U.S. ex rel. Bostick v. Peters

• Decision Date: 19 August 1993
• Docket Number: No. 92-3333,92-3333
• Citation: 3 F.3d 1023
• Parties: UNITED STATES ex rel. Lawrence J. BOSTICK, Petitioner-Appellant, v. Howard PETERS, Director, Illinois Department of Corrections, and Michael Furrie, Warden, Taylorville Correctional Center, Respondents-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1023

3 F.3d 1023

UNITED STATES ex rel. Lawrence J. BOSTICK, Petitioner-Appellant, v. Howard PETERS, Director, Illinois Department of Corrections and Michael Furrie, Warden, Taylorville Correctional Center, Respondents-Appellees.

No. 92-3333.

United States Court of Appeals Seventh Circuit.

Argued May 6, 1993.

Decided Aug. 19, 1993.

Adam Bourgeois (argued), Chicago, IL, for petitioner-appellant.

Bradley P. Halloran (argued), Office of Atty. Gen., Chicago, IL, for respondents-appellees.

Before CUDAHY, COFFEY and MANION, Circuit Judges.

CUDAHY, Circuit Judge.

Petitioner Lawrence Bostick brings this action for habeas relief under 28 U.S.C. Sec. 2254, arguing that he was not permitted to litigate fully and fairly his Fourth Amendment claim in state court. The district court denied the writ, holding that Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), precluded collateral review of his claim. We reverse and remand for a hearing on the merits.

I.

On September 20, 1984, Bostick arrived at O'Hare Airport on a flight from Fort Lauderdale, Florida. Two undercover narcotics agents, Robert Fulkerson and Larry Johnson, were monitoring the area and noticed Bostick get off the flight from Fort Lauderdale, a "source city" for cocaine. As Bostick walked to the concession area, he made a "vision sweep" of the area. As he walked by, Bostick made eye contact with agent Johnson and the agent followed him. En route through the airport to the baggage claim area, Bostick turned to make eye contact with agent Johnson on a number of occasions. After Bostick walked out of the last set of doors near the baggage claim area, the agents approached him, displayed their badges and identified themselves as federal officers.

The parties dispute what happened next. According to Bostick in his motion to suppress, the agents asked him for his ticket and for some identification. Bostick produced his driver's license, but agent Fulkerson again requested his plane ticket. Bostick replied that he did not have it and that he must have lost it on the plane. Retaining Bostick's driver's license, Fulkerson asked the petitioner to step inside the terminal building. By his own account, Bostick believed that he could not refuse the request. Agent Fulkerson asked Bostick whether he had just arrived from Fort Lauderdale, what he had been doing in Florida, where and how long he had stayed in Florida, whether the address on the driver's license was current, whether he had purchased the plane ticket in his own name, what he did for a living and whether he was nervous. According to the petitioner, Fulkerson then told him that he did not have to consent to a search but that a search was going to take place whether or not he agreed to it. ¹ Bostick responded, "Fine. Go ahead," and Fulkerson searched the petitioner's shoulder bag. No contraband was found in the shoulder bag, and the bag and driver's license were returned. Bostick was then told that he was free to leave.

The testimony of the two agents as to the encounter with Bostick differed from Bostick's story in essentially four respects. First, according to agent Johnson's testimony, agent Fulkerson did not retain Bostick's driver's license but immediately handed it back to the petitioner when he asked for Bostick's plane ticket. Second, the agents purportedly never requested Bostick to reenter the terminal. Third, according to Johnson, Fulkerson told the petitioner that he did not have to consent to the search, and Bostick freely permitted them to search his carry-on bag. Finally, agent Johnson testified that they found a small glass vial in the bag, which he stated is commonly used to snort cocaine.

After Bostick left the scene, agent Fulkerson returned to the baggage claim area and told a Chicago police officer of the encounter. The officer and Fulkerson went to the claim area for the Fort Lauderdale flight and discovered only one suitcase left on the baggage belt. One side of the name tag attached to the suitcase contained the name, "James," with a Woodbridge, Illinois, address, while the other side read, "L. Bostick," with the same Woodbridge address. Fulkerson recognized the Woodbridge address as the one he had observed on Bostick's driver's license. Fulkerson and the police officer took the suitcase to the United Airlines baggage claims office, signed a receipt for the suitcase and conducted a canine sniff test. The dog reacted positively to the suitcase. The officers then secured a search warrant and searched the suitcase; in it they discovered approximately 508 grams of cocaine.

