US v. Rembert

• Decision Date: 15 July 1988
• Docket Number: No. C-CR-88-40.,C-CR-88-40.
• Court: U.S. District Court — Western District of North Carolina
• Parties: UNITED STATES of America v. Patt REMBERT, Jr.

694 F. Supp. 163

UNITED STATES of America v. Patt REMBERT, Jr.

No. C-CR-88-40.

United States District Court, W.D. North Carolina, Charlotte Division.

July 12, 1988.

Memorandum of Decision July 15, 1988.

Thomas Ashcraft, U.S. Atty., Charlotte, N.C., for U.S.

Charles G. Monnett, III, Charlotte, N.C., for Rembert.

ORDER

ROBERT D. POTTER, Chief Judge.

THIS MATTER is before the Court on the Government's objections, filed June 30, 1988, pursuant to Section 636(b)(1) of Title 28, United States Code, to the Magistrate's proposed findings of fact, conclusions of law, and recommendation on Defendant's Motion to Suppress. On June 21, 1988, United States Magistrate Paul B. Taylor entered a Memorandum and Recommendation which granted Defendant's Motion to Suppress certain physical evidence. For the reasons contained in a Memorandum of Decision that will be filed following the entry of this Order, this Court will reverse and reject the Magistrate's proposed findings of fact and conclusions of law and will deny Defendant's Motion to Suppress.

NOW, THEREFORE, IT IS ORDERED that Defendant's Motion to Suppress, filed May 23, 1988, is DENIED.

IT IS FURTHER ORDERED that the Magistrate's Memorandum and Recommendation, filed June 21, 1988, is REVERSED and REJECTED.

MEMORANDUM OF DECISION

I. PRELIMINARY STATEMENT

THIS MATTER is before the Court on the Government's objections, filed June 30, 1988, pursuant to Section 636(b)(1) of Title 28, United States Code, to the Magistrate's proposed findings of fact, conclusions of law, and recommendation on Defendant's Motion to Suppress. On June 21, 1988, United States Magistrate Paul B. Taylor entered a Memorandum and Recommendation which granted Defendant's Motion to Suppress certain physical evidence. On July 12, 1988, this Court entered an order reversing and rejecting the Magistrate's proposed findings of fact and conclusions of law and denying Defendant's Motion to Suppress. This Memorandum of Decision contains the findings of fact and conclusions of law supporting the July 12th order.

II. QUESTIONS PRESENTED

The Government's objections raise four questions. First, did law enforcement agents "seize," within the meaning of the fourth amendment to the United States Constitution, a commercial passenger bus carrying Defendant Rembert when, during a brief rest stop at a bus terminal, two of them went aboard the bus, with the bus driver's permission, for the purpose of questioning the passengers? Second, did the law enforcement agents at any time seize Defendant Rembert when they approached him on the bus, asked him questions, obtained his consent to searches of both his person and of two bags located near him, and proceeded to conduct two pat down searches, which revealed four .38 caliber bullets and two marijuana cigarettes? Third, if Defendant Rembert was seized during either of the above described incidents, did the law enforcement agents have either probable cause to believe, or a reasonable articulable suspicion, that Defendant Rembert was engaged in, or was about to engage in, criminal activity which would justify such seizures? Fourth, if Defendant Rembert was seized in violation of the fourth amendment to the United States Constitution, should the evidence obtained allegedly as a result of the unlawful seizure be suppressed as the "fruit of the poisonous tree"?

III. SUMMARY OF PROCEEDINGS

On April 5, 1988, a one-count bill of indictment was filed charging Patt Rembert, Jr. ("Rembert" or "Defendant") with a violation of Section 1029(a)(3) of Title 18, United States Code. Specifically, Rembert was charged with knowingly possessing with fraudulent intent eighteen unauthorized access devices, credit cards belonging to others, which possession affected interstate commerce.

On May 23, 1988, Rembert filed a Motion to Suppress, pursuant to Rule 12(b)(3) of the Federal Rules of Criminal Procedure, seeking suppression of all evidence in this case obtained by law enforcement agents during an allegedly unconstitutional seizure and search of Rembert. On May 24, 1988, Magistrate Taylor entered an order directing the Government to file a response, no later than June 6, 1988, to Defendant's Motion to Suppress.

On June 6, 1988, the Government filed its response to Defendant's Motion to Suppress. On June 8, 1988, Defendant filed a Memorandum of Law in Support of his Motion to Suppress.

