U.S. v. Peterson

• Citation: 100 F.3d 7
• Decision Date: 04 November 1996
• Docket Number: D,No. 339,339
• Parties: 45 Fed. R. Evid. Serv. 1320 UNITED STATES of America, Appellee, v. Shawn PETERSON, Defendant-Appellant. ocket 96-1212.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 7

100 F.3d 7

45 Fed. R. Evid. Serv. 1320

UNITED STATES of America, Appellee, v. Shawn PETERSON, Defendant-Appellant.

No. 339, Docket 96-1212.

United States Court of Appeals Second Circuit.

Argued Oct. 4, 1996.

Decided Nov. 4, 1996.

Bernadette Miragliotta, Assistant United States Attorney, Brooklyn, NY (Zachary W. Carter, United States Attorney for the Eastern District of New York, Emily Berger, Assistant United States Attorney, Brooklyn, NY, on the brief), for Appellee.

Peter J. Fabricant, New York City, for Defendant-Appellant.

Before: KEARSE, LEVAL, and CABRANES, Circuit Judges.

KEARSE, Circuit Judge:

Defendant Shawn Peterson appeals from a judgment entered in the United States District Court for the Eastern District of New York following a jury trial before Sterling Johnson, Jr., Judge, convicting him, as a convicted felon, of possessing a firearm, in violation of 18 U.S.C. § 922(g)(1) (1994). He was sentenced principally to 87 months' imprisonment, to be followed by a three-year term of supervised release. On appeal, Peterson contends that the district court erred (1) in denying his pretrial motion to suppress evidence, and (2) in excluding at trial the testimony he had given before a state grand jury. Finding no merit in his contentions, we affirm.

I. BACKGROUND

This case arose out of events that occurred early in the morning of September 20, 1994. The description by government witnesses included the following.

At approximately 12:50 a.m., New York City Police Officers Michael Saladino and Ischaler Grant were patrolling a high-crime area of Brooklyn in which police had made numerous arrests for weapons and narcotics offenses. Though they were in plain clothes and an unmarked car, Saladino and Grant were well known in the area as police officers. They observed three men, including Peterson, who had been standing on the sidewalk; when the men noticed the officers, they ducked behind a parked vehicle. Suspicions aroused, the officers parked and exited their car. As they did so, one of the three men emerged from behind the vehicle, identified himself as a security guard in a nearby housing project, and said, "Everything's all right over here." The officers, who were aware that some security guards at the project had been involved in ongoing criminal activity, including the possession and sale of guns, produced their identification and asked the men their names, addresses, and reasons for being at that location.

Peterson, who wore a noticeably bulging knapsack on his back, gave his name; as to his address, he at first stuttered Georgia but then changed his answer to Hempstead (a New York town). He appeared nervous, agitated, and evasive. He told the officers that he had come to visit a friend; when asked the friend's name, he did not answer. During the questioning of Peterson, the two other men departed without hindrance. When Peterson was asked what was in the knapsack, he responded, "what knapsack?" After Saladino pointed out the obvious, Peterson responded that there was nothing in the knapsack. When Saladino stated that he could clearly see that there was something in the knapsack, Peterson stated, "it's not my knapsack." Saladino then asked whether he could examine it, and Peterson removed the bag and handed it to Saladino. Inside the knapsack, Saladino found two .25 caliber semi-automatic handguns and several rounds of ammunition.

Peterson was arrested and taken to the police station. After being advised of his Miranda rights, he told the police that he had been given the knapsack by Anthony Woods, one of the men on the scene who had departed. Peterson admitted that he had given Saladino permission to search the bag.

In October 1994, Peterson was indicted by a New York State grand jury for firearm possession. In February 1995, on the basis that he had been convicted of a felony in New York State in 1988, Peterson was indicted by a federal grand jury for possession of firearms by a felon. The state charge against Peterson was dismissed without prejudice.

Prior to trial, Peterson moved to suppress the evidence seized incident to his arrest. United States Magistrate Judge Roanne L. Mann, to whom the motion was referred for report and recommendation, received written submissions and heard evidence presented by the government, including that described above; Peterson did not testify. The magistrate judge recommended that the motion be denied on the grounds that Peterson's encounter with the police was consensual and did not require reasonable suspicion, and that even if the encounter became a detention upon Saladino's asking what was in the bag, the officers had reasonable suspicion justifying the detention. The magistrate judge further opined that Peterson's rights were not violated by the search of the knapsack, either because by denying ownership Peterson had abandoned it, or because, if he did not abandon it, he gave valid consent to its search. The district judge adopted the magistrate judge's recommendations and denied the motion to suppress.

