GUADALUPE v. U.S., No. 89-793

Docket NºNo. 89-793
Citation585 A.2d 1348
Case DateJanuary 31, 1991
CourtCourt of Appeals of Columbia District
585 A.2d 1348
Jose GUADALUPE, Appellant, v. UNITED STATES, Appellee.
No. 89-793.
District of Columbia Court of Appeals.
Argued June 4, 1990.
Decided January 31, 1991.

Appeal from the Superior Court, Ricardo M. Urbina, J.

Dennis C. Galarowicz, appointed by this court, for appellant.

Brenda J. Johnson, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., and John R. Fisher, Elizabeth Trosman and Daniel M. Zachem, Asst. U.S. Attys., were on the brief, for appellee.

Before ROGERS, Chief Judge, and NEWMAN and BELSON, Associate Judges.

ROGERS, Chief Judge:


Appellant Jose M. Guadalupe, Jr. appeals from his conviction of possession of cocaine with intent to distribute in violation of D.C.Code § 33-541(a)(1) (1989), on the ground that the drugs were obtained by an unconstitutional search and seizure. The trial judge denied appellant's motion to suppress, concluding that the police had not violated appellant's Fourth Amendment rights during the course of two successive confrontations during a twenty-five to thirty minute period as appellant and a male companion were leaving Union Station after arriving on a train from New York City. The judge also found that appellant had voluntarily consented to the body search. We hold as a matter of law that appellant, as a reasonable person, who was subjected to random successive confrontations by narcotics officers involving increasingly intrusive searches — the first confrontation involving requests for identification, an inquiry whether the suspect is carrying narcotics and a search of his bag in which the person cooperates fully and no drugs are found, and the second confrontation involving similar questions and a request for a body search immediately after an unproductive body search of his companion by one of the officers — would not have felt free to leave. Consequently, since the police lacked articulable suspicion under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the seizure of the drugs from appellant was unlawful, Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), and the trial court erred in denying the motion to suppress.

I

On December 3, 1988, Sergeant John J. Brennan, in charge of the Metropolitan Police Department's drug interdiction unit and Pat Dunn, an agent of the Drug Enforcement Administration, were working a drug interdiction operation at Union Station, in Washington, D.C., in an effort to locate narcotics couriers who arrive from New York.1 At approximately 6:30 p.m. Sergeant Brennan saw appellant leave asouthbound train that had just arrived from New York City.2 Appellant walked toward the main concourse at Union Station while conversing with another man identified as Mr. Rivera. Nothing in particular drew Sergeant Brennan's attention to the men, and when Rivera walked away from appellant, the officers did not focus on him. However, a few minutes later Rivera joined appellant in the main concourse area and the two men started to walk off together. The officers decided to interview the men, and Agent Dunn approached Rivera. As he did, appellant stopped a few seconds and then slowly walked away. Sergeant Brennan approached appellant from the rear, showed his identification, and asked appellant if he would answer some questions. Appellant said "yes," and Sergeant Brennan proceeded to ask appellant six questions. As he did, he stood off to the side of appellant, Sergeant Brennan explained, so as not to interfere with his freedom of movement. The sergeant was in plainclothes, his weapon concealed, and at all times spoke in a conversational tone and courteous manner, and did not command appellant or touch him.

Sergeant Brennan first asked appellant if he was traveling on a train, and appellant said he was. Second, the sergeant asked if he had a train ticket and appellant handed him a ticket for travel from New York City to Washington, D.C. Third, after returning the ticket to appellant, Sergeant Brennan asked appellant if he had identification and appellant gave him a receipt or pay slip with his name on it. Upon looking it over, Sergeant Brennan returned it to appellant. Fourth, Sergeant Brennan asked appellant where he was going, where he was visiting. Appellant said he was "here to let loose with Mr. Rivera" and they were going to "Rivera's cousins, or something like that."3 Fifth, Sergeant Brennan asked appellant if he was carrying any narcotics in his bag, and he said no.4 Sixth, Sergeant Brennan asked appellant if he could search the bag, and appellant handed it to him. After conducting a thorough search of the bag and finding no narcotics, Sergeant Brennan repacked the bag and gave it back to appellant, thanking appellant for his cooperation. Appellant then asked the sergeant where Rivera was. Sergeant Brennan said he did not know, and he and appellant walked together for a few feet until Sergeant Brennan noticed that Rivera was on the fast food level below the concourse. Appellant thanked Sergeant Brennan and walked away.

