U.S. v. Lewis, s. 90-3029

• Decision Date: 21 December 1990
• Docket Number: Nos. 90-3029,90-3034,s. 90-3029
• Citation: 287 U.S.App.D.C. 306,921 F.2d 1294
• Parties: , 59 USLW 2409 UNITED STATES of America, Appellant, v. Dennis S. LEWIS. UNITED STATES of America, Appellant, v. Leigha T. COTHRAN.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1294

921 F.2d 1294

287 U.S.App.D.C. 306, 59 USLW 2409

UNITED STATES of America, Appellant, v. Dennis S. LEWIS.

UNITED STATES of America, Appellant, v. Leigha T. COTHRAN.

Nos. 90-3029, 90-3034.

United States Court of Appeals, District of Columbia Circuit.

Argued Sept. 14, 1990.

Decided Dec. 21, 1990.

Appeals from the United States District Court for the District of Columbia (Crim. Nos. 89-00437-01 & 89-00481-01).

Kathleen A. Felton, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., and John R. Fisher, Washington, D.C., Asst. U.S. Atty., were on the brief, for appellant in both cases. Robert A. Feitel, Washington, D.C., Asst. U.S. Atty., was also on the brief for appellant in No. 90-3034.

Thomas Abbenante, Washington, D.C. (appointed by this court) for appellee Lewis.

Howard F. Bramson, Washington, D.C. (appointed by this court) for appellee Cothran.

Arthur B. Spitzer and Elizabeth Symonds (for American Civil Liberties Union), James W. Klein, David A. Reiser, David H. Remes, and Barry Coburn, Washington, D.C. (for Public Defender Service for D.C.) were on the joint brief for amici curiae.

Before BUCKLEY, D.H. GINSBURG, and RANDOLPH, Circuit Judges.

Opinion for the court filed by Circuit Judge BUCKLEY.

BUCKLEY, Circuit Judge:

In these two cases, defendants challenge a new and increasingly common tactic in the war on drugs: Police officers board a commercial bus at an intermediate stop and, with the permission of individual passengers, ask questions, examine identifications and tickets, and conduct searches. Although we have not previously dealt with a Fourth Amendment challenge to this particular technique, we have considered and upheld similar police-citizen encounters aboard trains, see, e.g., United States v. Brady, 842 F.2d 1313 (D.C.Cir.1988), in train stations, see, e.g., United States v. Lloyd, 868 F.2d 447 (D.C.Cir.1989), and in bus terminals, see United States v. Winston, 892 F.2d 112 (D.C.Cir.1989).

Both district judges considered those precedents inapplicable to what they characterized as an "abhorrent police practice- [ ]," United States v. Lewis, 728 F.Supp. 784, 790 (D.D.C.1990), one "so intimidating that it compels compliance," United States v. Cothran, 729 F.Supp. 153, 158 (D.D.C.1990). A police officer who questions and searches consenting passengers aboard a bus, the judges ruled, commits a per se violation of the Constitution that is reminiscent of abuses under George III, Hitler, and Stalin. See Cothran, 729 F.Supp. at 157; Lewis, 728 F.Supp. at 790. As a consequence, the judges ruled that the evidence secured by the police must be suppressed. Construing the uncontested facts in the light of our well-established precedents, we reverse.

I. BACKGROUND

A. Lewis

Dennis S. Lewis was indicted on November 9, 1989, on three counts of possession with intent to distribute narcotics in violation of 21 U.S.C. Sec. 841. At a suppression hearing on December 14, 1989, Detective Edward Hanson of the Metropolitan Police Narcotics Interdiction Unit gave the following uncontested testimony.

At about 12:30 p.m. on October 19, 1989, Detective Hanson and two other officers boarded a southbound bus during a layover in Washington, D.C. Detective Hanson displayed his police identification to a passenger, who was later identified as Lewis, and asked if they could talk. Lewis agreed. In response to questions, Lewis displayed his ticket from New York City to Richmond, Virginia; stated that he had been visiting his sick mother; displayed his driver's license; and said that he had no luggage.

Detective Hanson then explained that, as part of the District of Columbia's drug interdiction effort, he was assigned to interview people traveling on public transportation from drug-source cities, including New York City. Lewis said that he understood. The officer asked if he was carrying any narcotics or weapons. Lewis said he was not. The officer then asked for permission to search Lewis's person. Lewis consented and stood up. Upon detecting a large lump in Lewis's left sock, the officer retrieved a packet of white powder, which was field tested and identified as cocaine. Detective Hanson placed Lewis under arrest. Subsequently, the officer found marijuana in Lewis's jacket pocket, and cocaine, heroin, and related paraphernalia in a bag on the floor near Lewis's seat.

