U.S. v. Lloyd, 88-3038

• Decision Date: 28 February 1989
• Docket Number: No. 88-3038,88-3038
• Citation: 868 F.2d 447,276 U.S.App.D.C. 118
• Parties: UNITED STATES of America v. Bobby A. LLOYD, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 447

868 F.2d 447

276 U.S.App.D.C. 118

UNITED STATES of America v. Bobby A. LLOYD, Appellant.

No. 88-3038.

United States Court of Appeals, District of Columbia Circuit.

Argued Nov. 14, 1988.

Decided Feb. 28, 1989.

Appeal from the United States District Court for the District of Columbia (D.C.Crim. No. 87-436-01).

Sol Rosen, Washington, D.C. (appointed by the court), for appellant.

Gregory E. Jackson, Asst. U.S. Atty., of the bar of the District of Columbia, pro hac vice, by special leave of court, with whom Jay B. Stephens, U.S. Atty., Michael W. Farrell and Theodore A. Shmanda, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.

Before MIKVA, BUCKLEY, and D.H. GINSBURG, Circuit Judges.

Opinion for the Court filed by Circuit Judge BUCKLEY.

BUCKLEY, Circuit Judge:

Bobby Lloyd appeals his convictions for possession of cocaine and for failure to appear for his preliminary hearing. Lloyd argues that his drug-related conviction was based on evidence obtained by police during an unlawful search and seizure at Union Station in Washington, D.C. At a pre-trial hearing, the district court denied Lloyd's motion to suppress this evidence. We conclude that the court's ruling rested on a correct application of Fourth Amendment law: No "seizure" of Lloyd ever occurred, and the search was lawful because Lloyd freely consented to it. As the district court correctly denied Lloyd's motion to suppress, we affirm his conviction for drug possession based on that evidence. We also affirm Lloyd's conviction for failure to appear at his hearing because sufficient evidence supports the jury's verdict on that count.

I. BACKGROUND

On December 3, 1987, the United States District Court for the District of Columbia (Gesell, J.) denied defendant/appellant Bobby Lloyd's motion to suppress evidence obtained by Detectives John Centrella and Edward Curley, of the Metropolitan Police Department of Washington, D.C., during the questioning and arrest of Lloyd and Wayne Howell. United States v. Lloyd, Crim. Action No. 87-0436-01 (D.D.C. Dec. 3, 1987).

At the suppression hearing, Centrella and Curley testified as follows. While on duty at Union Station on the morning of October 1, 1987, they observed Lloyd and Howell depart from a train that had just arrived from New York, walk to the center of the concourse, stop and look around, then return to a seating area. The police officers' suspicions were aroused because defendants had been on a "Night Owl" train from New York and were acting in an unusual manner. After lounging for about twenty minutes, Lloyd picked up the bag he had carried off the train and left the station with Howell; the detectives followed discreetly.

While Lloyd and Howell were waiting outside in the taxi line, Centrella approached Lloyd; Curley remained several feet away. Both detectives were dressed in plain clothes and had their guns concealed. In a normal conversational tone, Centrella identified himself as a policeman, said he would like to talk, and asked Lloyd and Howell if they had arrived on the train from New York. Although both men answered that they had come from New York, neither could produce his ticket. Lloyd told Centrella that he lived in New York, but when Centrella requested identification, Lloyd produced a photo i.d. card bearing the name "Rodney Stewart" with a Washington, D.C. address. When asked his purpose in traveling to Washington, Lloyd responded that he was visiting friends, but could not identify them. By this point, the conversation had lasted about three or four minutes.

Centrella then told Lloyd that he was working for the drug interdiction program and asked permission to look in the bag Lloyd was carrying. Lloyd replied "sure," opened the bag, and removed some clothing. Centrella again requested permission to search the bag; Lloyd answered "go ahead." Lloyd testified that the bag belonged to Howell and that he had no knowledge of its contents.

While Centrella was searching the bag and discovering 173 vials of crack cocaine, Lloyd walked away. Curley did not move or speak. Lloyd then voluntarily returned to Centrella, at which time he and Howell were arrested and given Miranda warnings. Lloyd was taken to police headquarters, where he was again advised of his rights and signed a card indicating that he understood his rights. According to Centrella, Lloyd admitted that this was the third time he had traveled to Washington with cocaine for a man identified only as "Garry."

