United States v. Mark A. Maragh

894 F.2d 415, 282 U.S. App. D.C. 256, 1990 U.S. App. LEXIS 252, 1990 WL 957

• Court: Court of Appeals for the D.C. Circuit
• Decided: January 9, 1990
• Docket: 88-3163
• Status: Published

Opinions

Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS.

Dissenting opinion filed by Circuit Judge MIKVA.

HARRY T. EDWARDS, Circuit Judge:

This case presents the question whether police officers violated the Fourth Amendment in “seizing” the appellee, Mark A. Maragh, without reasonable suspicion. A squad of drug interdiction police officers was on duty in Union Station, Washington, D.C., at mid-afternoon. The officers noticed Maragh, who had just disembarked from a train from New York City. After watching Maragh talk to two friends, who left Maragh briefly and then returned to him after making a telephone call, the officers decided to try to interview him. Two officers approached Maragh in such a way as not to block Maragh’s exit, exercised no force, displayed no weapons, and were in plainclothes; in addition, there is nothing in the record to indicate that the officer who actually spoke to Maragh was anything less than courteous and polite. One of the officers identified himself as a police officer and asked Maragh whether he would answer some questions. Maragh agreed. The appellee also agreed to allow the officer to search his shoulder bag. The search revealed drugs, whereupon another officer arrested Maragh. The entire process of interview, search and arrest lasted approximately five minutes.

The District Court granted Maragh’s motion to suppress evidence discovered pursuant to the consensual search. The trial court relied in part on two cases from other circuits in concluding that the act of approaching a citizen and identifying oneself as a narcotics officer itself effects a “seizure” for Fourth Amendment purposes; that the police did not have reasonable suspicion to seize Maragh; and that therefore the stop violated the Fourth Amendment. See United States v. Maragh, 695 F.Supp. 1223 (D.D.C.1988). The District Court also concluded that “the same threatening environment that converted the conversations into a ‘stop’ vitiates any claim that a reasonable person in the circumstances of defendant would feel free to refuse the request to search his bag or feel free to leave.” Id. at 1225.

We do not doubt, and the Government does not deny, that the officers in this case lacked the requisite reasonable suspicion to justify even a “Terry stop” of Maragh. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). However, several decisions from this court, rendered after the District Court’s judgment, make it clear that, under the circumstances presented in this case, the police did not “stop” or “seize” Maragh. We also find that, in concluding that Maragh behaved involuntarily in allowing the officers to search his bag, the District Court relied on incorrect legal premises. We therefore reverse and remand for further proceedings consistent with this opinion.

I. BACKGROUND

At approximately 4:00 p.m. three members of a District of Columbia Metropolitan Police Department detective squad observed Maragh disembark from a tram from New York City accompanied by two others. Maragh’s two companions went to make a phone call and then returned to Maragh who, after making eye contact with one of the officers, Detective Beard, started walking toward the exit.

At this point Detective Beard decided to interview Maragh. According to Beard’s testimony, which the District Court apparently credited, Beard approached Maragh from his left rear, “stopped at an oblique angle to [Maragh] (so that [Maragh] could continue walking if he chose to do so),” displayed an identification folder, told Mar-agh that he was a police officer, and asked Maragh if he could speak to him. See Maragh, 695 F.Supp. at 1224. Meanwhile another officer, Detective Hanson, “positioned himself as a back-up,” while a third, Detective Cassidy “left the immediate area to position himself at the exit,” and was presumably not visible to Maragh. See id.

Upon Beard’s request, Maragh agreed to talk to him. Beard asked whence Maragh had travelled, and received the answer “New York.” He asked to see Maragh’s ticket, which Maragh produced. He also ascertained that Maragh had lived in Washington for four months and had just been in New York for about four days. Beard then explained that he was a narcotics officer (he had earlier identified himself only as an officer) seeking to intercept drugs coming into Washington. Beard asked whether Maragh had drugs in his shoulder bag; Maragh said that he did not. Beard asked whether he might look into Maragh’s bag, and Maragh agreed. The search revealed drugs, and, at Beard’s signal, Detective Hafison approached and arrested Mar-agh.¹

