U.S. v. Maragh, No. 88-3163

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtBefore MIKVA, EDWARDS and WILLIAMS; HARRY T. EDWARDS; MIKVA
Citation282 U.S.App.D.C. 256,894 F.2d 415
Parties, 58 USLW 2430 UNITED STATES of America v. Mark A. MARAGH, Appellee.
Docket NumberNo. 88-3163
Decision Date09 January 1990

Page 415

894 F.2d 415
282 U.S.App.D.C. 256, 58 USLW 2430
UNITED STATES of America
v.
Mark A. MARAGH, Appellee.
No. 88-3163.
United States Court of Appeals,
District of Columbia Circuit.
Argued Oct. 20, 1989.
Decided Jan. 9, 1990.

Appeal from the United States District Court for the District of Columbia (Crim. Action No. 88-00322).

Patty Merkamp-Stemler, Atty., Dept. of Justice, with whom Jay B. Stephens, U.S. Atty., John R. Fisher and Theodore A. Shmanda, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellant.

James E. McCollum, Jr., appointed by this court, for appellee.

Before MIKVA, EDWARDS and WILLIAMS, Circuit Judges.

Dissenting opinion filed by Circuit Judge MIKVA.

Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS.

HARRY T. EDWARDS, Circuit Judge:

This case presents the question whether police officers violated the Fourth Amendment in "seizing" the appellee, Mark A. Maragh, without reasonable suspicion. A squad of drug interdiction police officers was on duty in Union Station, Washington, D.C., at mid-afternoon. The officers noticed Maragh, who had just disembarked from a train from New York City. After watching Maragh talk to two friends, who left Maragh briefly and then returned to him after making a telephone call, the officers decided to try to interview him. Two officers approached Maragh in such a way as not to block Maragh's exit, exercised no force, displayed no weapons, and were in plainclothes; in addition, there is nothing in the record to indicate that the officer who actually spoke to Maragh was anything less than courteous and polite. One of the officers identified himself as a police officer and asked Maragh whether he would answer some questions. Maragh agreed.

Page 416

The appellee also agreed to allow the officer to search his shoulder bag. The search revealed drugs, whereupon another officer arrested Maragh. The entire process of interview, search and arrest lasted approximately five minutes.

The District Court granted Maragh's motion to suppress evidence discovered pursuant to the consensual search. The trial court relied in part on two cases from other circuits in concluding that the act of approaching a citizen and identifying oneself as a narcotics officer itself effects a "seizure" for Fourth Amendment purposes; that the police did not have reasonable suspicion to seize Maragh; and that therefore the stop violated the Fourth Amendment. See United States v. Maragh, 695 F.Supp. 1223 (D.D.C.1988). The District Court also concluded that "the same threatening environment that converted the conversations into a 'stop' vitiates any claim that a reasonable person in the circumstances of defendant would feel free to refuse the request to search his bag or feel free to leave." Id. at 1225.

We do not doubt, and the Government does not deny, that the officers in this case lacked the requisite reasonable suspicion to justify even a "Terry stop" of Maragh. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). However, several decisions from this court, rendered after the District Court's judgment, make it clear that, under the circumstances presented in this case, the police did not "stop" or "seize" Maragh. We also find that, in concluding that Maragh behaved involuntarily in allowing the officers to search his bag, the District Court relied on incorrect legal premises. We therefore reverse and remand for further proceedings consistent with this opinion.

I. BACKGROUND

At approximately 4:00 p.m. three members of a District of Columbia Metropolitan Police Department detective squad observed Maragh disembark from a train from New York City accompanied by two others. Maragh's two companions went to make a phone call and then returned to Maragh who, after making eye contact with one of the officers, Detective Beard, started walking toward the exit.

