U.S. v. Gooding

• Decision Date: 07 December 1982
• Docket Number: No. 81-5077,81-5077
• Citation: 695 F.2d 78
• Parties: UNITED STATES of America, Appellee, v. James GOODING, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 78

695 F.2d 78

UNITED STATES of America, Appellee, v. James GOODING, Appellant.

No. 81-5077.

United States Court of Appeals,

Fourth Circuit.

Argued Jan. 8, 1982.

Decided Dec. 7, 1982.

Edward L. Weiner, Fairfax, Va., (Kenneth R. Weiner, Weiner, Weiner & Weiner, P.C. Fairfax, Va., on brief), for appellant.

William G. Otis, Sp. Asst. U.S. Atty., Alexandria, Va. (Justin W. Williams, U.S. Atty., Alexandria, Va., Roslyn R. Mauskopf, Third Year Law Student on brief), for appellee.

Before INGRAHAM, Senior Circuit Judge for the Fifth Circuit, sitting by designation, and WIDENER and PHILLIPS, Circuit Judges.

JAMES DICKSON PHILLIPS, Circuit Judge:

In this airport-drug-courier-stop case, James Gooding appeals his bench trial conviction of possession of cocaine with intent to distribute, in violation of 21 U.S.C. Sec. 841(a)(1). He challenges the sufficiency of the evidence to establish his intent to distribute and the denial of his motion to suppress evidence that he contends was obtained by an unconstitutional search. We hold that the evidence was sufficient to convict so that reprosecution is not barred; but we vacate the conviction because the challenged evidence should have been excluded as unconstitutionally obtained.

I

The critical facts, as developed on the pre-trial suppression hearing and on trial, and either uncontested or taken in the light most favorable to the government, are as follows.

At about 3:00 p.m. on November 7, 1980, James Gooding, a black man age 35, arrived in Washington National Airport on a flight from New York City. Although most of the passengers were wearing business suits, Gooding was dressed in slacks, sweater and coat. His casual dress attracted the attention of Drug Enforcement Administration Agent McCracken and Metropolitan Police Detective Bradley who, with Metropolitan Police Detective Isaac, were engaged in general surveillance of the airport to detect drug couriers. They continued to observe Gooding for the next half hour. Gooding was carrying a briefcase and flight bag, but picked up no checked baggage.

To Detective Bradley Gooding seemed to be "nervous, suspicious" as he debarked from the plane and looked up and down the corridors of the concourse. He made a telephone call and appeared to get no response. Agent McCracken then pointed Gooding out to Detective Isaac, telling Isaac that Gooding seemed to be "angry, distraught" over someone's not being there. Detective Isaac, however, by his own later testimony, did not consider that Gooding was acting nervously at any time during the surveillance. The three agents followed and observed Gooding as he walked upstairs, made a second telephone call, entered a bar and put down his bags, left after a minute and walked over to a restaurant, ate a meal for about 25 minutes, made a third telephone call, and then left the airport, walking past the limousine stand towards the public transportation.

At that point, Detectives Isaac and Bradley approached Gooding, showed him their police badges, and Isaac identified the two as police officers. They were not in uniform and did not brandish their weapons. McCracken remained 20-30 feet away. Isaac asked if Gooding would talk with them for a moment, and Gooding agreed. Isaac asked Gooding for some identification, and Gooding produced an Eastern Airlines return trip shuttle ticket. Isaac asked him for some more official identification, and Gooding opened his briefcase and produced a United States passport. The name on the passport matched that on the ticket. Isaac handed the documents to Bradley, who noted them and returned them to Gooding.

Isaac continued the encounter by informing Gooding that the officers were narcotics investigators, and asked Gooding if he had any narcotics with him. Gooding responded that he did not. Isaac then asked Gooding if he could search his briefcase. Gooding agreed, opened his briefcase, and began handing out its contents. Isaac then asked if he could search Gooding's flight bag. Gooding agreed, put the bag on the ground, unzipped its compartments, and began handing out items. Isaac then asked if he could search the flight bag himself. Gooding said yes and stepped back.

