MARK A. MARAGH, PETITIONER V. UNITED STATES OF AMERICA No. 89-6935 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 Supplemental Brief For The United States In Opposition OPINIONS BELOW The opinion of the court of appeals (Pet. App. 1-21) is reported at 894 F.2d 415. /1/ The opinion of the district court (Pet. App. 22-25) is reported at 695 F. Supp. 1223. JURISDICTION The judgment of the court of appeals was entered on January 9, 1990. The petition for a writ of certiorari was filed on March 14, 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 at Union Station, identified himself as a narcotics officer investigating the influx of drugs into the city, requested permission to speak to petitioner, and, after petitioner agreed to speak to the officer and denied that he was carrying any drugs, asked petitioner if he would consent to a search of his shoulder bag. STATEMENT An indictment returned in the United States District Court for the District of Columbia charged petitioner with possession of crack cocaine with intent to distribute it, in violation of 21 U.S.C. 841(a). Prior to trial, the district court granted petitioner's motion to suppress the cocaine seized from his shoulder bag, as well as certain statements petitioner made following the seizure. Pet. App. 22-25. The court of appeals reversed and remanded for further proceedings. Id. at 1-21. 1. The evidence at the suppression hearing showed that on the afternoon of August 2, 1988, Vance Beard, a detective assigned to the narcotics branch of the Metropolitan Police Department, was conducting surveillance at Union Station. At approximately 3:50 p.m., while watching passengers who had just arrived by train from New York City, Detective Beard saw petitioner and two companions enter the center concourse. Petitioner stood near the ticket windows, while his companions made a telephone call. Five minutes later, when the call was completed, petitioner rejoined his friends. He then looked around the concourse and made eye contact with Detective Beard. Pet. App. 3; Gov't C.A. Br. 2-3. As the three men began to leave the station, Detective Beard decided to try to talk to petitioner. He approached petitioner from petitioner's rear left side, positioning himself in such a way that petitioner could keep walking if he wanted to. Suppression Hrg. Tr. 42. A second officer (Hanson) stayed 12 feet behind petitioner, while a third officer (Cassidy) positioned himself near the exit. Pet. App. 3; Gov't C.A. Br. 3. Detective Beard showed petitioner his identification folder, told petitioner that he was a policeman, and asked whether he could talk to him. Petitioner agreed, and both he and Detective Beard stopped walking. The detective asked petitioner if he was coming from a train, and petitioner informed the detective that he had been on the train from New York. At Beard's request, petitioner handed his ticket to the detective. Beard examined it briefly and returned it to petitioner. Detective Beard then asked petitioner where he lived and how long he had been in New York; petitioner stated that he lived at 2000 Shipley Terrace in Southeast Washington, and that he had been in New York since the previous Friday. Pet. App. 3-4; Gov't C.A. Br. 3-4. Detective Beard then explained to petitioner that he was from the narcotics branch, and that his "job was to intercept drugs coming into Washington, D.C., in an attempt to seize them before they had a chance to reach the streets and get young people hooked on drugs in Washington." Suppression Hrg. Tr. 12. Beard asked petitioner if he was carrying drugs in his shoulder bag. Petitioner replied that he was not. The detective then asked if he could search the bag. Petitioner agreed, removed the bag from his shoulder, placed it on the floor, and unzipped it. Detective Beard reached into the bag and felt a hard, rock-like substance in the pocket of what appeared to be a bathing suit. He removed two baggies containing 44.8 grams of crack cocaine from the pocket. After finding the cocaine, Beard signalled Officer Hanson, who moved in and arrested petitioner. Pet. App. 4; Gov't C.A. Br. 4. When the drugs were discovered, petitioner spontaneously stated, "That's not mine. I don't know how it got there." Suppression Hrg. Tr. 13. Approximately five or six minutes elapsed between Beard's initial approach and petitioner's arrest. Gov't C.A. Br. 4. /2/ Testifying in his own behalf, petitioner denied that Beard had asked permission to speak with him. Petitioner also claimed that Beard had placed his hand on the shoulder bag while petitioner was still holding it. In addition, petitioner testified that a second officer had held him from behind during the interview with Beard. Petitioner agreed, however, that he had placed his bag on the floor and unzipped it before Beard searched it. Petitioner also stated that he was aware of only two officers during the encounter: Detective Beard, and the officer who had allegedly held petitioner from behind. Gov't C.A. Br. 5. 