At this point Detective Beard decided to interview Maragh. According to Beard's testimony, which the District Court apparently credited, Beard approached Maragh from his left rear, "stopped at an oblique angle to [Maragh] (so that [Maragh] could continue walking if he chose to do so)," displayed an identification folder, told Maragh that he was a police officer, and asked Maragh if he could speak to him. See Maragh, 695 F.Supp. at 1224. Meanwhile another officer, Detective Hanson, "positioned himself as a back-up," while a third, Detective Cassidy "left the immediate area to position himself at the exit," and was presumably not visible to Maragh. See id.

Upon Beard's request, Maragh agreed to talk to him. Beard asked whence Maragh had travelled, and received the answer "New York." He asked to see Maragh's ticket, which Maragh produced. He also ascertained that Maragh had lived in Washington for four months and had just been in New York for about four days. Beard then explained that he was a narcotics officer (he had earlier identified himself only as an officer) seeking to intercept drugs coming into Washington. Beard asked whether Maragh had drugs in his shoulder bag; Maragh said that he did not. Beard asked whether he might look into Maragh's bag, and Maragh agreed. The search revealed drugs, and, at Beard's signal, Detective Hanson approached and arrested Maragh. 1

Maragh moved to suppress the evidence that Beard discovered in Maragh's bag. After a hearing on the motion, the District Court filed an opinion that began by focusing on the question "[w]hether an officer's commencement of a conversation with a

Page 417

person in a public place by identifying himself or herself as a narcotics officer constitutes a 'stop' implicating the Fourth Amendment." Maragh, 695 F.Supp. at 1224. The court asserted that this question had "not apparently been addressed by our Court of Appeals" (as of September 26, 1988, the date the District Court filed its opinion). See id. Relying on cases from the Fifth and Seventh Circuits, the court concluded that:

Beard's questioning of defendant turned into an investigative stop when the Detective identified himself as member of the Narcotics Branch whose purpose it was to stop drugs from coming into Washington, stood obliquely in front of him, with Detective Hanson behind him and Detective Cassidy "downfield", and asked to search defendant's bag. While there is no testimony as to whether defendant knew of the back up and blocking positions of the other officers, a reasonable person of defendant's years could have sensed the maneuvers and the presences, as well as the in terrorem effect of Detective Beard's identification of himself as a narcotics officer after defendant had denied possession of drugs.

Maragh, 695 F.Supp. at 1225; see also id. at 1224-25 (quoting United States v. Gonzales, 842 F.2d 748, 752 (5th Cir.1988) and United States v. Palen, 793 F.2d 853, 857 (7th Cir.1986)).

After concluding that the officers had stopped Maragh without the constitutionally required reasonable suspicion, the District Court considered "whether, even though the stop was unlawful, the subsequent search was voluntary because defendant was free to refuse to agree to permit the search of his bag, and was indeed free to leave." Maragh, 695 F.Supp. at 1225 (citation omitted). The judge's answer was that "the same threatening environment that converted the conversations into a 'stop' vitiates any claim that a reasonable person in the circumstances of defendant would feel free to refuse the request to search his bag or feel free to leave." Id. Based on these two conclusions--that the officers stopped Maragh unlawfully and that his "consent" to the search was not voluntary--the District Court granted Maragh's motion to suppress. The Government's appeal followed.

II. ANALYSIS

A. The Standard of Review on the "Seizure" Question

We examine the District Court's judgment that the police seized Maragh under a de novo standard of review, as firmly entrenched doctrine in this court and the Supreme Court requires. See, e.g., United States v. Mendenhall, 446 U.S. 544, 554-55, 100 S.Ct. 1870, 1877-78, 64 L.Ed.2d 497 (1980) (Opinion of Stewart, J.) (describing circumstances in absence of which "otherwise inoffensive contact between a member of the public and the police cannot, as a matter of law, amount to a seizure of that person " (emphasis added)).

