Kelly v. US

• Decision Date: 26 September 1990
• Docket Number: No. 89-707.,89-707.
• Parties: James T. KELLY, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

580 A.2d 1282

James T. KELLY, Appellant, v. UNITED STATES, Appellee.

No. 89-707.

District of Columbia Court of Appeals.

Argued May 10, 1990.

Decided September 26, 1990.

Virginia C. Lindsay, Washington, D.C., appointed by the court, for appellant.

Brenda J. Johnson, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., and John R. Fisher, Asst. U.S. Atty., Washington, D.C., were on the brief, for appellee. Barry Coburn, Asst. U.S. Atty., Washington, D.C., also entered an appearance for appellee.

Before FERREN, TERRY and STEADMAN, Associate Judges.

TERRY, Associate Judge:

In what promises to become a familiar scenario, appellant Kelly was approached by a member of the Metropolitan Police Department's Narcotic Interdiction Unit after getting off a train at Union Station. Following a brief conversation and a request to search the shopping bag that Kelly was carrying, the officer found cocaine in a smaller bag inside a shoe which was in the shopping bag. Kelly was charged with possession of cocaine with intent to distribute it, a violation of D.C.Code § 33-541(a)(1) (1988). He moved to suppress the cocaine as the fruit of an illegal search, but the motion was denied after a hearing. Kelly then entered a conditional guilty plea to the charge against him, reserving the right to challenge on appeal the trial court's denial of his motion to suppress. See Super.Ct.Crim.R. 11(a)(2).

Appellant maintains that his Fourth Amendment rights were violated when the cocaine was removed from the shopping bag. He makes two specific contentions. First, he argues that he was unreasonably "seized" when he was questioned by the detective at Union Station. Second, he asserts that the search of the shopping bag was conducted without his valid consent. We reject both contentions and affirm the conviction.

I

On October 10, 1989, Detective Vance Beard, a member of the Narcotic Interdiction Unit of the Metropolitan Police Department, and Special Agent Sauve, an employee of Amtrak, were at Union Station in Washington observing passengers who were getting off Amtrak trains. Both were in plain clothes, and neither visibly carried a gun or displayed a badge. At about 4:00 p.m. they noticed Kelly among the passengers leaving a train that had recently arrived from New York.¹ He was carrying a white shopping bag which, according to Beard's testimony,² "appeared to be not full." As Kelly passed Sauve, the two made eye contact, and Kelly glanced backwards "like he was looking to see if someone was going to follow him." Sauve and Beard did follow Kelly for approximately 100 yards. When they were all in the main terminal area, Detective Beard approached Kelly from behind, presented his identification folder, identified himself verbally as a police officer, and "asked if he could speak with him." Kelly said yes. At the same time, Agent Sauve positioned himself about four feet in front of Kelly.

Detective Beard asked Kelly if he had just gotten off a train, and Kelly said he had. Beard then asked where he had come from; Kelly responded, "New Jersey," and displayed a ticket from Trenton to Washington. Detective Beard next inquired whether Kelly lived in New Jersey or Washington, and Kelly said that he lived on Congress Street, S.E.³ When asked how long he had lived there, Kelly "said all of his life." Detective Beard next asked Kelly how long he had been in New Jersey, and Kelly replied, "About a week." When asked whether all the clothes he had for that one-week visit were in the shopping bag, Kelly "said no, that he had other clothes in New Jersey."

Beard then told Kelly that he was from the Narcotics Branch of the police department, and that his job included interviewing people coming into Washington in an effort to stop the flow of illegal drugs. Kelly said he understood. Detective Beard's testimony continued:

I then asked him if he was carrying any drugs in the shopping bag. He said no. I asked if he would have a problem if I searched the shopping bag, and he said no.

Kelly then opened the shopping bag, "one hand on each handle, and he opened it all the way." Beard looked in and saw a pair of pants and some tennis shoes. Inside one of the shoes was a folded-over brown paper bag. When Beard asked what was in the paper bag, Kelly said he did not know. Agent Sauve then stepped closer to Kelly and Beard, reached into the shopping bag, and took out the brown paper bag. Inside it was a plastic zip-lock bag containing a white substance which later turned out to be cocaine.