Maragh moved to suppress the evidence that Beard discovered in Maragh’s bag. After a hearing on the motion, the District Court filed an opinion that began by focusing on the question “[w]hether an officer’s commencement of a conversation with a person in a public place by identifying himself or herself as a narcotics officer constitutes a ‘stop’ implicating the Fourth Amendment.” Maragh, 695 F.Supp. at 1224. The court asserted that this question had “not apparently been addressed by our Court of Appeals” (as of September 26, 1988, the date the District Court filed its opinion). See id. Relying on cases from the Fifth and Seventh Circuits, the court concluded that:

Beard’s questioning of defendant turned into an investigative stop when the Detective identified himself as member of the Narcotics Branch whose purpose it was to stop drugs from coming into Washington, stood obliquely in front of him, with Detective Hanson behind him and Detective Cassidy “downfield”, and asked to search defendant’s bag. While there is no testimony as to whether defendant knew of the back up and blocking positions of the other officers, a reasonable person of defendant’s years could have sensed the maneuvers and the presences, as well as the in terrorem effect of Detective Beard’s identification of himself as a narcotics officer after defendant had denied possession of drugs.

Maragh, 695 F.Supp. at 1225; see also id. at 1224-25 (quoting United States v. Gonzales, 842 F.2d 748, 752 (5th Cir.1988) and United States v. Palen, 793 F.2d 853, 857 (7th Cir.1986)).

After concluding that the officers had stopped Maragh without the constitutionally required reasonable suspicion, the District Court considered “whether, even though the stop was unlawful, the subsequent search was voluntary because defendant was free to refuse to agree to permit the search of his bag, and was indeed free to leave.” Maragh, 695 F.Supp. at 1225 (citation omitted). The judge’s answer was that “the same threatening environment that converted the conversations into a ‘stop’ vitiates any claim that a reasonable person in the circumstances of defendant would feel free to refuse the request to search his bag or feel free to leave.” Id. Based on these two conclusions — that the officers stopped Maragh unlawfully and that his “consent” to the search was not voluntary — the District Court granted Mar-agh’s motion to suppress. The Government’s appeal followed.

II. Analysis

A. The Standard of Review on the “Seizure” Question

We examine the District Court’s judgment that the police seized Maragh under a de novo standard of review, as firmly entrenched doctrine in this court and the Supreme Court requires. See, e.g., United States v. Mendenhall, 446 U.S. 544, 554-55, 100 S.Ct. 1870, 1877-78, 64 L.Ed.2d 497 (1980) (Opinion of Stewart, J.) (describing circumstances in absence of which “otherwise inoffensive contact between a member of the public and the police cannot, as a matter of law, amount to a seizure of that person ” (emphasis added)).

Contrary to the suggestion of our dissenting colleague, we can find no Supreme Court ease that has ever held that the “seizure” inquiry is other than a question of law. Furthermore, the Court has never deferred to the trier of fact regarding the question of seizure. In Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983), by way of one plurality opinion, two concurrences, and two dissents, eight members of the Court adopted Mendenhall’s legal test for “seizure.” Justice White’s plurality opinion applied the test without relying on or deferring to the district court regarding the question of seizure. See id. at 501-02, 103 S.Ct. at 1326-27. Similarly, in Michigan v. Chesternut, 486 U.S. 567, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988), the Court iterated its support for Menden-hall 's objective legal test for seizure. See id. 108 S.Ct. at 1979 (discussing evolution of seizure test from Terry to Mendenhall, and noting that “[t]he Court has since embraced [Mendenhall’s] test”). As in Roy-er, the Chesternut Court applied the test without any deference to the district court on the question of seizure. See id. 108 S.Ct. at 1980 (“Applying the Court’s test to the facts of this case, we conclude that respondent was not seized....” (emphasis added)).

Additionally, the soundest of jurisprudential considerations compel appellate courts not to shirk their responsibility independently to apply important constitutional standards. In the Fourth Amendment context, as in the First Amendment setting, appellate judges have “a constitutional responsibility that cannot be delegated to the trier of fact.” See Bose Corp. v. Consumers Union, Inc., 466 U.S. 485, 501, 104 S.Ct. 1949, 1959, 80 L.Ed.2d 502 (1984). It does not matter that Mendenhall requires the courts to consider whether a reasonable person would have felt free to leave “in view of all the circumstances surrounding the incident.” Mendenhall, 446 U.S. at 554, 100 S.Ct. at 1877. Although Menden-hall’s seizure test “is necessarily imprecise” and “flexible enough to be applied to the whole range of police conduct in an equally broad range of settings, it calls for consistent application from one police encounter to the next, regardless of the particular individual’s response to the actions of the police.” See Chesternut, 108 S.Ct. at 1979-80 (emphasis added). De novo review helps to ensure “consistent application.”