Sergeant Brennan and Agent Dunn then conferred about their two interviews and decided that some of the information did not seem right to them and, because they were suspicious of appellant and Rivera,5they decided to place them under surveillance while they were in Union Station. The officers went downstairs to the fast food area where appellant and Rivera were standing in a line for sandwiches; they stood about 50 to 75 feet away, watching appellant and Rivera. The two men, according to Sergeant Brennan, were "continuously scanning the area, looking behind them, looking all over the place, not conversing with each other, but kind of scanning everything." Sergeant Brennan did not think they saw him or Agent Dunn. "All of a sudden," according to Sergeant Brennan, appellant and Rivera "turned and walked out of the food line without purchasing anything." The men started walking in the direction of the officers and upon seeing Sergeant Brennan, Rivera walked up to him and asked where the cab area was. Sergeant Brennan asked if they were taking a cab, and Rivera said his cousin was picking him up at the cab stand, explaining he had previously made a telephone call when he first entered the station. Sergeant Brennan then directed Rivera to the cab stand "out front". Rivera rejoined appellant and they walked off together.

Sergeant Brennan and Agent Dunn conferred again and decided to see if the men went to the cab stand area; once outside, they noticed that the two men had separated, appellant standing by a large concrete pillar and Rivera walking up and down, hurriedly, in the cab stand area. Dunn decided to ask Rivera, who was wearing a big, heavy coat, if he could conduct a body search. The search of Rivera did not uncover any drugs. While Rivera was being searched, appellant glanced at the officers and then looked straight ahead. Sergeant Brennan then decided to ask appellant if he would consent to a body search.6

Sergeant Brennan walked over to appellant and asked appellant three questions: if he would talk to him, and appellant said yes; if he was carrying any narcotics on his person, and he said no; and if he could search appellant, and appellant nodded his head and said yes. Upon patting appellant down, Sergeant Brennan felt objects on both sides, and "looked at" his shirt and saw two packets, approximately eight ounces of cocaine hydrochloride, taped to his body.

The sequence of events between the officers and appellant and Rivera lasted about twenty-five to thirty minutes. About fifteen minutes elapsed between the search of appellant's bag and Sergeant Brennan's second confrontation of appellant when he was standing by the concrete pillar near the cab stand.

Appellant did not present any evidence.

In denying the motion to suppress the drugs, the trial judge noted that he had only the testimony of Sergeant Brennan and that nothing "suggest[ed] any Fourth Amendment impropriety in the approach and in the talking to and asking questions." Further, to the judge it did "not appear the officers exceeded their authority in conducting the procedures that led up to what is in question here, which is the consensual part of the exchange. The search."

The judge found, with regard to events prior to the search of appellant's bag, that:

[the] conversation and . . . approach was [sic] conducted in a fashion that would not suggest . . . that there was any touching, that there was an aura or command that [was] issued by Sgt. Brennan. That Sgt. Brennan, in any way, obstructed the movements of [appellant] or that he did anything expressly or implicitly geared to create an aura of intimidation that would obviate [appellant's] understanding of his rights to move on free from further discussion.

Rather, what appeared to be happening, as observations continued, was that [appellant] and Mr. Rivera were acting in a very suspicious fashion, at first getting on the food line after the initial interrogationand the initial inquiry, I could say — I should say. And then, after apparently scanning the area further, moving on away from the food line, getting no food, one of the individuals approaching Sgt. Dunn [the judge meant Sergeant Brennan] and asking where the cab stand was. And [appellant] and Mr. Rivera moving towards the cab stand area, but again, alternatively associating and disassociating themselves from each other, depending on what was going on in relation to the two agents.

