US v. Manuel, C.A. No. 92-10012-01.

Decision Date13 April 1992
Docket NumberC.A. No. 92-10012-01.
Citation791 F. Supp. 265
PartiesUNITED STATES of America, Plaintiff, v. Richard A. MANUEL, Defendant.
CourtU.S. District Court — District of Kansas

D. Blair Watson, Asst. U.S. Atty., Wichita, Kan., for plaintiff.

Steven Gradert, Asst. Federal Public Defender, Wichita, Kan., for defendant.

MEMORANDUM AND ORDER

BELOT, District Judge.

This matter is before the court on the motion of defendant to suppress evidence. The court held a hearing in the matter on March 23, 1992, has considered the memoranda of the parties, and is now prepared to rule.

I. Background

At approximately 5:45 p.m. on January 31, 1992, Detectives Beverly Brimer and James Wittridge — two members of the Wichita drug interdiction unit — observed defendant in front of the Wichita bus terminal walking south. A bus had just arrived from Texas, which the detectives considered a "source state"1 for illegal drugs, and Detectives Brimer and Wittridge assumed that defendant had gotten off this bus. Defendant was either approaching or standing at a stop light a short distance from the bus terminal when the detectives rapidly approached him. The detectives were in plain clothes with their weapons concealed. The detectives asked defendant if he had just gotten off the bus, and he told them that he had.

The detectives testified that several "interdiction indicators" prompted them to stop defendant for questioning. Notwithstanding that the detectives had not seen defendant leave either the bus or the terminal, the detectives found it suspicious that no one had picked defendant up at the terminal; that defendant had not stopped to make a phone call in the terminal; and that defendant had not checked any luggage but only had one "carry on" bag. Detective Brimer also testified that defendant was walking rapidly and looked over his shoulder twice, which indicated nervousness to her.

After defendant indicated that he had arrived on the bus, the detectives identified themselves as police officers with the drug interdiction unit. They asked defendant if they could speak with him, and defendant agreed. They then asked defendant for identification and his bus ticket, both of which he produced.

The detectives explained the purpose of the drug interdiction unit and asked defendant if he was carrying any weapons, large amounts of cash, or illegal drugs. Defendant said no, and the detectives then asked for permission to search his bag. Defendant gave his permission, stating: "Knock yourself out." While Detective Wittridge searched defendant's bag, Detective Brimer continued questioning defendant. Defendant said that he was in Wichita to meet a "Roger," whose last name and address defendant did not know. Defendant knew only the telephone number of Roger, who was to pick up defendant when he called.

Detective Wittridge found a box wrapped in Christmas paper in defendant's bag. Wittridge asked whether he could open the bag, to which defendant responded that he "would rather not." When asked what was in the package, defendant replied that it contained "perfume or something." Wittridge asked defendant why they could not search the box and told defendant that they were suspicious that it contained drugs. During this period of questioning, Wittridge held the box. The detectives asked defendant at least twice for permission to search the box, but defendant refused permission. Defendant appeared nervous throughout this encounter.

Detective Brimer then asked defendant for permission to search his person for "drugs, weapons, or large amounts of cash." Defendant consented. The search of defendant's person disclosed a "pipe" that the detectives suspected had been used for smoking illegal drugs, although they could not identify the drug from the residue in the pipe. Defendant was then placed under arrest for possession of drug paraphernalia, in violation of local ordinance. Between two and three minutes, but possibly more, had elapsed between the time the detectives first approached defendant and the time he was placed under arrest.

After being placed under arrest, defendant was seated on the sidewalk and handcuffed by Wittridge. During this time, Brimer opened the Christmas package, justifying this warrantless search as a "search incident to arrest" and an "inventory search."2 The package was found to contain several small packages containing over 200 grams of cocaine base.

II. Arguments

Defendant moves to suppress the contents of the package as the fruit of an illegal warrantless search that was not justified under any exception to the warrant requirement. At the hearing and in his memorandum, defendant has raised three specific grounds in support of his motion: (1) defendant was illegally seized within the meaning of the fourth amendment, and any consent was therefore fruit of the poisonous tree; (2) the continued detention of defendant was a mere pretext; and (3) defendant did not give valid consent. Because it is conceded that no warrant authorized the search of defendant's package, the burden is upon the government to prove that this search falls within one of the recognized exceptions to the warrant requirement. E.g., Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971).

