Appeal from the Superior Court of the District of Columbia; Hon. Ricardo M. Urbina, Trial Judge
Rogers, Chief Judge, and Newman and Belson, Associate Judges. Opinion for the court by Chief Judge Rogers. Dissenting opinion by Associate Judge Belson.
The opinion of the court was delivered by: Rogers
Appellant Jose M. Guadalupe, Jr. appeals from his conviction of possession of cocaine with intent to distribute in violation of D.C. Code § 33-541(a)(1) (1989), on the ground that the drugs were obtained by an unconstitutional search and seizure. The trial Judge denied appellant's motion to suppress, concluding that the police had not violated appellant's Fourth Amendment rights during the course of two successive confrontations during a twenty-five to thirty minute period as appellant and a male companion were leaving Union Station after arriving on a train from New York City. The Judge also found that appellant had voluntarily consented to the body search. We hold as a matter of law that appellant, as a reasonable person, who was subjected to random successive confrontations by narcotics officers involving increasingly intrusive searches -- the first confrontation involving requests for identification, an inquiry whether the suspect is carrying narcotics and a search of his bag in which the person cooperates fully and no drugs are found, and the second confrontation involving similar questions and a request for a body search immediately after an unproductive body search of his companion by one of the officers -- would not have felt free to leave. Consequently, since the police lacked articulable suspicion under Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968), the seizure of the drugs from appellant was unlawful, Wong Sun v. United States, 371 U.S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963), and the trial court erred in denying the motion to suppress.
On December 3, 1988, Sergeant John J. Brennan, in charge of the Metropolitan Police Department's drug interdiction unit and Pat Dunn, an agent of the Drug Enforcement Administration, were working a drug interdiction operation at Union Station, in Washington, D.C., in an effort to locate narcotics couriers who arrive from New York. *fn1 At approximately 6:30 p.m. Sergeant Brennan saw appellant leave a southbound train that had just arrived from New York City. *fn2 Appellant walked toward the main concourse at Union Station while conversing with another man identified as Mr. Rivera. Nothing in particular drew Sergeant Brennan's attention to the men, and when Rivera walked away from appellant, the officers did not focus on him. However, a few minutes later Rivera joined appellant in the main concourse area and the two men started to walk off together. The officers decided to interview the men, and Agent Dunn approached Rivera. As he did, appellant stopped a few seconds and then slowly walked away. Sergeant Brennan approached appellant from the rear, showed his identification, and asked appellant if he would answer some questions. Appellant said "yes," and Sergeant Brennan proceeded to ask appellant six questions. As he did, he stood off to the side of appellant, Sergeant Brennan explained, so as not to interfere with his freedom of movement. The sergeant was in plainclothes, his weapon concealed, and at all times spoke in a conversational tone and courteous manner, and did not command appellant or touch him.
Sergeant Brennan first asked appellant if he was traveling on a train, and appellant said he was. Second, the sergeant asked if he had a train ticket and appellant handed him a ticket for travel from New York City to Washington, D.C. Third, after returning the ticket to appellant, Sergeant Brennan asked appellant if he had identification and appellant gave him a receipt or pay slip with his name on it. Upon looking it over, Sergeant Brennan returned it to appellant. Fourth, Sergeant Brennan asked appellant where he was going, where he was visiting. Appellant said he was "here to let loose with Mr. Rivera" and they were going to "Rivera's cousins, or something like that." *fn3 Fifth, Sergeant Brennan asked appellant if he was carrying any narcotics in his bag, and he said no. *fn4 Sixth, Sergeant Brennan asked appellant if he could search the bag, and appellant handed it to him. After conducting a thorough search of the bag and finding no narcotics, Sergeant Brennan repacked the bag and gave it back to appellant, thanking appellant for his cooperation. Appellant then asked the sergeant where Rivera was. Sergeant Brennan said he did not know, and he and appellant walked together for a few feet until Sergeant Brennan noticed that Rivera was on the fast food level below the concourse. Appellant thanked Sergeant Brennan and walked away.
