Opinions of the United 2005 Decisions States Court of Appeals for the Third Circuit
5-5-2005
USA v. Lockett Precedential or Non-Precedential: Precedential
Docket No. 04-2244
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UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 04-2244
UNITED STATES OF AMERICA
v.
ROGERS LOCKETT, III a/k/a MANNY STRONG
Rogers Lockett, Appellant
On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 03-cr-00421) District Judge: Honorable Cynthia M. Rufe
Argued March 9, 2005
Before: NYGAARD, McKEE, and RENDELL, Circuit Judges (Filed: May 5, 2005)
Robert Epstein, Esq. (Argued) Defender Association of Philadelphia Federal Court Division 601 Walnut Street The Curtis Center, Suite 540 West Philadelphia, PA 19106 Counsel for Appellant
Thomas R. Perricone, Esq. (Argued) Office of the United States Attorney 615 Chestnut Street Philadelphia, PA 19106 Counsel for Appellee
_____
OPINION OF THE COURT
NYGAARD, Circuit Judge.
Rogers Lockett argues that the District Court erred by
denying his motion to suppress because the police exceeded the
scope of his consent to search his suitcase and unlawfully seized
him, rendering the search of his backpack involuntary.
2 Additionally, he submits that he is no longer bound by the
dictates of his plea agreement as a result of the Supreme Court’s
decision in United States v. Booker, 543 U.S. __, 125 S. Ct. 738
(2005). We will affirm.
I.
Lockett was sitting on a bench in the Amtrak 30 th Street
Train Station in Philadelphia. After watching Lockett for
approximately fifteen minutes, Special Agent Carl Giardinelli1
and Corporal William Burdette 2 approached him. Burdette
showed Lockett his badge, identified himself, and asked if
Lockett would answer a few questions. After Lockett answered
1 Special Agent Giardinelli is an agent with the Drug Enforcement Agency. 2 Officer Burdette is a Corporal with the Pennsylvania State Police assigned to the Bureau of Emergency and Special Operations and then reassigned to the Drug Enforcement Agency.
3 “yes,” Burdette sat down on the bench approximately two feet
to Lockett’s right and Giardinelli remained standing a few feet
to the right of Burdette. Burdette asked Lockett some questions
about his travel and Lockett explained that he was from
Philadelphia but was traveling to Boston, where he attends
Newbury College. Burdette examined Lockett’s identification
and train ticket and then returned them to Lockett.
Burdette explained to Lockett that he and Agent
Giardinelli were looking for contraband including narcotics,
large sums of money, guns, and other weapons. He asked
Lockett if he had any of these items in his possession; Lockett
said that he did not. Then Burdette asked Lockett if the rolling
suitcase on the seat next to Lockett belonged to him and Lockett
admitted that it did. Burdette asked if he could look in the
suitcase and Lockett said “yes.” Lockett then placed the
suitcase on the floor and started to open it, at which point
4 Burdette said, “that’s okay, I can get that.” Lockett responded,
“no, I’ll get it,” but Burdette repeated, “no, that’s okay, I can get
it.” Burdette then opened the bag.
After opening the suitcase, Giardinelli and Burdette saw
three large plastic bags that contained numerous small clear
plastic bags, which the Officers recognized as the type of bags
commonly used to package illegal drugs. On one of the larger
bags was a picture of a marijuana leaf. Burdette pushed the
rolling suitcase over to Giardinelli, who continued searching
through it.
While Giardinelli was searching the suitcase, Burdette
asked Lockett if the other bag, a backpack, belonged to him and
Lockett said “yes.” Burdette asked if he could look in the
backpack and Lockett said “yes” and handed the backpack to
Burdette.
As Giardinelli was searching the rolling suitcase, his
5 finger hit a metal object and he realized it was a gun.3 He yelled
“gun” in a loud voice so as to get the attention of Burdette and
the other law enforcement officers in the vicinity. Burdette and
Officer Sean Martin, an Amtrak police officer, handcuffed
Lockett and walked him from the public area of the train station
to the Amtrak police station, which was a short distance away
within the same building. Lockett was handcuffed to a bench in
the Amtrak police station while Burdette physically searched
through the bags with Giardinelli observing nearby.4 After the
3 The gun discovered by Giardinelli was an Intertec 9mm semi-automatic uzi-type weapon with an obliterated serial number. 4 During the search at the police station, Burdette and Giardinelli found a Bryco Jennings 9mm semi-automatic pistol with an obliterated serial number loaded with twelve live rounds, as well as a magazine for the Intratec containing thirty rounds of ammunition. They also found approximately one pound of marijuana in the rolling suitcase. In addition, they found three notebooks and pictures in the backpack; two of the pictures were of Lockett and another individual holding
6 search, Officer James Corbett, a member of the Philadelphia
Police Department, read Lockett his Miranda rights and then
asked him who owned the guns. Lockett answered, “the guns
are mine.” Corbett then asked Lockett from whom he obtained
the firearms, at which point Lockett said that he wanted to talk
to a lawyer. At this point all questioning of Lockett stopped.
