U.S. v. Joseph

Citation282 U.S.App.D.C. 102,892 F.2d 118
Decision Date29 December 1989
Docket NumberNo. 88-3140,88-3140
PartiesUNITED STATES of America v. Ivan T. JOSEPH, Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

Appeal from the United States District Court for the District of Columbia (Criminal No. 88-00090-01).

Dennis M. Hart, Washington, D.C., appointed by this Court, for appellant.

Kirby D. Behre, 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 WILLIAMS and SENTELLE, Circuit Judges; and ROBINSON, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge SENTELLE.

Opinion concurring in part, and concurring in the judgment filed by Senior Circuit Judge ROBINSON.

SENTELLE, Circuit Judge:

Ivan T. Joseph ("Joseph" or "appellant") appeals his conviction for offenses related to the possession of firearms and drugs. He assigns as errors rulings on the lawfulness of a search, the disqualification of a juror, and the sufficiency of the evidence against him. Because we find that the District Court committed no reversible error, we affirm on all counts.

I. BACKGROUND

Joseph and a companion arrived at Amtrak's Union Station in Washington, D.C. on February 23, 1988, on the "Night Owl" train from New York City. Two Metropolitan Police Department officers, Detective Curley and Sergeant Brennan, assigned to a drug interdiction unit at the station, observed the two walk toward a public telephone, where appellant placed a telephone call, apparently local in nature since he deposited only a single coin in the slot. In an increasingly familiar scenario, one of the officers, Detective Curley in this instance, approached the two and engaged them in conversation. Appellant's companion, later identified as Lawrence Mayers, also known as Shawn Joseph, stopped at the approach of the officer while appellant at first walked on, but soon returned. Curley told the two that he was with the police department and asked if he could speak with them a few minutes. Both agreed. Curley asked the two if they had come from New York, and if they had their tickets. Mayers stated that he did not have his, but appellant produced a ticket that showed he had just come from New York, a fact he had at first denied. Curley then asked for identification. Appellant produced a bank check cashing card, while Mayers replied that he had none, that he was only seventeen (as it turns out, a falsehood) and that he was traveling with his older brother, Joseph.

Curley noted that the only luggage apparently carried by the two was a tote bag then in the hands of the younger individual. He asked Mayers if he could search the bag and received permission. Then, believing Mayers to be a minor, also asked permission from the older brother. Joseph replied that this would be all right and that Curley could go ahead and search the bag. The younger man handed the bag to the officer, who placed it on the floor and unzipped it.

As Curley began to take items out of the bag, Joseph bent over and reached into it. Curley's partner, Sergeant Brennan, then said to Joseph, "If the officer has permission to search that bag, please allow him to do it, O.K.?"

Joseph replied, "Do we have to do this here? ... I have underwear and things in the bag." The officer gestured to a more private area of the station--a customer service alcove--away from the flow of traffic. All four moved to that area and Curley continued to search the bag. The search yielded a loaded .38 caliber pistol and a quantity of crack cocaine, later measured at 70.55 grams. The officers immediately placed Joseph and Mayers under arrest.

On March 24, 1988, a grand jury returned a five-count indictment against the two. After one charge was dismissed, the appellant stood trial on charges of (1) possession with intent to distribute a controlled substance, namely cocaine, in violation of 21 U.S.C. §§ 841(a) and (b)(1)(A)(iii) and 18 U.S.C. § 2; (2) using or carrying a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1); (3) possession of a firearm without a valid registration certificate in violation of D.C.Code Ann. § 6-2311(a); and (4) possession of ammunition for a firearm without having a valid registration for the firearm in violation of D.C.Code Ann. § 6-2361. The District Court upheld the search at a separate suppression hearing; the evidence unfolded as summarized above; and the jury returned verdicts of guilty against appellant on all four counts. 1

II. ANALYSIS
A. The Search

Joseph makes two claims that the police conduct at Union Station violated his Fourth Amendment rights. First, he argues that the manner of the police contact with him and his fellow traveler constituted an unlawful seizure without probable cause or reasonable suspicion. We note at the outset that the United States makes no claim that it had probable cause or even that it had a reasonable suspicion sufficient to justify a stop under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Therefore, if a seizure occurred prior to the arrest, then Joseph is correct that it was an unlawful one. The difficulty for Joseph is that we find no error in the District Court's conclusion that no seizure occurred.