2. Although it apparently resolved in the government's favor the conflicts in the testimony (see Pet. App. 4 n.1, 23), the trial court granted petitioner's motion to suppress the cocaine and the statements. Id. at 22-25. The court held that petitioner was seized when Detective Beard "identified himself as a 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 and Detective Cassidy 'downfield', and asked to search (petitioner's) bag." Id. at 24. The court acknowledged that there was no evidence that petitioner knew that Detective Cassidy was stationed by the door. Ibid. Nevertheless, the court concluded that a reasonable person of petitioner's age "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 (petitioner) had denied possession of drugs." Ibid. (emphasis in original). /3/ The court then held that the seizure was not supported by reasonable suspicion, and that "the same threatening environment that converted the conversation into a 'stop' vitiated(d) any claim that a reasonable person in the circumstances of (petitioner) would feel free to refuse the request to search his bag." Ibid. The court therefore suppressed the cocaine, as well as petitioner's post-seizure statements. Id. at 25. 3. The court of appeals reversed in a divided opinion. Pet. App. 1-21. Applying a de novo standard of review (id. at 5-6), and relying (id. at 7) on Justice Stewart's opinion in United States v. Mendenhall, 446 U.S. 544, 554-555 (1980), the court of appeals held that petitioner was not seized by Detective Beard prior to consenting to the search of the shoulder bag. The court explained that petitioner "was aware of one plainclothes police officer, who approached him in midafternoon, in a public place, displayed no weapons, and did not block his path." Pet. App. 7. Moreover, the court stated, the district court had erred in basing its ruling on petitioner's purported "sens(ing)" of "the maneuvers and the presences" of two other detectives -- Hanson, who was standing several feet behind him, and Cassidy, who was standing by the door. Id. at 8. The court of appeals also rejected the proposition that "a consensual encounter becomes an investigative stop at the moment an officer identifies herself as a narcotics officer." Id. at 9. In light of its disposition of the seizure question, the court remanded for additional findings the issue of petitioner's consent. Id. at 9-10. /4/ ARGUMENT Petitioner contends (Pet. 11-15) that the courts of appeals apply differing standards of review in deciding whether a person has been seized within the meaning of the Fourth Amendment. While there is some tension among the circuits on the issue, the asserted conflict is more apparent than real and seems to have had no discernible impact on the disposition of individual cases. More particularly, there is every reason to believe that the result reached in this case would have been reached in all other circuits, regardless of the standard of review. Further review of this interlocutory petition is therefore unwarranted. /5/ 1. As this Court has explained, 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 the 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, 108 S. Ct. 1975, 1979 (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). The decision whether a person has been seized is thus a question of law, reviewable de novo by courts of appeals. By contrast, the factual findings on which such a decision is based -- whether, for example, an officer displayed a weapon, used any form of physical restraint, or ordered the citizen to cooperate -- are subject to a clearly erroneous standard of review. Cf. Miller rr v. Fenton, 474 U.S. 104, 112 (1985) (before determining the legal question of whether a confession was voluntary, the trial court must determine certain "subsidiary factual questions," such as "whether in fact the police engaged in the intimidation tactics alleged by the defendant"); id. at 110 (the ultimate issue of the "voluntariness" of a confession is a legal question); United States v. McConney, 728 F.2d 1195, 1205 (9th Cir.) (en banc) (finding of exigent circumstances is reviewed de novo), cert. denied, 