876 F.2d 191 (D.C. Cir. 1989), 88-3111, U.S. v. Most

Docket Nº:88-3111.
Citation:876 F.2d 191
Party Name:UNITED STATES of America v. Gary K. MOST, Jr., a/k/a Larry Blotcher, Larry Blutcher, Appellant.
Case Date:June 02, 1989
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

Page 191

876 F.2d 191 (D.C. Cir. 1989)



Gary K. MOST, Jr., a/k/a Larry Blotcher, Larry Blutcher, Appellant.

No. 88-3111.

United States Court of Appeals, District of Columbia Circuit.

June 2, 1989

As Amended on Denial of Rehearing Aug. 10, 1989.

Argued May 1, 1989.

Page 192

Appeal from the United States District Court for the District of Columbia Circuit (Criminal No. 88-00142-01).

R. Kenneth Mundy, Washington, D.C., for appellant.

Lisa A. Kahn, Atty., Dept. of Justice, with whom Jay B. Stephens, U.S. Atty., and Michael W. Farrell, Asst. U.S. Atty., Washington, D.C., were on the brief, for appellee.

Before WALD, Chief Judge, and RUTH BADER GINSBURG and BUCKLEY, Circuit Judges.

Opinion for the court filed by Chief Judge WALD.

WALD, Chief Judge:

Appellant Gary K. Most challenges his conviction for unlawful possession with intent to distribute in excess of 50 grams of cocaine, in violation of 21 U.S.C. Secs. 841(a) and 841(b)(1)(A)(iii). Most contends that the district court erred in denying his motion to suppress physical evidence: drugs found in a bag which he deposited with a grocery store clerk while shopping. We conclude that the contested evidence was obtained by means of an unconstitutional search, and that its admission at trial was therefore improper. The defendant's conviction is accordingly reversed.

  1. FACTS

    On March 19, 1988, at approximately 5:00 p.m., three plainclothes officers of the Metropolitan Police Department observed three men in a new Lincoln Continental Town Car parked in a service roadway in the 1200 block of Kenilworth Avenue in Northeast Washington. The defendant exited the car, removed a yellow, red, and black plastic bag from the trunk, and returned to the front passenger seat. The police followed the Lincoln to a small shopping center, where the three individuals left the car. The defendant was carrying the plastic bag and, according to one officer's subsequent testimony, was looking about the parking lot in a suspicious manner. The three men entered a Chinese carry-out restaurant, emerging a short time later. The defendant, still carrying the bag, again looked around the parking lot and then entered a grocery store called Murray's Steaks.

    Upon entering the grocery, Most asked one of the store clerks if she would watch his bag. The store's policy was that customers were required to check their bags while they shopped. The clerk placed the bag on the floor underneath the checkout counter. When Most completed his shopping, he took his groceries with him in a white plastic shopping bag. However, he did not retrieve the yellow, red, and black bag. Instead, he asked one of the store clerks if she would continue to watch the bag for him.

    The police officers, who had been waiting outside the store, became suspicious when Most left the grocery carrying a different bag from the one which had been in his possession earlier. Two of the officers trailed Most; the third, Sergeant Byron Simms, entered the grocery in order to determine what had happened to the bag. Seeing the bag under the counter, Sgt. Simms posed as a shopper for approximately 15 minutes, watching to see whether anyone would retrieve the parcel. Sgt. Simms then questioned the store manager and the two clerks about the bag. The officer was informed that the defendant, upon leaving the store, had requested the clerks to continue to hold his bag. Both of the clerks told Sgt. Simms that they considered it strange for Most to take his groceries with him while leaving the other bag under their supervision.

    Sgt. Simms then inspected the bag more closely. It was a plastic merchandise bag from an athletic shoe store called the Athlete's Foot. Sgt. Simms picked up the bag by the drawstring; looking into the bag from the top, the officer saw only a swatch

    Page 193

    of a red garment. He pried at the top of the bag with a pen, attempting to increase the size of the opening. Sgt. Simms next felt the bottom of the bag, employing what he referred to as the "crush technique." Through the bag, Sgt. Simms could feel hard, individually wrapped packages inside; based on his experience as a narcotics officer, he concluded that these were "rocks" of the cocaine derivative crack. Upon opening the bag, the policeman discovered 272 small plastic bags, later found to contain over 300 grams of crack cocaine valued at approximately $23,000. Sgt. Simms then directed one of the other officers to bring the defendant, who had been walking around the neighborhood, back to the vicinity of the store. One of the store clerks identified Most as the man who had left the bag in their care, and he was arrested.

