United States v. Kofoworola Adegbite, A/K/A "Gbenro," A/K/A "Kofo Adegbite," and Joseph Adeniran Obalaja, A/K/A "Niran,"

846 F.2d 834, 1988 U.S. App. LEXIS 6637

• Court: Court of Appeals for the Second Circuit
• Decided: May 13, 1988
• Docket: 751, Docket 87-1485
• Status: Published

Opinions

MAHONEY, Circuit Judge:

The United States brings this expedited appeal pursuant to 18 U.S.C. § 3731 (1982 and Supp. IV 1986) seeking reversal of an oral order of the United States District Court for the Eastern District of New York, Edward R. Korman, Judge, which occurred in the course of a suppression hearing on October 22, 1987 and was entered on October 26, 1987. The order suppressed statements made by both defendants, Kofoworola Adegbite and Joseph Adeniran Obalaja, and physical evidence provided by defendant Obalaja, as the fruit of an illegal seizure. In addition, one statement of defendant Adegbite was suppressed on the alternative ground that it was the product of an illegal custodial interrogation under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).¹

Specifically, the district court held that when two Drug Enforcement Administration (“DEA”) agents waved down an ice cream truck in which defendants were departing from a garden apartment complex in order to obtain identification from the occupants to determine whether they were the subjects of two arrest warrants, a seizure in violation of the fourth amendment occurred because the agents had no reasonable suspicion that the truck’s occupants were in fact the persons described in the arrest warrants. The court also held that when an agent who, subsequent to the stop, successfully asked Adegbite for confirmation that he was in fact “Gbenro,” the name listed on one arrest warrant, Adeg-bite’s affirmative response must be suppressed on the alternative ground that defendant Adegbite was in custody for Miranda purposes and was asked to confirm his identity before he was read his Miranda rights.

We reverse the suppression order on the grounds that stopping the truck did not constitute a seizure, and that the inquiry concerning Adegbite’s identity did not constitute custodial interrogation prohibited by Miranda.

Background

On March 24, 1987, one Olasogi Olukoya was apprehended at the John F. Kennedy International Airport with approximately a half pound of heroin in his possession. On April 15, 1987, Olukoya informed a DEA agent that his instructions were to deliver the heroin upon arrival to a man named “Niran” at the airport, and if Niran was not there to call him at telephone number (301) 485-5997. Under DEA supervision, Olukoya placed a recorded call to that number on April 15, 1987 and spoke to a man named “Gbenro” in Yoruba, a Nigerian dialect, about the amount and delivery of the heroin. There followed a second recorded phone call to the same number on April 16, 1987, also monitored by the DEA, in which Olukoya talked with Gbenro and a man named “Niran.” In a third call on April 17, 1987 Olukoya made arrangements with Ni-ran for delivery of the heroin.

Magistrate A. Simon Chrein of the Eastern District of New York issued “John Doe” arrest warrants on May 1, 1987 for two men with the nicknames/aliases “Gbenro” and “Niran” who were described in the warrants as males “fluent in Yoruba, a Nigerian dialect, residing at 24 Walden Maple Court, Baltimore, Maryland, 21207, and reached at telephone number (301) 485-9597.”

DEA agents in Baltimore thereafter ascertained that this telephone number was registered to 4410 Franconia Drive, Apartment J, Baltimore, Maryland, rather than to the address specified in the warrants.² They also ascertained that the number had been changed to an unlisted number, which they obtained. On May 6, 1987, a DEA agent called the new telephone number at that address and was advised that Gbenro and Niran, although resident there, were not then available, but would be the following morning. As a result, the next morning three DEA agents, Agents Czerski, Dombroski and Masiello, and local police detective Fischer went to 4410 Franconia Drive in two cars with the arrest warrants. Two of the agents, Agents Masiello and Dombroski, had worked with the DEA Nigerian Task Force in the Washington, D.C. area, an operation to investigate and interdict the trafficking of heroin by Nigerians.