469 U.S. 824 (1984). Alleging a circuit conflict, however, petitioner contends that many circuits apply a clearly erroneous standard of review to the ultimate issue of whether an individual has been seized by a police officer. While there is some tension among the circuits on the issue, the alleged conflict is more apparent than real. Although several courts have, to be sure, invoked a clearly erroneous standard, none has addressed at any length the appropriateness of such a standard; nearly all have simply stated the standard and proceeded to resolve the merits. Moreover, in many of the cited cases it is not entirely clear whether the articulated standard was applied to the "subsidiary facts" or to the "ultimate issue." See, e.g., United States v. Rose, 889 F.2d 1490, 1495 (6th Cir. 1989); United States v. Gray, 883 F.2d 320, 322 (4th Cir. 1989); United States v. Archer, 840 F.2d 567, 571 (8th Cir.), cert. denied, 109 S. Ct. 365 (1988); United States v. Erwin, 803 F.2d 1505, 1508 (9th Cir. 1986); United States v. Gooding, 695 F.2d 78, 82 (4th Cir. 1982). And on closer examination, it is apparent that in each of the cases the court simply applied the objective test of Mendenhall to the facts found by the district court. See, e.g., Rose, supra, 889 F.2d at 1495 ("(b)ecause a reasonable person in the appellant's position would have realized that he was free to leave prior to the search of his duffel bag, the district court's finding that no seizure occurred is not clearly erroneous"); Gray, supra, 883 F.2d at 322-324 (on the facts of the case, court concluded that a reasonable person would have felt free to leave); United States v. Teslim, 869 F.2d 316, 321 (7th Cir. 1989) (defendant was seized, in light of district court's finding that "the officers stopped the car in which he was driving"); /6/ Archer, supra, 840 F.2d at 572 (after reviewing the facts, the court of appeals could not "conclude that a reasonable person in Archer's position would have believed that he was not free to leave"); Erwin, supra, 803 F.2d at 1508 (because the stop occurred in a public place and the officers displayed no force, the initial questioning of the defendant did not implicate his Fourth Amendment rights). Because the courts in these cases effectively engaged in de novo review of the ultimate issue, the outcome of the cases would not likely have differed had the courts omitted any reference to a "clearly erroneous" standard. In short, the alleged conflict does not warrant resolution by this Court. /7/ 2. On the merits, the court of appeals correctly held that, under "all the circumstances surrounding the incident" (Pet. App. 6, quoting Mendenhall, 446 U.S. at 554), /8/ Detective Beard had not yet seized petitioner when petitioner consented to the search of his shoulder bag. Both courts below found that Detective Beard used no force and displayed no weapon when he first approached petitioner in the public concourse of Union Station. The detective approached obliquely and did not block petitioner's path. No other officer restrained petitioner's movement, and indeed petitioner was unaware that Agent Cassidy was standing near the exit. Detective Beard sought permission to speak to petitioner and asked questions only when permission was given. Although Detective Beard briefly examined petitioner's ticket, he returned it to petitioner promptly. Further, Detective Beard never accused petitioner of any offense. Instead, he merely informed petitioner of his general purpose in patrolling Union Station, and asked petitioner if he would consent to a search of his shoulder bag. Because there was no coercive behavior on the part of the officers, and because the encounter took place in midafternoon in a non-coercive setting, a reasonable person in petitioner's position would have believed that he was free to leave. The cases on which petitioner relies are easily distinguishable. In United States v. Borys, 766 F.2d 304, 307 (1985), the Seventh Circuit found a seizure where the officer had explained to Borys that he "had reason to believe that Borys was transporting drugs, and asked permission to search Borys' luggage." The Seventh Circuit has since explained that Borys stands for the proposition that a consensual encounter turns into a seizure when "the agents inform() a defendant he (is) suspected of trafficking in narcotics." United States v. Palen, 793 F.2d 853, 857 (1986). By contrast, the Seventh Circuit has held 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. See, e.g., United States v. Notorianni, 729 F.2d 520, 522-523 (7th Cir. 