B. The “Seizure” Issue

In Mendenhall, the Supreme Court established a test to determine whether a person has been “seized” for purposes of the Fourth Amendment. “[T]he police can be said to have seized an individual ‘only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.’ ” Michigan v. Chesternut, 486 U.S. 567, 108 S.Ct. 1975, 1979, 100 L.Ed.2d 565 (1988) (quoting Mendenhall, 446 U.S. at 554, 100 S.Ct. at 1877 (Opinion of Stewart, J.)). This court has firmly embraced that test. See, e.g., United States v. Savage, 889 F.2d 1113, 1116 (D.C.Cir.1989); United States v. Baskin, 886 F.2d 383, 386 (D.C.Cir.1989); United States v. Carrasquillo, 877 F.2d 73, 76 (D.C.Cir.1989); United States v. Lloyd, 868 F.2d 447, 450 (D.C.Cir.1989). Moreover, police officers “do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some question [or] by putting questions to him if he is willing to listen.” Royer, 460 U.S. at 497, 103 S.Ct. at 1324 (plurality); see Carrasquillo, 877 F.2d at 76; Lloyd, 868 F.2d at 451. “Nor would the fact that the officer identifies himself as a police officer, without more, convert the encounter into a seizure requiring some kind of objective justification.” Royer, 460 U.S. at 497, 103 S.Ct. at 1324 (plurality).

In determining whether police have seized a citizen, this court has consistently looked to such factors as whether the officers displayed weapons, were physically intimidating or threatening, or approached the citizen at an unusual place or time. See, e.g., Baskin, 886 F.2d at 386-87; Lloyd, 868 F.2d at 450; United States v. Brady, 842 F.2d 1313, 1314 (D.C.Cir.1988). According to the District Court’s findings, in this case Maragh was aware of one plainclothes police officer, who approached him in mid-afternoon, in a public place, displayed no weapons, and did not block his path.

This case is on all fours with relevant parts of Baskin, a case decided too late for the District Court below to have benefitted from its binding guidance. In Baskin, two police officers approached a passenger who had disembarked from a train, identified themselves as officers, asked whether they could talk to the passenger, to which he replied “sure.” After asking a few questions about the passenger’s ticket and identification, the officers told the passenger that they were members of a narcotics squad, and asked whether a dog they had with them could sniff the passenger’s bag. The passenger agreed to both a dog sniff and a hand search by the officers, each of which revealed drugs, for which the police arrested the passenger. Citing the Chest-ernut and Mendenhall test for seizure noted above, this court concluded that the police did not seize Baskin, as a matter of law, until they arrested him. See Baskin, 886 F.2d at 386-87.

In light of cases such as Baskin, we must conclude that the District Court’s judgment — that there was a stop in the totality of this case’s circumstances — was wrong as a matter of law. The crux of that judgment has two identifiable components. One was the District Court’s assertion that “a reasonable person of defendant’s years could have sensed the maneuvers and the presences” of detectives Hanson (who was several feet behind Maragh, see Tr. 42, 46), and Cassidy (who was at the exit). See Maragh, 695 F.Supp. at 1225. Another was the court’s conclusion that “Detective Beard’s identification of himself as a narcotics officer after defendant had denied possession of drugs” had an “in terrorem” effect on Maragh. See id.

The first of these factors is clearly not among this circuit’s criteria for seizure. As noted above, in Baskin this court found no Fourth Amendment infirmity even where two officers approached the defendant, identified themselves as officers, received permission to talk to the defendant, asked to examine his ticket, did so, and then told the defendant that they were narcotics officers and asked to search the defendant’s bag. See Baskin, 886 F.2d at 386-87. If two officers could directly approach the defendant in Baskin, it is hard to see how we could reach a different result here, where only one officer approached Maragh, even while he may have “sensed the maneuvers and presences” of other officers standing several feet away.