Sergeant Brennan and Agent Dunn then conferred about their two interviews and decided that some of the information did not seem right to them and, because they were suspicious of appellant and Rivera, *fn5 they decided to place them under surveillance while they were in Union Station. The officers went downstairs to the fast food area where appellant and Rivera were standing in a line for sandwiches; they stood about 50 to 75 feet away, watching appellant and Rivera. The two men, according to Sergeant Brennan, were "continuously scanning the area, looking behind them, looking all over the place, not conversing with each other, but kind of scanning everything." Sergeant Brennan did not think they saw him or Agent Dunn. "All of a sudden," according to Sergeant Brennan, appellant and Rivera "turned and walked out of the food line without purchasing anything." The men started walking in the direction of the officers and upon seeing Sergeant Brennan, Rivera walked up to him and asked where the cab area was. Sergeant Brennan asked if they were taking a cab, and Rivera said his cousin was picking him up at the cab stand, explaining he had previously made a telephone call when he first entered the station. Sergeant Brennan then directed Rivera to the cab stand "out front". Rivera rejoined appellant and they walked off together.
Sergeant Brennan and Agent Dunn conferred again and decided to see if the men went to the cab stand area; once outside, they noticed that the two men had separated, appellant standing by a large concrete pillar and Rivera walking up and down, hurriedly, in the cab stand area. Dunn decided to ask Rivera, who was wearing a big, heavy coat, if he could conduct a body search. The search of Rivera did not uncover any drugs. While Rivera was being searched, appellant glanced at the officers and then looked straight ahead. Sergeant Brennan then decided to ask appellant if he would consent to a body search. *fn6
Sergeant Brennan walked over to appellant and asked appellant three questions: if he would talk to him, and appellant said yes; if he was carrying any narcotics on his person, and he said no; and if he could search appellant, and appellant nodded his head and said yes. Upon patting appellant down, Sergeant Brennan felt objects on both sides, and "looked at" his shirt and saw two packets, approximately eight ounces of cocaine hydrochloride, taped to his body.
The sequence of events between the officers and appellant and Rivera lasted about twenty-five to thirty minutes. About fifteen minutes elapsed between the search of appellant's bag and Sergeant Brennan's second confrontation of appellant when he was standing by the concrete pillar near the cab stand.
Appellant did not present any evidence.
In denying the motion to suppress the drugs, the trial Judge noted that he had only the testimony of Sergeant Brennan and that nothing "suggest any Fourth Amendment impropriety in the approach and in the talking to and asking questions." Further, to the Judge it did "not appear the officers exceeded their authority in conducting the procedures that led up to what is in question here, which is the consensual part of the exchange. The search."
The Judge found, with regard to events prior to the search of appellant's bag, that:
conversation and. . . approach was conducted in a fashion that would not suggest . . . that there was any touching, that there was an aura or command that issued by Sgt. Brennan. That Sgt. Brennan, in any way, obstructed the movements of or that he did anything expressly or implicitly geared to create an aura of intimidation that would obviate [appellant's] understanding of his rights to move on free from further Discussion.
Rather, what appeared to be happening, as observations continued, was that and Mr. Rivera were acting in a very suspicious fashion, at first getting on the food line after the initial interrogation and the initial inquiry, I could say -- I should say. And then, after apparently scanning the area further, moving on away from the food line, getting no food, one of the individuals approaching Sgt. Dunn [the Judge meant Sergeant Brennan] and asking where the cab stand was. And and Mr. Rivera moving towards the cab stand area, but again, alternatively associating and disassociating themselves from ear other, depending on what was going on in relation to the two agents.
Rejecting defense counsel's arguments that a seizure had occurred at the point the officers decided to follow appellant and Rivera to the cab stand, the Judge found that
the confrontations with the two individuals, and with in particular, were not characteristic of custodial interrogation, but rather that the initial confrontation, during which time Sgt. Brennan actually got permission to search the suitcase, and did, and that confrontation resulting in having the suitcase returned to , providing evidence to that the police, and Sgt. Dunn, specifically, were prepared to conduct themselves in a fashion that was in keeping with the individual rights of the defendant. That exchange clearly demonstrated that Sgt. Dunn was prepared to act in a polite and non-intimating fashion, and therefore, when Sgt. Brennan -- excuse me, when Sgt. Brennan then confronted again, it would have appeared reasonably clear that he was prepared, once again, to ask a question, get a response, and to conduct himself in the same fashion.
