951 F.2d 1278 (D.C. Cir. 1991), 90-3286, U.S. v. Jordan

Docket Nº:90-3286.
Citation:951 F.2d 1278
Party Name:UNITED STATES of America v. Carl O. JORDAN, Appellant.
Case Date:December 13, 1991
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 1278

951 F.2d 1278 (D.C. Cir. 1991)

UNITED STATES of America

v.

Carl O. JORDAN, Appellant.

No. 90-3286.

United States Court of Appeals, District of Columbia Circuit.

December 13, 1991

As Amended Dec. 13, 1991.

Argued Oct. 21, 1991.

Page 1279

Appeal from the United States District Court for the District of Columbia (Criminal No. 90-00212-01).

Michael H. Stone, for appellant. Byron Anderson (appointed by the Court) was on the brief, for appellant.

Thomas J. Tourish, III, Asst. U.S. Atty., Dept. of Justice, for appellee. Jay B. Stephens, U.S. Atty., John R. Fisher, Thomas C. Black, Clendon Lee and William C. Snyder, Asst. U.S. Attys., Dept. of Justice, were on the brief, for appellee.

Before MIKVA, Chief Judge, WALD and BUCKLEY, Circuit Judges.

Opinion for the Court filed by Circuit Judge WALD.

WALD, Circuit Judge:

Carl O. Jordan appeals his conviction for possession of cocaine with intent to distribute, and possession of marijuana, on the grounds that the district court erroneously failed to suppress evidence that was obtained in violation of the fourth amendment. Because we cannot adjudicate Jordan's fourth amendment claims on the record before us, we remand the record to the district court for clarification of the factual findings upon which it based its legal conclusion that no seizure occurred. See United States v. Talkington, 843 F.2d 1041 (7th Cir.1988); United States v. Williams, 754 F.2d 1001 (D.C.Cir.1985); United States v. Moore, 529 F.2d 355 (D.C.Cir.1976). Upon remand, the district court should review the existing record of the suppression hearing and make specific findings concerning whether the police officers had taken and retained Jordan's driver's license at the time he consented to the search of his bag.

  1. BACKGROUND

    According to facts found by the trial judge or testified to, without contradiction, in the early evening of April 14, 1990, four plainclothes Metropolitan Police Department detectives were on drug interdiction detail at the Greyhound/Trailways bus depot. Two officers, Lawrence Coates and James McNamara, observed the defendant Carl Jordan disembark from a bus that originated in New York City. Jordan walked quickly through the station, and carried only a tote bag. The officers followed him through the terminal on his way to the public parking lot. At the exit doors, Jordan was met by a man who appeared

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    to be waiting for him. The two men then proceeded out to the parking lot where they walked over to a row of parked cars. As Jordan and his companion prepared to get into one of the cars on the driver's side, Officer Coates approached Jordan. See Suppression Hearing Transcript ("Tr.") at 7, 19-20. Officer McNamara meanwhile had circled around behind the car, and stood about fifteen feet behind Jordan while Coates questioned him. Tr. at 9, 45.

    Coates, speaking in conversational tones, identified himself as a narcotics officer, displayed his police identification folder, and asked Jordan if he was willing to talk. Jordan said "yes." Coates then told Jordan about his purpose of stopping the flow of drugs into the city, and asked to see Jordan's bus ticket and driver's license. Tr. at 22, 27-28. Jordan testified that he gave Coates his bus ticket and his New York driver's license. Tr. 57. Coates then asked Jordan if he was carrying any drugs. Jordan replied that he was not. Coates asked Jordan if he could search the tote bag. Jordan complied with this request, placing the bag on the hood of the car. The ensuing search, joined by Officer McNamara, uncovered more than 50 grams of cocaine base and a small amount of marijuana.

    After his arrest, Jordan moved for suppression of the narcotics discovered in his tote bag. After a suppression hearing, the district court issued an opinion denying Jordan's motion on the grounds that Jordan had not been seized within the meaning of the fourth amendment, and that Jordan "voluntarily gave his consent" to the search of his tote bag.

    In rejecting the motion to suppress, the trial court stated: "the Court finds that none of what Coates and McNamara said they did would have caused a reasonable person, one not guilty of any crime, to conclude he could not walk away." See United States v. Jordan, Crim. No. 90-00212, Memorandum and Order (D.D.C. July 16, 1990) ("Mem. and Order") at 10. Ultimately, the district court ruled, "[u]pon these facts, the Court makes the following conclusions of law.... [N]othing the police officers did constituted an arrest, detention, or seizure. This follows from a finding that a reasonable person would have felt free to break off the interview and leave.... Not having unlawfully detained or arrested Jordan, the police did not taint Jordan's consent." Id. at 10-11.

    Primarily on the basis of the drugs seized and subsequently admitted into evidence at trial, the jury found Jordan guilty of possession with intent to distribute in excess of 50 grams of cocaine, pursuant to 21 U.S.C. §§ 841(a) and 841(b)(1)(A)(iii), and possession of marijuana, pursuant to 21 U.S.C. § 844(a).

  2. ANALYSIS

    Jordan argues on appeal that his encounter with the police violated the fourth amendment's stricture against unreasonable searches and seizures, 1 that it amounted to...

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