MICHAEL LANCASTER, A/K/A MICHAEL MCGEE, PETITIONER V. UNITED STATES OF AMERICA No. 90-5327 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 District Of Columbia Circuit Brief For The United States In Opposition OPINION BELOW The judgment order of the court of appeals (Pet. App. B1) is not reported. JURISDICTION The judgment of the court of appeals was entered on April 30, 1990. The petition for a writ of certiorari was filed on July 30, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether petitioner was "seized" within the meaning of the Fourth Amendment when a police officer, without any physical contact or show of force, approached petitioner outside a Greyhound bus station, asked and received permission to speak with him, identified himself as a narcotics officer and, after petitioner had denied possessing any drugs, asked for permission to search the bag petitioner was carrying. STATEMENT In an indictment returned in the United States District Court for the District of Columbia, petitioner was charged with one count of possession of 50 grams or more of cocaine base with intent to distribute it, in violation of 21 U.S.C. 841. Following the denial of his motion to suppress, petitioner entered a conditional guilty plea. He was sentenced to ten years' imprisonment, to be followed by five years' supervised release. The court of appeals affirmed (Pet. App. B1). The facts adduced at the suppression hearing established that on November 19, 1988, at about 10:30 p.m., petitioner was standing in the rain on the sidewalk in front of the Greyhound Bus station in Washington, D.C., apparently waiting for a cab. Detective Vance Beard, a plain clothes officer assigned to the Narcotics Branch of the Metropolitan Police Department, saw petitioner and approached him. Detective Beard showed petitioner his identification folder, explained that he was a police officer, and asked to speak with him. /1/ Petitioner agreed. Beard then asked petitioner if he had just come to Washington on a bus. Petitioner explained that he had walked from the train station to the bus station to find a taxi. Beard asked to see petitioner's train ticket, and petitioner produced it. After examining the ticket, which showed petitioner had traveled from New York on the Metroliner, Detective Beard returned the ticket to petitioner. Beard then asked petitioner if he lived in Washington or New York. Petitioner replied that he had lived in Washington for about six months, and before that, he had lived in New York. Gov't C.A. Brief 2-3. Beard then asked if petitioner was familiar with Washington's drug problems, and petitioner said that he was. Beard went on to explain that he was assigned to the Narcotics Branch, and that just was his job to interview people coming into and going through Washington, in an attempt to stop the flow of drugs into the city. Beard said he interviewed people coming from South Florida, from the West Coast, and from New York City, adding that "we get a lot of our crack cocaine from New York City." I Tr. 7-8. Petitioner replied that he understood. Beard then asked if petitioner had any drugs in the bag he was carrying, and petitioner said no. Beard asked if he would mind if Beard searched the bag for drugs and petitioner said, "No, I don't mind, go ahead and search it." Ibid. Beard searched the bag and found 673 small ziplock bags, each containing a white rock-like substance. Later analysis established that the bags contained a total of 129 grams of cocaine base. Beard signalled his partner, Detective Edward Hanson, who had been standing ten to fifteen feet behind petitioner, and Hanson walked up and arrested petitioner. Gov't C.A. Brief 3-4. The district court denied petitioner's motion to suppress finding that "there was nothing of an intrusive nature that would justify the court in finding this was a seizure" (Pet. App. A2; Tr. 76). The court of appeals affirmed without an opinion (Pet. App. B1). ARGUMENT Petitioner contends (Pet. 5-8, 11-17) that his encounter with Detective Beard became an illegal detention at the point when the officer identified himself as a narcotics officer, asked petitioner if he was carrying any drugs in his bag, and after receiving a negative answer, asked to search his bag. He claims that the circuits are in conflict on the question whether this kind of police conduct transforms a consensual encounter into a seizure. In fact, while the courts have often held that specifically informing a subject that the officer suspects him of some criminal offense may be a significant factor in finding that a Fourth Amendment seizure has taken place, they also generally agree that the mere explanation of an officer's duties and his general purpose in questioning a citizen does not, without more, transform an otherwise consensual encounter into a seizure. The cases cited by petitioner are distinguishable from the decision here; in this case, the officer's questioning did not suggest that he was confronting petitioner with specific suspicions that petitioner was involved in drug trafficking. 