U.S. v. Jones, 91-3025

• Decision Date: 22 October 1992
• Docket Number: No. 91-3025,91-3025
• Citation: 973 F.2d 928,297 U.S.App.D.C. 356
• Parties: , 61 USLW 2132 UNITED STATES of America, Appellee, v. Thomas T. JONES, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 928

973 F.2d 928

297 U.S.App.D.C. 356, 61 USLW 2132

UNITED STATES of America, Appellee, v. Thomas T. JONES, Appellant.

No. 91-3025.

United States Court of Appeals,

District of Columbia Circuit.

Argued March 9, 1992.

Decided Aug. 14, 1992.

Order Granting Rehearing En Banc and Judgment in part Oct. 22, 1992.

[297 U.S.App.D.C. 357] Appeal from the United States District Court for the District of Columbia (Criminal Number 90-00240-01).

Howard B. Katzoff, Washington, D.C., (appointed by the Court) for appellant.

Robin C. Ashton, 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.

Before: MIKVA, Chief Judge, SILBERMAN and WILLIAMS, Circuit Judges.

Opinion for the Court filed by Circuit Judge STEPHEN F. WILLIAMS.

Opinion concurring in part and dissenting in part filed by Chief Judge MIKVA.

STEPHEN F. WILLIAMS, Circuit Judge:

A jury found appellant Thomas Todd Jones guilty of possession with intent to distribute fifty grams or more of a substance containing cocaine base. 21 U.S.C. §§ 841(a), 841(b)(1)(A)(iii). On appeal Jones argues that the judge erred in admitting evidence obtained after an allegedly illegal search, in admitting testimony alleged to be hearsay, and in using Jones's failure to plead guilty as a reason for choosing a sentence stricter than the low point of the guidelines range. We disagree, and affirm.

* * * * * *

Early in the morning of May 2, 1990, Jeffrey Huffman, a plain-clothes detective, watched Jones step off a bus at the Greyhound station in Washington, D.C., go to a restaurant in the station, buy some food, and turn to go back to the bus. Huffman approached Jones, identified himself as a police officer, and asked Jones whether he could speak to him. Jones said yes, and in response to Huffman's questions, told him that he had come from New York and was headed toward Norfolk, Virginia, where he was a student, and that he had left his ticket and student identification on the bus. Jones offered to retrieve these papers, and started toward the bus ostensibly to do so. Huffman followed, either in response to an "invitation" to come along (according to Huffman) or on his own initiative (according to Jones). These events took place in an open area of the bus station and no one blocked Jones's path. Upon reaching the platform Jones did not enter his bus, but instead "appeared to get some passengers between [Huffman] and him[self]", and then "took off running" across L Street.

[297 U.S.App.D.C. 358] Sergeant John Brennan saw Jones run off, and, with Detective Kim Oxendine, pursued him in a police car. After initially losing contact, they spotted him walking in a nearby alley. Jones ran into a football field, and did not stop when Brennan got out of the car and yelled, "Police. Stop." Oxendine continued the chase by car, Brennan on foot. Finally, Oxendine stopped Jones in the alley. When Brennan caught up, he ordered Jones to the ground, handcuffed him, and put him in the police car. Brennan asked Jones why he had run, and Jones responded that it was because he had thrown a gun and was afraid. The gun, if there was one, was never found.

Brennan and Oxendine drove Jones back to the bus station. Meanwhile, another officer, Detective Beard, who had not seen Jones take off, was told of his flight. Beard boarded the bus on which he had seen Jones arrive and had the passengers claim their on-board luggage. No one claimed a green tote bag. After the driver told Beard that all passengers scheduled to continue south had reboarded, save one, Beard took the bag from the bus. When Brennan and Oxendine arrived with Jones, the officers showed him the bag. (According to Jones, officers first showed him another bag, asked him whether he owned it, and, after Jones denied ownership, determined that it belonged to someone else.) Jones disclaimed ownership. The officers opened the bag and found in it a substance that later tested positive for cocaine, a sweatshirt with the words "Norfolk University" and a t-shirt with the words "Norfolk State Express" emblazoned on them, a New York-Norfolk bus ticket, and a Norfolk-New York airline ticket in the name of "Todd Jones".

* * * * * *

Jones argues that Huffman illegally seized him by accompanying him to the bus platform; that Brennan and Oxendine illegally seized him by handcuffing him and putting him in the police car; and that Beard illegally searched the tote bag. None of the three contentions succeeds.