II.
Lockett was charged with possession of marijuana with
the intent to distribute, possession of firearms in connection with
a drug trafficking offense, and possession of firearms with
obliterated serial numbers. Lockett filed a motion to suppress
the physical evidence and the statements he made to the law
enforcement officers. After a hearing, the District Court denied
the Motion, with the following detailed findings of fact and
handguns to each other’s heads.
7 conclusions of law: (1) the encounter between Burdette,
Giardinelli, and Lockett was not coercive and did not constitute
a stop or seizure under the Fourth Amendment; (2) a reasonable
person in Lockett’s position would have felt free to refuse to
talk to Giardinelli and Burdette; (3) Lockett voluntarily gave his
consent to search his rolling suitcase and backpack; (4) Lockett
never revoked his consent to the searches of his rolling suitcase
and backpack; (5) Lockett was not in custody until his arrest
after Giardinelli discovered the gun in his rolling suitcase; and
(6) Lockett voluntarily, knowingly, and intelligently waived his
Miranda rights prior to saying “the guns are mine.”
Pursuant to a written guilty plea agreement, Lockett
pleaded guilty to all charges, reserving his right to appeal the
denial of his motion to suppress. The plea agreement expressly
limited the defendant’s right to appeal, excepting only an appeal
based on a claim that the defendant’s sentence exceeded the
8 statutory maximum, that the sentencing judge erroneously
departed upwards from the guidelines range, or that the district
court erroneously decided the suppression issues.
The District Court imposed a sentence of six months
imprisonment for possession of marijuana with intent to
distribute and possession of firearms with obliterated serial
numbers pursuant to the federal sentencing guidelines. The
District Court also imposed a sentence of sixty months
imprisonment to run consecutively for possession of firearms in
furtherance of a drug trafficking crime, which is the statutory
mandatory minimum. The total sentence was for 66 months
imprisonment, five years of supervised release, a $2,000 fine,
and a special assessment of $300. Lockett now appeals his
conviction and sentence.
III.
This is an appeal from a final judgment of the District
9 Court. We have appellate jurisdiction pursuant to 28 U.S.C. §
1291.
We review a District Court’s denial of a motion to
suppress for clear error as to the underlying factual findings and
exercise plenary review over the District Court’s application of
the law to those facts. United States v. Perez, 280 F.3d 318, 336
(3d Cir. 2002). A District Court’s determination of consent to
search is a finding of fact. Schneckcloth v. Bustamonte, 412
U.S. 218, 227 (1973).
IV.
A. Seizure
Lockett asserts that he was unlawfully seized when he
submitted to authority by relinquishing control of his suitcase.
We do not agree.
It is well established that no seizure has occurred when
an officer approaches an individual in a public place, identifies
10 himself as a law enforcement agent, asks questions, asks to
search a person’s bags, or explains that he is conducting a
narcotics investigation. See Florida v. Royer, 460 U.S. 491, 497
(1983); United States v. Thame, 846 F.2d 200, 202–03 (3d Cir.
1988). Even when law enforcement officers have no basis for
suspecting a particular individual, they may pose questions, ask
for identification, and request consent to search luggage,
provided they do not induce cooperation by coercive means. See
Florida v. Bostick, 501 U.S. 429, 434–35 (1991). If a
reasonable person would feel free to terminate the encounter,
then he or she has not been seized. Id.
Under similar circumstances, we have held that
questioning of a traveler by police officers, followed by a
request to search the traveler’s bags did not amount to a
“seizure” of that traveler under the Fourth Amendment. See
Thame, 846 F.2d at 204. We reasoned that the officers had not
11 restrained Thame, blocked his path, or otherwise controlled his
movement by retaining his papers. Id. Nor had the police, in
any way, suggested to Thame that he was positively identified
as a suspect. Id. Thus, despite the fact that other law
enforcement officers may have been in Thame’s view, we
concluded that no seizure had occurred. Id.
As in Thame, the encounter here took place in an open
public area. The officers did not control or block Lockett’s
movement. They did not retain Lockett’s papers or
identification. And they did not tell Lockett that he was a
suspect. We hold that the officers did not induce Lockett’s
cooperation by coercion. In light of all the circumstances, a
reasonable person would have felt free to terminate the
encounter, and therefore Lockett was not “seized.”
