U.S. v. Caballero

Decision Date21 June 1991
Docket Number90-3156,Nos. 90-3129,s. 90-3129
Citation936 F.2d 1292,290 U.S.App.D.C. 235
PartiesUNITED STATES of America, Appellee, v. Jose Antonio CABALLERO, Appellant. UNITED STATES of America, Appellant, v. Jose Antonio CABALLERO, Appellee.
CourtU.S. Court of Appeals — District of Columbia Circuit

Appeals from the United States District Court for the District of Columbia (Criminal No. 89-00496-01).

Paul T. Cappuccio (appointed by the Court), with whom Richard A. Cordray, was on the brief, for appellant in 90-3129 and appellee in 90-3156.

Philip S. Kushner, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., and John R. Fisher, Thomas C. Black and John M. Seabright, Asst. U.S. Attys., were on the brief, for appellee in 90-3129 and appellant in 90-3156. Helen M. Bollwerk, Asst. U.S. Atty., also entered an appearance for the U.S.

Before SILBERMAN, BUCKLEY and HENDERSON, Circuit Judges.

Opinion for the court filed by Circuit Judge HENDERSON.

HENDERSON, Circuit Judge:

Jose Antonio Caballero was convicted of possession with intent to distribute over fifty grams of cocaine base in violation of 21 U.S.C. Sec. 841(a). In sentencing Caballero, the trial court determined that he was a "minor" participant in the crime within the meaning of the United States Sentencing Guidelines (Guidelines) and imposed the most lenient available sentence--121 months in prison. Caballero appeals his conviction on fourth amendment grounds. The Government cross-appeals, arguing that the trial court misinterpreted the Guidelines and improperly reduced Caballero's sentence. We affirm Caballero's conviction but remand for resentencing.

I.

On the night of November 29, 1989, a drug interdiction task force was stationed at the Greyhound bus terminal in Washington, D.C. The task force, composed of District of Columbia police officers, had the job of stopping travellers from narcotics "source" cities and questioning them about their activities. At approximately ten o'clock that night, Caballero arrived at the station from New York, a source city, and was stopped by one of the task force members, Officer Brennan.

Brennan was dressed in casual clothes and carried a concealed weapon. When Caballero reached the sidewalk outside the bus terminal, Brennan approached Caballero, identified himself as a police officer and asked if Caballero would answer some questions. Caballero did not object. Brennan then asked to see Caballero's bus ticket and Caballero complied. The ticket confirmed that Caballero had arrived from New York City. After asking where Caballero was staying in Washington and learning that he was staying with an aunt, Brennan asked him if he was carrying narcotics. Caballero said that he was not.

In response to Caballero's negative answer, Brennan asked if he could search Caballero's bag. According to Brennan, Caballero said "yes" and handed him the bag. 1 Inside the bag, Brennan noticed a box of Cheese Nips. That box, unlike other boxes the officer had seen, seemed filled to the top and inflexible. Brennan asked if he could open it and Caballero again consented. Brennan found hidden among the crackers a package containing white powder, later determined to be cocaine. At that point, Brennan arrested Caballero.

Before trial Caballero moved to suppress the cocaine. Caballero argued both that he was unlawfully "seized" by Brennan and that he had not voluntarily consented to the search of his bag. The trial court heard and denied the motion, concluding:

It is true, as the prosecutor points out, there were no weapons, there was no physical attempt to restrain the defendant, no shouting or anything. The mere fact that he felt that he couldn't go is certainly not enough grounds [for the stop to amount to a seizure]....

Insofar as the search of the bag and the box are [sic] concerned, it's simply a question of credibility. While I am not one who automatically believes the officers--as a matter of fact, I think I disbelieved this particular officer in a couple of fairly recent cases--I think in this case his story seems more credible than that of the defendant.

It appears to me that the defendant, for whatever reason, agreed to have him search the bag. Now, why he did that, I don't know. As I said before, it always baffles me why the people, who are approached, agree to that. Maybe they are somehow subjectively intimidated by a police officer. But the fact is I find that he consented to the search, and therefore the search was legal. The motion to suppress will be denied.

