712 F.2d 1356 (11th Cir. 1983), 81-6031, United States v. Thompson

Docket Nº:81-6031.
Citation:712 F.2d 1356
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Martin Lewis THOMPSON, a/k/a Guinn Martin Chitty, Defendant-Appellant.
Case Date:August 22, 1983
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

Page 1356

712 F.2d 1356 (11th Cir. 1983)

UNITED STATES of America, Plaintiff-Appellee,


Martin Lewis THOMPSON, a/k/a Guinn Martin Chitty, Defendant-Appellant.

No. 81-6031.

United States Court of Appeals, Eleventh Circuit

August 22, 1983

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[Copyrighted Material Omitted]

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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-

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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...

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