U.S. v. Jordan, 90-3286

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Citation951 F.2d 1278
Docket NumberNo. 90-3286,90-3286
PartiesUNITED STATES of America v. Carl O. JORDAN, Appellant.
Decision Date13 December 1991

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.

I. 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 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).

II. 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 a seizure without legal justification, and thus required that evidence obtained from it be suppressed. The government does not argue that prior to the discovery of the drugs Coates and McNamara possessed the requisite reasonable "articulable suspicion" to justify an "investigatory stop," see United States v. Sokolow, 490 U.S. 1, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), let alone probable cause for an arrest. Indeed, in his testimony during the suppression hearing, Coates candidly expressed "for the record" that without Jordan's consent the police had no basis to conduct the search. Tr. 35-36. The critical question then becomes whether a seizure in fact occurred, despite the lack of any justification. We examine the district court's legal conclusion that no such seizure occurred under a de novo standard of review. See, e.g., Florida v. Bostick, --- U.S. ----, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991); United States v. Maragh, 894 F.2d 415 (D.C.Cir.1990).

The protection against "unreasonable ... seizures" extends to seizures of the person, as well as seizures of property. See Henry v. United States, 361 U.S. 98, 100, 80 S.Ct. 168, 169-70, 4 L.Ed.2d 134 (1959). Such seizures of the person are defined as restraints of liberty caused either by physical force or a "show of authority" on the part of law enforcement officers. Terry, 392 U.S. at 19 n. 16, 88 S.Ct. at 1879 n. 16. No physical force is involved here, so the encounter can only be characterized as a seizure if it involves a "show of authority" sufficient to meet the standards established by the Supreme Court.

In United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980), Justice Stewart enunciated the test for a "show of authority" seizure: "A person has been 'seized' within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." Id. at 554, 100 S.Ct. at 1877 (opinion of Stewart, J.); accord Michigan v. Chesternut, 486 U.S. 567, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988); Florida v. Royer, 460 U.S. 491, 502, 103 S.Ct. 1319, 1326-27, 75 L.Ed.2d 229 (1983) (plurality opinion).

The Supreme Court last Term revisited this intriguing question of what constitutes a seizure of the person by a "show of authority." See Bostick, 111 S.Ct. at 2382; California v. Hodari D., --- U.S. ----, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991). Further explicating (and arguably narrowing) the Mendenhall formula, the Court stated that "in order to determine whether a particular encounter constitutes a seizure, a court must consider all the circumstances surrounding the encounter to determine whether police conduct would have communicated to a reasonable person that the person was not free to decline the officer's request or otherwise terminate the encounter." Bostick, 111 S.Ct. at 2389 (emphasis added). The Court held in Bostick that if the restraint on a person's liberty was caused by a "factor independent of the police conduct" (such as the cramped confines of a crowded bus, or by the bus's imminent departure), that factor is not taken into account under fourth amendment seizure analysis. Id. at 2387; see also INS v. Delgado, 466 U.S. 210, 218, 104 S.Ct. 1758, 1763-64, 80 L.Ed.2d 247 (1984) (no seizure because restrictions on employee's freedom of movement in the workplace were not caused by police conduct).

In Hodari D., the Court emphasized that the Mendenhall- Bostick test is an objective one: It looks to "not whether the citizen perceived that he was being ordered to restrict his movement, but whether the officer's words and actions would have conveyed that to a reasonable person." Hodari D., 111 S.Ct. at 1551. In Hodari D., the Supreme Court also added another element to the seizure analysis. It held that "the so-called Mendenhall test" was itself only a threshold requirement, and to effect a seizure the person must actually have submitted to the "show of authority." Id. at 1551-52; in short not only must the encounter meet an objective test of coercion but a subjective one of subjection. In sum, under the most recent cases a seizure occurs only if: (1) a reasonable person would feel, under all the circumstances, he could not disregard the police inquiries and go about his business; (2) the restraints imposed upon him result from the police conduct itself rather than the happenstance of where the encounter occurred; and (3) the person actually reacted in a manner consistent with being "seized." The initial "objective" test for a seizure, i.e., whether a reasonable person could have believed himself to be under restraint, looks to the...

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