Bostick was charged with possession of a controlled substance with intent to deliver in violation of Illinois Revised Statutes, ch. 56 1/2, p 1401(a)(2) (1983). Prior to trial, Bostick moved to suppress the evidence, arguing that the detention was unlawful and that the cocaine discovered in the suitcase was tainted by the illegal seizure and must be suppressed.

At the March 15, 1985, suppression hearing, Bostick's counsel submitted a sworn affidavit and a memorandum in support of the motion to suppress, presenting Bostick's version of the events we have noted. Bostick's counsel, Mr. Bourgeois, stood ready to put the petitioner on the stand to testify to his version of the events when the following exchange occurred between Judge Strayhorn, Mr. Bourgeois and Mr. Giroti, the Assistant State's Attorney handling the case:

THE COURT: It is up to you [the state] to go forward. This Petition is sworn to. The allegations of the Petition, you have to meet them.

MR. GIROTI: Pardon me, your Honor?

THE COURT: I said the Petition is sworn to; so you [Bostick] meet the allegations. Sit down, Mr. Bourgeois. No, you don't have to call anybody. The Petition is sworn to, Mr. Bourgeois. Do you want to?

MR. BOURGEOIS: No, I don't.

Suppression Hearing Tr. (March 15, 1985) at 2. The state then called the two agents to testify. On March 18, the court held that the petitioner had been seized and that the agents had not articulated a sufficient basis for the initial stop. It therefore suppressed the suitcase evidence.

The state appealed the suppression order and the appellate court reversed. The appellate court held that Bostick's affidavit was insufficient to satisfy his burden of proving the allegations made in his motion to suppress but was sufficient only to make a preliminary showing that Bostick was entitled to an evidentiary hearing. The court held that the affidavit was not competent evidence to support Bostick's burden of proof, especially since the affidavit was not properly sworn to before an authorized person. The appellate court noted that the defendant's story in his affidavit and memorandum contradicted agent Johnson's testimony, but concluded that the

defendant failed to offer any evidence on the circumstances of his initial encounter with agents Johnson and Fulkerson. He failed to present any facts showing that the officers retained his driver's license. He failed to present any facts showing that agent Fulkerson stated or intonated the search would take place whether or not defendant consented.... In short, defendant adduced no evidence whatsoever from which the trial court could have concluded that there had been a seizure of defendant.

People v. Bostick, 152 Ill.App.3d 1163, 113 Ill.Dec. 907, 515 N.E.2d 1066 (1st Dist.), leave to appeal denied, 116 Ill.2d 563, 113 Ill.Dec. 305, 515 N.E.2d 114 (1987). The appellate court then accepted the unrebutted testimony of the agents and determined, on their version of the facts, that Bostick had not been seized. Consequently, since there had been no seizure, the agents had not been required to articulate a reasonable suspicion that Bostick was committing a crime.

Back in the trial court, Bostick asked for another hearing in which to proffer his testimony to substantiate the allegations in his motion to suppress. But, based on the appellate court opinion, the trial court held that Bostick was not entitled to another evidentiary hearing. The following colloquy took place:

MR. BOURGEOIS: Your ruling, does it also mean that we are not able to offer only the Defendant's testimony on the motion?

THE COURT: No, it means that there is no additional evidence that the Court feels is required. The Court feels if there is another evidentiary hearing the only thing that the Court would hear that is different from the original would be the testimony of the Defendant.

And I already have that testimony based upon the sworn petition that the Petitioner signed.

MR. BOURGEOIS: Judge, does that also include an offering, where the Appellate Court in the Opinion talks about the contradictory testimony between the agent and the Defendant's sworn statement?

THE COURT: You read the Opinion just as I did. And I offer no opinion as to that. That is what they wrote. That is what I read. That is what you read. And they sent it back to hear this trial.

Trial Tr. at 4-5.

The case proceeded to a bench trial in which the suitcase evidence was admitted and Bostick was convicted. As part of a new trial motion, Bostick renewed his request for a second suppression hearing to submit testimony to substantiate his version of the events. Bostick's request was denied and he was sentenced to ten years in custody.

Bostick appealed, and the appellate court affirmed his conviction together with the denial of a second suppression hearing, holding that there was no additional evidence or exceptional circumstance warranting reconsideration of the issue, and that Bostick should have submitted his evidence at the first hearing. People v. Bostick, 211 Ill.App.3d 1103, 184 Ill.Dec. 236, 613 N.E.2d 6 (1st Dist.1991) (unpublished order). Leave to appeal to the Illinois Supreme Court was denied. People v. Bostick, 141 Ill.2d 546, 162 Ill.Dec. 495, 580 N.E.2d 121 (1991).

On December 13, 1991, Bostick filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254,...