949 F.2d 851 (6th Cir. 1991), 90-3856, United States v. Richardson

Docket Nº:90-3856, 90-3864.
Citation:949 F.2d 851
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Dock RICHARDSON, Defendant-Appellant.
Case Date:November 20, 1991
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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949 F.2d 851 (6th Cir. 1991)

UNITED STATES of America, Plaintiff-Appellee,


Dock RICHARDSON, Defendant-Appellant.

No. 90-3856, 90-3864.

United States Court of Appeals, Sixth Circuit

November 20, 1991

Argued July 16, 1991.

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[Copyrighted Material Omitted]

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John M. DiPuccio (argued and briefed), Office of the U.S. Atty., Cincinnati, Ohio, for plaintiff-appellee.

Thomas W. Miller (briefed), Winston K. Johnson (argued and briefed), Cincinnati, Ohio, for defendant-appellant.

Before KEITH, Circuit Judge, WELLFORD, Senior Circuit Judge, and GADOLA, District Judge. [*]

PAUL V. GADOLA, District Judge.

Defendant-Appellant Dock Richardson ( "Richardson" ) was indicted in the District Court for the Southern District of Ohio. Richardson moved to suppress evidence obtained in the search of a storage locker and evidence obtained in the subsequent search of a second storage locker. The second search was conducted pursuant to a facially valid warrant that was based, at least in part, on the fruits of the first search. The district court denied the motion to suppress and ruled that Richardson voluntarily consented to the initial search. Finding no constitutional violation in the execution of the first search, the district court did not reach the constitutionality of the second search. A jury convicted Richardson on five counts and he pleaded guilty to a sixth count.

Richardson alleges that the trial court erred in denying the motion to suppress and in concluding that he was a leader/organizer for the purposes of sentencing. We find that Richardson was illegally arrested and that the illegal arrest tainted his consent to search. For the reasons stated more fully below, we VACATE the order denying the motion to suppress and REMAND for further proceedings. With respect to the trial court's finding that Richardson was a leader/organizer, we AFFIRM. The leader/organizer issue may become moot, however, depending on the outcome of the proceedings on remand.


On May 15, 1988, agents of the Drug Enforcement Agency and the Union Township Police began an investigation into the affairs of Dock Richardson. The agents

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believed Richardson was illegally trafficking in controlled substances. Actual surveillance of Richardson began on May 26, 1988. No criminal activity was observed on that day.

The law enforcement officers began following Richardson at approximately 9:30 AM on Friday, May 27, 1988. Richardson made several stops that morning, one at the residence of co-defendant Gregory McCollum. Richardson had been staying with McCollum, a man the agents knew to be involved in the distribution of drugs. At 11:30 PM the agents followed Richardson to The Eastgate Keys Storage Facility ( "Eastgate Keys" ). They observed Richardson meet a man who was later identified as Waylon Harris. The two men then proceeded to locker F-69 (the first storage locker) which was maintained by Richardson. Over the next few hours, agents positioned at various points around the facility observed the two men working in and around storage locker F-69. At approximately 2:30 PM on Friday, May 27, 1988, the four law enforcement agents approached the first storage locker. As they approached, Richardson was seated in a car parked near the first storage locker. Harris was inside the first storage locker, which was blocked by his pickup truck. At this point, no criminal activity had yet been observed. The officers approached, went into the first storage locker to get Harris, and informed the men that they were the subject of a drug investigation. The four officers then asked Richardson for consent to search the first storage locker. Upon his refusal, Richardson was placed in the back seat of an unmarked police car. The officers then proceeded to question Harris out of Richardson's earshot.

At approximately 2:40 PM, Harris confessed to going on numerous trips for Richardson to transport marijuana for him. Harris then consented to a search of his vehicle. The agents searched but found nothing.

Agent Bik told Richardson of Harris's confession and informed him that if he again refused to consent to a search of the first storage locker, they would get a warrant. Although Richardson had been evasive and deceptive in his answers and had refused consent three times at that point, he then changed his position. Richardson mistakenly assumed that the officers had already viewed the contents of the first storage locker when they went into the locker to get Harris and stated, "So you might as well go in;" and "Go ahead and search since you are going to anyway." Order denying motion to suppress at 3 (Joint App. at 33). The officers considered these statements to be consent and, at approximately 2:50 PM, they entered the first storage locker. The officers obtained no written or recorded consent to search from Richardson. No attempt was made to get a search warrant from the Batavia courthouse which was approximately fifteen minutes away and open for business at the time.

