U.S. v. Williams, No. 85-6082

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtBefore ROBINSON and BORK, Circuit Judges, and WRIGHT; SPOTTSWOOD W. ROBINSON, III
Citation262 U.S.App.D.C. 112,822 F.2d 1174
PartiesUNITED STATES of America, v. Randolph WILLIAMS, Appellant.
Docket NumberNo. 85-6082
Decision Date07 July 1987

Page 1174

822 F.2d 1174
262 U.S.App.D.C. 112
UNITED STATES of America,
v.
Randolph WILLIAMS, Appellant.
No. 85-6082.
United States Court of Appeals,
District of Columbia Circuit.
Argued May 14, 1986.
Decided July 7, 1987.

Page 1175

Appeal from the United States District Court for the District of Columbia (Criminal No. 85-00250-01).

Sean Connelly (appointed by this Court), for appellant.

Lee F. Satterfield, Asst. U.S. Atty., of the Bar of the District of Columbia, pro hac vice by special leave of Court, with whom Joseph E. diGenova, U.S. Atty., and Michael W. Farrell, Thomas J. Tourish, Jr., and Barry M. Tapp, Asst. U.S. Attys., were on the brief, for appellee.

Before ROBINSON and BORK, Circuit Judges, and WRIGHT, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge ROBINSON.

SPOTTSWOOD W. ROBINSON, III, Circuit Judge:

Randolph O. Williams appeals from his conviction for possession of a controlled

Page 1176

substance with intent to distribute it. 1 He first contends that the District Court erred in denying his motion to suppress the introduction of heroin found on his person--the basis for his conviction--on the ground that police officers impinged on his Fourth Amendment rights in searching for and seizing it. He also protests the court's denial of his motion for a mistrial, by which he claimed prejudice from remarks made by a defense witness to three jurors after the case had been submitted for deliberation. We affirm.

I. THE MOTION TO SUPPRESS

A. Background

The events leading to discovery of the heroin in Williams' possession stand uncontradicted on the record before us. 2 Williams was in the driver's seat of an automobile parked curbside on Douglas Street, Northeast, in Washington, D.C., 3 one afternoon 4 when four officers of the Park Police Narcotics Unit traveling in an unmarked van 5 drove alongside the car and stopped. 6 Also present in Williams' automobile were two women, one seated adjacent to him in the front of the passenger compartment and the other in the back. 7 According to Sergeant Henry A. Berberich and Officer Robert J. Kass, the two officers who testified at the suppression hearing, as the van approached from behind the officers' attention was drawn to the car because the driver and front-seat passenger were "bent over" 8 and apparently concentrating on "something in their laps." 9 On the basis of their experience in investigation of narcotics offenses 10 and the fact that the car was parked in an area known for extensive drug usage, 11 the officers suspected "some kind of narcotics violation." 12

As Berberich and Kass exited from the van and approached the driver's side of the car, they saw Williams "shove[ ]" 13 a "brown object" 14 or "paper bag" 15 in his right hand "underneath his leg." 16 Berberich, who like Kass was not in uniform, identified himself as a police officer, displayed

Page 1177

his badge, and asked to see Williams' driver's license and vehicle registration. 17 With Berberich and Kass both standing on the driver's side of the car, 18 Williams began to look for the registration. 19 Berberich noticed that Williams "kept his legs really closed tight" in order to hide the bag underneath. 20

Kass testified that he then asked Williams to step out of the car 21 because he believed that the bag might contain a weapon. 22 As Williams alighted from the vehicle, he put his right hand under his leg and "attempted to flip" the bag into the back of the car. 23 The bag hit the driver's seat, and fell back into the front of the passenger compartment. 24

Berberich testified that he then advised Kass of Williams' attempts to dispose of the bag. 25 Kass picked it up and felt it "with both hands" 26 while Berberich monitored Williams. 27 Kass avowed that when he touched the bag he could "feel that inside were numerous small rolled-up objects" 28 that "felt like plastic baggies." 29 Kass further testified that on the basis of this touching of the bag and his experience and training in narcotics detection, 30 he "believed" 31 that inside the paper bag were "numerous quarter bags of heroin." 32 He then proceeded to open the bag and found "five large baggies with 44 small baggies" containing heroin. 33 Williams was then placed under arrest. 34