Contrary to the suggestion of our dissenting colleague, we can find no Supreme Court case that has ever held that the "seizure" inquiry is other than a question of law. Furthermore, the Court has never deferred to the trier of fact regarding the question of seizure. In Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983), by way of one plurality opinion, two concurrences, and two dissents, eight members of the Court adopted Mendenhall 's legal test for "seizure." Justice White's plurality opinion applied the test without relying on or deferring to the district court regarding the question of seizure. See id. at 501-02, 103 S.Ct. at 1326-27. Similarly, in Michigan v. Chesternut, 486 U.S. 567, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988), the Court iterated its support for Mendenhall 's objective legal test for seizure. See id. 108 S.Ct. at 1979 (discussing evolution of seizure test from Terry to Mendenhall, and noting that "[t]he Court has since embraced [Mendenhall 's] test"). As in Royer, the Chesternut Court applied the test without any deference to the district court on the question of seizure. See id. 108 S.Ct. at 1980 ("Applying the Court's test to the facts of this case, we conclude that

Page 418

respondent was not seized...." (emphasis added)).

Additionally, the soundest of jurisprudential considerations compel appellate courts not to shirk their responsibility independently to apply important constitutional standards. In the Fourth Amendment context, as in the First Amendment setting, appellate judges have "a constitutional responsibility that cannot be delegated to the trier of fact." See Bose Corp. v. Consumers...

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72 practice notes
  • U.S. v. Jones, No. 91-3025
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • October 22, 1992
    ...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 S......
  • U.S. v. McKines, No. 89-2920
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • May 17, 1991
    ...circuits have found this sort of analysis persuasive. See United States v. Montilla, 928 F.2d 583 (2d Cir.1991); United States v. Maragh, 894 F.2d 415, 417 (D.C.Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 214, 112 L.Ed.2d 174 (1990). But we think that it is little more Page 1420 than spec......
  • U.S. v. Smith, No. 04-2101.
    • United States
    • U.S. Court of Appeals — First Circuit
    • September 9, 2005
    ...McKines, 933 F.2d 1412, 1424-25 (8th Cir.1991); United States v. Montilla, 928 F.2d 583, 588 (2d Cir.1991); and United States v. Maragh, 894 F.2d 415, 417-18 (D.C.Cir.1990). For decisions adopting the clearly erroneous standard of review, see, for example, United States v. Gray, 883 F.2d 32......
  • U.S. v. Mask, No. 02-40677.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • April 30, 2003
    ...of review for "clear error"). The Second, Sixth, Eighth, and D.C. Circuits have reached the opposite conclusion. United States v. Maragh, 894 F.2d 415, 417 (D.C.Cir.1990)(holding that seizure determinations are reviewed de novo); United States v. Montilla, 928 F.2d 583, 588 (2d Cir.1991)(sa......
  • Request a trial to view additional results
72 cases
  • U.S. v. Jones, No. 91-3025
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • October 22, 1992
    ...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 S......
  • U.S. v. McKines, No. 89-2920
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • May 17, 1991
    ...circuits have found this sort of analysis persuasive. See United States v. Montilla, 928 F.2d 583 (2d Cir.1991); United States v. Maragh, 894 F.2d 415, 417 (D.C.Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 214, 112 L.Ed.2d 174 (1990). But we think that it is little more Page 1420 than spec......
  • U.S. v. Smith, No. 04-2101.
    • United States
    • U.S. Court of Appeals — First Circuit
    • September 9, 2005
    ...McKines, 933 F.2d 1412, 1424-25 (8th Cir.1991); United States v. Montilla, 928 F.2d 583, 588 (2d Cir.1991); and United States v. Maragh, 894 F.2d 415, 417-18 (D.C.Cir.1990). For decisions adopting the clearly erroneous standard of review, see, for example, United States v. Gray, 883 F.2d 32......
  • U.S. v. Mask, No. 02-40677.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • April 30, 2003
    ...of review for "clear error"). The Second, Sixth, Eighth, and D.C. Circuits have reached the opposite conclusion. United States v. Maragh, 894 F.2d 415, 417 (D.C.Cir.1990)(holding that seizure determinations are reviewed de novo); United States v. Montilla, 928 F.2d 583, 588 (2d Cir.1991)(sa......
  • Request a trial to view additional results

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