Upon their arrival, Agents Masiello and Czerski saw two men whom Masiello deemed to be Africans because of their “sloppy,” “[n]ot well coordinated” dress and “oily” skin in a Jack and Jill ice cream truck in a parking lot in front of the 4410 Franconia Drive building, a garden apartment complex of approximately twelve units. The agents approached the ice cream truck, which had travelled approximately fifteen to twenty yards, and waved their arms to flag it down. The agents wore plain clothes and displayed no guns or badges. When the truck stopped, the two officials identified themselves and requested identification of the driver. The driver produced a driver’s license in the name of “Joseph Adeniran Obalaja,” whereupon the agents noticed that the latter portion of the middle name on the license was “niran,” as on the arrest warrant.

Shortly thereafter, Agent Dombroski and Detective Fischer, who had arrived earlier to stake out the building, left their car, walked to the other side of the truck and

Meanwhile, the agents who had remained with Obalaja asked him for additional identification. In the process of reaching into his pocket, Obalaja dropped an envelope addressed to “Niran Obalaja” with the name “Gbenro,” among others, listed on the back. Upon being asked by Agent Masiello for the identity of the addressee on the envelope, Obalaja then responded that he was also known as “Niran.” Those agents and Obalaja then went up to Apartment J, where they joined the others.

While in the apartment, Obalaja received a phone call from another agent who was unaware of the planned arrest. Obalaja answered the telephone: “this is Niran.” Agent Masiello asked Adegbite once again if he had any identification, and told him it would be in his best interest to produce some. Again, no identification was presented. Agent Masiello then asked: “you are Gbenro, aren’t you?”, to which Adegbite responded affirmatively. The agents then arrested the two men, read them their Miranda rights, and brought them to the Baltimore office of the DEA.

In an oral opinion delivered on October 22, 1987, Judge Korman granted the defendants’ motion to suppress the statements of both defendants and the physical evidence taken from Obalaja as the fruit of an illegal seizure. Judge Korman specifically determined that waving down the moving ice cream truck constituted a seizure under the fourth amendment, and that there was no reasonable suspicion for the requested identification of the passenger. They were in plain clothes and did not display firearms. The passenger responded that his identification was in his room in Apartment J of the building, and asked if he could retrieve it. Accompanied by Dombroski and Fischer, the passenger went up to Apartment J and proceeded to the back bedroom, subsequently identified as his residence, but was unable to produce any identification. On the way, Agent Dombroski asked the passenger what tribe he belonged to, to which he responded “Yoruba.” agents to believe that the two men in the truck were the two men listed in the arrest warrant.

Judge Korman also suppressed Adeg-bite’s acknowledgment to Agent Masiello that he was “Gbenro” on the independent ground that Adegbite was in custody for Miranda purposes at that time, and the response was the fruit of an illegal custodial interrogation. Judge Korman based this determination upon his conclusion that Adegbite did not feel free to leave under the circumstances, and upon the fact that Adegbite was asked if he was “Gbenro” before his Miranda rights were read to him.

On appeal, as it did below, the government contends that the initial stop of the defendants was lawful because the agents had warrants for their arrest, and the encounter in any event was not a seizure within the meaning of the fourth amendment. In addition, the government asserts that defendant Adegbite’s Miranda rights were not violated, since requesting “pedigree” information, such as a name or nickname, does not constitute interrogation that is subject to Miranda requirements.