On cross-examination, the following exchange took place between Kelly's counsel and Detective Beard:

Q. And at that time, did you ask Mr. Kelly whether you could remove anything from the bag?

A. No.

Q. But Special Agent Sauve just reached in and grabbed something, right?

A. After him hearing his response to my question about the paper bag, he did.

Q. Mr. Kelly never told you that you could search the bag, did he?

A. Yes, he did.

Beard also testified that Kelly was trying to be cooperative and did not indicate a desire either to suspend the conversation or to leave. Beard said that Kelly was free to leave at any time until the discovery of the cocaine, that he did not order Kelly to do anything, and that his tone of voice was "low key, just the same as I'm testifying now."

After hearing Detective Beard's testimony and the arguments of counsel, the trial court found inter alia "that this was a consensual search." The court went on to say:

According to the testimony that I understood, although Detective Sauve was some four feet in front of the defendant, the door was to his left, and he could have gone out the door. So, at any time, the individual could have just left. He didn't have to open his bag, and the seizure, I think, can be justified when he gave the very unrealistic answer about what's in the paper bag, "I don't know." When you have a brown paper bag in a shoe of something you are carrying, and you say, "I don't know," that immediately, I think, gives rise to a suspicion that it is contraband.

Citing United States v. Gabin, 116 Daily Wash.L.Rptr. 1813 (D.C.Super.Ct. June 30, 1988), as a "well reasoned" opinion, the court denied Kelly's motion to suppress.

II

Kelly contends that his Fourth Amendment rights were violated when he was questioned by Detective Beard. Specifically, he argues that the detective's conduct amounted to an unreasonable seizure, and that the cocaine found in his shopping bag should therefore have been suppressed. We cannot agree. Given the undisputed testimony of Detective Beard and the findings of the trial court, we hold that Kelly was not seized by the police but was merely involved in a consensual encounter, from which he was free to depart at any time.

A Fourth Amendment "seizure" occurs "only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen...." Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 1879 n. 16, 20 L.Ed.2d 889 (1968); accord, e.g., Immigration & Naturalization Service v. Delgado, 466 U.S. 210, 215, 104 S.Ct. 1758, 1723, 80 L.Ed.2d 247 (1984). The test is whether "a reasonable person would have believed that he was not free to leave," United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980) (Stewart, J.) (footnote omitted),⁴ and a determination of whether a seizure has occurred must take into account not one or two factors considered in isolation, but the "totality of the circumstances." Id.; see Michigan v. Chesternut, supra note 4, 486 U.S. at 572, 108 S.Ct. at 1978.

Thus it is not enough for Kelly to assert that police officers are inherently figures of authority, and that their presence results in non-consensual encounters.

Law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions.... Nor would the fact that the officer identifies himself as a police officer, without more, convert the encounter into a seizure requiring some level of objective justification.

Florida v. Royer, supra note 4, 460 U.S. at 497, 103 S.Ct. at 13 (citations omitted and emphasis added). As the Supreme Court said in Delgado, supra, "police questioning, by itself, is unlikely to result in a Fourth Amendment violation." 466 U.S. at 216, 104 S.Ct. at 1724; see United States v. Barnes, 496 A.2d 1040, 1044-1045 (D.C. 1985); Purce v. United States, 482 A.2d 772, 777 (D.C.1984). There must be more than mere questioning before a court will find that a seizure has occurred.⁵ Factors which "might indicate a seizure" would include, for example, "the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled." United States v. Mendenhall, supra, 446 U.S. at 554, 100 S.Ct. at 1877 (citations omitted). None of those factors is present in this case.

Detective Beard treated Kelly courteously and made no demands. He identified himself as a police officer and "asked if he could speak with Kelly." See United States v. Burrell, 286 A.2d 845, 846 (D.C. 1972) (no seizure when officer placed his hand on defendant's arm and said, "Hold it, sir, could I speak with you a second?"). In response, Kelly readily provided answers to the detective's questions. Furthermore, Beard asked for permission to search the shopping bag, and Kelly granted it. During the encounter Detective Beard did not produce a weapon, nor did he ever touch Kelly until the cocaine was discovered inside the brown paper bag. Beard's questions were polite, and the tone of his voice does not appear to have been anything...