It is well established that not every contact between police officers and citizens raises Fourth Amendment implications. In the Terry decision itself, the Court noted:

Obviously, not all personal intercourse between policemen and citizens involves "seizures" of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a "seizure" has occurred.

392 U.S. at 19, n. 16, 88 S.Ct. at 1879, n. 16. As the Court later observed "police can be said to have seized an individual 'only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.' " Michigan v. Chesternut, 486 U.S. 567, 573, 108 S.Ct. 1975, 1979, 100 L.Ed.2d 565 (1988) (quoting United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980) (opinion of Stewart, J.)).

As we have previously made plain "in this circuit the test of whether a seizure has occurred is whether a reasonable person, innocent of any crime, would have felt free to walk away under the circumstances." Gomez v. Turner, 672 F.2d 134, 141 (D.C.Cir.1982). Supreme Court decisions plainly teach that any apprehension of lost freedom must reasonably arise from conduct of the police or from some show of authority. Consequently, it is clear that a seizure did not occur in the present case.

Nothing that appeared in the suppression hearing revealed that the officers had "by means of physical force or show of authority," or by any other means restrained the liberty of appellant or his companion. As we noted in Gomez, the police do not restrain liberty so as to constitute a seizure merely by approaching a citizen, directing toward him a question, or asking him for identification. Id. at 141-44. Here, the police did not tell Joseph that he could not leave, did not block his exit, and did not evidence any other signs of coercion. In short, the District Court did not err in concluding that no seizure had occurred.

Joseph, however, argues further that the search of the tote bag was an unreasonable one, violative of his Fourth Amendment rights. Again, we cannot agree. It is well established that police, even in the absence of probable cause, may conduct a warrantless search pursuant to voluntary consent. Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S.Ct. 2041, 2045, 36 L.Ed.2d 854 (1973); United States v. Brady, 842 F.2d 1313, 1315 (D.C.Cir.1988). The evidence before the District Court established without contradiction that appellant had given his consent in the present case. Nor can this consent be said to be involuntary. In this respect, the present case is similar to Brady, in which we noted that there was no coercion, but rather voluntary consent when plain clothes officers courteously requested and received permission before conducting a luggage search. 842 F.2d at 1314-15. While Joseph argues that his reaching into the bag during the search constituted a withdrawal of consent, a review of the relevant evidence supports the District Court's conclusion that the consent was voluntary, that Joseph acted under no coercion, and that Joseph did not withdraw consent. He apparently felt free to tell the officers that the contents of the bag could be embarrassing, and then accompanied them to a more private place for the completion of the search. If any coercion occurred at that point, Joseph has offered no evidence of it, and we cannot assume that which the evidence does not support. Certainly, as in Brady, we cannot conclude the trial judge's finding of consent "to be clearly erroneous." Id.

B. The Jury Selection

Appellant next argues that the District Judge committed reversible error in excusing for cause, on his own motion, a single juror. The exclusion followed what we must concede was a rather unusual colloquy between the trial judge and the juror. The relevant colloquy proceeded as follows:

THE COURT: Would your religious [sic] prejudice you from sitting in judgment on somebody?

MR. WALLS: If I have the evidence myself. If I am exactly sure I can go all the way. Circumstancial [sic] evidence I wouldn't. But if I am sure.

THE COURT: Well, the standard in the law is beyond a reasonable doubt. That doesn't mean beyond any doubt. That means it has to be a doubt based upon reason.

The standard that we use in criminal cases, there is a presumption of innocence. An individual who is charged with a crime is presumed to be innocent until you are convinced that the proof of the case is such that you can find him guilty beyond a reasonable doubt.

A...

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