U.S. v. Wilson

• Decision Date: 07 March 1990
• Docket Number: No. 89-5001,89-5001
• Citation: 895 F.2d 168
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Everton G. WILSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 168

895 F.2d 168

UNITED STATES of America, Plaintiff-Appellee, v. Everton G. WILSON, Defendant-Appellant.

No. 89-5001.

United States Court of Appeals, Fourth Circuit.

Argued Oct. 5, 1989.

Decided Feb. 5, 1990.

Rehearing and Rehearing In Banc Denied March 7, 1990.

Harvey Shepherd Williams, for defendant-appellant.

Bernard James Apperson, III (Henry E. Hudson, U.S. Atty., W. Neil Hammerstrom, Jr., Asst. U.S. Atty., on brief), for plaintiff-appellee.

Before POWELL, Associate Justice, United States Supreme Court, Retired, sitting by designation, and MURNAGHAN and WILKINS, Circuit Judges.

PER CURIAM:

Everton Wilson was convicted in the United States District Court for the Eastern District of Virginia for possession with intent to distribute 50 grams or more of "crack" cocaine, a controlled substance. He has appealed the district court's conviction alleging that the district court erred by (1) admitting into evidence cocaine found on his person pursuant to a search conducted in violation of the fourth amendment, and (2) denying him a hearing to determine the voluntariness of a statement he made while in custodial interrogation.

I

On July 25, 1988, Wilson was observed by agent Peter Becerra--deputy sheriff for Loudoun County, Virginia, assigned to the DEA's Mass Transportation Detail--while arriving on a Pan Am Shuttle Flight from New York City, apparently a "drug source" city. As Becerra stared at Wilson, Wilson quickly looked away, looked back at the agent, again looked away, and acted "real nervous." Becerra decided to follow Wilson, who continued looking back at him.

Becerra, who was casually dressed, caught up with Wilson, identified himself and displayed his credentials; Wilson stopped. Becerra asked Wilson if he would talk with him; Wilson agreed. Becerra asked Wilson if he had a plane ticket and identification. Wilson did not produce a ticket but did produce an unofficial identification card in the name of David Wright. Becerra also inquired about Wilson's residence, the number of drinks he had on the plane, and the weather in New York. Becerra then told Wilson that he was with the DEA and was trying to stop the flow of narcotics coming into the Washington, D.C. area, and asked Wilson if he was carrying any drugs. Wilson said, "No." Becerra asked Wilson if he could look in his bag; Wilson replied, "Go ahead."

Becerra testified that while he was kneeling down, searching through Wilson's bag, he noticed a suspicious bulge in Wilson's groin area. He also testified that Wilson "appeared extremely nervous." Becerra asked Wilson if he could search his person, and, without making an oral response, Wilson simply shrugged his shoulders and extended his arms. Becerra felt a very hard substance in Wilson's groin area and asked Wilson about it; Wilson just nodded his head. At that time Becerra directed Wilson to the station for further investigation--Wilson was not, from that time on, free to leave. At the station, Becerra continued the body search and uncovered a large knife, a pager, and a package containing 131.5 gross grams of "crack" cocaine. Becerra read Wilson his Miranda rights.

Becerra asked Wilson if there was someone else involved and stated that maybe "they" could do something to help him. Wilson said that he was supposed to give the dope to a guy in front of the airport in a blue Lincoln Continental and then return to New York. Becerra asked Wilson if he personally used cocaine and Wilson said, "No." At trial, Wilson testified that he made up those statements in response to Becerra's promise of leniency.

At a hearing on defendant's motion to suppress the cocaine found on Wilson, the district court ruled that Becerra's stop of Wilson was a permissible encounter and that Wilson consented to the body search. The court also ruled that, upon feeling the bulge in Wilson's groin, Becerra had probable cause to arrest Wilson. ¹

On October 24, 1988, Wilson was tried by a jury in the United States District Court for the Eastern District of Virginia and was convicted on one count of possession with intent to distribute 50 grams or more of crack, a controlled substance. He was sentenced to ten years imprisonment and five years supervised release.

II

We are first called on to determine whether Becerra violated Wilson's fourth amendment rights when he stopped Wilson and searched his body. We conclude that Becerra did not act in contravention of the fourth amendment. Becerra's approach and questioning of Wilson constituted a permissible encounter, not a "seizure." Furthermore, Wilson raised his arms in response to Becerra's request for permission to pat him down, a request made without threats, force, or physical intimidation. It was not "clearly erroneous" for the district court to find that the search was consensual.

