U.S. v. Wilson

• Decision Date: 31 December 1991
• Docket Number: No. 90-5229,90-5229
• Citation: 953 F.2d 116
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Albert WILSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 116

953 F.2d 116

60 USLW 2426

UNITED STATES of America, Plaintiff-Appellee, v. Albert WILSON, Defendant-Appellant.

No. 90-5229.

United States Court of Appeals Fourth Circuit.

Argued June 7, 1991.

Decided Dec. 19, 1991.

As Amended Dec. 31, 1991.

Joseph N. Bowman, Alexandria, Va., argued, for defendant-appellant.

Steven George Bonorris, Sp. Asst. U.S. Atty., Alexandria, Va. (Henry E. Hudson, U.S. Atty., William G. Otis, Sr. Litigation Counsel, on brief), for plaintiff-appellee.

Before ERVIN, Chief Judge, HALL, Circuit Judge, and GARBIS, U.S. District Judge for the District of Maryland, sitting by designation.

OPINION

K.K. HALL, Circuit Judge:

Albert Wilson appeals his conviction for possession of cocaine base with intent to distribute. Although he pleaded guilty, he reserved his right to appeal the denial of his motion to suppress. We hold that the district court erred in refusing to suppress evidence of the drugs, and we vacate the conviction and remand for further proceedings.

I.

At about 3:00 p.m. on April 4, 1990, Wilson disembarked from the New York shuttle at National Airport outside Washington, D.C. He was carrying two coats and a carry-on luggage bag. As he was leaving the terminal, he was approached by Douglas Crooke, a Fairfax County, Virginia, policeman and a member of the Drug Enforcement Agency's task force engaged in monitoring passengers at the airport. Accompanied by fellow task force officers Mike Rogers and Charles Prince, Crooke identified himself as a police officer and asked if Wilson would speak to him. Wilson agreed to do so.

Crooke asked if Wilson had just come off a flight from New York, and Wilson said that no, he had just arrived from Boston. Upon request for identification, Wilson produced a card that he said he used to cash checks. Wilson responded to further inquiries by telling officer Crooke that he lived in Washington but was transferring to school in Boston.

Crooke then explained the DEA's purpose in monitoring flights and asked Wilson if he was carrying guns. Wilson said no, but he did permit Crooke to search his carry-on bag. While Crooke was searching the bag, Wilson approached officer Prince and asked whether he (Prince) would like to search his person. Prince then patted him down. Each of these searches produced nothing. Crooke then testified at the suppression hearing about the ensuing events:

A. I then handed the bag back to him. And before I could ask him, he picked up the two coats off the chair. I asked him if I may search the coats. And in an angry tone he replied back to me, no, you had your chance, and I wasn't permitted to search them.

Q. What did you do then?

A. He started to walk away. And I began to reason with him. I said, I don't understand why you won't let me search the two coats when you just allowed us to search your person and the bag. I didn't understand the reasoning behind that. And he began, you know, replying again in an angry tone that we were harassing him and we were stopping him and there was some things in there he didn't want us to see. I said, what was in there? And he said there were some private things that he didn't want us to see. And he again said, why are you stopping me? I said, I am not stopping you, you are free to leave, you can leave if you like.

Q. During this encounter when you asked to search the coat, he said no, and was asking about the harassment, where were you physically and what were you doing? Was he walking out of the terminal?

A. He had started walking towards the exit of the terminal, and I was walking beside him.

Q. Where was Officer Prince at that point?

A. He was still standing back in the hallway area of the main terminal.

Q. Approximately how far, if you can recall?

A. Maybe within ten feet.

Q. Okay. What about Officer Rogers?

A. I don't know. I think he was up in the area at that time. I don't know if he was right in that immediate vicinity though.

Q. Okay. So, then what happened?

A. He again asked if we were stopping him. And I said no, he was free to leave. And then I asked, well, if you won't let me search your coat, would you mind if a drugsniffing dog screened your coat. He said, sure. I said, well, would you mind coming down to the police station with us so we can get a dog? And he said no. And then he again proceeded to go out the exit going to the sliding doors that would take you down a sidewalk towards the main parking area and taxi-stand lines. It was as he was walking out of those doors carrying the two coats that I noticed the brown suede coat had a bulge coming from one of his pockets.