Rejecting defense counsel's arguments that a seizure had occurred at the point the officers decided to follow appellant and Rivera to the cab stand, the judge found that

the confrontations with the two individuals, and with [appellant] in particular, were not characteristic of custodial interrogation, but rather that the initial confrontation, during which time Sgt. Brennan actually got permission to search the suitcase, and did, and that confrontation resulting in having the suitcase returned to...

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25 practice notes
  • Patton v. US, No. 91-CF-826.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • November 22, 1993
    ...dispositive, his failure to do so is relevant. United States v. Allen, 436 A.2d 1303, 1309 (D.C.1981); see Guadalupe v. United States, 585 A.2d 1348, 1353-54 (D.C.1991). We conclude that appellant was not seized and further, that even if he was seized, the detention did not exceed the bound......
  • State v. Ward, No. 27030
    • United States
    • United States Court of Appeals (Ohio)
    • April 14, 2017
    ...the natural sense of obligation almost anyone would feel when a police officer begins asking questions." Guadalupe v. United States , 585 A.2d 1348, 1354 (D.C. App. 1991). "Action based merely on whatever may pique the curiosity of a particular officer is the antithesis of the objective sta......
  • Ferris v. State, No. 127
    • United States
    • Court of Appeals of Maryland
    • August 18, 1999
    ...of Omaha, 922 F.2d 465, 469 (8 th Cir.1990); United States v. Hill, 626 F.2d 429, 435-36 (5 th Cir. 1980); Guadalupe v. United States, 585 A.2d 1348, 1359 & n. 22 (D.C.1991); State v. Dezso, 512 N.W.2d 877, 881 (Minn.1994). Hence, while under Robinette II, 519 U.S. 33, 117 S.Ct. 417, Troope......
  • IN RE J.M., No. 90-FS-183
    • United States
    • December 30, 1992
    ...of review in resolving them. We have reviewed the determination of seizure as a question of law de novo, Guadalupe v. United States, 585 A.2d 1348, 1352 n. 7 (D.C. 1991), although "defer[ring] to the trial judge's findings of fact unless clearly erroneous." Id. But in light of the Supreme C......
  • Request a trial to view additional results
25 cases
  • Patton v. US, No. 91-CF-826.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • November 22, 1993
    ...dispositive, his failure to do so is relevant. United States v. Allen, 436 A.2d 1303, 1309 (D.C.1981); see Guadalupe v. United States, 585 A.2d 1348, 1353-54 (D.C.1991). We conclude that appellant was not seized and further, that even if he was seized, the detention did not exceed the bound......
  • State v. Ward, No. 27030
    • United States
    • United States Court of Appeals (Ohio)
    • April 14, 2017
    ...the natural sense of obligation almost anyone would feel when a police officer begins asking questions." Guadalupe v. United States , 585 A.2d 1348, 1354 (D.C. App. 1991). "Action based merely on whatever may pique the curiosity of a particular officer is the antithesis of the objective sta......
  • Ferris v. State, No. 127
    • United States
    • Court of Appeals of Maryland
    • August 18, 1999
    ...of Omaha, 922 F.2d 465, 469 (8 th Cir.1990); United States v. Hill, 626 F.2d 429, 435-36 (5 th Cir. 1980); Guadalupe v. United States, 585 A.2d 1348, 1359 & n. 22 (D.C.1991); State v. Dezso, 512 N.W.2d 877, 881 (Minn.1994). Hence, while under Robinette II, 519 U.S. 33, 117 S.Ct. 417, Troope......
  • IN RE J.M., No. 90-FS-183
    • United States
    • December 30, 1992
    ...of review in resolving them. We have reviewed the determination of seizure as a question of law de novo, Guadalupe v. United States, 585 A.2d 1348, 1352 n. 7 (D.C. 1991), although "defer[ring] to the trial judge's findings of fact unless clearly erroneous." Id. But in light of the Supreme C......
  • Request a trial to view additional results

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