U.S. v. Jordan

• Decision Date: 17 March 1992
• Docket Number: No. 90-3286,90-3286
• Citation: 958 F.2d 1085,294 U.S. App. D.C. 227
• Parties: UNITED STATES of America v. Carl O. JORDAN, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1085

958 F.2d 1085

294 U.S.App.D.C. 227

UNITED STATES of America v. Carl O. JORDAN, Appellant.

No. 90-3286.

United States Court of Appeals, District of Columbia Circuit.

Argued Oct. 21, 1991.

Decided After Remand of Record March 17, 1992.

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 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.

I. 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.

II. DISCUSSION

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 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, Pachydermatous Prey: Whence Fourth Amendment 'Seizures'?, 1991 ILL.L.REV. 729, 746. Acknowledgedly, many circumstances in this case point in the direction of a benign police/citizen encounter: the police were dressed in plainclothes; their weapons were hidden; they spoke in conversational tones; and they did not physically block Jordan's path.

One circumstance, however, reflects a distinct departure from the typical consensual scenario. The police asked for, took, and retained Jordan's driver's license while they continued questioning him. In the context of police questioning at an airport, the Supreme Court highlighted the message conveyed by the deliberate withholding by police of an interviewee's critical identification and travel papers during questioning:

[A]sking for and examining [a detainee's] ticket and his driver's license were no doubt permissible in themselves, but when the officers ... asked him to accompany them to the police room, while retaining his ticket and driver's license and without indicating in any way that he was free to depart, [the detainee] was effectively seized for the purposes of the Fourth Amendment.

Florida v. Royer, 460 U.S. 491, 501-02, 103 S.Ct. 1319, 1326, 75 L.Ed.2d 229 (1983) (emphasis added). In Royer the Court found that when the police asked the defendant to go with them to an interview room while retaining his ticket and license, they had restrained his movements to a degree that implicated the fourth amendment. Without his ticket and license, the defendant was not able to "decline the officer's request" for an interview, see Bostick 111 S.Ct. at 2389, and go about his original business. The Court recognized that abandoning one's driver's license (or other papers such as a passport, green card, or ticket if still in transit) is simply not a practical or realistic option for a "reasonable" traveler in this day and age.

Our court has also considered on several occasions the effect on citizens stopped by the police of being asked to hand over critical identification or travel documents and having the police retain them while questioning ensues, noting that "once the identification is handed over to police and they have had a reasonable opportunity to review it, if the identification is not returned to the detainee [it is] difficult to imagine that any reasonable person would feel free to leave without it." United States v. Battista, 876 F.2d 201, 205 (D.C.Cir.1989); see also United States v. Lewis, 921 F.2d 1294, 1297 (D.C.Cir.1990) ("whether the officer ... retained [defendant's] identification or travel ticket" is a "relevant factor" in seizure analysis); United States v. Savage, 889 F.2d 1113, 1117 n. 3 (D.C.Cir.1989) ("failing to return a traveler's ticket after sufficient time to peruse it had elapsed [may] be tantamount to a detention" if it prevents traveler "from going about his 'ordinary business' "). ²

At oral argument, government counsel, with admirable candor, allowed that "the failure to return documents such as this are [sic] a substantial factor in determining whether there is a seizure or detention." ³ Accordingly, we remanded the record for the district judge to make more specific findings on the license retention issue. In finding on remand that there had been no seizure, despite the retention of Jordan's license during questioning, the district court reasoned that nothing prevented the defendant from asking for his license back and proceeding on his way. Sup. op. at 13 n. 3. We do not find that answer persuasive. The question of whether a seizure occurred in the first place depends on what the original police conduct reasonably communicated to the individual stopped; if that conduct transmitted a clear signal that the individual was not free to leave, the law does not require that he validate that impression by affirmatively challenging the police...