This Circuit has identified three categories of encounters between police and citizens requiring varying levels of justification and protection: (1) voluntary cooperation of a citizen in response to non-coercive questioning, which is not a fourth amendment seizure and not subject to any justification; (2) a Terry-type investigatory stop, characterized by a brief non-intrusive detention that must be based upon "specific and articulable facts" supporting a suspicion of criminal activity; and (3) an arrest, which is a highly intrusive or lengthy search or detention that must be supported by probable cause of criminal activity. United States v. Cooper, 733 F.2d 1360, 1363 (10th Cir.), cert. denied, 467 U.S. 1255, 104 S.Ct. 3543, 82 L.Ed.2d 847 (1984).

The government submits that this was a voluntary, consensual encounter, and as such was not entitled to any protections of the Fourth Amendment.

The nature of a consensual encounter in public places was summarized in United States v. Evans, 937 F.2d 1534 (10th Cir. 1991):

Merely approaching an individual in a public place and asking questions of the individual, including asking to examine the person's identification or requesting the person's consent to search his or her luggage is not a seizure implicating the Fourth Amendment. As long as the police have not, by means of physical force or show of authority, in some way restrained the liberty of the citizen, such a consensual encounter will not constitute a seizure for purposes of the Fourth Amendment.

Id. at 1537 (citing Florida v. Bostick, ___ U.S. ___, 111 S.Ct. 2382, 2386, 115 L.Ed.2d 389 (1991)).

Applying these standards, the court finds that the initial encounter between defendant and the detectives was consensual and did not implicate Fourth Amendment protections.

This is not to say that the encounter remained consensual. "An initially consensual encounter between a police officer and a citizen can be transformed into a seizure or detention within the meaning of the Fourth Amendment, `if in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.'" INS v. Delgado, 466 U.S. 210, 215, 104 S.Ct. 1758, 1762, 80 L.Ed.2d 247 (1984) (quoting United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980)). Thus, an individual is deemed to have been seized "if he has an objective reason to believe that he was not free to end his conversation with the law enforcement official and proceed on his way." United States v. Werking, 915 F.2d 1404, 1408 (10th Cir.1990). The objective reasonableness of the individual's belief is evaluated from the perspective of an innocent person. Bostick, 111 S.Ct. at 2388.

In this case, defendant refused to grant the detectives permission to open the Christmas package. Dissatisfied with this response, the detectives persisted in requesting defendant's consent; asked defendant why he would not consent; informed defendant that they believed that the package contained illegal drugs; did not inform defendant that he was free to go; and, importantly, continued to hold defendant's property. See Florida v. Royer, 460 U.S. 491, 501 & 509-13, 103 S.Ct. 1319, 1326 & 1330-32, 75 L.Ed.2d 229 (1983) (defendant effectively under arrest when officers identified themselves as narcotics officers, told defendant he was suspected of transporting narcotics, asked him to accompanying police to airport police room, retained his ticket and driver's license, and did not indicate he was free to leave); Delgado, 466 U.S. at 216-17, 104 S.Ct. at 1763 ("if the person refuses to answer and the police take additional steps ... to obtain an answer, then the Fourth Amendment imposes some minimal level of objective justification to validate the detention or seizure"); Werking, 915 F.2d at 1409 (continued questioning can violate fourth amendment rights when police do not return driver's license and registration papers); United States v. Gonzalez, 763 F.2d 1127, 1132 (10th Cir.1985) (defendant had no reasonable choice but to accompany officer who had defendant's driver's license, car registration, and title); United States v. Puglisi, 723 F.2d 779, 783 (11th Cir.1984); United States v. $83,900.00 in U.S. Currency, 774 F.Supp. 1305, 1317 (D.Kan.1991). Under these circumstances, it defies common experience to suggest that anyone, innocent or otherwise, would feel free to ignore police officers and simply "proceed on his way." The court therefore concludes that at the time defendant gave permission to submit to a search of his person, he had effectively been seized within the meaning of the Fourth Amendment.

Because this encounter was nonconsensual, defendant's...

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