U.S. v. Ward

• Decision Date: 22 April 1992
• Docket Number: No. 90-2279,90-2279
• Citation: 961 F.2d 1526
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Steven Angelo WARD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1526

961 F.2d 1526

UNITED STATES of America, Plaintiff-Appellee, v. Steven Angelo WARD, Defendant-Appellant.

No. 90-2279.

United States Court of Appeals, Tenth Circuit.

April 22, 1992.

Peter Schoenburg, Asst. Federal Public Defender, Albuquerque, N.M. (Tova Indritz, Federal Public Defender, with him on the briefs), for defendant-appellant.

David N. Williams, Asst. U.S. Atty., Albuquerque, N.M. (William L. Lutz, U.S. Atty., and Stephen R. Kotz, Asst. U.S. Atty., with him on the brief), for plaintiff-appellee.

Before McKAY, Chief Judge, LOGAN, Circuit Judge, and SAM, District Judge. ^*

LOGAN, Circuit Judge.

In Florida v. Bostick, --- U.S. ----, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991), the Supreme Court rejected a per se rule that would prohibit law enforcement officers from questioning bus passengers about criminal activity without reasonable suspicion. It held that a police encounter on a bus does not necessarily constitute a seizure within the meaning of the Fourth Amendment--does not lose its consensual nature--just because it takes place in the "cramped confines" of a bus. Id. 111 S.Ct. at 2389. The decision stated that the Fourth Amendment inquiry applies equally to police encounters on trains. Id. at 2388. The appeal before us tests the limits of Bostick in an encounter in a small private compartment of a train when, unlike Bostick, there was no advice that the one questioned had the right to refuse consent and there were no others in the vicinity who might witness the interrogation.

Defendant Steven Angelo Ward entered a conditional plea of guilty to a charge of possession with intent to distribute less than fifty kilograms of marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(D). On appeal, he challenges the district court's denial of his motion to suppress the marijuana found in his luggage and statements he made to law enforcement officers.

I

Acting upon information provided by a previously reliable source regarding an Amtrak train passenger boarding at Flagstaff, Arizona, Albuquerque Police Department Detective Q. James Erekson (the detective) and Drug Enforcement Administration Agent Kevin Small (the agent) met the train carrying the identified passenger when it arrived in Albuquerque just after 1:00 p.m. The officers sought out the conductor, who took them to defendant who was occupying a small roomette on the lower level of one of the train's sleeper cars. The conductor knocked on the door, and when defendant opened the curtain, the conductor said, "There's some gentlemen here that would like to see you." IV R. 13. The conductor then departed, and the detective commenced the questioning that led to the answers and discoveries that resulted in the instant appeal.

At this point the officers had only the following information: The informant had told police that a Mr. Leon had paid $600 in cash, which he pulled out of his boot, for a one-way ticket from Flagstaff to Kansas City, Missouri. Mr. Leon reportedly had given a telephone number with a Tucson prefix at the time he had made the reservation. The reservation was for the largest private room on the train, which accommodated up to six people and was known as a family room. Mr. Leon had said that his family could not accompany him on the trip but he would use the room himself. When the officers had contacted the train conductor, asking him if he had seen anyone out of the ordinary, the train conductor told the officers that a Mr. Leon had moved from a large family room to a small roomette. ¹

Although Tuscon was known as a drug origination point and Flagstaff a connecting point, the information the officers had on Mr. Leon at this point, when the questioning began, was consistent with innocent travel. This court has summarized the various types of police-citizen encounters into three general categories: (1) voluntary encounters, which are not seizures and do not implicate the Fourth Amendment; (2) investigative detentions, which are seizures within the meaning of the Fourth Amendment and must be supported by reasonable suspicion; and (3) arrests, which are even more intrusive and must be supported by probable cause. United States v. Evans, 937 F.2d 1534, 1537 (10th Cir.1991) (quoting United States v. Cooper, 733 F.2d 1360, 1363 (10th Cir.), cert. denied, 467 U.S. 1255, 104 S.Ct. 3543, 82 L.Ed.2d 847 (1984)). A seizure is constitutional only if supported "by a reasonable and articulable suspicion that the person seized is engaged in criminal activity." Reid v. Georgia, 448 U.S. 438, 440, 100 S.Ct. 2752, 2754, 65 L.Ed.2d 890 (1980) (per curiam). The totality of the circumstances "must raise a suspicion that the particular individual being stopped is engaged in wrongdoing." United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981). The district court in the instant case made no finding that reasonable suspicion existed at this time. ² We are satisfied that no court could have found "reasonable suspicion" for an investigative detention at this point. ³

