U.S. v. Winston, 89-3087

• Decision Date: 22 December 1989
• Docket Number: No. 89-3087,89-3087
• Citation: 282 U.S.App.D.C. 96,892 F.2d 112
• Parties: UNITED STATES of America, Appellant, v. John WINSTON.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 112

892 F.2d 112

282 U.S.App.D.C. 96

UNITED STATES of America, Appellant, v. John WINSTON.

No. 89-3087.

United States Court of Appeals, District of Columbia Circuit.

Argued Oct. 12, 1989.

Decided Dec. 22, 1989.

Appeal from the United States District Court for the District of Columbia (D.C.Crim. No. 89-0070-01).

Charles M. Steele, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., and John R. Fisher, Asst. U.S. Atty., Washington, D.C., were on the brief, for appellant.

Peter Buscemi, Washington, D.C., appointed by this court as amicus curiae, urging affirmance.

Before BUCKLEY, D.H. GINSBURG, and SENTELLE, Circuit Judges.

Opinion for the court filed by Circuit Judge BUCKLEY.

BUCKLEY, Circuit Judge:

The United States appeals from a district court order granting appellee John Winston's motion to suppress cocaine seized from his totebag during his questioning and arrest by Drug Interdiction Unit officers at a bus station in Washington, D.C. Because we conclude that the questioning of Winston was not a "seizure" within the meaning of the Fourth Amendment and that he voluntarily consented to the search of his bag, we reverse.

I. BACKGROUND

On March 14, 1989, John Winston was indicted on one count of possession with intent to distribute fifty grams or more of cocaine, in violation of 21 U.S.C. §§ 841(a) and (b)(1)(A)(iii) (1982 & Supp. IV 1986). On March 31, Winston filed a motion to suppress all physical evidence seized by the police at the time of his arrest as well as his post-arrest statements. At the suppression hearing, the government presented two witnesses--Detective Vance Beard, of the Metropolitan Police Department's Drug Interdiction Unit, and Special Agent Angelo Sorrento, of the Immigration and Naturalization Service. Their testimony was uncontested.

At approximately 1:00 a.m. on February 13, 1989, Detective Beard, Special Agent Sorrento, and several other members of the Drug Interdiction Unit were on plain-clothes duty at the Greyhound-Trailways bus station in northeast Washington. Winston was among the passengers who arrived on a bus from New York City and entered the station. Beard noticed that Winston walked through the station at a very slow pace and looked around as if he were searching for someone.

As Winston was leaving the station, Beard, Sorrento, and two other Interdiction Unit officers spotted a passenger whom they wanted to interview and followed him out of the station, passing Winston along the way. As they cleared the doors, one of the officers, Sergeant Brennan, suggested to Beard that Winston "would be a good guy to interview." Suppression Hearing Tr. at 25 (Apr. 7, 1989). Brennan and another officer then proceeded across the street from the station to interview the original suspect, while Beard and Sorrento dropped back.

Meanwhile, Winston had left the station and stopped in front of a parked car; Beard observed him watch the officers interview the suspect. Winston, who was then about eight feet from Beard, turned toward Beard, made eye contact, turned back around, and then faced Beard again.

At that point, Beard decided to interview Winston. Beard testified that he had seen little or nothing about Winston that aroused his suspicions, other than the fact that he had been walking slowly. Moreover, Beard admitted that he would not have picked out Winston as his "first choice" to interview had it not been for Brennan's suggestion. Id. at 26. Beard also admitted that he had nothing else to do, and that his decision to interview Winston was prompted by Brennan's suggestion and the eye contact with Winston. There is no explanation in the record of why Brennan had made his suggestion, and he did not testify at the hearing.

Whatever the reasons, Beard approached Winston, displayed his identification folder, identified himself as a police officer, and asked whether he could speak with him. Winston replied that he could. Special Agent Sorrento acted as a back-up to Beard and positioned himself about six to eight feet away from Winston. The testimony of Beard and Sorrento was conflicting as to whether Sorrento was behind Winston or to his side. Both Beard and Sorrento were in plain clothes, with their weapons concealed.

Beard asked Winston whether he had just arrived on a bus and whether he still had his ticket. Winston responded that he had and showed his ticket which confirmed that he had arrived from New York. After examining the ticket, Beard returned it to Winston and asked him why he was visiting Washington. Winston answered that he had come to see his girlfriend.