This testimony was essentially uncontested, although Lloyd disagreed with certain of the details. For example, while he admitted signing the card at police headquarters, he denied that he had answered "Yes" to each of the questions. Also, he claimed it was Howell, not he, who had stated this was his third trip carrying cocaine for Garry.

After considering the testimony, Judge Gesell denied the motion to suppress, which was based on Fourth Amendment claims. He determined that "there were grounds for the police to have reasonable suspicion under the circumstances given the time of day, [and] the conduct of the two individuals arrested, to justify a Terry type stop" (referring to Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). The court found that there was no search or detention, noting that Lloyd "knew he could walk away because he did walk away." The court further concluded that "the fact that [Lloyd] did not understand that there [were] any drugs in the bag and that the bag didn't belong to him demonstrates ... that the consent given to examine the contents of the bag was freely and openly given because the man in his own testimony sa[id] he had nothing to conceal." Finally, Judge Gesell noted that Lloyd had signed the card containing the Miranda warnings and deferred until trial the question whether it was Lloyd or Howell who had admitted being a drug courier.

A jury trial commenced January 28, 1988. Centrella and Curley essentially repeated their earlier testimony. They added that during the period in question, Lloyd had retained possession of the bag, and that upon being released from custody, Lloyd signed the police property book acknowledging receipt of the bag. Lloyd reiterated that the bag was Howell's and that he did not know its contents, but admitted he had smoked crack before boarding the train. He denied previously selling drugs or telling Centrella that this was his third trip to Washington and that his contact was Garry. Centrella, however, reaffirmed that Lloyd had made these statements. Based on their evaluation of the testimony regarding the Union Station encounter and the drugs seized at the scene, the jury found Lloyd guilty of possession with intent to distribute cocaine, in violation of 21 U.S.C. Sec. 841 (1982 & Supp.1986) and 18 U.S.C. Sec. 2 (1982).

To support the charge of failure to appear for a hearing, the government introduced Lloyd's signed release order dated October 1, 1987, giving him notice to return to court for a preliminary hearing on October 5, 1987, and a copy of the court record showing that Lloyd had failed to appear. Lloyd testified that after returning to New York, he resumed using crack, did not receive notice from Pretrial Services and thus did not know when to come to court, and could not afford the fare to Washington. Lloyd admitted, however, that upon his release he had been given a blue sheet of paper containing the hearing information, that he had failed to report for drug testing as required by the release, had not kept in contact with his lawyer, and did not appear for his hearing because of his drug abuse. The jury found that Lloyd had failed to appear for his hearing in violation of 18 U.S.C. Sec. 3146 (1982 & Supp.1986).

Lloyd has appealed his convictions on both counts.

II. DISCUSSION

The district court's denial of Lloyd's motion to suppress was amply supported and was based on a proper application of Fourth Amendment principles. We will consider the "seizure" and "search" issues in turn.

A. Was There a Fourth Amendment "Seizure"?

Lloyd argues that the evidence obtained on October 1, 1987 should have been suppressed because it was obtained after a "seizure" that violated the Fourth Amendment. We conclude, on the contrary, that the encounter between the police officers and Lloyd did not amount to a "seizure," as that term has been defined by the Supreme Court over the past two decades.

In Terry v. Ohio, 392 U.S. 1, 19, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968), the Court declared that the central Fourth Amendment inquiry is "the reasonableness in all the circumstances" of the government official's conduct. The Court ruled that "[o]nly 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." Id. at 19 n. 16, 88 S.Ct. at 1879 n. 16. This discussion in Terry has evolved into a test: A seizure has taken place " 'only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.' " Michigan v. Chesternut, --- U.S. ----, 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.)). This test enables a court to assess the coercive effect of police action, and its objective standard allows police to determine whether the conduct they are contemplating will implicate the Fourth Amendment. 108 S.Ct. at 1979-80.

We recently summarized these familiar principles by declaring that a "seizure" requires that "a reasonable person would conclude from the circumstances, and the show of authority, that he was not free to leave the officer's presence," considering factors such as visibility of weapons, physical...