U.S. v. Savage, 89-3052

• Decision Date: 17 November 1989
• Docket Number: No. 89-3052,89-3052
• Citation: 281 U.S.App.D.C. 280,889 F.2d 1113
• Parties: UNITED STATES of America v. Thomas SAVAGE, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1113

889 F.2d 1113

281 U.S.App.D.C. 280

UNITED STATES of America v. Thomas SAVAGE, Appellant.

No. 89-3052.

United States Court of Appeals District of Columbia Circuit.

Argued Oct. 16, 1989.

Nov. 17, 1989.

Appeal from the United States District Court for the District of Columbia (Criminal Action No. 88-00177-01).

Joseph F. Green, Jr., appointed by this court, for appellant.

Linda L. Mullen, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., John R. Fisher and Helen M. Bollwerk, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.

Before WALD, Chief Judge, RUTH BADER GINSBURG and SILBERMAN, Circuit Judges.

Opinion for the Court filed by Circuit Judge SILBERMAN.

SILBERMAN, Circuit Judge:

In this appeal, appellant challenges the district court's denial of his motion to suppress statements and evidence that stem from his encounter with detectives aboard an Amtrak train during its short stopover at Union Station, Washington, D.C. We think the district court's ruling was proper and therefore affirm the conviction.

I.

On April 27, 1988, Amtrak representatives in Washington, D.C. provided Detective John A. Centrella, a member of the Narcotics Squad of the District of Columbia Metropolitan Police Department assigned to the Amtrak Drug Interdiction Unit at Union Station, with the following information regarding a passenger who would be traveling through Union Station on Amtrak that day: The passenger (1) under the name, "Bob Jones"; (2) purchased a round-trip ticket on the same day on which he had made his reservation; (3) from West Palm Beach, Florida to Baltimore, Maryland and back; (4) reserving a sleeper car (roomette) for the trip to Baltimore, but only a coach seat for the return trip to West Palm Beach; (5) used cash; (6) and provided Amtrak with only a pay telephone number for confirmation.

Detective Centrella associated these circumstances with those under which drug couriers are likely to travel. According to Centrella's testimony in the district court, many drug couriers prefer to travel under simple, common aliases. Florida is known to law enforcement authorities to be a source area for cocaine distributed along the East Coast. Drug couriers are likely to desire privacy while transporting drugs but are indifferent to it after having delivered them. And, travelers offering pay telephone numbers for confirmation are likely not to have a residence in the state from which they are calling or want to ensure that the location of their residence cannot be verified.

According to Centrella's account, which the district court credited, Centrella decided to board "Jones's" train, accompanied by Amtrak Investigator Calvin Burns, to interview him during the train's twenty minute stopover at Union Station. Centrella and Burns knocked on the door of the sleeper car reserved for "Bob Jones" and the occupant of the car answered, "yes?" One of the officers replied, "Amtrak," and "Jones" slid open the roomette's door. Centrella then identified himself as a police officer and asked if he could talk with "Jones," to which "Jones" replied, "sure." Centrella asked appellant his name and residence, and "Jones" stated that he was "Bob Jones" of Baltimore. In response to Centrella's question whether he had any identification, "Jones" patted his chest, looked overhead to his suitcase, and replied that he did not. When Centrella then asked him where and for how long he had stayed in Florida and whether he had a train ticket, "Jones" produced and handed to Centrella a ticket with the name "Bob Jones" on it. ¹

Centrella chatted with "Jones," explaining that he was a member of the drug interdiction team in Washington, that the District was experiencing problems with drugs, and that Florida is a source of the majority of the cocaine coming to the East Coast. He then asked "Jones" for permission to look in a small brown suitcase in the sleeper car's overhead rack which "Jones" had identified as his own. "Jones" replied, "sure," brought down the suitcase, and handed it to Centrella, who was standing in the train's aisle. ² Centrella handed the bag to Burns, who began to search it in the aisle.

