2d 1287 (D.C. Cir.1991)4
STATUES AND RULES
18 U.S.C. section 3553( )(a)(2)(D)3
21 U.S.C. section 841(b)(1)(b)3
28 U.S.C. Section 1291i
F.R.C.P. Rule 12(E)3
Federal Rules of Criminal Procedure 32(c)(2)(B)(iii)3
STATEMENT OF FACTS
1. On March 25, 1992, Appellant was arrested at the Union Station in Washington, D.C. while seated on board an AMTRAK train; at approximately 12:00 noon, by detectives John Centrella and Detective Huffman; along with officer Pena from the Washington Metropolitan Police Department.
2. According to the suppression hearing transcript dated June 16, 1992, Detective John Centrella testified on page seven (7) line three (3) that he was going to conduct an interview with the appellant; claiming inter alia, that no luggage appeared in the overhead rack above appellant's head. T.T. at page 7, Line 13. Further, detective Centrella testified that he produced his police identification and asked permission to speak with appellant and that appellant voluntarily relinquished his right not to speak with the officer. T.T. at page 8, Line 15.
3. Detective Centrella then inquired as to whether he could view appellant's train ticket. T.T. page 8, Line 17, and that appellant relinquished the ticket for inspection, id at line 17 and 18 respectively. Upon inspection, the ticket was returned to the appellant, T.T. at page 10, Line 21. Detective Centrella indicated in his testimony that appellant demonstrated on a volunteer basis that appellant was wearing two outfits, page 11, T.T. Line 3, and after this demonstration, Detective Centrella observed a bulge in appellant's mid-section area, that caused a break in his (appellant's) normal body contour Line, id at Line 9 and 10; this observation created some speculation by detective Centrella that appellant may have possessed a firearm, id at Line 15. Detective Centrella then explained to appellant that "I'm part of a drug interdiction team here in Washington." "That trains are commonly used to transport drugs down the East Coast", and that appellant claimed to possess understanding of the matter, id at Lines 19, 20,21, and 22 respectively.
4. Detective Centrella then inquired as to whether appellant was carrying any drugs or guns on his person; and that appellant said "no" page 12, T.T. at Line 2 and page 11 at Line 24. Detective Centrella then asked if he could search appellant's person for drugs or guns. id, at Line 4, and that appellant said, "yeah, I don't have anything," gestured with his hands out to the side, and repeated his assertion that, "yeah, I don't have anything." Officer/detective Centrella then stated, "I immediately went to that frontal area where earlier I'd noticed the bulge in the clothing, and felt it with my hand." id at Line 13; upon discovering this bulge, detective Centrella inquired "what's this?" page 13, at Line 3, and appellant replied "it's my bag." Where upon, detective Centrella placed appellant under arrest , id at Line 6. Detective Centrella then identified exhibits number 2 and exhibits number 3 which depicted a photograph of the brown bag, leather, type bag, along with the plastic bag containing the white rock that was taken from Mr. xxxxxxx' person, T.T. at page 14, Lines 16, 17, 18 and 19 respectively. Detective Centrella indicated that the substance which he seized tested positive for cocaine, page 15 at Line 23.
5. Detective Centrella was asked by assistant United States Attorney, Mr. Acker, "was the defendant searched following his arrest?" and detective Centrella responded "yes, he was", page 16, Line 14, and that $431.00 was recovered, id at Line 16; claiming that the defendant was orally advised of his rights following his arrest, id at Line 19; and that it occurred on the scene, id at Line 21; and that appellant was asked to fill out a rights card or a police department form 47 after his arrest, id at Line 24,a nd that this right was executed at the police station, page 17, at Line 1. Further, detective Centrella indicated that appellant did not wish to speak with him or other officers without a lawyer being present, id at Lines 2 and 4.
6. Detective Centrella then advised appellant that his $431.00 would be seized, id at Lines 17, 18, 19, 20, and that appellant revoked his rights to remain silent and inquired, "how much time do I have to do for this?"