The officers found barrels containing drug residue, plastic baggies, a scale and duct tape in the first storage locker. Upon searching Richardson's truck, the officers found remains of marijuana and $4,000. The truck also had Ohio plates on the outside and Texas plates on the inside. With Harris's assistance, an additional search of the truck yielded $37,000.

After the search of Harris's car, Richardson's truck, and the first storage locker, the agents obtained a search warrant from Clermont County to search a second storage locker registered to Richardson at Eastgate Keys. The agents discovered additional contraband as a result of the second search.

On January 18, 1989, Richardson was indicted in the United States District Court for the Southern District of Ohio with violations of 21 U.S.C. §§ 841 and 846 pursuant to a twenty-seven count indictment (Case No. CR-1-89-006). Richardson failed to appear for his hearing on the motion to suppress, and on April 5, 1989, Richardson was indicted for failure to appear and other drug-related counts in Case No. CR-1-89-035. Motions to suppress evidence were filed on February 3, 1989, and October 20, 1989. The trial court denied

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these motions in an order dated January 17, 1990.

At trial, Richardson was found guilty on five counts of the indictments. As previously noted, he pleaded guilty to a sixth count. He was sentenced to terms of 151 months on Count 2 (CR-1-89-35) and 60 months on each of Counts 1, 19, 26, 27 (CR-1-89-06) and 4 (CR-1-89-35), all sentences to run concurrently, and a term of 10 months on Count 1 (CR-1-89-35) to run consecutively to the others. The trial court also sentenced Richardson to three years of supervised release and imposed a $50.00 assessment on him.

Richardson appeals the order that denied his motion to suppress the evidence obtained from the search of the first storage locker and from the subsequent search warrant. Richardson also appeals the determination that he was a leader/organizer and, thus, given a four-point increase for sentencing purposes.


  1. Did the Encounter Between Richardson and the Law Enforcement Agents Constitute a Seizure?

    As a threshold question, we must consider whether the initial encounter between the law enforcement agents and Dock Richardson constituted a seizure of Richardson. The safeguards of the Constitution, with respect to police/citizen contact, will vest only after the citizen has been seized. United States v. Mendenhall, 446 U.S. 544, 553, 100 S.Ct. 1870, 1876, 64 L.Ed.2d 497 (1980); United States v. Knox, 839 F.2d 285, 289 (6th Cir.1988).

    Not every police/citizen encounter constitutes a seizure. We agree that "voluntary cooperation of a citizen in response to non-coercive questioning [raises no constitutional issues.] " United States v. Morgan, 936 F.2d 1561, 1566 (10th Cir.1991).

    [L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions.

    United States v. Flowers, 909 F.2d 145, 147 (6th Cir.1990) (per curiam) (quoting Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229 (1983)). So long as a "reasonable person would have felt free to leave the situation, no seizure has occurred within the meaning of the Fourth Amendment." United States v. Grant, 920 F.2d 376, 390 (6th Cir.1990) (Guy, J., concurring in part and dissenting in part).

    Conversely, an individual is deemed seized if "in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." Knox, 839 F.2d at 289 (quoting Mendenhall, 446 U.S. at 554, 100 S.Ct. at 1877); see also Royer, 460 U.S. at 502, 103 S.Ct. at 1326 (White, J., concurring). In Grant, the court noted that "a Fourth Amendment seizure occurred because the agents exercised their authority in a manner which made it apparent ... that [the citizen] was 'not free to ignore the officer[s] and proceed on his way.' " Grant, 920 F.2d at 382 (quoting United States v. Black, 675 F.2d 129, 135 (7th Cir.1982), cert. denied, 460 U.S. 1068, 103 S.Ct. 1520, 75 L.Ed.2d 945 (1983)).

    A seizure of a person occurs "[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). The Court stated in California v. Hodari, D., --- U.S. ----, 111 S.Ct. 1547, 1551, 113 L.Ed.2d 690 (1991), that "the test for existence of a 'show of authority' is an objective one: not whether the citizen perceived that he was being ordered to restrict his movement, but whether the officer's words...

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