Wilson has argued that: (1) the initial stop constituted a seizure without the requisite "articulable suspicion," and (2) the pat-down search was nonconsensual and unjustified.

Although a "reasonable and articulable suspicion" is required prior to an investigatory detention, the requirement only applies if a "seizure" has occurred. "Obviously, not all personal intercourse between policemen and citizens involves 'seizures' of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a 'seizure' has occurred." Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 1879 n. 16, 20 L.Ed.2d 889 (1968), quoted in United States v. Mendenhall 46 U.S. 544, 552, 100 S.Ct. 1870, 1876, 64 L.Ed.2d 497 (1980).

The standard adopted by the Supreme Court to determine whether a "seizure" has occurred is an objective one--an individual is seized "only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." Michigan v. Chesternut, 486 U.S. 567, 108 S.Ct. 1975, 1979, 100 L.Ed.2d 565 (1988) (quoting Mendenhall, 446 U.S. at 554, 100 S.Ct. at 1877). The agents' conduct must be measured according to the probable perspective of a reasonable person, not the subjective perception of the particular defendant. ²

Wilson has agreed that when the agent first identified himself and asked to speak with him, the encounter did not implicate the Fourth Amendment. Wilson has nevertheless contended that the continued questioning of Wilson and the request to search Wilson's bag turned the encounter into an unjustified investigative detention. But a permissible encounter does not mature into a seizure when an otherwise consensual search occurs.

In Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983), DEA agents approached the defendant in an airport, asked to speak with him, and asked for his ticket and identification. However, the agents did not return the defendant's ticket or identification, asked him to accompany them to a small room, and retrieved his luggage from the baggage department without his consent. Id. at 493-95, 103 S.Ct. at 1321-23. The Supreme Court held that "[w]hat had begun as a consensual inquiry in a public place had escalated into an investigatory procedure" without the requisite justification when the police took the suspect into a private interrogation room. Id. at 503, 103 S.Ct. at 1327 (emphasis added). If the police had not taken Royer into the private room and had not obtained his luggage without consent, the Supreme Court presumably would have upheld the approach of the suspect as a mere encounter.

The district court did not commit clear error in finding that the encounter between Becerra and Wilson was not a "seizure." See United States v. Porter, 738 F.2d 622, 625 (4th Cir.) (en banc ) ("clearly erroneous" standard applied when determining if "seizure" occurred), cert. denied, 469 U.S. 983, 105 S.Ct. 389, 83 L.Ed.2d 323 (1984); United States v. Gooding, 695 F.2d 78, 82 (4th Cir.1982) (same).

Wilson has further argued that Becerra's pat-down search, which revealed the bulge in his groin, was nonconsensual. He has contended that the government must offer more evidence than acquiescence to a claim of lawful authority to support its search, particularly when the government has the burden of proving the necessary consent.

But according to the record, Becerra's search was not conducted pursuant to a claim of lawful authority. Becerra testified that he asked Wilson if he would mind if he searched his person. In Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968), on the other hand, the police had told the defendant's grandmother that they possessed a search warrant and she had replied, "Come on in." Id. at 546-47, 88 S.Ct. at 1790-91. The Supreme Court held that the search could not be justified by consent; the burden of proving voluntary consent "cannot be discharged by showing no more than acquiescence to a claim of lawful authority." Id. at 548-49, 88 S.Ct. at 1791-92.

Contrary to the "seizure" test, the determination of consent to search is subjective. The Supreme Court has stated that the question whether consent is in fact voluntary "is to be determined by the totality of all the circumstances, and is a matter which the Government has the burden of proving." Mendenhall, 446 U.S. at 557 100 S.Ct. at 1878 (citations omitted). In reviewing a district court's determination on consent, an appellate court must uphold the lower court's finding unless it is "clearly erroneous." Mendenhall, 446 U.S. at 558, 100 S.Ct. at 1879; cf. United States v. Sutton, 850 F.2d 1083, 1086 (5th Cir.1988) ("Where the judge bases a finding of consent on the oral testimony at a suppression hearing, the clearly erroneous standard is particularly strong since the judge had the opportunity to observe the demeanor of the witnesses.").

In Mendenhall, after being approached by DEA agents in an airport, the defendant, who became "quite shaken" and "extremely nervous," was asked to accompany the agents...