U.S. v. Smith

• Decision Date: 17 April 1990
• Docket Number: No. 88-3159,88-3159
• Citation: 901 F.2d 1116,284 U.S.App. D.C. 64
• Parties: UNITED STATES of America v. Milton L. SMITH, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1116

901 F.2d 1116

284 U.S.App.D.C. 64

UNITED STATES of America v. Milton L. SMITH, Appellant.

No. 88-3159.

United States Court of Appeals District of Columbia Circuit.

Argued Jan. 18, 1990.

Decided April 17, 1990.

Appeal from the United States District Court for the District of Columbia (Criminal No. 88-00206-01).

Paul J. Riley, appointed by this Court, for appellant.

Anthony P. Farley, 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., and John R Fisher, Asst. U.S. Atty., were on the brief, for appellee.

Before SILBERMAN, BUCKLEY, and SENTELLE, Circuit Judges.

Opinion for the Court filed by Circuit Judge SENTELLE.

SENTELLE, Circuit Judge:

In this appeal from his conviction under a one-count indictment charging unlawful possession with intent to distribute cocaine, Milton L. Smith ("Smith" or "appellant") challenges the District Court's denial of his Motion to Suppress Evidence. Appellant contends that the cocaine which was the subject of the motion was taken from him in violation of his Fourth Amendment rights. We conclude that the District Court did not err in its decision that appellant's rights were not violated, and affirm that Court's decision, for the reasons set out more fully below.

I. BACKGROUND

According to the evidence received and credited by the District Court at the suppression hearing, Smith arrived at Amtrak Union Station in Washington, D.C., on May 13, 1988, between 8:00 and 8:30 p.m. Two Metropolitan Police Department officers assigned to the Narcotics Branch Interdiction Unit, Sergeant John Brennan and Detective Barbara Lyles, noticed Smith when he was engaged in a loud telephone conversation at a pay station near the information booth of the Amtrak terminal. After Brennan overheard Smith say, "They will never find me down here, they don't know where I am staying" or words to that effect, they began to pay attention to him. They noticed that he was carrying two pieces of luggage. Shortly after the conversation, Brennan approached Smith and engaged him in a conversation wherein Smith stated that he was waiting for a train to Fayetteville, North Carolina, and had just arrived on a plane from New Jersey. Brennan then identified himself as a member of the Narcotics Branch and asked twice if he could search Smith's luggage. Each time, Smith gave a "positive response." Brennan testified at trial that it was his policy to ask twice for consent to search a bag, even when the first response was positive, in order that he could be certain of the response.

Inside a leather tote bag, Brennan found a closed brown paper bag. He opened the brown paper bag which, in turn, contained a large plastic bag filled with a white powder, later found to be cocaine. On these facts, the District Court concluded that no unlawful search or seizure had occurred, that none of appellant's rights had been violated, and that the Motion to Suppress must be denied.

II. ANALYSIS

Appellant's attack on the District Court's denial of his Suppression Motion is three-fold. First, he contends that the officers, by confronting him without probable cause, conducted an illegal seizure of his person. Second, he contends that the search of his luggage was not based on voluntary consent, because the officers had not acted on a suggestion of a district judge in a prior case that they should expressly warn persons approached in the interdiction program of their right to freely walk away, and because, in appellant's view, it is not logical to conclude that a person who knew his luggage to contain contraband would consent to such a search. Third, Smith argues that even if he had given consent to search the tote bag, that consent did not extend to the officers' examination of the contents of a paper bag contained within the tote bag. None of these three arguments exposes any error on the part of the District Judge.

As to the first two of appellant's contentions, we need say but little. We have considered the same constitutional arguments on numerous recent occasions in cases presenting directly parallel facts at the same Amtrak terminal and other public transportation facilities. See, e.g., United States v. Maragh, 894 F.2d 415 (D.C.Cir.1990); United States v. Winston, 892 F.2d 112 (D.C.Cir.1989); United States v. Joseph, 892 F.2d 118 (D.C.Cir.1989); and United States v. Lloyd, 868 F.2d 447 (D.C Cir.1989). To engage in any extended discussion of these arguments would be not only replowing the same ground previously turned in the cited cases and others referenced within them, it would be to plow once more in ground that has been turned, harrowed, furrowed, seeded, and is now producing a luxuriant crop. Therefore, we commend to the interested reader the prior decisions and simply observe once more that an encounter between a police officer and a citizen, involving no more than approach, questioning, and official identification, does not constitute a seizure and does not require probable cause, articulable suspicion, or any other " 'kind of objective justification.' " Maragh, 894 F.2d at 418 (quoting Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229 (1983)). As to the consent question, we again observe that the teaching of Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), establishing that voluntariness is not dependent upon the giving of a Miranda -type warning of Fourth Amendment rights, is as applicable at a train terminal as anywhere else in the country. See, e.g., Joseph, 892 F.2d at 122. Without further ado, we affirm the District Court on both of these questions.

The search of the brown paper bag within the luggage does present a slight variation from the facts considered in our previous decisions, raising as it does the issue whether consent to search one container extends to searches of opaque sub-containers found therein. However, this variation is one which makes no difference. Our decision in United States v. Battista, 876 F.2d 201 (D.C.Cir.1989), appears to be controlling on...