U.S. v. Letsinger

• Decision Date: 22 August 1996
• Docket Number: Nos. 95-5007,95-5198,s. 95-5007
• Citation: 93 F.3d 140
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Lennie Earl LETSINGER, Defendant-Appellant (Two Cases).
• Court: U.S. Court of Appeals — Fourth Circuit

Page 140

93 F.3d 140

65 USLW 2207

UNITED STATES of America, Plaintiff-Appellee, v. Lennie Earl LETSINGER, Defendant-Appellant (Two Cases).

Nos. 95-5007, 95-5198.

United States Court of Appeals, Fourth Circuit.

Argued Jan. 29, 1996.

Decided Aug. 22, 1996.

ARGUED: Kathleen Joanna Lynch Holmes, Murphy, McGettigan & West, P.C., Alexandria, Virginia, for Appellant. Leslie Bonner McClendon, Assistant United States Attorney, Alexandria, Virginia, for Appellee. ON BRIEF: Helen F. Fahey, United States Attorney, Alexandria, Virginia, for Appellee.

Before HALL, NIEMEYER, and LUTTIG, Circuit Judges.

Affirmed by published opinion. Judge LUTTIG wrote the majority opinion, in which Judge NIEMEYER joined. Judge HALL wrote a dissenting opinion.

OPINION

LUTTIG, Circuit Judge:

Appellant, Lennie Earl Letsinger, challenges on two grounds the denial of his motion to suppress evidence obtained in connection with his arrest for possession with intent to distribute crack cocaine. First, he argues that his consensual questioning was transformed into a seizure by the movement of the train on which he and his arresting officers were traveling. Second, he contends that his bag containing the cocaine which he wishes suppressed was seized at the time that the officers announced they were going to seize it, and, at that time, they lacked reasonable suspicion to make such a seizure. We ultimately reject both arguments, and therefore affirm the judgment of the district court.

I.

The material facts are not in dispute. J.A. at 134-38, 155-59. On September 14, 1994, members of a federal drug task force, "Operation Railtail," received information from Amtrak that Letsinger had purchased, with cash, a one-way train ticket from New York to Rocky Mount, North Carolina, and had provided Amtrak a "bad" call back number. J.A. at 134, 155. Three police officers boarded the train at Union Station in Washington, D.C., looking for Letsinger. The officers went to Letsinger's compartment and knocked on the door, but there was no answer. They did not then enter his compartment, but rather left the train and waited on the platform for Letsinger to return. When an individual matching Letsinger's description boarded the train, the officers followed, and when they knocked on the door of his compartment a second time, Letsinger answered. The police identified themselves and asked Letsinger if they could speak with him, and Letsinger agreed. J.A. at 72, 135, 156. The officers remained in the hallway and Letsinger stood in the doorway to his compartment while the questioning took place, blocking access to his bag. J.A. at 73, 101, 135. Letsinger said he was on a "business" trip and would be in Rocky Mount for "a few days." J.A. at 73, 135, 156. About a minute into the questioning, the agents decided to ask the conductor to delay the train, but, before they could do so, the train departed Union Station. Continuing to question Letsinger, the agents asked for his identification. Letsinger became "very nervous" and "fumbled" through his wallet, taking three or four tries to remove his identification. J.A. at 74, 100, 136, 156.

The agents then asked Letsinger if he had any luggage, and he replied that he had one bag. They asked if they could search the bag. At this, Letsinger asked why he had been picked for questioning and whether he had to let them search, and Detective Ed Hanson replied, "we can only ask for your cooperation." J.A. at 76, 136. Letsinger responded that he had "personal papers" in the bag, and Detective George Darley said that they were not interested in papers. At that point, Hanson said to Letsinger that, based on the information they had, they were going to detain his bag, he could retrieve it later, and otherwise he was "free to do whatever he wanted to do." J.A. at 76, 104, 108, 137.

Notwithstanding his statement that the officers were going to detain Letsinger's bag, however, neither Hanson nor any of the officers took any steps toward the luggage. J.A. at 137. Instead, they continued to talk with Letsinger about his bag, asking him again if he would allow them to search the bag. To this request, Letsinger replied, "if you find a joint or some marijuana in the bag, I will be in big trouble." J.A. at 76, 137. Hanson responded that they were not particularly interested in small quantities of marijuana, which Letsinger said he had heard before. Hanson asked if that was why Letsinger was so nervous, because he had marijuana in his bag, and Letsinger said "yes." J.A. at 76-77, 109, 137. Upon hearing that Letsinger had marijuana in his bag, Hanson asked Letsinger to step out of the compartment. J.A. at 77, 137-38. Hanson then stepped into the compartment, searched Letsinger's bag, and found 2,969.46 grams of crack cocaine (but no marijuana). J.A. at 158.

