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UNITED STATES v. FOSTER

July 7, 1983

UNITED STATES
v.
Bobby FOSTER



The opinion of the court was delivered by: CORCORAN

 CORCORAN, District Judge.

 Before the Court is the motion of defendant Bobby T. Foster (Foster) to vacate and set aside his conviction pursuant to 28 U.S.C. § 2255. *fn1" As grounds therefor, he asserts that (1) all the evidence used against him at trial was obtained in violation of the safeguards provided by the Fourth Amendment to the Constitution, and (2) the failure of his trial counsel to make a timely motion to suppress that evidence violated Foster's right to the effective assistance of counsel as guaranteed by the Sixth Amendment to the Constitution.

 The government has opposed, urging that defendant's Fourth Amendment rights were not invaded and, accordingly it was not ineffective for trial counsel to decline to file a groundless motion to suppress.

 To clarify the record, an evidentiary hearing was held on April 18, 1983, at which time further briefing was also requested from both sides. See § 2255 Rules 4(b) and 8(a).

 Upon consideration of the memoranda submitted by the parties and the trial record as supplemented by the April 18 hearing, the Court finds that (1) Foster was illegally detained by a police official employed by the Washington Metropolitan Area Transit Authority ("WMATA" or "Metro"), and (2) the evidence seized on the night of defendant's arrest, a sawed-off shotgun, was a fruit of that illegal detention, which should have been suppressed. Thus, the failure of defendant's trial counsel to make a timely motion to suppress the shotgun constituted ineffective assistance of counsel in derogation of defendant's Sixth Amendment rights.

 Foster's conviction and sentence must, therefore, be vacated and set aside.

 I. PROCEDURAL BACKGROUND

 Foster was originally brought before this Court by reason of a three-count indictment filed on November 4, 1981. The indictment charged him with (1) possession of an unregistered firearm, in violation of 26 U.S.C. § 5861(d); (2) possession of a firearm after conviction of a felony, in violation of 18 U.S.C.App. § 1202(a)(1); and (3) possession of a prohibited weapon, in violation of 22 D.C.Code § 3214. The same firearm, a sawed-off shotgun, was involved in each count.

 With the benefit of new counsel, defendant appealed his conviction to the U.S. Court of Appeals for the District of Columbia Circuit, arguing for the first time that the WMATA police officer had no authority to stop him and seize the sawed-off shotgun. The government countered that, pursuant to Rules 12(b)(3) and 12(f) of the Federal Rules of Criminal Procedure, Foster waived his right to challenge the introduction of the shotgun because he did not raise any suppression issue in the trial court. On October 19, 1982, after having heard oral argument, the Court of Appeals affirmed the conviction by Order without opinion, thus, presumably adopting the position of the government.

 Thereafter, Foster lodged his 2255 petition.

 II. FACTS

 The record herein, as supplemented by the April 18 hearing, *fn2" reveals that there is no real dispute as to the material facts and circumstances surrounding Foster's arrest and the seizure of the sawed-off shotgun.

 In the early morning hours of October 7, 1981, David S. McKenzie, a uniformed officer of the Metro Transit Police, was making routine rounds in his marked transit police scout car, patrolling bus routes and inspecting closed subway stations in his sector. (T.Tr. 4-5; H.Tr. 18) *fn3" At approximately 2 a.m., he finished checking the interior of the Smithsonian subway station and entered his patrol car, which was parked in a lot at 12th Street and Independence Avenue, S.W. (T.Tr. 5-6; H.Tr. 18) Leaving the lot, he turned southbound on 12th Street, and stopped for a red light at the Independence Avenue intersection. A vehicle suddenly came into view heading toward him on 12th Street. It made a sharp right hand turn at a high rate of speed and proceeded east on Independence Avenue. Officer McKenzie's curiosity was aroused, and he "fell in behind" the vehicle. (T.Tr. 6-7; H.Tr. 19-21)

 As the suspicious car approached 9th Street, it slowed down, made an improper right turn from the center lane onto 9th Street, and suddenly stopped near the middle of the intersection. (T.Tr. 7, 62; H.Tr. 22) Officer McKenzie pulled up behind the other car and activated his vehicle's high beam headlights in order to see what, if anything, was going on inside the stopped car. (H.Tr. 23)

 Foster, who was driving, was seen to duck down and move across the front seat as John Melby, the sole passenger, moved into the driver's seat. (H.Tr.7) Foster then left the car via the passenger door, crossed the sidewalk at the southwest corner of 9th Street and Independence Avenue, walked to a steam grate near the wall of a government building, and bent over the grate several times in a ducking motion, "spitting up." (T.Tr. 63; H.Tr. 7, 22-25)

 As a result of what he observed, Officer McKenzie became suspicious that defendant was not a licensed driver. He radioed for assistance from the District of Columbia Metropolitan Police Department, (MPD) "since the area in question was under their jurisdiction." (T.Tr. 10; H.Tr. 23) He also activated the revolving red light atop his vehicle. (H.Tr. 23, 24) As McKenzie got out of his car, Foster returned from the steam grate, approached McKenzie and asked what was the matter. McKenzie returned the inquiry, and defendant stated that he had to stop because he had become sick from drinking beer. (T.Tr. 10; H.Tr. 7-8, 25)

 McKenzie then asked Foster for his driver's license. Foster replied that he did not have one. When McKenzie stated that he had seen Foster driving the car, Foster repeated that he did not drive and called to Melby, who was still sitting in the driver's seat, to show Officer McKenzie his (Melby's) permit. Melby did. (T.Tr. 11, 25, 63; H.Tr. 25-26)

 McKenzie took Melby's permit, made a radio check of it, and asked for the vehicle registration. As McKenzie watched, Melby retrieved the registration from the glove compartment. McKenzie took the registration, examined it and ran a radio check. (T.Tr. 11; H.Tr. 7-8, 26-27) He did not return the license and registration, nor did he tell Melby and Foster they were free to leave. He was "stalling for time" in order to allow the MPD officers to arrive at the scene. (H.Tr. 26)

 While McKenzie was investigating Melby's license and vehicle registration, Foster and Melby walked toward McKenzie, causing him to retreat behind the corner of his own car. (H.Tr. 27) McKenzie became nervous, fearing that the two were going to assault him. (H.Tr. 27) He withdrew his service revolver from its holster and held it at his side behind his leg. (H.Tr. 28) Melby did not realize that McKenzie had his weapon in his hand, ...


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