U.S. v. Thompson

• Decision Date: 22 August 1983
• Docket Number: No. 81-6031,81-6031
• Citation: 712 F.2d 1356
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Martin Lewis THOMPSON, a/k/a Guinn Martin Chitty, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1356

712 F.2d 1356

UNITED STATES of America, Plaintiff-Appellee, v. Martin Lewis THOMPSON, a/k/a Guinn Martin Chitty, Defendant-Appellant.

No. 81-6031.

United States Court of Appeals, Eleventh Circuit.

Aug. 22, 1983.

William J. Sheppard, Elizabeth A. White, Jacksonville, Fla., for defendant-appellant.

John E. Steele, Asst. U.S. Atty., Jacksonville, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before GODBOLD, Chief Judge, KRAVITCH, Circuit Judge, and MORGAN, Senior Circuit Judge.

GODBOLD, Chief Judge:

Defendant Martin Thompson was convicted of possession of an unregistered firearm in violation of 26 U.S.C. Sections 5861(d), 5871 (1976). His primary defense was that the evidence of his crime was the fruit of an unlawful detention. A magistrate, after conducting an evidentiary hearing, recommended that the district court grant Thompson's motion to suppress evidence. The district court rejected the magistrate's recommendation and denied the motion. Thompson waived a jury trial and was convicted on the basis of evidence that was the subject of the motion to suppress. We hold that the district court erred in denying the motion to suppress and reverse the conviction.

I. Background

During his regular patrol of the short term parking lot at the Jacksonville Airport, Arthur Kier, a Jacksonville Port Authority police officer, noticed a black Pontiac Trans Am automobile with its dome light illuminated and a person inside. The vehicle had been parked in the lot for approximately two weeks, but this was the first time Kier had observed someone in it. Kier approached the car because he had an interest in Trans Ams and also he wished to warn the driver to expect a large parking charge. Kier testified that he did not suspect criminal activity.

As Kier approached he noticed that the driver, defendant Thompson, had a light-colored circular object held to his nose. Kier testified that Thompson moved the object down to his lap, screwed the lid on it, and, upon noticing Kier, moved the object quickly to his side. Kier knocked on the window and asked Thompson for identification. According to Kier's testimony, Thompson was free to ignore the request and drive away. Thompson handed Kier his driver's license, which appeared valid.

Kier next asked Thompson for the object he had placed beside him. Kier testified that when this request was made he had observed no violation of the law and neither suspected nor had reason to suspect criminal activity. The government conceded at oral argument that Kier retained Thompson's driver's license while he asked Thompson to produce the object.

Acceding to Kier's request, Thompson handed Kier a small opaque vial containing a powdery white substance. When Kier remarked that the substance could be cocaine, Thompson responded: "Yes, it could." Upon hearing this equivocal response, Kier ordered Thompson out of the car and placed him under arrest. The district court found that approximately two minutes elapsed between the initial contact and arrest.

Kier advised Thompson of his Miranda rights, and Thompson indicated his understanding. After Kier informed Thompson that the car would be impounded and searched, Thompson consented to an on-the-spot search of the car. The police searched the car's interior as well as a bag and briefcase found therein. Upon discovering two pistols and parts to a rifle, the police proceeded to search the trunk where they found the semiautomatic rifle that was the basis of Thompson's conviction. All in all, the search uncovered various weapons, ammunition, hashish, and a large sum of cash.

Meanwhile Thompson had been escorted to an office for questioning. There he agreed to a search of his other luggage, which was found to contain another weapon. He also signed forms waiving his Miranda- ights and consenting to the search of his car.

II. Investigative stop

The crucial issue in this case is whether an investigative stop protected by the Fourth Amendment occurred before Kier asked Thompson to produce the vial.