1. A person is seized for purposes of the Fourth Amendment when an officer "has in some way restrained (his) liberty." Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968). Accord Brower v. County of Inyo, 109 S.Ct. 1378, 1380 (1989); Tennessee v. Garner, 471 U.S. 1, 7 (1985) (there is no seizure unless the officer has "restrained the freedom of a person to walk away"). In making such determinations, courts employ an objective test: a seizure occurs "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, 573 (1988), quoting United States v. Mendenhall, 446 U.S. 544, 554 (1980) (opinion of Stewart, J.). Accord Florida v. Royer, 460 U.S. 491, 502 (1983) (plurarity opinion). Applying the test to the facts of this case, the courts below correctly concluded that nothing about petitioner's encounter with Detective Beard was so objectively intimidating or coercive that he could reasonably have concluded that he was not free to leave. Petitioner was approached on a public sidewalk by one plain clothes officer with no visible weapon. The officer identified himself and politely asked permission to ask petitioner a few questions. The officer spoke in a conversational tone throughout; he gave no order or threat. Beard explained his mission as a narcotics officer and said he generally interviewed people who were coming from cities known as sources for incoming drugs. He then asked petitioner if petitioner had any drugs and asked his permission to search the bag he was carrying; petitioner readily consented. In short, Detective Beard did nothing more than question a person after being given permission to do so, and he eventually found evidence of crime purely through the cooperation of the citizen himself. Petitioner's freedom to leave was unrestrained by any coercion or show of authority. Detective Beard's explanation of his role as a narcotics officer and his request to search petitioner's bag after petitioner had already denied having any drugs were not enough to change this consensual encounter into a Fourth Amendment seizure. As petitioner points out (Pet. 9-10), the District of Columbia Circuit has held in previous cases that an officer's identification of himself as a narcotics agent and a statement of his general purpose in questioning citizens are not enough to change a contact into a seizure. United States v. Tavolacci, 895 F.2d 1423, 1425-1426 (D.C. Cir. 1990); United States v. Maragh, 894 F.2d 415, 419 (D.C. Cir. 1990), petition for cert. pending, No. 89-6935. As the court remarked in Tavolacci, these descriptions are not intimidating as long as they do not include a "specific characterization of (the person interviewed) as a suspect." 895 F.2d at 1426. 2. Petitioner argues that the court of appeals' decision in this case conflicts with decisions from a number of other circuits. Petitioner cites these cases without discussion. See Pet. 14-16. A closer examination reveals that the courts of appeals are in harmony on the controlling legal principles and the variation in results is simply the consequence of different factual patterns. For example, petitioner relies on a First Circuit decision in United States v. Manchester, 711 F.2d 458 (1983), in which the court found a seizure when several officers engaged in prolonged interrogation of an airline passenger and "confront(ed) him with their suspicions that he was engaged in drug trafficking." Id. at 460. The court concluded that the agents' extended questioning, which was based on reasonable suspicion, had created an "atmosphere of restraint." Id. at 460. The present case, which involved a single agent's brief, non-confrontational inquiries, did not create a comparable accusatory environment. Similarly, the Fifth Circuit's decision in United States v. Gonzales, 842 F.2d 748 (1988), does not conflict with the decision below. In that case, two officers approached a woman in a corner of the baggage claim area of an airport terminal, told her that they were "working narcotics," and asked to look in her gym bag. Id. at 750. The court of appeals held that the coercive circumstances of the confrontation created a seizure. The