Williams moved to suppress the introduction of the heroin into evidence, 35 and the District Court conducted a hearing on the motion before commencing trial. 36 Following testimony by the two officers, the court expressed doubt as to whether they had acted properly in approaching the car and questioning Williams. 37 After hearing additional argument on the lawfulness of the initial interception, however, the court denied the motion to suppress. 38 We turn now to an analysis of this disposition. 39

Page 1178

B. The Seizure of the Bag

Although the better part of argument during the suppression hearing centered on the lawfulness of the officers' action in approaching the parked car to question Williams, 40 he now concedes its legality. 41 Furthermore, Williams apparently does not challenge the propriety of the officers' directive that he alight from the car. 42 Williams does maintain, however, that Kass' removal of the bag from the car was an unconstitutional seizure, and his subsequent treatment of the bag an unconstitutional search of its contents. 43

The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures...." 44 A seizure occurs "when there is some meaningful interference with an individual's possessory interests" in tangible personal property. 45 Seizures conducted without benefit of a warrant are "per se unreasonable" unless one of the exceptions to the warrant requirement is applicable. 46

The Government contends that Kass' warrantless handling of the bag did not contravene the Fourth Amendment 47 since it was within the range of activity sanctioned by the Supreme Court in Terry v. Ohio 48 and its progeny. 49 These cases hold that a limited investigative stop of a person is reasonable under the Fourth Amendment when the officer is " 'able to point to specific and articulable facts which, taken with rational inferences from those facts,' give rise to a reasonable suspicion that the individual is, was, or is about to be engaged in criminal activity." 50 The Terry Court further held that if a police officer conducting a valid investigative stop possesses a "reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search ... of such persons in an attempt to discover weapons which might be used to assault him." 51 Although the weapons search authorized in Terry was confined to a pat-down of the suspect's "outer clothing," 52 the Supreme Court held in Michigan v. Long 53 that an officer making an investigative stop of a suspect in a car enjoys greater latitude. Under Long, if the officer has a reasonable belief that the suspect is dangerous, he may conduct a protective search of all of those areas of the passenger

Page 1179

compartment of the vehicle in which a weapon might be concealed. 54

Williams concedes that Terry and Long would validate the seizure of the bag had it occurred in the course of a weapons search, but argues that the officers appropriated the bag "not as a protective measure, but rather as an exploration for drugs." 55 Williams maintains that the officers' actions belie their contention that they feared the bag might contain a weapon since they permitted him to exit the car before grabbing the bag, and did not draw their weapons. 56

As Williams correctly notes, if the real aim of the search was discovery or preservation of contraband rather than immobilization of weapons, the intrusion was not authorized by Terry or Long. 57 On the same day Terry was decided, the Supreme Court held that contraband seized in a search of the defendant had to be suppressed because the "search was not reasonably limited in scope to the accomplishment of the only goal which might conceivably have justified its inception--the protection of the officer by disarming a potentially dangerous man." 58 Similarly, the Long Court was careful to point out that its holding did "not mean that the police may conduct automobile searches whenever they conduct an investigative stop;" rather, automobile searches are allowable "only when [the police] have the level of suspicion identified in Terry." 59 The issue therefore turns on whether the officer "possesses a reasonable belief based on 'specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant' the officer in believing that the suspect is dangerous and the suspect may gain immediate control of weapons." 60

Applying these principles to the facts before us, we are satisfied that there is sufficient record evidence to sustain the District Court's holding that Kass' seizure of the bag was lawful. Kass testified that at the time he asked Williams to alight from the car, he feared that the bag contained a weapon. 61 Williams' attempts to conceal the bag could easily and naturally have caused the officer even greater anxiety. 62

Page 1180

2] In light of these circumstances, the District Court could reasonably conclude that Kass was motivated by a well-founded concern for his own safety and that of his fellow officers at the time he took charge of the bag.

