U.S. v. Washington, 97-2146

• Decision Date: 28 August 1998
• Docket Number: No. 97-2146,97-2146
• Citation: 151 F.3d 1354
• Parties: 12 Fla. L. Weekly Fed. C 28 UNITED STATES of America, Plaintiff-Appellee, v. Willie WASHINGTON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1354

151 F.3d 1354

12 Fla. L. Weekly Fed. C 28

UNITED STATES of America, Plaintiff-Appellee, v. Willie WASHINGTON, Defendant-Appellant.

No. 97-2146.

United States Court of Appeals Eleventh Circuit.

Aug. 28, 1998.

William M. Kent, Asst. Fed. Pub. Defender, Jacksonville, FL, for Defendant-Appellant.

A. William Mackie, Asst. U.S. Atty., Charles Wilson, U.S. Atty., Susan Humes Raab, Tamra Phipps, Jacksonville, FL, for Plaintiff-Appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before COX and BLACK, Circuit Judges, and RONEY, Senior Circuit Judge.

RONEY, Senior Circuit Judge:

In this warrantless search of passengers traveling on an interstate bus, the government relies upon the consent of the searched passengers to obviate the need for a warrant. After the district court denied the defendant's motion to suppress evidence obtained during the search, the defendant was convicted at a bench trial of possession with intent to distribute cocaine, 21 U.S.C. § 841(a)(1). The only issue before us is whether the consent given by the defendant for the search was uncoerced and legally voluntary. We hold that it was not and vacate the conviction. In the discussion of this case, we parallel our opinion in a similar case heard by a different panel, United States v. Guapi, 144 F.3d 1393 (11th Cir.1998).

The federal agents conducting this search did not inform the passengers that they were not required to consent to the search. Although we reject the notion of a per se rule requiring bus passengers to be informed of their constitutional rights, the facts and circumstances of this search required some indication to passengers that their cooperation was voluntary rather than mandatory. Because no such indication was provided, and because a reasonable person traveling on this bus would not have felt free to ignore the search request, we hold that this search was unconstitutional.

For purposes of this appeal, we accept the findings of fact in the magistrate judge's report, and we interpret the record in the light most favorable to the government. At 6:50 on the morning of August 5, 1996, two federal agents boarded a Greyhound bus making a scheduled stop in Jacksonville, Florida. The bus was scheduled to depart at 7:00, and the driver was still in the bus station. Special Agent Bruce Dean Savell of the Drug Enforcement Administration went to the rear of the bus, and Agent James Andrew Perkins of the United States Border Patrol stood at the front of the bus. Both agents were casually dressed, and their weapons were concealed in fanny packs. Agent Perkins held his credentials and his badge over his head and made the following announcement:

Good morning, ladies and gentlemen. My partner and I are both federal agents with the United States Department of Justice. No one is under arrest or anything like that, we're just conducting a routine bus check. When we get to you, if we could please see your bus ticket, some photo identification if you have some with you, please, and if you would please identify which bag[ ] is yours on the bus we'd appreciate it and we'll be out of your way just as quick as we can.

Agent Perkins joined Agent Savell at the rear of the bus and they began making their way forward, questioning passengers and asking them if they were carrying "drugs, weapons, large sums of money or firearms." The agents were careful to stand behind each passenger and not block the aisles of the bus as they conducted their sweep. The record is unclear if any passengers other than the defendant were actually searched.

Willie Washington was sitting in the rear half of the bus on the driver's side. He was sitting in a window seat, and the aisle seat next to him was vacant. When Agent Perkins reached him, Washington handed Agent Perkins a one-way ticket from Miami to Bamberg, South Carolina, and a Georgia driver's license. When Agent Perkins asked the defendant where he lived, the defendant informed him that he lived in Miami. Washington also informed the agents that he was not carrying any contraband with him. When Agent Perkins asked the defendant to identify his luggage, Washington indicated a maroon bag on his lap. Agent Perkins asked Washington if he could search the maroon bag, and Washington told him that it was alright and handed him the maroon bag.

As he handed the maroon bag to Agent Perkins, Washington reached over and retrieved a white plastic bag from the floor and placed this bag on his lap. He hunched over his lap and began moving his left hand under the plastic bag. Agent Perkins was suspicious of Washington's behavior. He asked Washington if Agent Savell could search the maroon bag, and when the defendant consented, he handed the maroon bag to Agent Savell, who was standing behind Agent Perkins. Agent Perkins asked Washington what was in the white plastic bag. Washington told him that it contained potato chips and a soda. Agent Perkins asked for consent to search the white plastic bag, and Washington handed it to him. Washington continued to crouch over, covering his lap as he gave Agent Perkins the white plastic bag. Agent Perkins then noticed a tubular bulge extending underneath Washington's pants beyond the normal length of a pants pocket. Agent Perkins asked Washington if he could search his person, and Washington consented. Agent Perkins felt the bulge underneath Washington's pants and found the bulge to be consistent with previous seizures of cocaine and heroin he had made. He also noticed other similar bulges concealed underneath Washington's pants. At this point, Agent Perkins placed Washington under arrest and escorted him off the bus. After conducting a more thorough search outside the bus, Agent Savell discovered $3,500 worth of powder cocaine in six tubular packages concealed in a homemade "apron" Washington wore underneath his pants.

In Florida v. Bostick, the Supreme Court reversed a Florida Supreme Court decision which adopted a per se rule prohibiting police from randomly boarding buses and questioning passengers as a means of drug interdiction. Florida v. Bostick, 501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991). The Supreme Court had previously held that the Fourth Amendment permits officers to approach individuals at random in airport lobbies and other public places to ask questions and to request consent to search their luggage, so long as a reasonable person would understand that he or she could refuse to cooperate. See Florida v. Royer, 460 U.S. 491, 502, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983); United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). In Bostick, the Court simply held that the rule applies equally to police encounters that take place on buses. It rejected the "free to leave" rubric that has been articulated for street encounters because a passenger may well not want to leave the bus because he or she wants to go when the bus goes, so that factors other than the police encounter would dilute the application of the "free to leave" determination. It held that the appropriate inquiry is whether under "all the circumstances surrounding the encounter ... the police conduct would have communicated to a reasonable person that the person was not free to decline the officers' requests or otherwise terminate the encounter." Id. at 439, 111 S.Ct. 2382 (1991). It held that the fact the encounter is in the cramped confines of a bus is but one factor to be taken into consideration, rather than the sole consideration given by the Florida court.

In Bostick, the Supreme Court found two facts "particularly worth noting. First, the police specifically advised Bostick that he had the right to refuse consent.... Second, at no time did the officers threaten Bostick with a gun." Bostick, 501 U.S. at 432, 111 S.Ct. 2382. In this case, although Agent Perkins did not threaten Washington with a gun, he also did not inform Washington that he had a right to refuse consent. In both of our reported bus search cases prior to Guapi, the police officers involved also specifically informed individual passengers that they had a right to refuse any search and that cooperation with law enforcement efforts was voluntary. United States v. Fields, 909 F.2d 470, 472 (11th Cir.1990); United States v. Hammock, 860 F.2d 390, 392 (11th Cir.1988).

The Supreme Court has steadfastly rejected the notion of imposing per se rules on police officers conducting warrantless searches. See Ohio v. Robinette, 519 U.S. 33, 117 S.Ct. 417, 421, 136 L.Ed.2d 347 (1996); Bostick, 501 U.S. at 435-37, 111 S.Ct. 2382 (1991). The Court has specifically rejected the notion that police officers must always inform citizens of their right to refuse when seeking permission to conduct a warrantless consent search. Schneckloth v. Bustamonte, 412...