U.S. v. Castellanos, 83-1603

• Citation: 235 U.S. App. D.C. 277,731 F.2d 979
• Decision Date: 06 April 1984
• Docket Number: No. 83-1603,83-1603
• Parties: UNITED STATES of America, Appellee, v. Gerardo S. CASTELLANOS, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 979

731 F.2d 979

235 U.S.App.D.C. 277

UNITED STATES of America, Appellee, v. Gerardo S. CASTELLANOS, Appellant.

No. 83-1603.

United States Court of Appeals District of Columbia Circuit.

Argued Dec. 1, 1983.

Decided April 6, 1984.

Appeal from the United States District Court for the District of Columbia (D.C.Crim. No. 83-037).

Paul J. Kaleta (appointed by the court), Washington, D.C., for appellant.

Sharon M. Collins, Asst. U.S. Atty., Washington, D.C., with whom Stanley S. Harris, U.S. Atty., Washington, D.C., at the time the brief was filed, and Michael W. Farrell and Theodore A. Shmanda, Asst. U.S. Attys., were on the brief, for appellee.

Before TAMM and SCALIA, Circuit Judges, and SWYGERT, ^* United States Senior Circuit Judge for the Seventh Circuit.

Opinion for the court filed by Senior Circuit Judge SWYGERT.

SWYGERT, Senior Circuit Judge:

The appellant, Gerardo S. Castellanos, was indicted for possession of cocaine with intent to distribute in violation of 21 U.S.C. Sec. 841(a). Following a one-day non-jury trial, the district court found the appellant guilty. In this appeal, Castellanos raises two issues. He first claims that the evidence of intent to distribute was insufficient to support the conviction. He also claims that the district court erred in denying his motion to suppress tangible evidence seized from him at the time of his arrest. We affirm the appellant's conviction.

I

A. The Suppression Hearing

On February 9, 1983, between 8:00 and 9:00 a.m., an unidentified man approached a Park Service gardener at Carter Barron Park in Washington, D.C., and informed him that a man lying inside a nearby car in the parking lot looked like he needed help and could be unconscious. (H.Tr. 9-10). The gardener, Carlton Wainwright, walked over to the car and found Castellanos curled-up across the front bucket seats, shaking as if he were cold. (H.Tr. 11-12, 19-20.) Wainwright and a co-worker attempted to wake Castellanos by shouting and banging on the car windows, but he did not respond. (H.Tr. 18, 25-26.) At this point, Wainwright's supervisor, William Bibbs, drove into the lot. Wainwright met Bibbs and told him there was a sick man who might have overdosed lying in a car parked in the lot. (T.Tr. 13-14, 41-43.) Bibbs immediately left to get help from Park police, whom he had just seen five blocks away. (H.Tr. 42-43, 45.) Two police officers, Rice and Swerda, followed Bibbs back to the lot, having been told by Bibbs that a man appeared dead or overdosed. (H.Tr. 42-43, 65-66, 131-32.)

By the time the officers arrived, several firemen had opened the car door and attempted to awaken Castellanos. (H.Tr. 20-22, 30-31.) Castellanos was slouching behind the wheel and seemed dazed when Rice approached him. (H.Tr. 78, 97.) Rice first asked Castellanos if he was all right. Castellanos nodded and said "yeah." Rice next asked him if the car was his. Castellanos nodded and said "yeah." Rice then requested Castellanos to produce his driver's license and car registration. Castellanos sat for a moment, leaned over, and reached under the driver's seat. (H.Tr. 67-68, 78-79.) Fearing that Castellanos could be reaching for a weapon, Rice stepped back and told him to get out of the car. (H.Tr. 47, 67-69, 114.) At the same time he unsnapped the keeper on his holster and put his hand on his gun. (H.Tr. 137.) ¹

As Castellanos got out of his car, Rice observed what appeared to be a plastic bag, containing a white powdery substance, protruding two or three inches out of Castellanos's left jacket pocket. (H.Tr. 69-71, 76.) Swerda, who had been calling in a "wales check," was near the rear of Castellanos's car when Castellanos got out and could also see "something white" in his pocket. (H.Tr. 138, 143.) Rice put Castellanos up against the car and took the bag out of his pocket. (H.Tr. 69, 71.) The bag, a clear, ziplock sandwich bag, was rolled into a tube and contained a crystalline substance. (H.Tr. 74-75, 144-47.) Suspecting that it was cocaine, Rice and Swerda advised Castellanos of his rights and placed him under arrest. (H.Tr. 82, 121-22.) The officers then looked into the back seat and saw more plastic bags containing a white powdery substance inside an open shoulder bag. (H.Tr. 80, 148-49.) The officers proceeded to search the car. The shoulder bag contained five bags similar in size and appearance to the one that had been removed from Castellanos's pocket. (H.Tr. 84-85, 149-50.) The officers looked under the driver's seat for a weapon, but did not find anything. (H.Tr. 92, 150-51.) On the floor in front of the passenger's seat, they found a vinyl briefcase, which contained a box of baking soda, small sternos, knives, spoons, towels, copper faucet fittings, and small glass bottles open at the side and top. (H.Tr. 84, 92, 152-53.) The officers also searched for money, which Castellanos had told them about, under a cloth cover on the passenger's seat. (H.Tr. 82-83, 152.) They seized approximately $1000 from under the seat cover and an additional $217.00 from Castellanos. (H.Tr. 82-83, 152-53.) The transporting officer also recovered a small envelope containing more of the same white powder. (H.Tr. 106.)

