U.S. v. Samuels, 90-3069

• Decision Date: 26 July 1991
• Docket Number: No. 90-3069,90-3069
• Parties: UNITED STATES of America v. Alfonso P. SAMUELS, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 210

938 F.2d 210

290 U.S.App.D.C. 391

UNITED STATES of America v. Alfonso P. SAMUELS, Appellant.

No. 90-3069.

United States Court of Appeals, District of Columbia Circuit.

Argued March 7, 1991.

Decided June 21, 1991.

As Amended July 26, 1991.

Appeal from the United States District Court for the District of Columbia (Crim.No. 89-00456-01).

Roy W. Krieger (appointed by this court), Washington, D.C., for appellant.

Sylvia Royce, Atty., Dept. of Justice, with whom Jay B. Stephens, U.S. Atty., and John R. Fisher and Elizabeth Trosman, Asst. U.S. Attys., were on the brief, Washington, D.C., for appellee.

Before SILBERMAN, BUCKLEY and HENDERSON, Circuit Judges.

Opinion for the court filed by Circuit Judge BUCKLEY.

BUCKLEY, Circuit Judge:

The government charged appellant Alfonso P. Samuels with possessing five grams or more of crack cocaine with intent to distribute in violation of 21 U.S.C. Sec. 841(a), (b)(1)(B)(iii) (1988). Samuels moved to suppress evidence as the fruit of an illegal search and seizure. Following a suppression hearing, the district court denied the motion, whereupon Samuels entered a conditional plea of guilty. In sentencing Samuels, the court departed upward from the imprisonment range prescribed under the Federal Sentencing Guidelines on the ground that Samuels' criminal history category did not adequately reflect the seriousness of his past criminal conduct. We affirm the district court's denial of the motion to suppress, but we reverse the sentence because it is based on a misinterpretation of the Guidelines.

I. BACKGROUND

At approximately 7:20 a.m. on November 4, 1989, Samuels arrived at the Greyhound/Trailways station in the District of Columbia by bus from New York City. Carrying a plastic drawstring bag, he entered the station to wait for a connecting bus to Richmond, Virginia. Inside, he was approached by Sergeant John Brennan of the Metropolitan Police Department's Narcotics Interdiction Unit. Sergeant Brennan showed his identification folder, said he was a police officer, and asked to speak with Samuels.

The officer inquired if Samuels had arrived on the New York bus, and Samuels said he had. The officer asked whether he had a ticket, and Samuels handed him a ticket from New York to Richmond. Sergeant Brennan returned it and asked if Samuels had any identification. Samuels said no.

The officer then asked whether Samuels was carrying narcotics, and Samuels said he was not. Sergeant Brennan asked if he could search the plastic bag. Samuels replied, "Yes," and handed him the bag. Sergeant Brennan opened it and discovered a paper bag containing crack cocaine, numerous plastic vials, and razor blades. Samuels was placed under arrest.

At the time of the encounter, Sergeant Brennan was dressed in plain clothes, his gun was concealed, and he did not display his badge. He spoke in a normal tone of voice and did not touch Samuels until the arrest. A second officer, also in plain clothes, acted as a back up and stood five to seven feet behind Samuels.

After the officers had arrested him but before they had advised him of his rights, Samuels asked for a photograph of his son that Sergeant Brennan had removed from the plastic bag. The photograph was returned to him at the station house.

At the suppression hearing, Sergeant Brennan testified to the facts described above. Samuels, on the other hand, testified that he had been closely surrounded by three officers at the bus station and that he had not given permission to search the bag. He also testified that he had recognized Sergeant Brennan and the others as police officers because of the handcuffs hanging out from under the backs of their jackets.

The district court credited Sergeant Brennan's testimony that the officers did not impede Samuels or hinder his ability to walk away during the encounter. The court concluded that the encounter did not amount to a seizure, and that Samuels had voluntarily spoken with the officers and had voluntarily consented to the search. The court specifically rejected as not credible Samuels' testimony that Sergeant Brennan had grabbed the bag and searched it without consent.

Following the denial of his motion to suppress, Samuels entered a conditional guilty plea and proceeded to sentencing. Pursuant to the Guidelines, the probation officer calculated seven criminal history points, based on Samuels' prior convictions in New York for sexual abuse, robbery, and a minor transit violation, and based on the fact that Samuels was on probation at the time of his Washington arrest. Under the Guidelines, seven points placed Samuels in criminal history category IV, which, because his total offense level was twenty-four, resulted in a prescribed imprisonment range of seventy-seven to ninety-six months. See United States Sentencing Commission, Guidelines Manual Ch. 5, Pt. A, at 5.2 (Nov. 1990) ("U.S.S.G.").