    Prior to trial, defense counsel moved that the cocaine be deemed inadmissible as the product of an unconstitutional search. The United States argued that the bag had been abandoned and that consequently no warrant was required. The trial court, while making no express finding on the question of abandonment, 1 held that the search was lawful and denied the motion to suppress. Most was convicted and sentenced to ten years' imprisonment, plus five years' supervised probation. This appeal followed.


    A. General Fourth Amendment Principles

    The fourth amendment to the United States Constitution provides that "[t]he 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...." U.S. Const. amend. IV. Evidence obtained by means of an unconstitutional search or seizure is not admissible at trial.

    The general rule, at least in the context of a criminal investigation, is that a search must be based upon a warrant issued upon probable cause. See Skinner v. Railway Labor Executives' Association, --- U.S. ----, 109 S.Ct. 1402, 1414, 103 L.Ed.2d 639 (1989) ("Except in certain well-defined circumstances, a search or seizure in [a criminal] case is not reasonable unless it is accomplished pursuant to a judicial warrant issued upon probable cause."); Mincey v. Arizona, 437 U.S. 385, 390, 98 S.Ct. 2408, 2412, 57 L.Ed.2d 290 (1978); Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967). 2 This is not to say that every warrantless search during a criminal investigation is violative of the Constitution. The relevant precedents do establish, however, that such a search is presumptively unlawful: The burden is on the government to establish that a particular exception to the warrant requirement applies.

    Not every investigative technique constitutes a "search" triggering the protections of the fourth amendment. For example, a police officer does not perform a "search" when he examines objects which are already in "plain view." See, e.g., Arizona v. Hicks, 480 U.S. 321, 328, 107 S.Ct. 1149, 1154, 94 L.Ed.2d 347 (1987) ("a truly cursory inspection--one that involves merely looking at what is already exposed to view, without disturbing it--is not a 'search' for Fourth Amendment purposes"); United States v. Williams, 822 F.2d 1174, 1182 (D.C.Cir.1987) ("apprehension of that which is already in plain view of an officer lawfully present at his vantage point does not infringe any reasonable expectation of privacy, and its exposure thus is not a search

    Page 194

    within the meaning of the Fourth Amendment"). The Supreme Court has also indicated that a dog sniff of luggage is not a search, for fourth amendment purposes, because the procedure "is so limited both in the manner in which the information is obtained and in the content of the information revealed by the procedure." United States v. Place, 462 U.S. 696, 707, 103 S.Ct. 2637, 2644, 77 L.Ed.2d 110 (1983). In general, though, virtually any other investigative touching of a suspect's belongings will constitute a search. The Supreme Court reaffirmed this principle in Hicks, holding that a search had been performed when a police officer moved a piece of stereo equipment a few inches in order to inspect its serial number. The Court stressed the need for a bright line, stating that "the distinction between looking at a suspicious object in plain view and moving it even a few inches is much more than trivial for purposes of the Fourth Amendment.... A search is a search, even if it happens to disclose nothing but the bottom of a turntable." 480 U.S. at 325, 107 S.Ct. at 1153 (internal quotations omitted).

    In certain very limited circumstances (e.g., Terry stops 3 and administrative searches) 4 the Supreme Court has held that a minimally intrusive search may be permissible under conditions that would not justify a full-scale search. In the vast majority of cases, however, the Court has refused to recognize such a middle ground. In Hicks, for example, the dissenters suggested that the moving of the stereo could be regarded as a "cursory inspection" which required only reasonable suspicion, not probable cause. The majority soundly rejected that argument: "We are unwilling to send police and judges into a new thicket of Fourth Amendment law, to seek a creature of uncertain description that is neither a plain-view inspection nor yet a 'full-blown search.' " 480 U.S. at 328-29, 107 S.Ct. at 1154-55.

    B. District Court's Analysis

    The district court's opinion suggested two possible grounds on which the police officer's actions might be justified. We believe, however, that neither provides an adequate basis for upholding the admission of the contested evidence.

    1. Williams and the "Plain Touch" Doctrine

    The trial court relied in large measure on our recent decision in Williams. In Williams, officers engaged in a Terry stop observed one of the suspects attempting to conceal a small paper bag. Fearing that the bag might contain a weapon, one of the officers felt it with his hands. At the suppression hearing, the officer testified

    that when he touched the bag he could "feel that...

To continue reading