Detective Hanson testified that Lewis cooperated freely and indicated no desire to stop answering questions or to leave the bus. The officer spoke in a low, conversational tone and never told Lewis that he was required to respond. The detective wore plain clothes and did not display a weapon. He returned Lewis's license and ticket after examining them.

The trial court granted the defendant's motion to suppress the contraband. The judge concluded that the initial encounter was an unlawful Fourth Amendment seizure, that the seizure tainted the consensual search, that in any event the consent was not voluntary, and that the practice of randomly questioning bus passengers violates the Fifth Amendment. See Lewis, 728 F.Supp. at 786-89.

B. Cothran

On December 14, 1989, Leigha T. Cothran was indicted for possession with intent to distribute a narcotic, in violation of 21 U.S.C. Sec. 841, and for use of a firearm in relation to a drug trafficking offense, in violation of 18 U.S.C. Sec. 924(c). At a January 12, 1990, suppression hearing, Detective Ronnie Hairston, also of the Metropolitan Police Narcotics Interdiction Unit, gave the following uncontested testimony.

At about 6:50 p.m. on November 16, 1989, Detective Hairston and two or three other officers boarded a southbound bus that was making an intermediate stop in Washington. While the other officers questioned people in the front of the bus, Detective Hairston started in the back. He questioned and searched one man, with his consent, and then approached a man and woman in adjacent seats. The man told the officer that they were traveling together. The woman, later identified as Cothran, agreed to talk with the officer, allowed him to examine her ticket, and said that she had checked all her luggage. With her permission, Detective Hairston took her coat and handbag, searched them, found no contraband, and returned them to her. Hairston testified that when he approached Cothran, he told her he was a police officer and identified himself by showing her his I.D. folder. He used a conversational tone in talking with her; she seemed calm and was cooperative.

The officer proceeded to question others on the bus. Eventually he began inspecting the bags in the overhead luggage racks. He asked Cothran and her companion about a tote bag above their seats. Both denied ownership of it. The detective held it up and asked the other passengers whether any of them owned the bag. No one claimed it. Another officer checked with the driver to be sure that all passengers had reboarded, and then held the bag up and loudly asked if it belonged to anyone on the bus. Again, no one responded.

Treating the bag as abandoned, the police took it outside. A drug-detecting dog indicated that the bag contained narcotics. The officers opened it and found a rocklike substance that tested as cocaine, along with a handgun and a photo of three people, one of whom appeared to be Cothran. She was placed under arrest. At the police station, after being advised of her right to remain silent, she said repeatedly, "I shouldn't have done it for him."

The trial judge excluded from evidence the bag and its contents, as well as Cothran's post-arrest statement. He ruled that the encounter was an unlawful seizure, that Cothran's denial of ownership of the bag was in essence an involuntary consent to its search, and that these Fourth Amendment violations tainted her subsequent statement to the police. See Cothran, 729 F.Supp. at 155-57 & n. 3.

II. DISCUSSION

A. Seizure

In each case, the district court concluded that the police had seized the defendants in violation of the Fourth Amendment. As these judgments involve questions of law, they are subject to de novo review. See United States v. Maragh, 894 F.2d 415, 417-18 (D.C.Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 214, 112 L.Ed.2d 174 (1990). We find that the courts erred.

It has long been clear that police do not "seize" every citizen whom they approach. Rather, a seizure arises "[o]nly when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen." Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 1879 n. 16, 20 L.Ed.2d 889 (1968). In determining whether a defendant's liberty has been restrained, we ask whether a reasonable person would have felt free to leave, see Michigan v. Chesternut, 486 U.S. 567, 573, 108 S.Ct. 1975, 1979, 100 L.Ed.2d 565 (1988), or would have felt free to "disregard the police presence and go about his business," id. at 576, 108 S.Ct. at 1981. The reasonable person we posit is, of course, innocent of any crime. See United States v. Joseph, 892 F.2d 118, 121 (D.C.Cir.1989).

This analysis takes into account all the objective circumstances of the encounter, for "what constitutes a restraint on liberty prompting a person to conclude that he is not free to 'leave' will vary, not only with the particular police conduct at issue, but also with the setting in which the conduct occurs." Chesternut, 486 U.S. at 573, 108 S.Ct. at 1979 (internal quotes in original). Relevant factors include the time of day, the place, the officer's tone of voice, and whether the officer displayed a weapon or handcuffs, wore a uniform, touched the individual without permission, threatened or physically intimidated him, or retained his identification or travel ticket. See, e.g., United States v. Tavolacci, 895 F.2d 1423, 1424-26 (D.C.Cir.1990) (opinion for a divided panel); Maragh, 894 F.2d at 418.

Applying these factors, we have repeatedly concluded that no seizure arises when officers, "displaying no weapons and...