Letsinger was arrested and, following the denial of his motion to suppress the evidence found in his bag, pleaded guilty to possession with intent to distribute, preserving his right to appeal the denial of his motion to suppress. He was then sentenced to 188 months in prison, and this appeal followed.

II.

A.

Letsinger argues first that, because no reasonable person would feel free to leave a moving train, his consensual conversation became a seizure when the train began to move and the officers remained on board questioning him. The holding in Florida v. Bostick, 501 U.S. 429, 436, 111 S.Ct. 2382, 2387, 115 L.Ed.2d 389 (1991), is dispositive of this claim:

[T]he mere fact that [the defendant] did not feel free to leave the bus does not mean that the police seized him. [The defendant] was a passenger on a bus that was scheduled to depart. He would not have felt free to leave the bus even if the police had not been present. [The defendant's] movements were "confined" in a sense, but this was the natural result of his decision to take the bus; it says nothing about whether or not the police conduct at issue was coercive.

Additionally, Letsinger was repeatedly told that he was only being asked for his "cooperation" and that he was "free to do whatever he wanted," J.A. at 76; as the district court found, "at no time did Letsinger indicate that he wanted to end the conversation, verbally or through his actions," J.A. at 136.

B.

Letsinger next argues that his bag was seized at the time that the officers announced that they were going to detain it; that, at that time, they lacked reasonable suspicion to support detention of the bag; and, therefore, that the bag was illegally seized, requiring suppression of the cocaine. For the reasons that follow, we reject this contention, as well.

"From the time of the founding to the present, the word 'seizure' has meant a 'taking possession' ... [and] [f]or most purposes at common law, the word connoted not merely grasping, or applying physical force to, the animate or inanimate object in question, but actually bringing it within physical control." California v. Hodari D., 499 U.S. 621, 624, 111 S.Ct. 1547, 1549-50, 113 L.Ed.2d 690 (1991) (citations omitted). Under this definition of "seizure," Letsinger's bag obviously was not seized upon the officers' mere announcement, because the common law required actual custody. But the common law may not necessarily end our inquiry.

In Hodari D., in addressing whether a suspect fleeing from police was " 'seized' within the meaning of the Fourth Amendment" by virtue of the police pursuit, id. at 623, 111 S.Ct. at 1548, the Supreme Court identified two circumstances in which a person can be "seized" even though he is not actually brought under physical control. First, the Court concluded that a person is "seized" if he is touched by a police officer with lawful authority and purpose to arrest, even if that person is not subdued. In so concluding, the Court recognized, and indeed to some extent created, id. at 626 n. 2, 111 S.Ct. at 1550 n. 2, an exception to the general common law requiring the actual " 'taking [of] possession,' " id. at 624, 111 S.Ct. at 1549-50. Second, following its decision in Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 1879 n. 16, 20 L.Ed.2d 889 (1968), the Court also concluded that a person is "seized" under the Fourth Amendment upon the submission of that person to an official "show of authority." Focusing on this latter circumstance of seizure, and assuming arguendo that the police pursuit at issue there constituted a "show of authority," Hodari D., 499 U.S. at 625, 629, 111 S.Ct. at 1550, 1552, the Court held that, "since Hodari did not comply" with that "show of authority," he was not seized "until he was tackled," that is, until he was physically touched, id. at 629, 111 S.Ct. at 1552.

Hodari D., of course, specifically addressed the seizure of persons, id. at 627 n. 3, 111 S.Ct. at 1551 n. 3. However, in light of the Court's evolving views on the relevancy of common law in defining Fourth Amendment "seizures," it is at least plausible that either or both of Hodari D.'s two exceptions to the general common law requirement of actual custody for seizure--a physical touching without control or a complied-with show of authority--may ultimately be held to extend to objects as well as persons.

On the one hand, as Hodari D. itself noted, common law seizure of inanimate objects, like common law seizure of even most animate objects, occurred only upon the exercise of physical control over the object. See Pelham v. Rose, 76 U.S. (9 Wall.) 103, 106, 19 L.Ed. 602 (1869) ("[B]y the seizure of a thing is meant the taking of a thing into possession, the manner of which, and whether actual or constructive, depending upon the nature of the thing seized. As applied to subjects capable of manual delivery, the term means caption; the physical taking into custody."). There was no "mere touch" exception to this general rule, as there was for an arrest, "the quintessential 'seizure of the person,' " 499 U.S. at 624, 111 S.Ct. at 1550 . Likewise, the concept of seizure through a "show of...