B. Consent
Under the Fourth and Fourteenth Amendments, a search
12 conducted without a warrant issued upon probable cause is “per
se unreasonable . . . subject only to a few specifically established
and well-delineated exceptions.” Schneckloth, 412 U.S. at 219.
“It is equally well settled that one of the specifically established
exceptions to the requirements of both a warrant and probable
cause is a search that is conducted pursuant to consent.” Id.
Consent must be voluntary, may be express or implied, and need
not be knowing or intelligent. Id. at 235. It may be given
unintentionally and without knowledge of the right to refuse
consent, and the police are not required to warn an individual of
the right to refuse consent. Id.
Lockett does not dispute the District Court’s finding of
consent, but instead claims that he gave “limited consent” only
to a “visual inspection.” Lockett asserts that, even though
counsel below may not have used the precise term “limited
consent,” the legal issue remains the same: would the officers’
13 conduct have communicated to a reasonable person that Lockett
was not free to decline the officers’ request.
The government contends Lockett waived the limited
consent issue by failing to include it in his suppression motion.5
Federal Rule of Criminal Procedure 12(b)(3) requires a defendant
to file a suppression motion prior to trial, and Rule 12(f) provides
that failure to do so constitutes a waiver. We agree that Lockett
waived the limited consent issue.
It is well settled that arguments asserted for the first time
on appeal are deemed to be waived and consequently are not
5 The Government’s Brief notes that: “Lockett filed a Motion to Suppress Physical Evidence and Statement before the suppression hearing and filed a Supplemental Memorandum of Law in Support of Defendant’s Motion to Suppress Physical Evidence and Statement after the hearing. In neither of these written submissions, nor in the oral argument immediately following the hearing, did Lockett claim that he gave consent only to a visual inspection of his suitcase or that the police search of his suitcase exceeded the scope of his limited consent.” (Appellee’s Br. at 27).
14 susceptible to review in this Court absent exceptional
circumstances. See Brown v. Phillip Morris, Inc., 250 F.3d 789,
799 (3d Cir. 2001); United States v. Martinez-Hidalgo, 993 F.2d
1052, 1057–58 (3d Cir. 1993) (finding claim of unreasonable
seizure waived when defendant conceded he never filed a motion
to suppress in trial court); see also F ED. R. C RIM. P. 12(e) (“[a]
party waives any Rule 12(b)(3) defense, objection, or request not
raised” prior to trial). As noted by the Advisory Committee to
the Rules, “[i]t seems apparent that the same principle should
apply whatever the claimed basis for the application of the
exclusionary rule of evidence may be.” F ED. R. C RIM . P. 12
advisory committee’s note. Therefore, in the context of a motion
to suppress, a defendant must have advanced substantially the
same theories of suppression in the district court as he or she
seeks to rely upon in this Court. See United States v. Neumann,
887 F.2d 880, 886 (8th Cir. 1989) (finding the defendant’s claim
15 on appeal waived because argument that the warrant was
overbroad differed from his argument below — that the warrant
was deficient in probable cause). Lockett was afforded the
opportunity to raise the issue of limited consent before the
District Court; however, there he argued that the consent to
search was not voluntary. Because “[a] litigant cannot jump from
theory to theory like a bee buzzing from flower to flower,”
United States v. Torres, 162 F.3d 6, 11 (1st Cir. 1998) (finding
issue raised on appeal — whether a parent has authority to
consent to search a child’s room — waived since different from
the issue asserted in the district court — whether consent was
voluntary), Lockett’s claim that Officer Burdette exceeded the
scope of Lockett’s limited consent is waived.
Lockett also maintains that his sentence is inconsistent
with the Supreme Court’s recent decision in United States v.
16 Booker, 543 U.S. __, 125 S. Ct. 738 (2005), and he urges us to
remand his case for resentencing in the District Court. As part of
his plea agreement, however, Lockett “voluntarily and expressly
waive[d] all rights to appeal or collaterally attack [his]
convictions, sentence, or any other matter relating to this
prosecution.” (Appellant’s App. at 205.12a). The only
exceptions listed in the plea agreement permitted an appeal based
on a claim that defendant’s sentence exceeded the statutory
maximum, that the sentencing judge erroneously departed
upwards from the guidelines range, or that the district court
erroneously decided the suppression issues.
Waivers of appeal, if entered knowingly and voluntarily,
are valid, unless they work a miscarriage of justice. United
States v. Khattak, 273 F.3d 557, 563 (3d Cir. 2001). The waiver
of an appeal will not be invalidated merely because unanticipated
events occur in the future. The prospective nature of waivers has
17 “never been thought to place [waivers] off limits or to render a
defendant’s act ‘unknowing.’” Id. at 561 (citing United States v.
