U.S. v. Battista, 88-3125

• Citation: 876 F.2d 201,278 U.S.App.D.C. 16
• Decision Date: 02 June 1989
• Docket Number: No. 88-3125,88-3125
• Parties: UNITED STATES of America, Appellee, v. Donato BATTISTA, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 201

876 F.2d 201

278 U.S.App.D.C. 16

UNITED STATES of America, Appellee, v. Donato BATTISTA, Appellant.

No. 88-3125.

United States Court of Appeals District of Columbia Circuit.

Argued April 28, 1989.

Decided June 2, 1989.

Appeal from the United States District Court for the District of Columbia (Criminal No. 88-00001-01).

Marvin D. Miller, Alexandria, Va., for appellant.

Erik Christian, with whom Jay B. Stephens, U.S. Atty., Michael W. Farrell, Helen M. Bollwerk, and Judith E. Retchin, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.

Before WALD, Chief Judge, and ROBINSON and BUCKLEY, Circuit Judges.

Opinion for the Court filed by Chief Judge WALD.

WALD, Chief Judge:

Donato Battista appeals his conviction for possession of cocaine with intent to distribute, arguing that the district court erroneously failed to suppress evidence that was obtained in violation of the fourth amendment. The district court found that although the search that revealed the evidence was conducted without a warrant, it was nevertheless lawful, on two separate theories: first, the court concluded that the officers had probable cause and were confronted with exigent circumstances; second, the court found that the entire search was authorized by Battista's voluntary consent. Because the record amply reflects the correctness of the latter ground, we find no error in the district court's decision to admit the evidence at Battista's trial. ¹ Battista's conviction is accordingly affirmed.

I. BACKGROUND

The relevant factual background was set out in the uncontradicted testimony of William Pearson, an officer in the drug enforcement unit of the Amtrak police department, at the suppression hearing held prior to Battista's trial. Pearson testified that Battista made a one-way Amtrak reservation on December 8, 1987, for Train 98 leaving the following day from Fort Lauderdale, Florida, and travelling to Newark, New Jersey. His reservation was for a sleeping compartment, or "roomette." At the time he made his reservation, Battista gave the ticket agent a "call-back" number--a telephone number at which he presumably could be reached prior to departure. On the morning of December 9, Battista appeared at the Fort Lauderdale train station and paid for his ticket with cash approximately 40 minutes prior to the train's scheduled departure time.

While Train 98 was en route from south Florida, Battista's presence on the train did not go unnoticed. Certain of the facts just recounted--notably, that Battista paid cash just prior to departure for one-way travel from a so-called "source city " for illicit drugs to the Northeast--first drew Officer Pearson's attention to Battista, for these evidently are factors that he has come to associate with possible drug courier activity. Pearson's suspicion was heightened when he called the telephone number given by Battista and it was out of service. ² Pearson decided to "attempt to interview" Battista when the train made its scheduled 25-minute stopover at Union Station in Washington, D.C. See Suppression Hearing Transcript ("Tr.") at 16. In preparation for this interview, Pearson testified that he contacted Special Agent John Robinson of the Drug Enforcement Administration's ("DEA") Mass Transportation Group, to request his assistance the following day. During this conversation, Pearson asked Robinson if the latter would make a "drug dog" available. Tr. at 17.

The following morning, when Train 98 arrived at Union Station, Pearson was accompanied by DEA Special Agents Robinson and Bill Dionne, and Detective Sam Grey of the Virginia state police to greet it. According to Pearson's testimony, Detective Grey "had a drug dog with him...." Tr. at 17. The officers boarded the train car on which Battista was supposed to be present. The "drug dog" (whose qualifications have been challenged in this appeal) was taken down the corridor of the car, and it "alerted" at the door of Battista's roomette (number 11), "indicating the presence of a controlled substance." Tr. at 19. At that time, Detective Grey and the dog left the train and waited on the platform.

Pearson and Robinson knocked on the door of roomette 11. When Battista opened the door, Officer Pearson, who was in plainclothes and whose gun was not visible, displayed his badge and identified himself, saying, "I would like to talk to you for a minute." Tr. at 19. According to Pearson, Battista responded, "Sure," closed the door, and then opened the door again. Pearson asked Battista for identification, and Battista produced a New Jersey driver's license. He stated that he had driven from New Jersey to Florida with a friend.