History Of The Case
1. Appellant was arraigned , and bond was set at . the Magistrate found probable cause in , subsequent to trial. Scheduled in August 1992, appellant entered a conditional plea of guilty with the legal caveat that the trial court's ruling denying suppression of the evidence could be appealed to this court pursuant to F.R.C.P. Rule 12(E). Appellant was sentenced to a period of months to the custody of the attorney general under 18 U.S.C. section 3553( )(a)(2)(D); 21 U.S.C. section 841(b)(1)(b), after a pre-sentence report pursuant to Federal Rules of Criminal Procedure 32(c)(2)(B)(iii) this appeal followed.
Arguments/Standards of Review
1. As a threshold matter, petitioner/appellant would phase his first argument as such:
"Did the trial court err in ruling that appellant voluntarily consented tot he search of his person."
In examining this question, this court should review the record of the suppression hearing "de nova", see e.g. United States v. Williams, 951 F.2d 1287 (D.C. Cir.1991). In fact, the Williams supra case speaks to the issue appellant raises here, except that appellant "struggled" to retrieve the leather bag in this case-see e.g. T.T. at pages 23 and 24, 1 and 2, and T.T. at page 31 at Lines 4 and 5 respectively. The relevant issue germane to this argument is the point made by appellant's trial attorney, Ms. Penny Marshall "did you at any point prior to the arrest tell Mr. xxxxxxx that he had the right not to consent?" detective Centrella; answered "no, I did not." T.T. page 31, at Line 6.
2. The burden is the government's to prove that a waiver of Fourth Amendment rights occurred in the context of an informal, unstructured setting. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 2057, 35 L.Ed2.d 854 (1973). The government must "demonstrate that the consent was in fact voluntarily given, and not the result of duress or coercion, express or implied, the appellant's right to refuse consent is a factor to be taken into account. However, the prosecution is not required to demonstrate such knowledge as a prerequisite establishing a voluntary consent.
3. The 'Struggle" noted herein evidence the lack of consent, moreover, detective Centrella is "duty bound" to attempt to get a consent. See e.g., T.T. at page 31, Lines 20, 21, 22, and 23. However, it appears that no efforts was made here to preserve the appellant's consent-see e.g., T.T. at page 32 from 1 to 23 respectively. Detective Centrella's statement that appellant made a consent to allow a search of self-incriminating evidence is not supported by the contradictory facts in this case. The testimony of Ms. Vicki Black indicates that detective Centrella was looking with a flashlight into the baggage overhead compartments on the AMTRAK train-see e.g., T.T. page 55, Lines 15, 16 and respectively, suggest a "fishing expedition" for evidence of illegalities. Further, detective Centrella testified that he didn't know if the appellant was a courier. T.T. page 41, Line 7, and that detective Centrella was really unable to tell whether the item he touched on appellant was "procaine" or cocaine, T.T. page 41, Line 3. this "fishing expedition" that the search of the appellant was unlawful. See e.g. United States v. Crews, 445 U.S. 463 (1980), and that officer/detective Centrella was pre-disposed to looking for evidence in an illegal manner. United States v. Baskin, 886 F.2d 383 (D.C. Cir. 1989); M.S. v. Samuels, 938 F.2d 210 (D.C. Cir. 1991); and that appellant's no luggage triggered a suspicion despite the no courier profile assessment by detective Centrella. It appears that when detective Centrella couldn't shine his flashlight on the appellant's personal property, he seized those items without consent crippling appellant's legitimate expectations of privacy in his possessions. See e.g. Florida v. Riley, 448 U.S. 445, 109 S.Ct. 693, 102 L.Ed2d 835 (1990), and no real probable cause existed for their seizure. U.S. v. Tavolarri, 985 F.2d 1423(D.C. Cir. 1990). See e.g. page 7, T.T. "I told the officers that I was going to conduct an interview with that (appellant) passenger." This case is similar to United States v. Savage, 889 F.2d 1113 (D.C. Cir. 1989); except that appellant was not free to leave until that "interview" "how of authority" and seizure caused him to leave with the police officers-see e.g. United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed2d 497 (1980), and Terry v. Ohio, 20 L.Ed2d 889 (1968). The seizure of appellant's person occurred here when detective Centrella seized his person-see e.g. Henry v. United States, 361 U.S. 98, 100, 80 S.Ct. 168, 4 L.Ed2d 134 (1959), looking for evidence not in plain view-Rios v. United States, 4 L.Ed2d 1688 (1960). See e.g. California v. Hodari, 111 S.Ct. 1547 (1991).
