DAVID GARFIELD STEWART, PETITIONER V. UNITED STATES OF AMERICA No. 90-7696 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 In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. 1-4) is unpublished, but the decision is noted at 923 F.2d 850 (Table). JURISDICTION The judgment of the court of appeals was entered on January 17, 1991. The petition for a writ of certiorari was filed on April 15, 1991. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether a DEA agent's initial encounter with petitioner, which led to his arrest, violated the Fourth Amendment. STATEMENT Following the entry of a conditional plea of guilty in the United States District Court for the Eastern District of Virginia, petitioner was convicted of possession of over 50 grams of cocaine base with intent to distribute it, in violation of 21 U.S.C. 841(b)(1)(A)(ii). He was sentenced to 120 months' imprisonment. The court of appeals affirmed. Pet. App. 1-4. 1. On January 9, 1990, DEA Agent Henry Allen, accompanied by two other agents, observed petitioner arrive at Washington National Airport on a flight from New York City, a source for narcotics entering the Washington, D.C. area. Petitioner "appeared as though he was in a trance" and "focused straight ahead." Tr. 7. /1/ As petitioner walked through the airport, he looked at Agent Allen and then "quickly turned away in what (the agent) perceived to be a nervous reaction." Tr. 8. Petitioner, who was carrying no luggage, by-passed the baggage claim area. As petitioner left the terminal and approached the cab line, he looked back at the three agents and "jerked his head back around rather nervously." Tr. 8. See Pet. App. 2-3; Tr. 7-10. As Agent Allen started to approach him, petitioner entered the line for taxicabs, passed the passengers waiting in line, and entered a cab. Agent Allen, who was dressed in plain clothes, approached the cab from the side and displayed his credentials to the driver; the cab, which had moved approximately one foot, stopped. Allen identified himself to petitioner, again displaying his credentials, and asked if he could speak to petitioner. Petitioner agreed to speak with the agent and got out of the cab. Pet. App. 3; Tr. 10-13, 15, 22, 26-27. Upon questioning, petitioner admitted having arrived on the New York flight, but denied having a copy of his ticket or any identification. Petitioner gave a false name and stated that he was visiting a relative in Maryland for four or five days. When asked why he had no luggage, petitioner replied that he had clothes at his relative's house. Agent Allen explained his purpose in stopping petitioner, and inquired whether petitioner was carrying any narcotics. Petitioner replied that he was not, and gave permission for Allen to search him. Allen searched petitioner and found an airline ticket under a different false name and a plastic bag containing cocaine. Allen then arrested petitioner. He conducted a more thorough search of petitioner's jacket and found large wafers containing crack cocaine. Pet. App. 3; Tr. 14-19. 2. The district court denied petitioner's suppression motion. The court concluded that the initial encounter between petitioner and Agent Allen did not constitute a seizure, and that in any event the agents had reasonable suspicion justifying an investigatory stop. Tr. 50. The court of appeals affirmed, concluding that the initial encounter "did not constitute a seizure * * * and implicated no fourth amendment rights." Pet. App. 3. ARGUMENT Petitioner concedes (Pet. 4) that "(a) fair reading of the record indicates that the search itself was voluntary." Petitioner contends, however (Pet. 4-6), that Agent Allen's conduct in stopping the cab in which petitioner was a passenger constituted an arrest without probable cause. This fact-bound question was correctly decided by both courts below. No further review is warranted. 1. In Michigan v. Chesternut, 486 U.S. 567 (1988), the Court reiterated its "clear direction that any assessment as to whether police conduct amounts to a seizure implicating the Fourth Amendment must take into account '"all the circumstances surrounding the incident"' in each individual case." Id. at 572 (quoting INS v. Delgado, 466 U.S. 210, 215 (1984), quoting in turn United States v. Mendenhall, 446 U.S. 544, 554 (1980) (opinion of Stewart, J.)). The Court made clear that police conduct rises to the level of a Fourth Amendment seizure "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." Chesternut, 486 U.S. at 572 (quoting Mendenhall, 446 U.S. at 554 (opinion of Stewart, J.)). Accord Florida v. Rodriguez, 469 U.S. 1, 6 (1984); Delgado, 466 U.S. at 215; Florida v. Royer, 460 U.S. 491, 502 (1983). In this case, both courts below correctly concluded that the initial encounter between DEA Agent Allen and petitioner was not