circumstances of that case, as in Manchester, created an atmosphere of restraint that is missing in the instant situation. See id. at 752. Indeed, in a case nearly identical to the present case, United States v. Smith, 649 F.2d 305, 308-309 (1981), cert. denied, 460 U.S. 1068 (1983), the Fifth Circuit found no seizure where, as here, narcotics agents approached a traveler in a public place, asked the traveler several questions, explained that they were narcotics officers, asked the traveler whether he was carrying any drugs, and when the traveler denied that he possessed any drugs, asked for and received permission to search his bags. The Sixth Circuit's decision in United States v. Saperstein, 723 F.2d 1221, 1226 (1983), follows this pattern. In that case, the agent told the defendant that the agent had specific information concerning the defendant's involvement in drug transportation, and there were other indications of a seizure -- a request to move to the DEA office, a second request for the suspect's ticket and identification, and the added presence of another officer that created a coercive environment. The Seventh Circuit's decision in United States v. Borys, 766 F.2d 304 (1985), cert. denied, 474 U.S. 1082 (1986), also fits this pattern. In that case, the court of appeals found a seizure where a police officer had explained to the defendant that the officer "suspected (the defendant) of transporting drugs, and asked permission to search (the defendant's) luggage." Id. at 311. There, unlike this case, the agent had specifically informed the defendant that the agent suspected him of narcotics trafficking. Indeed, the Seventh Circuit has since explained its holding as limited to that kind of specific accusation. See United States v. Palen, 793 F.2d 853, 857 (7th Cir. 1986). The court held in United States v. Notorianni, 729 F.2d 520, 522-523 (7th Cir. 1984), that agents have not effected a seizure where, as in the present case, they simply inform the defendant in general terms of the nature of their mission but do not specifically accuse the defendant of an offense. /2/ The Eighth Circuit cases that petitioner cites, United States v. Drinkard, 900 F.2d 140 (1990), and United States v. Nunley, 873 F.2d 182 (1989), also involve questioning that, in its context, created an accusatory environment. See Drinkard, 900 F.2d at 142-143; Nunley, 873 F.2d at 185. Indeed, the Drinkard decision cites approvingly the District of Columbia Circuit's decision in Tavolacci. See 900 F.2d at 142. Other Eighth Circuit cases confirm that that court, like the other courts of appeals, requires something more than mere questioning to establish a seizure. See United States v. $91,960, 897 F.2d 1457, 1461 (8th Cir. 1990); United States v. White, 890 F.2d 1413, 1416 (8th Cir. 1989). The Eleventh Circuit also follows that approach. See United States v. Puglisi, 723 F.2d 779, 784 (11th Cir. 1984); United States v. Waksal, 709 F.2d 653, 660 (1983); United States v. Jensen, 689 F.2d 1361, 1362 (1982). In sum, the courts are in agreement that when officers convey to a citizen their specific suspicions of his criminal conduct, thereby focusing their investigation particularly upon him, such remarks, particularly in conjunction with other coercive conduct, may indicate to the person that he is under official restraint and is therefore "seized" for Fourth Amendment purposes. The officer's conduct in this case did not manifest those elements and, accordingly, did not convert an otherwise consensual encounter into a Fourth Amendment seizure. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. JOHN G. ROBERTS, JR. Acting Solicitor General /3/ ROBERT S. MUELLER, III Acting Assistant Attorney General KATHLEEN A. FELTON Attorney OCTOBER 1990 /1/ Detective Beard was armed, but his weapon was not visible as he spoke to petitioner (I Tr. 8). /2/ In United States v. Jaramillo, 891 F.2d 620 (7th Cir. 1989), cert. denied, 110 S. Ct. 1791 (1990), as in Notorianni, agents identified themselves as narcotics officers and requested permission to search the baggage of two travelers. They found no evidence of drugs but then had occasion to observe a suspicious bulkiness under the couples' clothing, asked them about what it was, and then requested consent to perform pat-down searches. The court held that no seizure occurred through the initial encounter and search of the luggage, and that only when the pat-down search was suggested had a detention occurred. 891 F.2d at 625. This case is consistent with both Borys and Notorianni. /3/ The Solicitor General is disqualified in this case.