Arguments/Standard of Review
2. "Did the trial court use an incorrect legal standard in giving weight to appellant's no luggage, no toothpaste or toothbrush or lack of traveling kit"
The trial court in this case indicated that the officers suspicions, pursuant to Terry supra, may have been triggered by these missing items; and suggested that these items created an inference of a courier profile. Despite appellants objections to
the search, see e.g., T.T. page 63, Lines 8 and 9, officer Centrella grabbed appellant's warm-up suit without permission looking for some indicia of criminal conduct. The courts evaluation and judgement on the issue of luggage is not harmless error-see e.g. F.R.C.P. Rule 52; no rational basis existed for this faulty analysis. Appellant's scarce resources n his trip does not justify the intrusive conduct here. See e.g. Mendenhall supra. The search here was illegal, and appellant's seizure was tainted by that illegal search, see e.g. Taylor v. Alabama, 73 L.Ed2d 314 (1982), appellant is free to travell with or without luggage or personal hygienic effects-see e.g. United States v. Baskins, 886 F.2d 383 (D.C. Cir. 1989). The officers interference with appellants travel on these grounds were clearly illegitimate-see Alabama v. White, 110 S.Ct. 2412 (1990) the court stated:
"no particularized and objective basis for suspecting criminal conduct is apparent in this case"
Appellant equally contends that no particularized and objective basis for suspecting criminal conduct exist in this case at bar; and that the evidence seized was the product of an illegal search of appellants person see e.g. New York v. Harris, 110 S.Ct. 164 (1990).
"The exclusionary rule is appropriately applied to anything incriminating come at by exploitation of the violation of the defendant'(s) Fourth Amendment rights."
The evidentiary value of the illegal/search in this case contributed and counsel appellant subsequent detention, and illegal arrest which severely exploited appellant's Fourth Amendment rights. That exploitation would be greatly magnified if this court upholds the trial courts "tentative" rulings about appellant's "travel kit."
2. Ms. Weaver testified that all three of the officers "converged" on appellant, see e.g., T.T. at page 4, Lines 13 through 25, and blocked his ability to leave-T.T. at page 46, Line 17. This witness clearly suggest that Mendenhall, supra was violated in this case. Appellant also testified acting on behalf of the train conductor in asking to see his ticket-T.T. at 61, Line 16; and resisted the search, see e.g. page 63 at Lines 3, 4, 5, 6, 7, 8, 9 and to 10. See Lines 10 to 25 id. The testimony of Ms. Louisa Weaver enhances this illegal seizure episode; and squarely presents the Mendenhall issue. see also United States v. Timberlake, 896 F.2d 592 (D.C. Cir. 1990).
Wherefore, the premises considered appellant respectfully request that the judgement be reversed, and this case remanded with instruction to grant appellant's Motion to Suppress the Evidence in this case.
Mitchell xxxxxxx, Sr.
P.O. Box 5100
Lorton, Virginia 22079-22199
Appellant's Prayer For Relief
Appellant respectfully prays that this court grant the relief sought in the conclusion aspect of this brief, and any other relief which the court deems as fair and just.
Certificate of Service
I, Mitchell xxxxxxx, Sr., hereby certify that I have mailed (7) copies and the original to:
Clerk-United States Court of Appeals, 333 Constitution Avenue, N.W., Washington, D.C. 20001, and a copy to the United States Attorney, The Judicial Center, 555 4th Street, N.W., Washington, D.C. 20001, on this day of , 1992.
Mitchell xxxxxxx, Sr.
P.O. Box 5100
Lorton, Virginia 22079-22199