In construing the demands of the Fourth Amendment the Supreme Court has recognized three distinct types of police-citizen encounters. First, not every encounter between law enforcement officers and a citizen constitutes a seizure within the meaning of the Fourth Amendment. See Dunaway v. New York, 442 U.S. 200, 212 n. 12, 99 S.Ct. 2248, 2255 n. 12, 60 L.Ed.2d 824 (1979); Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 1879 n. 16, 20 L.Ed.2d 889 (1968). Some such contact, such as the mere approach and questioning of a willing person in a public place, involves no coercion and detention and hence is outside the domain of the Fourth Amendment. See Florida v. Royer, --- U.S. ----, ---- - ----, 103 S.Ct. 1319, 1322-1324, 75 L.Ed.2d 229 (1983) (plurality opinion); --- U.S. at ----, ---- - ----, 103 S.Ct. at 1336, 1336-1338 (Burger, C.J., Rehnquist & O'Connor, JJ., dissenting); U.S. v. Berry, 670 F.2d 583, 590-91 (5th Cir.1982) (Unit B) (en banc). Second, ever since Terry v. Ohio the Court has recognized a limited class of cases where the police-citizen encounter qualifies as a seizure within the Fourth Amendment but may be justified by less than probable cause. Terry -type investigative stops satisfy Fourth Amendment strictures if the officer has an objective, reasonable suspicion of unlawful activity. See Royer, --- U.S. at ----, 103 S.Ct. at 1324 (plurality opinion); --- U.S. ---- - ---- & n. 3, 103 S.Ct. at 1336-1337 & n. 3 (Burger, C.J., Rehnquist & O'Connor, JJ., dissenting); Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981); U.S. v. Brigoni-Ponce, 422 U.S. 873, 881-82, 95 S.Ct. 2574, 2580-2581, 45 L.Ed.2d 607 (1975). Third, some police-citizen encounters, such as a full-scale arrest, must be supported by probable cause. See Dunaway, supra; Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975); Berry, 670 F.2d at 591.

In this case we must decide whether at the time Kier requested the vial the encounter was a voluntary encounter outside the purview of the Fourth Amendment or a protected Terry-type stop.

Fourth Amendment safeguards come into play where there is a "show of official authority such that 'a reasonable person would have believed he was not free to leave.' " Royer, --- U.S. at ----, 103 S.Ct. at 1326 (plurality opinion) (quoting U.S. v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980) (opinion of Stewart & Rehnquist, JJ.)). ¹ Applying this test, we conclude that when Kier requested the vial a reasonable person in Thompson's position would have believed that he was not free to leave. The government argues that the mere request for and examination of airline tickets, identification, and the like does not convert a voluntary exchange into a protected Terry-type stop. But Kier did more than simply request and examine Thompson's driver's license. The record shows, and the government at oral argument acknowledged, that when Kier made the request he had not returned Thompson's driver's license. Indeed, it is fair to infer that Kier kept Thompson's license throughout the incident. When Kier retained Thompson's license, the encounter matured into an investigative stop protected by the Fourth Amendment. Without his driver's license Thompson was effectively immobilized. A reasonable person in these circumstances would not have believed himself free to leave. If Thompson had tried to drive away he could have been arrested for driving without a license. Fla.Stat.Ann. Sec. 322.15 (West Supp.1983).

The case law confirms our common-sense conclusion. In U.S. v. Elsoffer, 671 F.2d 1294, 1297 (11th Cir.1982), a case applying Justice Stewart's Mendenhall test, the court held that a protected seizure occurred on facts indistinguishable from those here. Law enforcement officers requested and retained defendant's driver's license and airplane ticket, then interrogated him in the airport. In "determin[ing] the point ... at which voluntary communication ended and [defendant] was seized", the court held:

Given the circumstances surrounding an airport stop, Elsoffer hardly could have felt free to leave while Mathewson retained the ticket. We hold that a seizure occurred when agent Mathewson retained the ticket while asking for further identification.

671 F.2d at 1297; see also U.S. v. Elmore, 595 F.2d 1036, 1041-42 (5th Cir.1979) (seizure occurred when DEA agent carried defendant's airline ticket to airline counter); U.S. v. Waksal, 709 F.2d 653 (11th Cir.1983) (seizure occurred when officers failed to return defendant's airline ticket and driver's license); cf. U.S. v. Robinson, 690 F.2d 869 (11th Cir.1982) (defendant did not voluntarily consent to search where, inter alia, DEA agent retained his airline ticket); U.S. v. McClain, 556 F.2d 253, 255 (5th Cir.1977) (Miranda custody existed where individual free to leave only if she abandoned her baggage).

A majority of the Justices in Royer also found that a seizure protected by the Fourth Amendment occurred when law enforcement officers retained an airline ticket. In Royer law enforcement officers approached a man in an airport whom the officers believed to fit a drug courier profile. The officers, upon request, obtained his driver's license and airline ticket. Retaining both items, the officers asked defendant to accompany them to a small closet-like room where he gave the officers a key to his luggage, permitting a search. In concluding that defendant was seized within the meaning of Fourth Amendment when the officers escorted him to the small room, the plurality relied on the fact that the officers had retained his ticket and driver's license:

Asking for and examining Royer's ticket and his driver's license were no doubt permissible in themselves, but when the officers identified themselves as narcotics agents, told Royer that he was suspected of transporting narcotics, and...