While Centrella continued talking with "Jones," Burns handed him two pieces of identification from the suitcase bearing the name "Thomas Savage." The district court found that, at this point, Centrella's questioning became "direct and probably forceful." Centrella asked "Jones" who "Savage" was, and "Jones" answered, "It's me." When Savage was then asked why he was using an assumed name, Savage did not answer, his voice began to crack, and he became uncomfortable. Centrella then pointed to a white cardboard box on the sleeper car's overhead rack and asked Savage about it. Savage answered that it was a gift of crystal for his mother. Centrella asked if he could look at it. Savage replied, "well ...," then brought down the box and placed it on the floor in front of Centrella. Centrella again asked Savage if he could look in the box, and Savage again replied, "well...." Centrella then reiterated to Savage the question why he was not traveling under his proper name, and Savage again gave no response. Instead, he stated, "You got me. It's in there." Centrella asked, "What's in there?" and Savage answered, "the cocaine." Centrella asked "How much cocaine?" and Savage responded, "three kilos." Centrella then arrested Savage, searched the box, found in it three kilograms of cocaine, and escorted Savage off the train. The entire exchange lasted between five and ten minutes.

Following his indictment for possession with intent to distribute more than 500 grams of a cocaine mixture, 21 U.S.C. Secs. 841(a) and 841(b)(1)(B)(ii)(II), Savage moved to suppress the statements made and evidence seized during the encounter on the ground that they were obtained in violation of his fourth amendment rights. The district court at a hearing on the motion ruled from the bench that the evidence was admissible. Savage subsequently pled guilty to the charge in the indictment while reserving his right to appeal the district court's denial of his motion to suppress.

II.

Appellant contends that his encounter with Detectives Centrella and Burns was an investigative "stop," from the outset, unsupported by articulable facts reasonably warranting the intrusion. See Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968). The government argues, inter alia, that the officers had reasonable grounds to stop Savage from the time they initially approached him in his sleeper car. Alternatively, the government contends, as the district court found, that if Savage was "stopped" within the meaning of the fourth amendment, it was only after the officers had reasonable cause to do so--after the officers discovered that Savage was traveling under an alias.

Police "seize" a person within the meaning of the fourth amendment " '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, 486 U.S. 567, 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.)). Of course, a reasonable person, for purposes of this determination, is one innocent of any crime. See United States v. Castellanos, 731 F.2d 979, 983 (D.C.Cir.1984). "[A] guilty mind ... is especially prone to apprehensions of confinement." United States v. Brady, 842 F.2d 1313, 1315 n. 3 (D.C.Cir.1988).

In distinguishing between consensual encounters with law enforcement officials that need not be supported by articulable suspicion and those that intrude upon constitutionally protected interests and must therefore be shown to be reasonable, we consider factors bearing on the extent to which the encounters are objectively intimidating. See, e.g., Michigan v. Chesternut, 486 U.S. 567, 108 S.Ct. 1975, 1981, 100 L.Ed.2d 565 (1988); INS v. Delgado, 466 U.S. 210, 216, 104 S.Ct. 1758, 1762, 80 L.Ed.2d 247 (1984). Such factors include the police's conduct during the encounter, see United States v. Brady, 842 F.2d at 1314, the setting of the encounter, see United States v. Battista, 876 F.2d 201, 204 (D.C.Cir.1989) (appellant seized when officers roused him in early morning and in partial state of undress), and any other detail in the record that might lead a reasonable person to believe that he is not free to "disregard the police presence and go about his business," Michigan v. Chesternut, 108 S.Ct. at 1981.

To be sure, it is the totality of the circumstances of each case to which we look in determining whether a fourth amendment seizure has occurred. See id. at 1979. It is nevertheless instructive to note instances of particular police behavior that do not, by themselves, constitute seizures; for those examples of behavior must be altered in some constitutionally meaningful way if they are to be accorded fourth amendment significance. For example, a request by the police for identification does not, by itself, constitute a fourth amendment seizure. See INS v. Delgado, 466 U.S. 210, 216, 104 S.Ct. 1758, 1762, 80 L.Ed.2d 247 (1984). And we have held that the encounter "does not become a 'seizure' merely because the officer does not tell the person [being questioned] that he may refuse to answer the questions and is free to leave." United States v. Lloyd, 868 F.2d 447, 451 (D.C.Cir.1989).

Accordingly, when Centrella and Burns asked Savage if he had any identification, and when he could produce none and they asked to see his train ticket, the detectives did not effect a seizure. Centrella then told Savage that he was a member of Washington's drug interdiction team. But he did not, as in Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983), tell him that he was suspected of transporting narcotics. See id. at 494, 103 S.Ct. at 1322. Nor did the...