Beard then explained that he was from the Narcotics Branch of the police department and that it was his job to interview people entering Washington "in an attempt to stop the drugs as they were coming in and before they had a chance to reach the streets and get the young kids hooked on drugs." Id. at 11. In addition, Beard said that he interviewed people coming from New York because New York was a source city for crack cocaine, and Winston said that he understood.

Beard proceeded to ask Winston whether he had any drugs in the totebag he was carrying, and Winston answered no. Beard asked him whether he would mind if Beard searched the bag, to which Winston replied, "No, I don't mind, because I don't have anything to do with drugs." Id. Beard then searched the bag and found 537 individual packets of crack. Beard gave Agent Sorrento a code word, and Sorrento moved in and arrested Winston.

Throughout the encounter, Beard used a polite and conversational tone of voice. He made no physical contact with Winston, nor did Sorrento prior to the arrest. Before the arrest, Winston was "very" cooperative and did not ask to leave.

On April 25, 1989, the United States District Court for the District of Columbia issued a memorandum and order granting the motion to suppress. United States v. Winston, 711 F.Supp. 639 (D.D.C.1989). The court noted that members of the Drug Interdiction Unit had

developed a routine whereby they (1) identify a suspicious individual by noting a combination of characteristics ... which lead them reasonably to suspect that the individual may be involved in criminal activity; (2) encounter the suspect, one as questioner, one or more positioning themselves as back-up; (3) commence a series of questions leading up to a request to search the suspect's belongings if the officer's suspicions continue ...; and (4) arrest the suspect if the officer finds drugs.

Id. at 641 (footnote omitted). The court then declared that

[a]t issue in this case is the judgment made to encounter the defendant and thereby trigger the routine, or, in the alternative, the entire process initiated by that judgment, culminating in the search and formal arrest of the defendant.

Id.

The court first addressed the question of "what is required for police to make an initial encounter with a view to applying to a person the standard drug interdiction scenario" described above. Id. at 642 (emphasis in original). Relying on Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and United States v. Sokolow, --- U.S. ----, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989), the court asserted that "police may set in motion their apparatus for confronting and questioning an individual only if they have reasonable suspicion supported by articulable facts that criminal activity may be afoot," Winston, 711 F.Supp. at 641 (internal quotations omitted) (emphasis added), and concluded that the "initial encounter itself and the triggering of the Drug Interdiction Unit's routine must be supported by some minimal level of suspicion." Id. at 642. Finding that "no one has articulated any reason to justify the police-citizen encounter here," the court held that there had been a "defective encounter." Id. at 643.

In addressing the alternative question (whether the "entire process" had resulted in a seizure), the district court noted that "[e]ven if the original encounter were not the critical event, it is part of the total context of the police action that culminated in the formal arrest of defendant." Id. at 642-43. The court found that the encounter with Winston had become an unjustified investigative stop and detention when Beard identified himself as a police officer engaged in the interdiction of drugs and asked to search the bag, because a reasonable person "would have sensed the momentum of the questioning and the maneuvers of the officers" and "felt the in terrorem effect" of Beard's "request to search the bag after defendant had denied possession of drugs." Id. at 643 (emphasis in original). Accordingly, the court held that "the government [had] failed to carry its burden of persuasion that the defendant agreed to the search of his bag before he could reasonably conclude that he was no longer free to leave." Id.

II. DISCUSSION

The district court based its order on two grounds. First, the encounter initiating the questioning of Winston was unauthorized because it was unsupported by at least "some measure of reasonable, articulable suspicion." Id. at 642. (Although the court nowhere characterizes the initial encounter as a violation of Winston's Fourth Amendment rights, that is the burden of its opinion.) Second, even if the initial encounter were not a seizure, it clearly became one at some point during the questioning, thereby invalidating his consent. For purposes of discussion, we assume without deciding that the district court correctly concluded that Beard had no articulable suspicion about Winston prior to their encounter.

We begin our analysis with Terry v. Ohio. In that case, the Supreme Court noted that "not all personal intercourse between policemen and citizens involves 'seizures' of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a 'seizure' has occurred." 392 U.S. at 19 n. 16, 88 S.Ct. at 1879 n. 16. In 1980, ...