On June 8, 1988, Magistrate Taylor conducted an evidentiary hearing on Defendant's Motion to Suppress. United States Attorney Thomas J. Ashcraft appeared on behalf of the Government at the hearing, and attorney Charles G. Monnett, III appeared on behalf of Defendant Rembert. The Government called only one witness to testify: Special Agent Jack Allen Davis of the North Carolina State Bureau of Investigation ("SBI"). Magistrate Taylor heard both Agent Davis' testimony and the arguments of counsel. After the hearing, on June 9, 1988, the Government filed a Supplemental Memorandum of Law.

On June 21, 1988, Magistrate Taylor entered his Memorandum and Recommendation, which granted Defendant's Motion to Suppress. On June 30, 1988, the Government filed, with a supporting memorandum of law, objections to the Magistrate's proposed findings of fact, conclusions of law, and recommendation on Defendant's Motion to Suppress. The Government's objections are now pending before this Court.

IV. CONTENTIONS OF THE PARTIES

Defendant Rembert asserts that law enforcement agents of the SBI and the Charlotte Police Department violated his constitutional right to be free from unreasonable searches and seizures when they boarded a commercial passenger bus and approached him to ask some questions. Rembert contends that the actions of the agents were unconstitutional because they "seized" him, within the meaning of the fourth amendment, without probable cause or a reasonable articulable suspicion that he was engaged in, or was about to engage in, criminal activity. Rembert concludes by arguing that the purported unconstitutional seizure of his person taints, as "fruit of the poisonous tree," all of the physical evidence gathered from the searches subsequently conducted on his person and on the bags, which yielded, among other things, two marijuana cigarettes, the eighteen credit cards listed in the indictment in this case, four .38 caliber bullets, and a .38 caliber snub-nosed revolver. Rembert urges this Court to issue an order suppressing such allegedly tainted evidence.

The Government strenuously opposes Defendant's motion to suppress. First, the Government characterizes both the initial boarding of the bus and the agents' subsequent conversations with Rembert as purely consensual encounters that do not amount to intrusions implicating the fourth amendment's proscription against unreasonable seizures. Second, the Government emphasizes that during the initial conversations preceding the discovery of the bullets, the revolver, and the marijuana cigarettes Rembert was, in fact, free to refuse to talk to the agents and was free to get off the bus. Third, the Government contends that the circumstances surrounding both the boarding of the bus and the agents' conversations with Rembert were not threatening, intimidating, coercive, or restraining. Although the Government concedes it is possible Rembert subjectively felt confined by the close quarters of the bus, it urges this Court to find that the law enforcement agents did not seize him prior to the consensual search of his person, which yielded four .38 caliber bullets. The Government argues that after conducting the searches the agents had probable cause to arrest Rembert and were able to conduct a search of his person incident to his arrest.

In the June 21st Memorandum and Recommendation, Magistrate Taylor found that the agents seized Rembert at three different times. Magistrate Taylor held that "the first seizure occurred when the police ... approached the bus driver and asked for his consent to board the bus and question the passengers." See opinion of Magistrate Taylor herein at page 180 (citing United States v. Berry, 670 F.2d 583 (5th Cir.1982)). Magistrate Taylor found that a second seizure "occurred when the two agents ... proceeded down the aisle to the back of the bus where Rembert was sitting, and ... approached Rembert and began to question him." Id. at 180. Finally, Magistrate Taylor found that a third seizure "occurred when, during the conversation, Rembert made a quick motion with his right hand and Agent Davis reached over and simultaneously touched Rembert's right pant leg and felt what appeared to him to be a bullet." Id. at 180. Magistrate Taylor ruled that these three seizures violated Defendant's fourth amendment rights because the agents did not have a reasonable articulable suspicion or probable cause to believe that Rembert was engaged in, or was about to engage in, criminal activity. Id. at 180-82. In addition, Magistrate Taylor ruled that neither the bus driver's consent to board the bus nor Rembert's consent to the searches of his person and of the bags vitiated the tainting effects of the illegal seizures. Id. at 182-83. Finally, Magistrate Taylor ruled that Rembert had standing to seek suppression of the evidence seized from the bags because Rembert did not voluntarily abandon them. Id. at 183.

The Government objects to the Magistrate's Memorandum and Recommendation on two principal grounds. First, the Government asserts that the Memorandum and Recommendation omits certain crucial portions of the uncontradicted testimony of Special Agent Davis, including testimony to the effect that the agents did not appear to be armed and did not block the bus aisle during their initial conversation with Rembert. Second, the Government contends that the Magistrate's conclusions of law are erroneous. In support of this second point, the Government cites United States v. Mendenhall, 446 U.S. 544, 561-562, 100 S.Ct. 1870, 1880-81, 64 L.Ed.2d 497 (1980), and...