At trial, the seized evidence was admitted. Peterson did not testify, but he sought to introduce testimony he had given to the state grand jury that had indicted him based on the same conduct. Before the state grand jury, Peterson had testified to the effect that the knapsack did not belong to him and that he had been asked by Woods to hold it "for a second" just as the police officers arrived on the scene. The trial court ruled that the testimony was not admissible against the government.

The jury found Peterson guilty as charged, and he was sentenced as indicated above.

II. DISCUSSION

On appeal, Peterson contends that the district court should have granted his pretrial motion to suppress and should have admitted his prior state grand jury testimony at trial. Neither contention has merit.

A. The Denial of the Suppression Motion

In challenging the district court's denial of his suppression motion, Peterson admits that his encounter with the officers began as a consensual interview; but he contends that it escalated into an impermissible investigative detention without reasonable suspicion when the police officers asked about the contents of the knapsack. He also contends that the detention "tainted" his subsequent disclaimer of ownership of the bag and his consent to search it. We reject these contentions.

We reject first the contention that Peterson was seized in violation of his rights under the Fourth Amendment. In a consensual encounter, which need not be based on suspicion, officers may permissibly ask questions, such as why the subject is at that location, and may make requests for identification and permission to inspect luggage. See Florida v. Bostick, 501 U.S. 429, 437, 111 S.Ct. 2382, 2387-88, 115 L.Ed.2d 389 (1991). A consensual encounter ripens into a detention or a seizure when, "under the circumstances, a reasonable person would have believed that he was not free to leave." Gardiner v. Incorporated Village of Endicott, 50 F.3d 151, 155 (2d Cir.1995) (internal quotation marks omitted). For an interviewee to feel free to leave, however, there is "no requirement that an officer affirmatively advise [him] that he is free to leave or terminate the interview." United States v. Springer, 946 F.2d 1012, 1016 (2d Cir.1991). If a seizure or investigatory detention has occurred, it must have been based on a "reasonable suspicion supported by articulable facts that criminal activity 'may be afoot.' " United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989) (quoting After a motion to suppress has been denied, the evidence supporting that denial is to be viewed in the light most favorable to the government, see, e.g., United States v. Kirsh, 54 F.3d 1062, 1067 (2d Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 330, 133 L.Ed.2d 230 (1995); United States v. Jackson, 652 F.2d 244, 246 (2d Cir.), cert. denied, 454 U.S. 1057, 102 S.Ct. 605, 70 L.Ed.2d 594 (1981), and the findings of the district court will not be overturned unless they are clearly erroneous, see, e.g., United States v. Madison, 936 F.2d 90, 92 (2d Cir.1991); United States v. Ramirez-Cifuentes, 682 F.2d 337, 344 (2d Cir.1982); United States v. Wiener, 534 F.2d 15, 17 (2d Cir.), cert. denied, 429 U.S. 820, 97 S.Ct. 66, 50 L.Ed.2d 80 (1976). Whether, in light of the facts, a seizure occurred is a question of law to be reviewed de novo. See, e.g., United States v. Tehrani, 49 F.3d 54, 58 (2d Cir.1995).

Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 1884, 20 L.Ed.2d 889 (1968)).

We see no clear error in the district court's findings as to the officers' conduct or their observations of Peterson and his companions. The finding that the three men had behaved suspiciously in a high crime area by ducking out of sight upon seeing the police officers was supported by the evidence presented at the suppression hearing. The officers also noted the inconsistency in Peterson's statements as to his address and observed his apparent nervousness. We see no error in the district court's finding that the officers did not prevent Peterson's companions from departing and did not indicate to him that he was not free to leave, or in its ruling that the encounter, which Peterson acknowledges was initially consensual, did not become a detention merely because the officers asked what was in the knapsack he was carrying. Nor, in light of the court's factual findings as to the officers' observations, do we see error in the alternative ruling that even if that question converted the encounter into a detention, the officers had reasonable suspicion warranting that minimal intrusion.

Peterson's contention that his Fourth Amendment rights also were violated by the officers' search of the knapsack lacks merit because officers may search property without violating the Fourth Amendment if the owner or lawful custodian voluntarily gives consent. See, e.g., Schneckloth v. Bustamonte,...