a seizure under the Fourth Amendment. Agent Allen approached the cab that petitioner had just entered, displayed his credentials, and asked if petitioner would mind talking for a moment. Petitioner agreed to talk to him, got out of the cab, and voluntarily answered questions concerning his travel plans. Thereafter, petitioner gave Allen permission to search his person for narcotics. These events took place in a public area. Agent Allen was in plain clothes, and no weapons were displayed. Absent any behavior inconsistent with the understanding that petitioner was at liberty to decline to speak with the agent, or to leave at any time, the courts below properly concluded that no seizure had occurred up to this point. /2/ This Court's decision in Delaware v. Prouse, 440 U.S. 648 (1979), does not require a different result. To be sure, the Court in Prouse observed that "stopping an automobile and detaining its occupants constitute a 'seizure' within the meaning of (the Fourth Amendment), even though the purpose of the stop is limited and the resulting detention quite brief." Id. at 653. In context, however, it is clear that the Court was referring to a typical traffic stop on a public highway, which generally involves multiple displays of police authority through an official vehicle, uniformed officers, flashing lights, and a siren. Prouse did not purport to establish a per se rule that any measure used to induce a motor vehicle to stop, under any circumstances, constitutes a seizure. The circumstances of this case are quite different from those of a typical traffic stop. The cab had moved only about a foot at the time Agent Allen displayed his credentials and asked to speak with petitioner. There was no official vehicle, siren, or flashing lights. There was no touching or physical restraint, no show of a weapon, and no command or threat. Because the circumstances were more like an encounter between the police and a pedestrian than a typical traffic stop, the court of appeals correctly concluded that Agent Allen's conduct did not amount to a Fourth Amendment seizure. Accord United States v. Adegbite, 846 F.2d 834, 838 (2d Cir. 1988), cert. denied, 110 S.Ct. 370 (1989) (police officers' waving down an ice cream truck driven by the defendants after the truck had proceeded 15-20 yards in the parking lot did not constitute a seizure). 2. In any event, even assuming for the sake of argument that the initial encounter between Agent Allen and petitioner constituted a seizure, it was justified by Allen's reasonable suspicion that petitioner might be involved in criminal activity. /3/ Petitioner arrived on a flight from a source city for narcotics. He walked through the airport in a "trance-like" manner, attempted to avoid eye contact with the agents, and nervously jerked away when eye contact was made. He carried no luggage, and bypassed the baggage claim area in leaving the terminal. Finally, when he caught sight of Agent Allen outside the terminal, he quickly entered a cab. These facts supplied Agent Allen with a reasonable basis for conducting an investigative stop. Petitioner's subsequent consent to the search of his person and the discovery of drugs provided probable cause for his arrest. /4/ CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General DEBORAH WATSON Attorney JUNE 1991 /1/ "Tr." refers to the transcript of the March 9, 1990, suppression hearing before the district court. /2/ Petitioner asserts (Pet. 4) that petitioner was "under arrest" at the moment Agent Allen displayed his credentials and waved down the cab. The facts do not support that assertion. Agent Allen did not tell petitioner that he was under arrest. He displayed no weapons or handcuffs and used no force against petitioner. Petitioner agreed to speak with Allen, readily answered Allen's questions, and voluntarily consented to a search of his person. /3/ Petitioner concedes (Pet. 5) that "(g)iven the agents' experience and the very nature of the Mass Transit interdiction effort, the facts known to this agent may have constituted articulable suspicion sufficient for an investigative stop." Petitioner asserts, without argument (ibid.), that "(o)nce the agent has stopped the taxicab and the (petitioner) has exited the taxicab, there is no question of this being an investigative stop." As noted above, however, the facts of this case are quite similar to an investigative stop of a pedestrian. There is simply no rule that any stop of a vehicle -- even a taxi that has moved only a foot in an airport taxi lane -- requires probable cause. /4/ There is no reason to hold this case for Florida v. Bostick, No. 89-1717 (argued Feb. 26, 1991). The facts of this case differ from those of Bostick. And in this case, unlike Bostick, the agents' action was justified by reasonable suspicion.