to his pretrial request, Foster was separately tried by the Court without a jury on the 3rd Count, the charge of possessing a firearm after having been convicted of a felony, and was also found guilty of this last offense. On February 19, 1982, defendant was sentenced to concurrent terms of two years' imprisonment on each count, to be served concurrently with any other sentence previously imposed.
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.
The record herein, as supplemented by the April 18 hearing,
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)
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, but Foster became aware of this fact when he noticed the empty holster. (T.Tr. 11-14, 32-33; H.Tr. 13, 28)
At this point, Foster returned to his car, retrieved a sawed-off shotgun from under the passenger seat, and concealed it in his jacket. (H.Tr. 9) He then walked approximately 25 feet away to a grassy strip of ground next to the grate at which McKenzie had seen him earlier. Defendant dropped the weapon in the grass and returned to the vicinity of the two stopped vehicles. (H.Tr.29) McKenzie did not see the shotgun, but he did see Foster drop a long, dark object in the grass. Id.
As Foster returned to the point where the cars were stopped, MPD units arrived at the scene. (H.Tr. 9) McKenzie related his observations to Officer Thomas Blue. (T.Tr. 12, 14-15) As Officer Blue questioned Foster and Melby, McKenzie walked to the grate over which he had seen defendant bending. He inspected the grate with his flashlight and tried to open it in order to check the concrete areaway below. (T.Tr. 15-17; H.Tr. 30-31) He saw no residue of vomit, but as he turned away, the beam from his flashlight struck the sawed-off shotgun lying in the grass. Id.
McKenzie yelled his discovery to the MPD officers who thereupon took Foster and Melby into custody, handcuffing and formally arresting them. Id.
The shotgun was loaded with one 20-gauge shell. It was later determined that it measured only 18 1/2 inches in overall length and that it was not registered in Foster's name, as required by 26 U.S.C. § 5841. (T.Tr. 54-56) It was test fired and found to be operative.
A. Standards for Granting Relief Under § 2255
Pursuant to 28 U.S.C. § 2255:
If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.
Violations of specific constitutional rights that actually prejudice a defendant's case are clearly remediable under this section. See Brown v. U.S., 656 F.2d 361 (8th Cir. 1981), cert. denied, 454 U.S. 1059, 102 S. Ct. 611, 70 L. Ed. 2d 598 (1981); United States v. Sturm, 671 F.2d 749, 751 (3d Cir.1982), cert. denied, 459 U.S. 842, 103 S. Ct. 95, 74 L. Ed. 2d 86 (1982). On the other hand, nonconstitutional violations of federal law warrant relief only if they involve a "fundamental defect" causing a "complete miscarriage of justice." United States v. Addonizio, 442 U.S. 178, 185, 99 S. Ct. 2235, 2240, 60 L. Ed. 2d 805 (1979) (quoting Hill v. U.S., 368 U.S. 424, 428, 82 S. Ct. 468, 471, 7 L. Ed. 2d 417 (1962)); see United States v. Capua, 656 F.2d 1033, 1037 (5th Cir.1981) (no relief under § 2255 for mere errors of law not resulting in miscarriage of justice).
Defendant here contends that all the Government's evidence respecting the sawed-off shotgun, especially the weapon itself, was obtained in violation of Foster's Fourth Amendment rights inasmuch as, "said evidence was obtained by reason of and as a direct result of an . . . investigative stop and arrest of Foster by an officer of the Metro Transit Police who had no legal authority to make such a seizure of Foster's person." Motion to Vacate at 2. Alternatively, Foster argues that his trial counsel's failure to make a timely motion in the trial court to suppress the evidence against him violated his Sixth Amendment right to effective assistance of counsel.
We look first, briefly, at the appropriate scope to be given Foster's 2255 petition at this point in the proceedings.