We have repeatedly held, following United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980) (opinion of Stewart, J.), and Michigan v. Chesternut, 486 U.S. 567, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988), that officers who approach a person and ask him questions effect a seizure only when "a reasonable person would conclude from the circumstances, and the show of authority, that he was not free to leave the officer's presence." United States v. Brady, 842 F.2d 1313, 1314 (D.C.Cir.1988). Here, as in the typical case where we have found no seizure, the officer wore plain clothes, identified himself, did not show his weapon, and refrained from asking intimidating questions. Neither Huffman nor any other officer blocked Jones's exit; nothing unusual about the time or place would have intimidated Jones; and, although Huffman did not tell Jones that he could refuse to answer questions and could leave, this omission is not significant. See, e.g., United States v. Tavolacci, 895 F.2d 1423 (D.C.Cir.1990); United States v. Maragh, 894 F.2d 415 (D.C.Cir.1990); United States v. Winston, 892 F.2d 112, 115 (D.C.Cir.1989); United States v. Carrasquillo, 877 F.2d 73 (D.C.Cir.1989); United States v. Lloyd, 868 F.2d 447 (D.C.Cir.1989). That Huffman "escorted" or "followed" Jones (on Jones's account) might have been significant if Jones had told Huffman that he had nothing to say and had begun walking away; we leave this question to a case that raises it. But here Jones told Huffman that he was going to the bus to retrieve his student ID and his ticket; having said that, he should not have been surprised or intimidated when Huffman came with him, if only for the purpose of saving Jones the trouble of reentering the station after retrieving his papers. See Brady, 842 F.2d at 1314-15 (defendant took "crucial initiatives [such as] suggesting that the ticket would have to be retrieved from his room" in the train). Thus, no seizure at all occurred until Jones's flight triggered pursuit culminating in his capture.

Jones argues that the capture by Brennan and Oxendine constituted an arrest without probable cause. We need not address the government's argument that the

[297 U.S.App.D.C. 359] entire transaction--from the moment of capture to the moment, ten to thirty minutes later, when the officers opened Jones's tote bag back at the bus station--was a Terry stop, justified by the suspiciousness of Jones's flight. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Seen as separate phases, first a Terry stop and then an arrest, the police conduct was legitimate

The initial phase--the stopping of Jones, his being ordered to the ground and handcuffed, and his transfer to the car--was both consistent enough with the investigative and security purposes of a Terry stop, and short enough, to qualify as such. A Terry stop does not turn into a full arrest merely because the officers use handcuffs and force the suspect to lie down to prevent flight, so long as the police conduct is reasonable. United States v. Laing, 889 F.2d 281, 285 (D.C.Cir.1989). The stop may also include forced relocation of the suspect. United States v. White, 648 F.2d 29, 34-40 (D.C.Cir.1981). Jones's flight and failure to obey Brennan's order to stop supplied the necessary articulable suspicion. A suspect is "free to leave" a non-seizure interview, but when he does so by abruptly bolting after having consented to talk, the officers are free to draw the natural conclusions. See United States v. Nurse, 916 F.2d 20, 24 (D.C.Cir.1990); United States v. Haye, 825 F.2d 32, 34 (4th Cir.1987). Once Jones told the officers that he had possessed and thrown away a gun, almost immediately after the initial capture, they had probable cause to arrest him.

Jones argues that the officers violated his rights by searching his tote bag. The trial court ruled that Jones had no reasonable expectation of privacy in the bag, as he had abandoned it, either by fleeing from the station or by disavowing ownership. The latter suffices, as we have held that "voluntary denial of ownership demonstrates sufficient intent of disassociation to prove abandonment." United States v. Lewis, 921 F.2d 1294, 1302 (D.C.Cir.1990). Nothing in the record indicates that Jones's denial of ownership was involuntary or defective for any other reason.

* * * * * *

Jones argues that the trial court violated his sixth amendment rights by failing to compel the government to produce the name and address of a potential witness until the day of the trial. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The police had interviewed a passenger on the bus but the government did not call her as a witness. The government said that she would not provide exculpatory evidence and that it could not now reach her, and refused to provide her name and address to the defense. The court ordered the government to release this information and it did so, on the day of the trial. Jones argues that the passenger might have testified that the government had opened his bag before obtaining his consent; moreover, by contradicting the testimony of the officers as to this issue, the passenger might have impeached their testimony as to others.

There are two separate elements to this complaint, both defective. First, there is a suggestion of the existence of the undisclosed Brady material. But the suggestion is fanciful....