U.S. v. Brady
Decision Date | 01 April 1988 |
Docket Number | No. 87-3059,87-3059 |
Citation | 842 F.2d 1313,269 U.S.App.D.C. 18 |
Parties | UNITED STATES of America v. Howard E. BRADY, Appellant. |
Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeal from the United States District Court for the District of Columbia (Criminal Action No. 87-00107-01).
Edward C. Sussman, Washington, D.C., (appointed by the Court), for appellant.
N. Paul Patterson, Asst. U.S. Atty., of the bar of the Supreme Court of Virginia, pro hac vice, by special leave of Court, with whom Joseph E. diGenova, U.S. Atty., Michael W. Farrell, Helen M. Bollwerk and Before WALD, Chief Judge, ROBINSON and SILBERMAN, Circuit Judges.
Elizabeth Trosman, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.
Opinion for the Court filed by Chief Judge WALD.
We uphold the conviction. The sole error alleged was the district court's order denying appellant's motion to suppress evidence. We decide that the order was proper.
This case arises out of events that took place on board Amtrak Train # 92 at Union Station, Washington, D.C. on March 23, 1987. Appellant Howard E. Brady had purchased a one-way ticket (sleeping compartment), traveling from Hollywood, Florida to Philadelphia, Pennsylvania. The train stopped at Union Station for just over one-half an hour. Several Drug Enforcement Administration (DEA) agents, notably Agent Rosel and Inspector Ford, boarded the train and sought out Brady. A conversation in the lounge car ensued. The agents identified themselves. When Rosel asked Brady if he could look at his ticket, Brady replied, "Yes, but we have to go to my room and get it." The three walked to the room; Brady handed Rosel his ticket, and, after brief words, Rosel asked if Brady would object to a room and luggage search. According to the district court, Brady replied, "Go ahead, it's not my train." 1 Brady himself took down his coat, which revealed a gym bag also in the luggage compartment. Brady exclaimed, 2 A search uncovered cocaine in the bag.
Brady was indicted and he subsequently moved to suppress the cocaine as evidence tainted by an unlawful search. The motion was denied after hearing, and Brady was convicted. On July 23, 1987, he was sentenced to five years' incarceration, five years' probation, and a small fine. He filed timely appeal to this court.
The district court considered three issues before it denied Brady's motion to suppress. The court's rulings as to the first two are correct; its third determination, unfavorable to the government on the issue of abandonment, is dubious. Affirmation of the district court's first two conclusions provide sufficient basis to uphold the court's order.
The Supreme Court in Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), restated that a warrantless search approved by consent is wholly valid. Id. at 222, 93 S.Ct. at 2045. When Agent Rosel asked to search Brady's compartment and luggage, Brady consented. "[G]o ahead"--the statement attributed to Brady by Agent Rosel, and credited by the trial judge--was a clear grant of permission to search. The finding that this permission was given, see United States v. Brady, No. 87-107, mem. op. at 5 (D.D.C. June 4, 1987), based on demeanor and credibility evidence, cannot be said to be clearly erroneous. See Fed.R.Civ.P. 52(a). The fact that Brady also commented "it's not my train" has little relevance. More trenchant to a totality of circumstances inquiry, see Schneckloth at 412 U.S. 248-49, 93 S.Ct. at 2058, of course, would be evidence of aggressive questioning, intimidating actions, or prolonged police presence. See id. at 226-27, 93 S.Ct. at 2047 (listing factors). Again, none of these conditions existed. The several witnesses' testimony confirms the calm and professional behavior of the agents involved. Moreover, Brady himself displayed self-assuredness and lucidity that hints of no intimidation, nor of any impairment to his mental abilities from the alcohol he claims to have imbibed. 5
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