The Judge also ruled that the consent was voluntary. While curious about why a person would consent to a body search knowing that he had illegal drugs strapped to his body, the Judge speculated that, notwithstanding what might be viewed as an intimidating atmosphere, appellant might have thought, having once escaped detection of the drugs, that, because of the manner in which the drugs were secreted, he would escape again. The Judge concluded, however, that appellant "gambled. He gave consent that was free."
The issue is one of first impression for this court: whether successive police-citizen confrontations over a twenty-five to thirty minute period resulting in a request to conduct a body search, following an unproductive bag search and a body search of one's companion by a second officer, creates such an intimidating atmosphere that a reasonable person would believe he or she was not free to leave. *fn7 Appellant contends that the nature and timing of certain questions, specifically, whether he was carrying narcotics in his bag, constituted an unreasonable search, and that the officer's second confrontation with him constituted an illegal seizure, and that his consent to the body search was not voluntary. He further maintains that when the officer confronted him a second time, at the taxicab stand area, the chain of circumstances was such that he could not ignore the question and feel free to leave, having experienced two prior encounters with the two officers over a 25 minute period and having just seen one of the officers search Rivera, so that the successive confrontations converted what began as a police contact into a seizure.
The Fourth Amendment provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized.
U.S. CONST. amend. IV. The Supreme Court has carved out a narrow exception to the warrant and probable cause requirements, permitting limited seizures of a person where the law enforcement officer has articulable suspicion that a person is engaged in criminal activity. Terry v. Ohio, supra, 392 U.S. 1. In addition, the Court has defined a series of police-citizen contacts in which a person's Fourth Amendment rights are not implicated. In the interests of law enforcement, the Court has developed a test that focuses on whether or not the police-citizen confrontation is voluntary, and in determining whether it is, the focus is on whether a reasonable person, objectively defined, would feel free to leave the presence of the officer. The "test is necessarily imprecise, however, because it is designed to assess the coercive effect of police conduct, taken as a whole, rather than to focus on particular details of that conduct in isolation." Michigan v. Chesternut, supra note 7, 486 U.S. at 573 (citing 3 W. LAFAVE, SEARCH AND SEIZURE § 9.2(h), at 407-08 (2d ed. 1987 & Supp. 1989) (hereinafter LAFAVE)).
Thus, in Mendenhall, supra note 7, 446 U.S. 544, 100 S. Ct. 1870, 64 L. Ed. 2d 497, a plurality of the Court held that the respondent had not been seized when two drug enforcement agents saw the respondent exit from a plane at the Detroit airport, and after concluding that her conduct fit the "drug carrier profile," confronted her on the public concourse, identified themselves as federal agents, asked to see her identification and airline ticket. Id. at 555. When her responses indicated that she had used an assumed name on her ticket and had only been in California for two days, one agent identified himself as a federal narcotics agent. The respondent became visibly shaken. After returning her ticket and driver's license to her, the agents asked respondent to accompany them to the airport office for further questioning. Id. at 544. Once there, they requested permission to search her person and handbag, advising that she had a right to decline if she desired. She responded, "Go ahead." Justice Stewart, writing for a plurality, rejected the argument that the respondent had been seized while she was on the public concourse. Id. at 554. He wrote: a "seizure occurs only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he [or she] was not free to leave." Id. Relying on "the distinction between a intrusion amounting to a seizure and an encounter that intrudes upon no constitutionally protected interest," as illustrated by Terry v. Ohio, supra, 392 U.S. 1, he noted that the Court "adhere to the view that a person is 'seized' only when, by means of physical force or show of authority, his freedom of movement is restrained." Id. at 554. "The purpose of the Fourth Amendment is not to eliminate all contact between the police and the citizenry, but 'to prevent arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals.'" Id. (quoting United States v. Martinez-Fuerte, 428 U.S. 543, 554, 49 L. Ed. 2d 1116, 96 S. Ct. 3074 (1976)). Since the events occurred in a public concourse, the agents did not wear uniforms or display their weapons or summon the respondent to their presence or demand her airline ticket and identification, but merely requested it, Justice Stewart concluded that "nothing in the record suggests that the respondent had any objective reason to believe that she was not free to end the conversation in the concourse and proceed on her way." Id. at 555. Rather, he suggested that
examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice ...