958 F.2d 1085 (D.C. Cir. 1992), 90-3286, U.S. v. Jordan

Docket Nº:90-3286.
Citation:958 F.2d 1085
Party Name:UNITED STATES of America v. Carl O. JORDAN, Appellant.
Case Date:March 17, 1992
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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958 F.2d 1085 (D.C. Cir. 1992)



Carl O. JORDAN, Appellant.

No. 90-3286.

United States Court of Appeals, District of Columbia Circuit.

March 17, 1992

       Argued Oct. 21, 1991.

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

       Michael H. Stone, New York City, for appellant. Byron Anderson, Washington, D.C. (appointed by the Court) was on the brief, for appellant.

       Thomas J. Tourish, III, Asst. U.S. Atty., Dept. of Justice, Washington, D.C., 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, Washington, D.C., 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 ground that the district court erroneously failed to suppress evidence obtained in violation of the fourth amendment. After briefing and oral argument, this court retained jurisdiction but remanded the record to the district court "for clarification of the findings" underlying its legal conclusion that no seizure occurred; in particular we asked the district court to make a specific finding concerning "whether Jordan turned over his driver's license to Officer Coates ... and, if so, whether Coates retained Jordan's driver's license at the time he asked to search Jordan's bag." See United States v. Jordan, 951 F.2d 1278, 1283 (D.C.Cir.1991). The district court subsequently issued a "Supplemental Opinion" ("Sup. op.") concluding again that no seizure occurred but including a finding "that the defendant's driver's license was retained by Officer Coates while he was questioning the defendant." United States v. Jordan, Cr. No. 90-00212-01 (D.D.C. Feb. 6, 1992), Sup. op. at 9. Based

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on this supplementation to the record, we now hold that Jordan had been "seized" at the time he consented to the search of his bag, the discovery of the drugs was a direct product of a seizure for which the government admits there was no probable cause or even reasonable suspicion, see Jordan, 951 F.2d at 1280-81; and accordingly the drugs should have been suppressed, and the conviction based upon them must be reversed.

       The circumstances surrounding Jordan's encounter with the police were set out in our prior opinion, see id. at 1279-80. We now reiterate the most significant ones, along with the supplemental factual findings of the district court.

  1. FACTS

           On the evening of April 14, 1990, Jordan got off an intercity bus in Washington, D.C. and walked quickly through the bus terminal out to the public parking lot. Jordan met a man at the exit doors, and the two walked over to a parked car. As the two men opened the driver's side door and prepared to climb into the car, police detective Lawrence Coates approached Jordan and engaged him in conversation. Another police officer circled around and stood five yards behind Jordan while Coates questioned him.

           Coates identified himself as a narcotics officer and asked to see Jordan's identification and bus ticket. Jordan handed Coates his New York driver's license and ticket. While retaining Jordan's driver's license, Coates continued with the interview. He told Jordan of his unit's drug interdiction mission, and asked Jordan if he was carrying any drugs. Jordan replied that he was not. While continuing to withhold Jordan's driver's license, Detective Coates then asked for permission to search the tote bag Jordan was carrying. Jordan offered no resistance, placing the bag on the hood of the car. The ensuing search discovered the drugs for which possession Jordan was convicted.


           The district court concluded that Jordan was not "seized" under the facts of this case within the meaning of the fourth amendment. Whether a seizure occurred is a legal conclusion that this court reviews de novo. See, e.g., United States v. Maragh, 894 F.2d 415, 417 (D.C.Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 214, 112 L.Ed.2d 174 (1990).

           "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." United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980); accord Michigan v. Chesternut, 486 U.S. 567, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988). The Supreme Court has further explicated the seizure test: "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." Florida v. Bostick, --- U.S. ----, 111 S.Ct. 2382, 2389, 115 L.Ed.2d 389 (1991) (emphasis added). The test 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." California v. Hodari D., --- U.S. ----, 111 S.Ct. 1547, 1551, 113 L.Ed.2d 690 (1991) (emphasis added). Additionally, for the police conduct to effect a seizure the person must actually have submitted to the "show of authority." Id. 111 S.Ct. at 1551-52.

           The test for a seizure "considers all the circumstances surrounding the encounter." Bostick, at 2389; see also Chesternut, 486 U.S. at 567, 108 S.Ct. at 1975 ("totality of the circumstances"). Under such a test, only in rare instances will any one factor produce an inexorable conclusion that a seizure has occurred. 1 On the other hand,

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    the "totality of the circumstances" test "does not mean that each and every circumstance in the case must be assumed to have the same degree of relevance and weight." See Wayne R. LaFave, Pinguitudinous Police,...

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