Relying on Kaufman v. U.S., 394 U.S. 217, 231, 89 S. Ct. 1068, 1076, 22 L. Ed. 2d 227 (1969), defendant asserts that Fourth Amendment claims may properly be raised for the first time by a motion to vacate sentence under § 2255. The recent U.S. Supreme Court decision in United States v. Frady, 456 U.S. 152, 102 S. Ct. 1584, 71 L. Ed. 2d 816 (1982), however, casts significant doubt on the continuing vitality of the rule announced in Kaufman. See Norris v. U.S., 687 F.2d 899, 901 (7th Cir. 1982); United States ex rel. Spurlark v. Wolff, 699 F.2d 354, 359 (7th Cir.1983).
In Frady, the Supreme Court emphasized the need for finality in criminal proceedings and held that the "cause and actual prejudice" standard of Wainwright v. Sykes, 433 U.S. 72, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977), controls a court's consideration of claims in § 2255 proceedings where the issue raised by the 2255 petition was not pressed at trial through a procedural default on the part of the defendant. 456 U.S. at 167, 102 S. Ct. at 1594.
Here, defendant arguably waived his Fourth Amendment claims by failing to raise them prior to trial. Fed.R.Crim.P. 12(f). His conviction was apparently affirmed on that basis. We would be constrained, therefore, to follow Frady and hold that, unless defendant can demonstrate "cause" for his procedural default and can further demonstrate actual prejudice resulting from the admission of illegally seized evidence, his Fourth Amendment claims are not subject to review in this proceeding.
This question becomes academic, however, because defendant has raised the additional claim of ineffective assistance of counsel, an issue clearly cognizable in a § 2255 proceeding. Strum, 671 F.2d at 751; United States v. Frankenberry, 696 F.2d 239 (3d Cir.1982). The basis of this alternative claim is that defendant's trial counsel did not timely file a clearly viable motion to suppress the shotgun. In order to properly analyze the effectiveness of Foster's trial counsel, therefore, we must, a priori, analyze the merits of his Fourth Amendment claims. See Brown, 656 F.2d at 363.
B. Foster's Fourth Amendment Claims
Defendant contends that the actions of Officer McKenzie constituted at least an investigatory stop and seizure, if not an arrest. Since McKenzie had no legal authority, i.e. jurisdiction, to effect such a detention, Foster maintains, any evidence recovered therefrom, namely the shotgun, must be suppressed as "fruit of the poisonous tree." Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963); see Brown v. Illinois, 422 U.S. 590, 602, 95 S. Ct. 2254, 2261, 45 L. Ed. 2d 416 (1975); Taylor v. Alabama, 457 U.S. 687, 102 S. Ct. 2664, 73 L. Ed. 2d 314 (1982).
The Government counters that there was no "stop," "seizure," or "arrest" of Foster prior to the discovery of the sawed-off shotgun, but merely a "contact" by a police official properly seeking information as to defendant's identity and ability to drive. As such, the Fourth Amendment was not offended.
1. Contact, Stop, Seizure and Arrest
A police-citizen encounter triggers Fourth Amendment safeguards only when there is a "seizure" of the person or his effects, whether by an arrest or an investigatory " Terry -stop." Gomez v. Turner, 217 U.S. App. D.C. 281, 672 F.2d 134, 139-40 (D.C.Cir.1982); Terry v. Ohio, 392 U.S. 1, 16, 19 n. 16, 20 L. Ed. 2d 889, 88 S. Ct. 1868, 1877, 1879 (1968); Florida v. Royer, 460 U.S. 491, 103 S. Ct. 1319, 1323, 75 L. Ed. 2d 229, 236 (1983); United States v. Cortez, 449 U.S. 411, 417, 101 S. Ct. 690, 694, 66 L. Ed. 2d 621 (1981) (brief investigatory stop constitutes Fourth Amendment seizure).
The test for determining whether or not a seizure has taken place is an objective, fact-specific one:
[A] "seizure" occurs when a police officer, by force or show of authority, restrains the liberty of a citizen. Whether a restraint has occurred is determined, in turn, by reference to the mind of a "reasonable person." Combining the two standards, the ultimate issue is not merely whether a reasonable person confronted by an inquisitive police officer would not feel free to walk away, but more precisely whether such conduct constitutes a show of authority that would lead a reasonable person to conclude that he is not free to go. (emphasis in original)