1984). Nor does the Fifth Circuit's decision in United States v. Gonzales, 842 F.2d 748 (1988), conflict with the decision below. In that case, two officers, one weighing 280 pounds, 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 Gonzales was seized prior to consenting to the search. The court stated that by identifying their assignment as narcotics officers, the agents had "implicitly informed" the defendant that she was a suspect -- which, in the court's view, was "persuasive evidence that the fourth amendment has been implicated." Id. at 752. The court nevertheless held that the detention was supported by reasonable suspicion, and it therefore affirmed the conviction. Because the agents were held to have had reasonable suspicion, the language in Gonzales concerning the seizure of the defendant is dictum. In any event, the setting in Gonzales was far more coercive than that in the present case. In Gonzales, two agents, much larger than their female suspect, had isolated her in a corner and caught her in a lie before telling her that they were "working narcotics" and asking to search her gym bag. In such a coercive setting, the agents' remarks were far more accusatory than were Detective Beard's comments in the present case. 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. Because Smith more closely resembles this case than does Gonzales, there is no reason to believe that petitioner's case would have been decided differently had it arisen in the Fifth Circuit. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. JOHN G. ROBERTS, JR. Acting Solicitor General /9/ EDWARD S.G. DENNIS, JR. Assistant Attorney General PATTY MERKAMP STEMLER Attorney JULY 1990 /1/ The pages in the petition appendix are not numbered. We have assigned numbers to the pages for ease of citation. /2/ Detective Beard testified that he had approached travelers whom he suspected of drug trafficking on approximately 100 prior occasions. In roughly seven instances, the travelers had refused to speak to the detective. In each such instance, Detective Beard had permitted the travelers to leave. In this case, Beard stated, he would have permitted petitioner to leave had petitioner refused to answer the detective's questions. Gov't C.A. Br. 4-5. /3/ According to Beard's testimony as credited by the district court (Pet. App. 23), the identification in fact occurred before the inquiry. /4/ Judge Mikva dissented. Pet. App. 12-21. In his view, a court of appeals may reverse a determination that a defendant was seized only if that determination is clearly erroneous. Id. at 13-18. Applying that standard, Judge Mikva would have sustained the decision of the trial court suppressing the cocaine and the statements. /5/ In our original brief in opposition, we suggested that petitioner's claims were not ripe for review by this Court. Because the court of appeals remanded for further proceedings, the evidence may yet be suppressed, or petitioner may be acquitted at trial. In either event, petitioner's Fourth Amendment challenge would be moot. Moreover, if petitioner is ultimately convicted, he will be able to present his contentions to this Court in a petition for a writ of certiorari from a final judgment affirming his conviction. This supplemental brief is filed pursuant to the Court's request that we address the merits of petitioner's claims at this time. /6/ In United States v. Notorianni, 729 F.2d 520, 523 (1984), the Seventh Circuit treated the seizure issue as a question of law: "under the objective test" the testimony "established as a matter of law that (the defendant) was not seized." /7/ In Baron v. United States, No. 88-6448, this Court was asked to resolve an asserted circuit conflict concerning the standard of review for determinations of probable cause. Acquiescing in the petition, the government noted a disagreement among the circuits on the appropriate standard of review, but expressed "doubts about the depth" of that conflict. Br. in Opp. 6. This Court denied certiorari in the case. No. 88-6448 (Apr. 24, 1989). A copy of our filing in Baron has been furnished to the petitioner in the present case. /8/ There is no basis for petitioner's contention (Pet. 16) that the court of appeals "overruled Mendenhall in its most fundamental respect" by failing to consider "all the circumstances surrounding the incident." The court explicitly considered all the surrounding circumstances and found that as a matter of law those circumstances did not amount to a Fourth Amendment seizure. /9/ The Solicitor General is disqualified in this case.