Pearson then informed Battista that a "trained drug detection dog" had given an alert on his compartment, indicating the presence of a controlled substance. Tr. at 21. "Based on the alert by the drug detection dog," Pearson continued, "I would like your permission to search your room and that suitbag," pointing to a suitbag on a luggage rack visible from where he was standing. Tr. at 21. Battista responded, "Sure." When told that he did not have to allow a search, he said, "That's okay," and then took the suitbag down from the rack and placed it out in the hallway. Tr. at 21. The search of the suitbag revealed nothing but an airplane ticket for one-way travel from Newark to Fort Lauderdale on December 8. Battista changed his original story, indicating without explanation that he had in fact flown--not driven--to Fort Lauderdale. Tr. at 22.

Pearson asked Battista to step outside the compartment. Pearson then conducted a search of the roomette, discovering under the bed a suitcase with a combination lock. When he asked Battista if he knew the combination to the lock, Battista "indicated that he did, came inside of the compartment, manipulated the numbers on the combination, and unlocked it." Tr. at 22. Inside the suitcase, Pearson discovered a plastic bag that was wrapped inside a pair of blue jeans. The bag itself contained two smaller packages which, upon penetration with the nail-file component of a pocketknife, were discovered to contain a white powder that later field tested positive for cocaine. Battista was placed under arrest and was taken to the Amtrak police office. This prosecution ensued.

The district court ruled that the evidence seized by the officers on the train was admissible against Battista. First, the court found that the officers had probable cause to search the room, ³ and that given the exigent circumstances present in this case--notably, the fact that Battista's train was scheduled to remain at Union Station for only 25 minutes--the officers were justified in searching the compartment without a warrant. See United States v. Battista, Crim. No. 88-1, mem. and order (D.D.C. May 2, 1988), at 3. Alternatively, the court concluded that the search could be upheld "on the basis of defendant's consent to the presence of the officers in the roomette, and their search of the suitcase." Id. at 3 n. 1. Following a bench trial, the district court found Battista guilty of possession with intent to distribute in excess of 500 grams of cocaine, pursuant to 21 U.S.C. Secs. 841(a) and 841(b)(1)(B)(ii), and possession of cocaine, pursuant to 21 U.S.C. Sec. 844(a).

II. ANALYSIS

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...." In determining whether the search at issue violated the precepts of the fourth amendment, this court faces a two-part inquiry. First, we must inquire whether the initial contact between Battista and the officers was justified. Next, we must determine whether the ensuing search conducted by the officers was within the scope of their authority--in this case, whether Battista voluntarily consented to a search, and if so whether the search that was conducted stayed within the scope of the consent given.

A. The "Interview"

As a preliminary matter, we must determine whether the encounter between the law enforcement officers and Battista amounted to a detention that requires fourth amendment protections. The relevant test for assessing whether a "seizure" has occurred focuses on "whether a reasonable person would conclude from the circumstances, and the show of authority, that he was not free to leave the officer's presence." United States v. Brady, 842 F.2d 1313, 1314 (D.C.Cir.1988) (citing Gomez v. Turner, 672 F.2d 134, 141 (D.C.Cir.1982)). In evaluating claims of seizure, the Brady court pointed to several factors typically found to induce persons to think that they have no choice but to remain present for an "interview" such as the one at issue here, including displayed weapons, physical intimidation, or threats--factors that were not present in this case. 842 F.2d at 1314. The court went on, however, to acknowledge that other less plainly coercive factors, such as "unusual setting or time," id., can nevertheless create an environment in which a reasonable person would feel that he had no practical choice but to stay.

In reviewing the facts of this case, we believe that the convergence of several subtle factors would cause a reasonable person to conclude that he was not free to leave the officers' presence, and that the officers did in fact effect a "seizure" as that term is understood under fourth amendment jurisprudence when they conducted their "interview" with Battista. The officers apparently roused Battista from his bed at 6:30 a.m., causing him to answer their knock on the door of his roomette in some partial state of undress. A reasonable person, roused early in the morning while wearing only his underwear in a city that is neither home nor ultimate destination might rightly doubt what he could do if he did not wish to remain in the officers' presence. His only conceivable retreat would be to close...