After hearing all the evidence relating to the search and seizure, the district court denied the defendant's motion to suppress the tangible evidence seized at the time of arrest. ² The court found that under all the circumstances, the search and seizures were reasonable and did not violate the fourth amendment.

B. The Trial

At trial, the government introduced a stipulation, agreed to by the parties, which incorporated all testimony from the suppression hearing into the trial record. The stipulation further stated that the white substance seized by police consisted of cocaine, ranging in purity from 28% to 34% by weight, and that the total weight of the white powder was 162,540 mg. or slightly less than six ounces. The government's sole witness, Detective Johnnie St. Valentine Brown, testified as an expert on cocaine pricing and distribution. He stated that a "street" ounce of cocaine at a purity level of 15% to 20% would cost between $1800 and $2000 in the District of Columbia. (T.Tr. 19-20.) An ounce of cocaine at a purity level of 30% would cost $2800. He further indicated that cocaine at a purity level of 30% could not be purchased on the street but rather is wholesale quality which is then cut with other substances before being distributed. (T.Tr. 31-32.) On direct examination, Detective Brown testified that in his opinion the cocaine seized in this case was intended for distribution given the quantity and quality of the cocaine. (T.Tr. 26.) On cross-examination, he conceded that he had talked to people who had used as much as 20,000 mg. of cocaine in a day, but also stated that four mg. of cocaine would be enough to satisfy an individual's craving for the drug. (T.Tr. 40-41.) Defense counsel presented no evidence. Castellanos was found guilty, and was sentenced to three to nine years imprisonment, with a special parole term of three years.

II

In challenging the district court's denial of his motion to suppress tangible evidence, Castellanos does not dispute that the plastic bag in his pocket was visible to the officers as he stepped out of his car. Nor does he dispute that the plastic bags later found in the shoulder bag were visible, or that they could have been seized incident to a lawful arrest. His contention is that the seizures of cocaine cannot be justified under the plain view doctrine or as the result of a search incident to arrest because they were subsequent to an unlawful seizure of his person. In the appellant's view, the events leading up to the time at which Rice told him to get out of the car constitute a "seizure" within the meaning of the fourth amendment, which was not based on reasonable suspicion of criminal activity. Consequently, he contends that all evidence discovered subsequent to this unlawful seizure was tainted and must be suppressed as "fruit of the poisonous tree."

The fourth amendment's proscription against unreasonable searches and seizures requires objective justification for police intrusions upon the liberty and personal security of a citizen, including intrusions short of arrest. Davis v. Mississippi, 394 U.S. 721, 726-27, 89 S.Ct. 1394, 1397-98, 22 L.Ed.2d 676 (1969); Terry v. Ohio, 392 U.S. 1, 16-19, 88 S.Ct. 1868, 1877-79, 20 L.Ed.2d 889 (1968). It is also well-settled that the fourth amendment is not implicated by every encounter between police officers and citizens. See, e.g., United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980); Gomez v. Turner, 672 F.2d 134 (D.C.Cir.1982). Only when police have in some way restrained the liberty of an individual, either by force or a show of authority, is there a "seizure" within the meaning of the fourth amendment. Terry v. Ohio, supra, 392 U.S. at 19 n. 16, 88 S.Ct. at 1879 n. 16. United States v. Wylie, 569 F.2d 62, 66-67 (D.C.Cir.1977).

The question posed by this case is whether a "seizure" occurred before Officer Rice told Castellanos to leave the car. The test established in this circuit is whether police engaged in a show of authority which would lead a reasonable person, innocent of any crime, to conclude he was not free to go under all the circumstances. Gomez, supra, 672 F.2d at 141. See also Mendenhall, supra, 446 U.S. at 553-54, 100 S.Ct. at 1876-77. Castellanos contends that because Rice approached him, was wearing a park police uniform, and asked him for identification after he said he was all right, a reasonable person in his situation would have concluded he was not free to go. ³

This court has had several occasions to consider whether a police officer's request for identification creates a sufficient show of authority to constitute a seizure. Gomez, supra, 672 F.2d at 139-44; Wylie, supra, 569 F.2d at 66-68. In Gomez the issue before the court was whether the "contact"...