Discussion

The primary question presented by this appeal is whether, in waving down the ice cream truck and asking its occupants for identification, Agents Masiello and Czerski effected a “seizure” in violation of the fourth amendment’s proscription of “unreasonable searches and seizures.” “[N]ot 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.” Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 1879 n. 16, 20 L.Ed.2d 889 (1968). Further, “[o]nly if they were seized are defendants vested with any right to constitutional safeguards.” United States v. Knox, 839 F.2d 285, 289 (6th Cir.1988) (citing United States v. Menden-hall, 446 U.S. 544, 553, 100 S.Ct. 1870, 1876-77, 64 L.Ed.2d 497 (1980) (opinion of Stewart, J.)).³ See also Florida v. Royer, 460 U.S. 491, 498, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229 (1983) (plurality opinion); 3 W. LaFave, Search and Seizure § 9.2(h), at 402 (1987) (hereinafter “LaFave”). Accordingly, if there was no seizure, then not only is the probable cause required for effecting an arrest not mandated, but even the reasonable suspicion required for a brief detention or Terry stop⁴ is not necessary.

The test provided by the Supreme Court for determining what constitutes a “seizure” under the fourth amendment, and the point in time when any seizure occurs, is whether “in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” United States v. Mendenhall, 446 U.S. at 554, 100 S.Ct. at 1877. See also Immigration and Naturalization Service v. Delgado, 466 U.S. 210, 215, 104 S.Ct. 1758, 1762, 80 L.Ed.2d 247 (1984); Florida v. Royer, 460 U.S. at 501-02, 103 S.Ct. at 1326-27; Terry v. Ohio, 392 U.S. at 16, 88 S.Ct. at 1877. “Factors which strongly suggest such is the case are, for example, the display of a weapon, physical touching of the person by the officer and language or tone indicating a show of authority that may compel compliance with the officer’s request.” United v. 25, (2d 1984) (citing United States v. Mendenhall, 446 U.S. at 554, 100 S.Ct. at 1877). See also United States v. Ceballos, 812 F.2d 42, 46 (2d Cir.1987) (applying Mendenhall test); United States v. Streifel, 665 F.2d 414, 420 (2d Cir.1981) (citing Terry v. Ohio rather than United States v. Mendenhall). Especially applicable here, the fact that a law enforcement officer so identifies without more, does not result in a seizure. Florida v. Royer, 460 U.S. at 497, 103 S.Ct. at 1323-24 (citing United States v. Mendenhall, 446 U.S. at 555, 100 S.Ct. at 1877-78).

In applying this test to the facts of this case, we conclude that the defendants were not “seized” within the meaning of the fourth amendment.⁵ Agents Masiello and Czerski waved down and approached the ice cream truck in plain clothes and displayed no guns or badges. None of the displays of authority typically evident in cases where seizures were held to have occurred were present in this instance. See generally LaFave § 9.2(h), at 416-17.

The district court rejected the government’s contention that no seizure occurred here, concluding that the Supreme Court had established a “bright line” rule that stopping a moving vehicle and detaining its occupants constitutes a fourth amendment seizure. See Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 1395-96, 59 L.Ed.2d 660 (1979). The normal circumstances of a vehicle stop, however, were not present here. Such stops generally involve abundant displays of authority, including police uniforms, sirens and flashing lights, and signals to pull off the highway. See La-Fave § 9.2(h) at 416-17.

We regard this situation, where the car had barely started in a parking lot, moved only fifteen to twenty yards, and was waved to a halt by DEA agents on foot and in plain clothes, as being more analogous to the cases of pedestrians and parked cars to which the Mendenhall seizure test is applied. See United States v. Mendenhall, 446 U.S. at 555, 100 S.Ct. at 1877-78 (pedestrian); United States v. Castellanos, 731 F.2d 979, 983-84 (D.C.Cir.1984) (parked car).

Having legitimately stopped the truck, the agents did not convert the stop into a seizure by identifying themselves and requesting identification of the defendants. Florida v. Royer, 460 U.S. at 497, 103 S.Ct. at 1323-24. Furthermore, given the facts that the defendants were encountered in front of the address at which they were expected at that time, and that they matched the general description provided to the agents, once Obalaja showed the agents his driver’s license with a middle name that ended in “niran,” the nickname or alias on one of the arrest warrants, the agents had the requisite reasonable suspicion for a more prolonged stop and investigation.