Not included in the calculation of Samuels' criminal history category were five additional convictions, also in New York, for robbery, petit larceny, and criminal possession of a weapon. The probation officer could not count these convictions because they were for offenses committed when Samuels was under eighteen years old, and because, according to the probation officer, none of them resulted in a sentence meeting the criteria set forth in section 4A1.2(d) of the Guidelines, which are summarized below at pages 8-9. See id. Sec. 4A1.2(d), (e)(3), (4). The presentence report, however, urged the court to consider a departure from the prescribed range under section 4A1.3(a) on the ground that category IV did not adequately reflect the seriousness of Samuels' past criminal conduct because of the five uncounted prior convictions. See id. Sec. 4A1.3(a).

At sentencing, the district court reviewed Samuels' entire criminal record, beginning with a robbery conviction at age fourteen, and characterized it as "atrocious." Transcript of Sentencing Hearing, Mar. 26, 1990, at 6. The court was "amazed" that Samuels had received a sentence of only eighty-five days for the sexual abuse conviction, id., and noted that Samuels' criminal record was "an extremely long one," and that he was "very fortunate" to have received no sentence longer than six months, id. at 10. Considering Samuels' "extensive record, and the fact that ... both as a juvenile and as an adult" the courts had shown him "every leniency," the court stated:

I must conclude that the criminal history [category] in this case does not accurately reflect the sentence that should be imposed ..., and, in fact, in looking at the sentence that can be imposed in this case, as I understand it, the probation office was unable to count several of the convictions listed against [Samuels], and therefore under section 4A1.3 of the Sentencing Guidelines, I propose to depart from the guideline range and to make a departure upward to the next criminal history category.

Id. at 10. Under criminal history category V, the prescribed imprisonment range for Samuels' offense level is ninety-two to 115 months. See U.S.S.G. Ch. 5, Pt. A, at 5.2. The district court sentenced him to 115 months in prison and four years of supervised release.

II. DISCUSSION

A. Suppression Issues

Samuels' suppression arguments do not require lengthy analysis. The testimony accepted by the district court established that no seizure occurred until after the officers discovered drugs in Samuels' possession. Until that point, Sergeant Brennan's conversation with Samuels was consensual and nonthreatening. The officer, dressed in plain clothes, approached Samuels in a public place, identified himself, and asked nonintrusive questions in a conversational tone. Under the Fourth Amendment, this sort of police-citizen encounter need not be justified by articulable suspicion. See United States v. Morgan, 914 F.2d 272, 274 (D.C.Cir.1990) (per curiam); United States v. Smith, 901 F.2d 1116, 1118 (D.C.Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 172, 112 L.Ed.2d 136 (1990); United States v. Maragh, 894 F.2d 415, 418 (D.C.Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 214, 112 L.Ed.2d 174 (1990).

Samuels' claim of seizure rests largely on his version of the facts. But the district court credited Sergeant Brennan's testimony that Samuels was free to break off the conversation and walk away. We have no reason to question the court's determination of credibility. See Fed.R.Civ.P. 52(a).

According to Samuels, the officers' handcuffs were visible beneath their jackets. Although the visibility of handcuffs, like the display of a uniform, a badge, or a gun, is relevant to whether an encounter with police constitutes a seizure, see United States v. Lewis, 921 F.2d 1294, 1297 (D.C.Cir.1990); United States v. Tavolacci, 895 F.2d 1423, 1425 (D.C.Cir.1990) (opinion for a divided panel), the passive display of handcuffs, by itself, is not a sufficient show of authority to cause a reasonable, law-abiding person to believe his liberty is being restrained. Cf. United States v. Lloyd, 868 F.2d 447, 450-51 (D.C.Cir.1989). Absent aggravating circumstances, it is not objectively intimidating or coercive for plainclothes officers to carry handcuffs on their belts.

Nor is it constitutionally significant that Samuels was approached while waiting for a connecting bus to Richmond. An ordinary and consensual encounter in a public place is not transformed into a seizure merely because it occurs during an intermediate stopover. The police did not intrude upon Samuels' "liberty interest in proceeding with his itinerary," United States v. Place, 462 U.S. 696, 708, 103 S.Ct. 2637, 2645, 77 L.Ed.2d 110 (1983); their brief conversation with him in the waiting room did not interfere with his travel plans. See Tavolacci, 895 F.2d at 1428. It was the subsequent discovery of narcotics that disrupted those plans.

Similarly, we will not overturn the district court's finding that Samuels voluntarily consented to the search. When Sergeant...