ERVIN HERMAN FLOWERS, PETITIONER V. UNITED STATES OF AMERICA

   No. 90-6337

   In The Supreme Court Of The United States

   October Term, 1990

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Fourth Circuit

   Brief For The United States

                            OPINIONS BELOW

   The opinion of the court of appeals (Pet. App. 1a-6a) is reported
at 912 F.2d 707.  The opinion of the district court denying
petitioner's motion to suppress (Pet. App. 7a-9a) is reported at 724
F.Supp. 1206.

                             JURISDICTION

   The judgment of the court of appeals was entered on August 28,
1990.  The petition for a writ of certiorari was filed on November 26,
1990.  The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).

                          QUESTION PRESENTED

   Whether petitioner was seized in violation of the Fourth Amendment
when police officers boarded an interstate bus during a scheduled stop
and questioned him and other passengers, without particularized
suspicion but also without any coercion or show of force.

                               STATEMENT

   Upon his conditional guilty plea, entered in the United States
District Court for the Western District of North Carolina, petitioner
was convicted on one count of possession of cocaine with intent to
distribute it, in violation of 21 U.S.C. 841(a)(1), and on one count
of carrying a firearm during the commission of a drug trafficking
offense, in violation of 18 U.S.C. 924(c).  He was sentenced to
consecutive terms of imprisonment of 80 months on the drug possession
count and 60 months on the firearm count, to be followed by four
years' supervised release.  The court of appeals affirmed.  Pet. App.
1a-6a.

   1. The evidence adduced at the suppression hearing established that
on July 26, 1989, Officers Gerald Sennett and David Gehrke of the
Charlotte, North Carolina, Police Department were on duty at the
Charlotte bus station, conducting routine surveillance of buses that
were arriving from places known to be source cities for narcotics.
The officers had obtained permission from the management of the
Greyhound bus company to check the buses.  Pet. App. 2a.

   At about 10:50 a.m., the two officers boarded Greyhound Bus 1091,
which had stopped in Charlotte en route from Detroit, Michigan, to
Jacksonville, Florida.  Officer Sennett knew that Detroit was a source
city for narcotics.  The officers were dressed in casual civilian
clothes;  only the insignia on their jackets identified them as police
officers.  They were armed, but their weapons were no in view.  Pet.
App. 2a.

   The two officers went to the rear of the bus and began interviewing
the passengers one by one.  Officer Sennett would stand in the aisle
behind the passenger, identify himself as a police officer, and ask to
speak briefly with th passenger.  Sennett asked the passengers their
names and destinations, and asked them to identify their luggage.
Officer Gehrke remained in the aisle behind Sennett.  The questioning
of each passenger took approximately 15 to 20 second.  Pet. App.
2a-3a.

   Petitioner was seated on the bus about one-third of the way forward
from the back.  When the officers reached him, they followed the same
procedure as they had with every other passenger:  Officer Sennett
stood behind petitioner in the aisle, identified himself, and asked if
he might speak with petitioner for a minute.  Petitioner answered,
"Sure." In response to the officer's questions, he said that he was
traveling from Detroit to Brunswick, Georgia, and that all of his
luggage was stored in the baggage compartment beneath the bus.  When
asked if the bag stowed in the bin directly above his seat was his,
petitioner said that it was not.  Pet. App. 3a.

   When the officers reached the front of the bus and had completed
their questioning, they found that the only piece of luggage not
identified was the bag in the overhead bin above petitioner's seat.
Officer Sennett held up the bag and asked all the passengers if it
belonged to anyone.  When no one claimed it, he took it off the bus
and opened it.  Inside the bag Sennett found a loaded .38 caliber
pistol, a quantity of crack cocaine with a street value of about
$25,000, and a wallet that contained identification in the name of
"Ervin Herman Flowers." Pet. App. 3a.

   The officers reboarded the bus and began asking each of the
passengers for identification.  Petitioner responded that he had no
identification, and he volunteered that the bag the officers had
removed belonged to a person named "Ervin," who had disembarked at a
previous stop.  Officer Sennett noticed that petitioner's hands were
shaking and he seemed to be perspiring.  Petitioner then agreed to get
off the bus and speak further with the officers.  After further
questioning, he admitted that the bag and the loaded gun were his, but
he denied owning the drugs.  He was then placed under arrest.  Pet.
App. 3a.

   2. Petitioner originally entered pleas of not guilty to both counts
of the indictment.  He filed a motion to suppress, claiming that he
had been illegally seized when the officers initially entered the bus
and questioned him.  The district court denied the motion, finding
that petitiner was not restrained from leaving the bus and that the
officers used no coercion or intimidation to force him to answer their
questions.  The court further held that petitioner abandoned his bag
when he failed to identify it as his.  Pet. App. 7a-9a.

   Petitioner then entered a conditional guilty plea and appealed the
district court's ruling on the suppression motion.  The court of
appeals agreed with the district court that the interview between the
police and petitioner had been entirely consensual.  Pet. App. 5a.  It
also rejected petitioner's argument that the settingof the encounter,
the close confines of a bus, automatically transformed it into a
seizure.  Citing INS v. Delgado, 466 U.S. 210, 218 (1984), the court
stated that any constraint because of the setting was due to
petitioner's voluntary presence there and not to any actions of the
officers.  Pet. App. 5a.  "In this context," the court observed,
"freedom to leave means fundamentally the freedom to break off
contact, in which case offices must, in the absence of objective
justification, leave a passenger alone." Id. at 6a.  Finding no
evidence that petitioner's freedom to refuse to speak with the
officers was in any way impaired, the court found no Fourth Amendment
seizure.

                               ARGUMENT

   As petitioner recognizes (Pet. 10-11), the question presented in
this case is the same as that presented in Florida v. Bostick, cert.
granted, No. 89-1717 (Oct. 9, 1990), and the underlying facts are also
very similar to those of Bostick.  Just as in Bostick, the officers in
this case boarded a bus during a scheduled stop, dressed in civilian
clothes and with their weapons concealed, identified themselves to
individual passengers, and asked their permission to pose a few
questions.  In neither case did the officers have any particularized
suspicion regarding any of the passengers they interviewed.  As in
Bostick, none of the factors usually associated with a Fourth
Amendment seizure were present:  there was no physical restraint, no
display of weapons, and no use of threatening or intimidating language
or demeanor.  The question in each case is whether the actions of the
officers nevertheless amounted to a seizure within the meaning of the
Fourth Amendment.  Accordingly, the petition in this case should be
held for this Court's decision in Bostick.

                              CONCLUSION

   The petition for a writ of certiorari should be held and disposed
of as appropriate in light of the disposition of Florida v. Bostick,
cert. granted, No. 89-1717 (Oct. 9, 1990).

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   ROBERT S. MUELLER, III

      Assistant Attorney General

   KATHLEEN A. FELTON

      Attorney

   JANUARY 1991