Caballero was then tried for and convicted of possession with intent to distribute 50 grams or more of cocaine base in violation of 21 U.S.C. Sec. 841(a). Under the Guidelines the base offense level for that crime is 34, with a range of 151 to 188 months' imprisonment. Despite defense counsel's assertions at the sentencing conference that Caballero was not entitled to a downward adjustment of his base offense level, 2 the trial court sua sponte raised the issue whether Caballero was a "minor" participant under section 3B1.1 of the Guidelines and concluded that Caballero was entitled to a two-point downward adjustment. At that reduced level, Caballero's imprisonment range was 121 to 151 months and the court sentenced him to 121 months.

In reaching its decision to adjust Caballero's base offense level, the trial court declared:

I think it is really unfortunate, to say the least, that Congress has seen fit to have these extraordinarily high mandatory minimum sentences for people like this defendant who really are just couriers and do not have major responsibility for the drug plague that plagues this country. But as you also recognize, and as the defendant must recognize by now, I have very little leeway in what I can do. Congress has said he has to get at least ten years.

In a way, if there is any responsibility--and I certainly don't like to shift responsibility--if there is any responsibility here, it lies, in addition to the Congress, with the United States Attorney's office. I don't mean this particular Assistant United States Attorney. But in other districts, I'm told by other federal judges, the United States Attorney's office is taking more a reasonable approaches [sic], and in cases of this kind have not insisted upon charging them with an offense that carries a ten-year mandatory minimum. But I, obviously, can't do anything about that.

The one thing I can do--what I will do--is to reduce the computation slightly by finding that he is a minor participant, which will reduce the offense levels [sic] from 34 to 32. The effect of that will be to reduce the required sentence under the guidelines from 151 to 188 months to 121 to 151 months.

The trial court declined the Assistant United States Attorney's request for an explanation of its decision to grant a two-point reduction. 3

The parties now cross-appeal. Caballero contends on appeal (i) that the trial court erred when it determined that he had not been "seized" by police before the search; and (ii) that the court used an incorrect legal analysis in denying his motion to suppress. The government contends that the court erred when it reduced Caballero's base offense level and seeks a reversal of the court's finding that Caballero was a minor participant. We reject both of Caballero's contentions but remand so that the trial court can re-examine whether Caballero was a minor participant.

II.

Caballero's first contention is that he was "seized" by Brennan as soon as Brennan asked him if he was carrying drugs and for his consent to a search. Caballero relies on decisions from other circuits that have decided that this sequence, as a matter of law, transforms a mere stop into a "seizure" for the purpose of the fourth amendment. See United States v. Gonzales, 842 F.2d 748, 752 (5th Cir.1988); United States v. Palen, 793 F.2d 853, 857 (7th Cir.1986). Caballero further argues that the seizure violated his fourth amendment rights because there was no reason for Brennan to suspect that he was carrying drugs.

We need not dwell long on this issue. Very recently, this court considered and rejected the seizure argument Caballero makes here. In United States v. Maragh, 894 F.2d 415, 416 (D.C.Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 214, 112 L.Ed.2d 174 (1990), an undercover police officer approached the defendant in a train station, identified himself as an officer, asked the defendant if he had any drugs and then asked to search the defendant's shoulder bag. The trial court, relying on the Fifth and Seventh Circuit decisions, concluded that the investigatory stop amounted to a seizure. 695 F.Supp. 1223, 1225 (D.D.C.1988). In reversing the lower court, we expressly rejected the bright line test used by our two sister circuits and held that the circumstances of the stop were not so intimidating that the defendant could not have reasonably believed that he was not free to leave. 894 F.2d at 418-19.

Moreover, we have repeatedly held that bus or train station stops by undercover police officers, like the one here, do not amount to seizures. See, e.g., United States v. Nurse, 916 F.2d 20, 23 (D.C.Cir.1990); United States v. Smith, 901 F.2d 1116, 1117-18 (D.C.Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 172, 112 L.Ed.2d 136 (1990); United States v. Winston, 892 F.2d 112 (D.C.Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 3277, 111 L.Ed.2d 787 (1990); United States v. Joseph, 892 F.2d 118 (D.C.Cir.1989); United States v. Baskin, 886 F.2d 383 (D.C.Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 1831, 108 L.Ed.2d 960 (1990); United States v. Lloyd, 868 F.2d 447 (D.C.Cir.1989). In light of clear precedent, we hold that Caballero's encounter with Brennan did not constitute a seizure under the fourth amendment.

III.

Caballero next argues that the trial court failed to use the proper legal analysis when it concluded that he consented to the search of his bag. According to Caballero, ...

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