Q. Would you please describe that bulge.

A. It was--He was carrying the two coats in his hand, which would cause the rest of the coat to sag down behind it. And then inside the one pocket I noticed it caused the flap of the pocket to kind of puff out some. And it caused a noticeable sag within the coat in that one region of the pocket.

Q. Approximately what was the size of that bulge?

A. I could only by showing my hands, my hands cupped together like-

Q. A little bigger than a softball?

A. Approximately the size of a softball.

Q. What happened next?

A. After noticing that bulge I followed him out of the terminal and again began to ask him why, why he would not allow us to search the coat, it would take less time than it did to search the book bag. And all I was asking to do was just pat the coat down and he would be on his way. He kept insisting that he was late for an appointment that he had at 3 o'clock. And I explained him, I said, your flight came in at 10 minutes, 15 minutes after 3, so you are already late, and what I am asking to do would only take but a second.

And then this persisted as we walked down the hallway or down the sidewalk. And he continued and continued to say that we were stopping him, harassing him. And his voice began getting very loud. People in the sidewalk began looking towards us. And some people had gathered. And this just persisted. And we had to ask him on numerous occasions to lower his voice and speak to us in a similar tone.

Q. Would he do that?

A. He would do it, and then as we would start questioning him again, asking him the reason, he would continue to escalate the volume of his voice. And he had to be asked numerous times by myself and by Officer Rogers to please quiet down because we were speaking to him in a normal tone and he was just again talking very loud, boisterous.

Q. Okay. What happened next?

A. We got to the sidewalk, and we were persisting with the same questions. I said, why would you not just allow us to search it. And eventually he agreed to allow us to search the coat. He held his brown coat out in front of him like this. And I reached directly for the pocket that I saw the bulge. And I could feel a large lump inside. And I felt that it was wrapped in paper, because I heard the paper crumbling. I looked at him and I asked him what this was. And he said he didn't know. He had kind of a scared look on his face. As I went to reach my hand in the pocket, he snatched the coat out of my hands, leaped a railing that separated the walk from the traffic lanes for the taxi cabs. And as he was dangling over the railing, Officer Rogers grabbed his foot. And he began kicking at Officer Rogers. Officer Rogers let go. Mr. Wilson broke free and started to run. And we jumped over the railing and gave chase.

Q. And you caught him?

A. Yes. He eventually ran into a fenced-in corner of the park lot in the corner.

Q. What happened after you apprehended him?

A. He had run around a vehicle that was parked in this parking lot. And when he was on the far side of the vehicle I saw the brown coat go sailing up into the air, he threw it up into the air.

Q. Was he still running at that time?

A. Not at full speed. He was moving at a quick pace around the cars as fast as you could probably run in between parked cars. And after the coat went into the air, he came around the other side of the car that was closest to us with his hands in the air and surrendered. And we ordered him to the ground with our weapons drawn.

Q. Did he make statements at that time?

A. As he was on the ground he yelled out something to the effect that the stuff wasn't even his, he was supposed to deliver it to somebody.

Q. And you arrested him and took him to the airport police station?

A. Yes. He was arrested by myself and Officer Rogers.

Q. Okay. And did you search the coat?

A. Yes.

Q. What did you find in the coat?

A. In the pocket that I felt I pulled out a brown paper bag. Inside that paper bag was what I recognized as crack cocaine.

It was later determined that the bag contained about 110-115 grams of cocaine base wrapped in a plastic bag.

In denying the suppression motion, the district court ruled from the bench "that there was reasonable suspicion for the stop here and the search that is contested, and probable cause to do so." The court explained that the officers had "reasonable suspicion and probable cause" that Wilson "was trafficking narcotics and had them in his possession at that time."

Under a plea agreement, Wilson conditionally pleaded guilty to one count of possession with intent to distribute more than fifty grams of cocaine base, but he reserved the right to appeal the denial of his suppression motion. He was sentenced under the Sentencing Guidelines to 121 months. The sole issue on appeal is whether the cocaine should have been suppressed.

II.

The facts in this case present an unusual variant on the increasingly common theme of random police-citizen encounters and warrantless searches of persons or their belongings. We hold that the officer's repeated requests to search the coats after Wilson's vigorous denials converted the encounter into a Terry-type ¹ seizure well before the point at which Wilson held his coat out to be searched. Because the seizure was not based on reasonable suspicion, the seizure was illegal. Whether Wilson...