Teeter, 257 F.3d 14, 21 (1st Cir. 2001)).
Just as subsequent changes in the law do not undercut the
validity of an appellate waiver, they do not render the plea itself
invalid. The Supreme Court has explained that where subsequent
developments in the law expand a right that a defendant has
waived in a plea agreement, that change does not make the plea
involuntary or unknowing or otherwise undo its binding nature.
See United States v. Brady, 397 U.S. 742, 757 (1970); United
States v. Bradley, No. 03-6328, 2005 WL 549176, *4 (6th Cir.
March 10, 2005). As the Supreme Court indicated, “absent
misrepresentation or other impermissible conduct by state agents,
. . . a voluntary plea of guilty intelligently made in the light of the
then applicable law does not become vulnerable because later
judicial decisions indicate that the plea rested on a faulty
18 premise.” Brady, 397 U.S. at 757 (holding that a defendant could
not claim his plea was involuntary by relying on a Supreme Court
decision that declared unconstitutional a provision relevant to his
criminal sentence). In Brady, the Court explained that “a
defendant is not entitled to withdraw his plea merely because he
discovers long after the plea has been accepted that his calculus
misapprehended the quality of the State’s case or the likely
penalties attached to alternative courses of action.” Id; see also
United States v. Ruiz, 536 U.S. 622, 630 (2002). To be more
succinct, “a valid plea agreement, after all, requires knowledge
of existing rights, not clairvoyance.” Bradley, 2005 WL 549176,
at *4.
Lockett asks us to invalidate his sentence because he did
not know at the time he pleaded guilty that the Supreme Court
would later hold that the Sentencing Guidelines are advisory.
However, this change in the law cannot effect a change in his
19 plea. As the Sixth Circuit has recently explained:
“[p]lea bargains always entail risks for the parties — risks relating to what evidence would or would not have been admitted at trial, risks relating to how the jury would have assessed the evidence and risks relating to future developments in the law. The salient point is that a plea agreement allocates risk between the two parties as they see fit. If courts disturb the parties’ allocation of risk in an agreement, they threaten to damage the parties’ ability to ascertain their legal rights when they sit down at the bargaining table and, more problematically for criminal defendants, they threaten to reduce the likelihood that prosecutors will bargain away counts with knowledge that the agreement will be immune from challenge on appeal.”
Id. at *5; see also Young v. United States, 124 F.3d 794, 798 (7th
Cir. 1997) (“If the law allowed the defendant to get off scot free
in the event the argument later is shown to be a winner, then the
defendant could not get the reduction in the first place. Every
plea would become a conditional plea, with the (unstated)
condition that the defendant obtains the benefit of favorable legal
20 developments, while the prosecutor is stuck with the original
bargain no matter what happens later. That approach destroys the
bargain, and the prospect of such an outcome will increase the
original sentence.”); United States v. Moscahlaidis, 868 F.2d
1357 (3d Cir. 1989). The possibility of a favorable change in the
law occurring after a plea agreement is merely one of the risks
that accompanies a guilty plea. See United States v. Sahlin, 399
F.3d 27 (1st Cir. 2005). The record reflects that Lockett
knowingly and voluntarily bargained for his plea agreement. He
cannot now ask to re-bargain the waiver of his right to appeal
because of changes in the law. We hold that where a criminal
defendant has voluntarily and knowingly entered into a plea
agreement in which he or she waives the right to appeal, the
defendant is not entitled to resentencing in light of Booker.
We join four other Courts of Appeals in reaching this
conclusion. See United States v. Bradley, No. 03-6328, 2005 WL
21 549176 (6th Cir. March 10, 2005); United States v. Parsons, 396
F.3d 1015, 1017–18 (8th Cir. 2005) (“[T]here would be no merit
to an argument that [the defendant] is entitled to resentencing
under advisory Guidelines in light of Booker. He expressly
agreed as part of his plea agreement that he would be sentenced
under the Guidelines.”); United States v. Rubbo, 396 F.3d 1330,
1334 (11th Cir. 2005) (“the right to appeal a sentence based on
Apprendi/Booker grounds can be waived in a plea agreement”);
United States v. Sahlin, 399 F.3d 27, 31 (1st Cir. 2005) (“[T]he
possibility of a favorable change in the law occurring after a plea
agreement is one of the normal risks that accompanies a guilty
plea.”).
VI.
For the foregoing reasons, we will affirm the District
Court’s decision that the search of Lockett’s luggage was not
coercive and did not constitute a stop or seizure in violation of
22 his rights under the Fourth Amendment. We will dismiss the
remainder of his appeal as inconsistent with the appellate waiver
in his plea agreement.