After a couple of seconds, Isaac found a plain, white, sealed, legal size envelope, held it up, and asked Gooding what was in it. Gooding gave no response, so Isaac again asked if he could open it. Gooding still gave no response, so at that point, Isaac advised Gooding that he did not have to consent to the opening of the envelope. Gooding then said he did not want the envelope opened and wanted the entire search stopped.

Isaac then undertook to replace the envelope in the flight bag. In doing so, he saw what appeared to be a quarter-ounce of marijuana in a plastic bag. Isaac placed Gooding under arrest, and McCracken, who had now joined the group, advised him of his right to remain silent. The agents kept the envelope and flight bag, took Gooding to the terminal police station, and obtained a warrant to search the envelope. The envelope contained about 25 grams of 41 percent pure cocaine.

Isaac estimated that the entire confrontation from inception until Gooding was arrested lasted about a minute. He described the tone of the conversation as casual and said he tried to be as polite as possible. The officers denied touching Gooding until they arrested him. Isaac further testified that Gooding would have been free to go up until the time they arrested him. Bradley testified that at one point Isaac told Gooding he was free to leave. The record does not reveal when, if ever, Isaac made such a statement (Isaac himself did not testify that he made it), and the district court made no specific finding on this point. The government acknowledged at oral argument that the statement may well have been made after Isaac found the white envelope. It is at least a plausible surmise, looking to the whole record, that Bradley was referring to the point, after the white envelope was found, at which Isaac said Gooding could decline to consent to the search.

Gooding moved pre-trial to suppress the evidence of the cocaine's discovery in his possession, contending that the investigative encounter that preceded the search of his effects constituted a seizure of his person which, under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1967), was only justified under the fourth amendment if based upon a "reasonable articulable suspicion" of criminal activity on his part; that no such suspicion then existed, so that the seizure was illegal; and that, in consequence, "all evidence obtained as a result of this illegal stop must be excluded or suppressed." After an evidentiary hearing, the district judge denied the motion in a brief Memorandum Opinion and Order which contained two salient determinations: that "[t]he Terry stop, questioning and subsequent arrest of the defendant ... was lawful"; and that "the search of the defendant's bag was with the full consent and cooperation of the defendant."

Gooding waived jury trial and was convicted after a brief bench trial at which the discovery of the cocaine in his possession was the critical evidence. This appeal followed, with Gooding challenging both the denial of his suppression motion and the sufficiency of the evidence to support a finding of intent to distribute. We take these challenges in that order.

II

The district court's denial of Gooding's suppression motion was based, without detailed findings or elaborated conclusions of law, upon two express legal/factual determinations, both necessary to its decision. First, that the investigative encounter was throughout a lawful "Terry -stop" that did not taint the ensuing multi-stage search. Second, that the untainted search was then justified throughout its course by Gooding's voluntary consent. Gooding attacks both of these. Because we find reversible error in the first, we do not reach the second. ¹

In addressing the first determination--that the encounter was throughout a "lawful" one--we observe preliminarily that in turn it had two elements: first, that an investigative seizure invoking fourth amendment guarantees had occurred before consent to search was initially given; second, that the seizure was a "lawful" one under controlling principles respecting investigative stops not amounting to arrests. The first requires little discussion; the second is the critical issue.

A

The government contends on appeal as it did in the district court that, as an alternative basis for finding the search untainted by the investigative encounter, the encounter never amounted to a fourth amendment "seizure." ² The district court ruled against the government on this largely factual determination, ³ and we are not disposed to disturb that ruling.

As indicated, the district court did not elaborate the legal basis for this or its other determinations. In opposing the suppression motion in the district court the government cited and relied upon the majority opinion in United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1979), for the proposition that "the brief contact ... did not constitute a Fourth Amendment seizure." It may therefore fairly be assumed that the district court applied the "not free to leave" test announced in that opinion in rejecting this contention.

In view of the unelaborated nature of the order we review here, this seems not the occasion to address the general question of whether and just how that test is to be applied in this circuit to resolve disputed factual questions of the occurrence of fourth amendment seizures short of arrest. ⁴ It suffices here to say that, whether the root principle of Terry v. Ohio, 392 U.S. at 19 n. 16, 88 S.Ct. at 1879 n. 16 (1967)--that a seizure occurs "when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen"--be applied directly or by some more particularized...