At the detective's request, during questioning in defendant's roomette, defendant stated that his only luggage was a shoulder bag he allowed the detective to examine. In response to another request defendant produced an Arizona driver's license with the name and picture of Steven Angelo Ward. When the detective asked about the difference in names, defendant said that his real name was Ward and that "Leon" was the name of a friend. Although defendant testified that he explained that his friend made the train reservation, the detective testified that defendant gave no other explanation for why he was traveling under an assumed name and that this aroused his suspicion.

During this questioning agent Small left the train and learned that the callback number left when defendant made the Amtrak reservation traced to a person named Ward. The agent also ascertained from a train attendant that defendant had boarded with two tan American Tourister luggage bags. When considered along with the information elicited by the detective's questioning, and only then, these two new items would establish reasonable suspicion for an investigative detention of defendant for further questioning. Thus, if the questioning of defendant in his roomette can be upheld as a voluntary, consensual encounter, we have no difficulty in upholding the district court's order denying suppression of the marijuana later discovered in defendant's American Tourister luggage and admitting defendant's statements to the officers. Thus, we must now consider the questioning of defendant on the train under the standards of Bostick and other decisions for a consensual encounter.

II

When a person is seated on a bus or train and has no desire to leave, the Bostick Court said the "free to leave" analysis is inapplicable. 111 S.Ct. at 2387. "[T]he crucial test is whether, taking into account all of the circumstances surrounding the encounter, the police conduct would 'have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.' " Id. (quoting Michigan v. Chesternut, 486 U.S. 567, 569, 108 S.Ct. 1975, 1977, 100 L.Ed.2d 565 (1988)).

"The cramped confines of a bus are one relevant factor that should be considered in evaluating whether a passenger's consent is voluntary." Id. 111 S.Ct. at 2389. The Supreme Court specifically mentioned that this analysis applies equally to encounters on trains. See id. at 2388.

The roomette occupied by defendant at the time of the police encounter in the instant case was the smallest private compartment on the train. The entire compartment was only six feet, nine inches in length. Inside there were two seats that face each other, which were less than two feet apart; two good-sized people sitting on the seats would bump knees unless they angled them sideways. The doorway to the roomette was just one foot, eleven inches wide; only one person could pass through it at a time. The aisle outside the doorway also was narrow; the only way for two people to pass in the aisle was for both to turn sideways.

When defendant opened the door pursuant to the conductor's knock, the detective leaned inside, identified himself as a police officer, and both officers displayed their badges. Agent Small was behind the detective in the aisle and did not enter the roomette; however, it is clear that defendant saw at least two officers outside his roomette. The detective asked defendant if he could speak with him; defendant said "yes." The detective asked, "Do you mind if I come in?"; defendant said "no." The detective entered the roomette and at some point sat down while keeping his knees between defendant and the door to the roomette. The door remained open at all times. Although the detective had a weapon with him throughout the encounter, it was inside a zipped fanny pack from which it was not removed. At this point, the detective began interrogating defendant. The detective asked the questions regarding defendant's identification and luggage, as well as other questions about his itinerary and ticket.

Defendant testified that throughout the encounter he never felt free to leave because there was always an officer within a few feet of him. Although defendant acknowledged that he had prior contact with police officers, ⁴ and that he "guess[ed]" that he knew that under certain circumstances he did not have to talk to police officers, he testified that he did not know that he did not have to talk to the detective. IV R. 79. Although defendant acknowledged that he was not the only person traveling in the sleeper car, he indicated that other than the officers no people were around. In contrast, the agent testified that during the encounter people were walking by in the hall. The agent acknowledged that the only traffic would have been from four rooms, and although his recollection was that they all were occupied, it appears...