United States v. Reyes

697 F. Supp. 513, 1988 U.S. Dist. LEXIS 15614, 1988 WL 108520
CourtDistrict Court, District of Columbia
DecidedApril 26, 1988
DocketCrim. No. 88-0055
StatusPublished
Cited by2 cases

This text of 697 F. Supp. 513 (United States v. Reyes) is published on Counsel Stack Legal Research, covering District Court, District of Columbia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Reyes, 697 F. Supp. 513, 1988 U.S. Dist. LEXIS 15614, 1988 WL 108520 (D.D.C. 1988).

Opinion

MEMORANDUM OPINION AND ORDER

LAMBERTH, District Judge.

Defendant was arrested and subsequently indicted on a charge of drug distribution. He has moved to suppress evidence seized at the scene of the arrest, as well as statements he made subsequently while in custody of the police.

A suppression hearing was held, at which the arresting officers, Detective Donald Zattau and his partner, Sergeant John Brennan testified. They stated they were on stakeout and in plain clothes at Union Station, under the Metropolitan Police Department’s drug interdiction program, when they saw defendant Reyes disembark from a New York to Washington train. They watched him go to a pay phone and make two calls, one in which he spoke in a loud voice, easily overheard, the second in a much lower tone of voice they could not overhear. Reyes spoke in Spanish, which neither officer understood.

As Reyes left the phone, Sergeant Brennan approached Reyes and identified himself, showing him his identification folder (not his badge), which contained a paper for identification purposes that included a picture of the officer. Brennan asked if he could speak with Reyes, who indicated agreement. Given that they were standing in a heavy, rush hour stream of traffic, Brennan asked if they could step aside a few feet, and Reyes readily acceded to Brennan’s request.

Brennan then asked if Reyes understood English. Reyes said he did, if Brennan spoke slowly.1 Brennan asked if he had just gotten off the train from New York, and Reyes said he had. Brennan asked to see his ticket, which Reyes handed to him. After examination, Brennan handed it back and asked if Reyes had some identification. Reyes produced his driver’s license, which Brennan examined and returned. While [515]*515reaching for his ticket and driver’s license, Reyes held his bag between his legs rather than set it down on the floor. Brennan then said he was with the city’s drug interdiction program, and that there was a problem with drugs coming into the city; did Reyes have any problem with having his bag searched? Reyes said no, which both officers understood as indicating assent. Nonetheless, perhaps because Reyes was still clutching his bag, Brennan asked again, this time more clearly, whether he could search Reyes bag. Reyes answered “yes” and simultaneously handed it over.

During this exchange, Detective Zattau had been standing a few feet behind and to the left of Reyes. Brennan never indicated Zattau’s presence to Reyes; Zattau testified further that Reyes had not made eye contact with him up to that point and seemed to be unaware of his presence in the crowded station. Only when Brennan had already received permission and had begun to search the bag did Zattau attract Reyes’ eye, as he moved closer to Reyes in a precautionary move, while Brennan’s attention was directed to the bag now laying at Reyes’ feet.

Neither officer had displayed weapons or badges up to this point, nor had either touched Reyes. Brennan testified that his conversational tone was subdued and polite.

Brennan discovered a pound of cocaine in Reyes’ bag, as verified by a field test. Reyes was then placed under arrest, and the court must now decide whether the cocaine was lawfully confiscated.

Discussion: The Search of Reyes’ Bag

It is clear that there was insufficient cause to arrest or detain Reyes prior to discovery of the cocaine in his possession. Therefore, its admissability in evidence hinges on whether its discovery resulted from a “seizure” of Reyes, for if so, it was in violation of the Fourth Amendment.

“[A] person has been ‘seized’ within the meaning of the Fourth Amendment 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.” United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed. 2d 497 (1980) (footnote omitted).

The evidence presented by the Government, and unrebutted by Reyes, conforms closely to thé sorts of encounters found by the Supreme Court to fall short of a seizure. The encounter took place in a crowded public area. The officers were in plain clothes and did not display weápons. Sergeant Brennan did not summon Reyes to his presence, but rather approached him. He requested, but did not demand, to see his ticket and identification, and to search his bag. Mendenhall at 555, 100 S.Ct. at 1877. His tone was not intimidating, but conversational. Further, he immediately returned the ticket and license, and did not ask Reyes to accompany him to another destination prior to discovery of the cocaine. See Florida v. Royer 460 U.S. 491, 501, 103 S.Ct. 1319, 1326, 75 L.Ed.2d 229 (1983). The request to search his bag was made twice, the officers understanding Reyes to assent both times, and the search was not begun until Reyes actually handed it over to Brennan. United States v. Brady, 842 F.2d 1313, 1315 (D.C.Cir.1988) (defendant himself took crucial initiatives, first in suggesting that the ticket requested by Agents Ford and Rosel would have to be retrieved from his room on the train; and second, in actually beginning the room search himself by lifting down his coat, revealing the gym bag containing cocaine).

Defense counsel observes that it is questionable whether Reyes could really assume he was free to just walk away from the encounter, and cites United States v. Mitchell, et al., 699 F.Supp. 1 (D.D.C.1987) for the proposition that the search was therefore illegal, despite Reyes’ consent. But in Mitchell, the officer displayed his badge, id. at 2, and “accosted” the defendant, while two other officers escorted his companion to a marked police car as Mitchell looked on. Id. at 2. Under the circumstances, Judge Gesell held that the officer should have warned Mitchell of his right not to answer inquiries. Id. at 3.

[516]*516Mitchell is readily distinguished: it involved a detention by police, id. at 2, and therefore falls outside the scope of Men-denhall. Where, as here, an encounter between police and a citizen does not constitute a seizure, the officer’s failure to advise the citizen of his right to walk away or refuse to respond does not reduce its consensual nature. United States v. Brady, Crim. No. 87-0107 at 4 (D.D.C.June 4, 1987, J. Gesell), aff'd. 842 F.2d 1313, 1315 n. 5 (D.C.Cir.1988).

Nonetheless, the Court agrees that application of the Mendenhall “reasonable person” test to these facts does seem to require more than merely going down a checklist of indicia presented by the Government. It should be obvious that Reyes would not want to hand contraband over to police (this may well have been manifested by the obvious protectiveness with which he regarded it), and that he did so only in response to Brennan’s request. As one court has noted regarding any encounter initiated by a law enforcement official: “[A]ny agent worthy of the calling expects cooperation and knows how to get it.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

People of Michigan v. Matthew Scott Duff
Michigan Supreme Court, 2024
Kelly v. United States
580 A.2d 1282 (District of Columbia Court of Appeals, 1990)

Cite This Page — Counsel Stack

Bluebook (online)
697 F. Supp. 513, 1988 U.S. Dist. LEXIS 15614, 1988 WL 108520, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-reyes-dcd-1988.