Baskin is similarly dispositive of the second factor central to the District Court’s conclusion.² Baskin and other eases have rejected the proposition that a consensual encounter becomes an investigative stop at the moment an officer identifies herself as a narcotics officer. See Baskin, 886 F.2d at 386-87; Lloyd, 868 F.2d at 449, 451 (police-citizen encounter was not seizure even though officer identified himself as member of drug interdiction unit); Mendenhall, 446 U.S. at 547-48, 555, 100 S.Ct. at 1873, 1877 (Opinion of Stewart, J.) (respondent should have felt free to break off exchange with officers even though they had identified themselves as “federal narcotics agent[s]”). The District Court relied on cases from other circuits which came to a contrary conclusion. See Maragh, 695 F.Supp. at 1224-25. While that analysis of Fourth Amendment seizure may have much to be said for it, it is inconsistent with the law of this circuit.

C. The “Consent” Issue

The District Court also concluded that, in allowing the officers to search his bag, Maragh behaved involuntarily. The District Court reached this conclusion on the basis of a mistaken legal determination that the officers improperly stopped Mar-agh. See Maragh, 695 F.Supp. at 1225. Because the District Court’s mistake of law infected its factual finding regarding consent, we are constrained to reverse and remand for further findings on that factual question. See Pullman-Standard v. Swint, 456 U.S. 273, 292, 102 S.Ct. 1781, 1792, 72 L.Ed.2d 66 (1982) (stating “elementary” proposition that “where findings are infirm because of an erroneous view of the law, a remand is the proper course unless the record permits only one resolution of the factual issue”).

The District Court’s analysis of the consent issue appears to be mistaken in two respects. First, the court apparently proceeded under the view that consent could cure an unlawful seizure. See Maragh, 695 F.Supp. at 1225. This is an erroneous statement of law. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Second, in addition to giving decisive weight to the mistaken conclusion that the officers unlawfully seized Maragh, the District Court also apparently treated the tests for seizure and voluntary consent as identical. Although there is overlap in these tests, they are not identical. See Schneckloth v. Bustamonte, 412 U.S. 218, 248-49, 93 S.Ct. 2041, 2058-59, 36 L.Ed.2d 854 (1973) (“Voluntariness is a question of fact to be determined from all the circumstances_”). Indeed, it is because we cannot say, on this record, that a finding of involuntary consent was clearly erroneous — even though we have already concluded that a reasonable person in Mar-agh’s position would have felt free to leave — that we are constrained to remand rather than simply reverse.

In assessing voluntariness, the District Court must consider factors such as those articulated by the Supreme Court in Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973), and United States v. Mendenhall, 446 U.S. 544, 558, 100 S.Ct. 1870, 1879, 64 L.Ed.2d 497 (1980).

III. Conclusion

The District Court granted Maragh’s motion to suppress because the court concluded that the police seized Maragh without adequate justification. Because we hold that the police did not seize Maragh, and because the District Court’s findings on consent are infirm due to erroneous views of law, we reverse the suppression order and remand for further proceedings consistent with this opinion.

1 . Only Maragh and Beard testified at the hearing. Maragh's version of the events made them out to be substantially more coercive than did Beard’s; for example, he testified that while Beard interviewed him, another officer held him from behind. See Tr. 28. Although not addressing it explicitly, the District Court apparently did not credit this testimony.

2 . We note that the District Court’s description of this seizure factor is inconsistent with its own factfinding elsewhere in the same opinion. At one point the court found that Beard first identified himself as a police officer, then had a brief discussion with Maragh about his travel and residence, then identified himself as a narcotics officer and asked whether Maragh was carrying drugs, which Maragh denied. See Maragh, 695 F.Supp. at 1224. However, in the crucial part of the opinion concluding that the encounter was a seizure, the court asserts that the encounter had an “in terrorem" effect on Maragh because Beard identified himself as a narcotics officer “after defendant had denied possession of drugs.” Id. at 1225. The record supports only the first of these descriptions, see Tr. 10-12 (testimony of Detective Beard), and thus one of the court’s own key predicates to concluding that seizure took place appears to be missing on these facts.