This brings us to the alternative ground for partial suppression-i.e., the suppression of Adegbite’s acknowledgement that he was “Gbenro” because he was in custody for Miranda purposes and should have been read his Miranda rights before Agent Masiello asked him if that was his nickname. We have held, however, that the solicitation of information concern- ing a person’s identity and background does not amount to custodial interrogation prohibited by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), whether that solicitation occurs before, United States ex rel. Hines v. LaVallee, 521 F.2d 1109, 1112-13 (2d Cir.1975), cert. denied, 423 U.S. 1090 (1976), or after, United States v. Gotchis, 803 F.2d 74, 78- 79 (2d Cir.1986), Miranda warnings are given.⁶ In any event, “the identity of de- that hearing, fendants is not suppressible under the exclusionary rule.” United States v. Arias, 678 F.2d 1202, 1206 (4th Cir.), cert. denied, 459 U.S. 910, 103 S.Ct. 218, 74 L.Ed.2d 173 (1982) (citing United States v. Crews, 445 U.S. 463, 100 S.Ct. 1244, 63 L.Ed.2d 537 (1980)).⁷

Conclusion

The order to suppress the statements of both defendants and the physical evidence obtained from Obalaja is reversed.

1 . But see infra note 6.

2 . An application to amend the arrest warrants accordingly was made to Magistrate Chrein on May 12, 1987, after defendants were arrested. See infra note 5.

3 . Only Justice Rehnquist joined in this portion of Justice Stewart’s opinion in Mendenhall. See Mendenhall, 446 U.S. at 560, 100 S.Ct. at 1880 (Powell, J., concurring in part and concurring in the judgment). This portion of Mendenhall, however, as well as the plurality opinion in Florida v. Royer, was followed and adopted by the Supreme Court in Florida v. Rodriguez, 469 U.S. 1, 5-6, 105 S.Ct. 308, 310-11, 83 L.Ed.2d 165 (1984) (per curiam).

4 . A Terry stop, so-called because the rule was articulated in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), is a brief detention that is permissible " ‘when the officer has reasonable, articulable suspicion that the person has been, is, or is about to be engaged in criminal activity.’ ” United States v. Hensley, 469 U.S. 221, 227, 105 S.Ct. 675, 679, 83 L.Ed.2d 604 (1985) (quoting United States v. Place, 462 U.S. 696, 702, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983), emphasis added in United States v. Hensley). See also LaFave § 9.2(a), at 351 (quoting Model Code of Pre-Arraignment Procedure § 110.2(l)(a)(i) (1975)).

5 . In view of this conclusion, we need not consider the government's contention that the agents’ action was justified as a legitimate execution of arrest warrants.

6 . At one stage in the suppression hearing, Judge Korman explicitly suppressed Adegbite's self-identification on Miranda grounds. Later in however, the following colloquy occurred:

Mr. Hattem[government counsel]: The only thing being independently suppressed is the statement by Gbenro?

The Court:That's right. Mr. De

Mr. DeVita [government counsel]: During processing, your Honor, certain information certain information is obtained, place of birth, included (sic) country of origin.

The Court: Is there a Second Circuit case on this?

Mr. De Vita: Yes, there is. You don’t need to give Miranda Rights for information obtained on processing.

The Court: Then I will follow that case, that’s my recollection of the law in terms of pedigree, Miranda Rights are not necessary.

No written order of suppression, distinct from the suppression hearing, was entered, and the parties on appeal have treated Judge Korman’s original Miranda ruling as surviving the latter quoted colloquy. However dubious that interpretation of the record, we have addressed the issue in those terms to avoid any loose ends on remand.

7 . Actually, it is the concurring opinions of Justices Powell and White in United States v. Crews, 445 U.S. at 477, 100 S.Ct. at 1253, in which a majority of the justices joined on the issue relevant here, see id. at 479, 100 S.Ct. at 1254, rather than the majority opinion, that support Arias.