C. The Opening of the Bag

Kass did not cease his examination of the paper bag after removing it from the car; instead, he proceeded to open it. 63 Williams contends that even if Kass was legally authorized to seize the bag and had probable cause to believe that narcotics were contained therein, 64 he could not search the bag without a warrant. 65

Like warrantless seizures, warrantless searches "are per se unreasonable under the Fourth Amendment--subject only to a few specifically...

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  • U.S. v. Prandy-Binett, PRANDY-BINETT
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • May 11, 1993
    ...(1979), overruled, California v. Acevedo, --- U.S. ----, 111 S.Ct. 1982, 114 L.Ed.2d 619 (1991). See generally United States v. Williams, 822 F.2d 1174, 1181 (D.C.Cir.1987). Given the unanimity of views of this subject, we see no reason to pursue it further. 3 Thus courts often refer to the......
  • US v. McQuagge, No. 6:91 CR 57.
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    • United States District Courts. 5th Circuit. United States District Court of Eastern District Texas
    • March 9, 1992
    ...F.2d 1308, 1316 (5th Cir. 1986); or furtive movements indicating that the defendant was reaching for a weapon. United States v. Williams, 822 F.2d 1174, 1179-80 (D.C.Cir.1987); United States v. Nash, 876 F.2d 1359, 1361 (7th In this case, there is no evidence in the record which indicates t......
  • State v. Weinberg, No. 13598
    • United States
    • Supreme Court of Connecticut
    • June 5, 1990
    ...impartial jury will depend upon how the jury interprets and expectedly will react to the communication made. United States v. Williams, 822 F.2d 1174, 1189 (D.C.Cir.1987). The trial court, which has a first-hand impression of that jury, "is generally in the best position to evaluate the cri......
  • People v. Harris, No. S037625.
    • United States
    • United States State Supreme Court (California)
    • June 19, 2008
    ...on the evidence, not the improper contact." (U.S. v. Williams (7th Cir.1984) 737 F.2d 594, 612; see also U.S. v. Williams (D.C.Cir.1987) 822 F.2d 1174, 1190, superseded by rule on other grounds as stated in United States v. Caballero (D.C.Cir.1991) 936 F.2d 1292, Juror G. repeatedly and une......
  • Request a trial to view additional results
112 cases
  • U.S. v. Prandy-Binett, PRANDY-BINETT
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • May 11, 1993
    ...(1979), overruled, California v. Acevedo, --- U.S. ----, 111 S.Ct. 1982, 114 L.Ed.2d 619 (1991). See generally United States v. Williams, 822 F.2d 1174, 1181 (D.C.Cir.1987). Given the unanimity of views of this subject, we see no reason to pursue it further. 3 Thus courts often refer to the......
  • US v. McQuagge, No. 6:91 CR 57.
    • United States
    • United States District Courts. 5th Circuit. United States District Court of Eastern District Texas
    • March 9, 1992
    ...F.2d 1308, 1316 (5th Cir. 1986); or furtive movements indicating that the defendant was reaching for a weapon. United States v. Williams, 822 F.2d 1174, 1179-80 (D.C.Cir.1987); United States v. Nash, 876 F.2d 1359, 1361 (7th In this case, there is no evidence in the record which indicates t......
  • State v. Weinberg, No. 13598
    • United States
    • Supreme Court of Connecticut
    • June 5, 1990
    ...impartial jury will depend upon how the jury interprets and expectedly will react to the communication made. United States v. Williams, 822 F.2d 1174, 1189 (D.C.Cir.1987). The trial court, which has a first-hand impression of that jury, "is generally in the best position to evaluate th......
  • People v. Harris, No. S037625.
    • United States
    • United States State Supreme Court (California)
    • June 19, 2008
    ...evidence, not the improper contact." (U.S. v. Williams (7th Cir.1984) 737 F.2d 594, 612; see also U.S. v. Williams (D.C.Cir.1987) 822 F.2d 1174, 1190, superseded by rule on other grounds as stated in United States v. Caballero (D.C.Cir.1991) 936 F.2d 1292, Juror G. repeatedly and unequ......
  • Request a trial to view additional results

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