No. 96-8124 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1996 LENNIE EARL LETSINGER, PETITIONER v. UNITED STATES OF AMERICA 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 WALTER DELLINGER Acting Solicitor General JOHN C. KEENEY Acting Assistant Attorney General THOMAS E. BOOTH Attorney Department of Justice Washington, D.C. 20530-0001 (202) 514 -2217 ---------------------------------------- Page Break ---------------------------------------- QUESTION PRESENTED Whether a statement by a law enforcement agent that he intended to seize petitioner's bag constituted a seizure of the bag when, after the statement, agents continued to ask for petitioner's consent to a search of the bag, and agents did not take physical possession of the bag until after petitioner's voluntary admission that the bag contained drugs. (I) ---------------------------------------- Page Break ---------------------------------------- IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1996 No. 96-8124 LENNIE EARL LETSINGER, PETITIONER v. UNITED STATES OF AMERICA 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. 1a-16a) is reported at 93 F.3d 140. JURISDICTION The judgment of the court of appeals was entered on August 22, 1996. A petition for rehearing was denied on December 10, 1996. The petition for a writ of certiorari was filed on March 6, 1997. The jurisdiction of this Court is invoked under 28 U.S.C. 1254 (1). STATEMENT In the United States District Court for the Eastern District of Virginia, petitioner pleaded guilty to possession of crack cocaine with intent to distribute it, in violation of 21 U.S.C. ---------------------------------------- Page Break ---------------------------------------- 2 841(a) (1). He was sentenced to 188 months' imprisonment. The court of appeals affirmed. Pet. App. la-10a. 1. On September 14, 1994, members of a federal drug task force received information from Amtrak that petitioner had purchased, with cash, a one-way train ticket from New York to Rocky Mount, North Carolina, and that he had provided Amtrak with a "bad" call back number. Three agents boarded the train at Union Station, Washington, D.C., to look for petitioner. The agents knocked on the door of petitioner's compartment, but there was no answer. The agents then left the train and waited until an individual matching petitioner's description had boarded the train. The agents returned to petitioner's compartment, knocked on the door again, and petitioner answered. The agents asked if they could speak with him and he consented. During the ensuing conversation, the agents remained in the hallway while petitioner stood in the doorway to his compartment, blocking access to a bag that was in his compartment. App. 2a-3a. Petitioner explained that he was on a business trip and that he would be in Rocky Mount for a few days. The agents decided to ask the conductor to delay the train, but before they could do so, the train left Union Station. Petitioner became nervous when he was asked for identification, and fumbled through his wallet, taking several tries to remove his identification. Pet. App. 3a. The agents asked petitioner whether he had any luggage, and petitioner replied that he had one bag. The agents asked for consent to search the bag. Petitioner asked why he had been ---------------------------------------- Page Break ---------------------------------------- 3 selected for questioning and whether he had to consent to the search. Detective Ed Hanson replied, "we can only ask for your cooperation." Petitioner said that he had personal papers in the bag and another detective said that the agents were not interested in papers. Hanson told petitioner that they were going to detain his bag, that he could retrieve it later, and otherwise, he was free to do whatever he wanted to do. Pet. App. 3a. Despite Hanson's statement, the agents did not take possession of the bag or move toward it. Instead, the agents continued to talk to petitioner about the bag, asking him again whether he would allow them to search it. Petitioner replied that if the agents found a joint or marijuana in the bag, he would be in big trouble. Hanson said that the agents were not particularly interested in small quantities of marijuana. Petitioner stated that he had heard that before. Hanson asked petitioner whether his nervousness resulted from the fact that he had marijuana in his bag, and petitioner replied, "yes." Hanson then asked petitioner to step out of the compartment. When petitioner did so, Hanson stepped into the compartment, searched petitioner's bag, and found almost 3,000 grams of crack cocaine, but no marijuana. Pet. App. 3a-4a. Petitioner was arrested and moved to suppress the cocaine seized from his bag. Following the district court's denial of petitioner's motion, petitioner entered a conditional guilty plea that preserved his right to appeal the denial of his motion to suppress. Pet. App. 4a. ---------------------------------------- Page Break ---------------------------------------- 4 2. The court of appeals affirmed by a divided vote. First, relying on Florida v. Bostick, 501 U.S. 429 (1991) , the majority ruled that petitioner's initial encounter with the agents was consensual and that the departure of the train did not convert that encounter into a Fourth Amendment seizure. The court stressed that the agents repeatedly told petitioner that they were only asking for his cooperation and that he was free to do whatever he wanted. Pet. App. 4a. The majority next held that petitioner's bag was not seized until after petitioner admitted that it contained drugs, which gave the agents probable cause to seize it. The majority rejected petitioner's argument that Detective Hanson's statement that he intended to detain the bag constituted a sufficient "show of authority" to constitute a seizure under the Fourth Amendment. The majority noted first that in California v. Hodari D., 499 U.S. 621 (1991), the Court ruled that a person can be seized under the Fourth Amendment without actually being in police custody if he is touched by a police officer with lawful authority and purpose to arrest even if he is not subdued, or if he submits to an official show of authority. The majority stated that it did not have to decide whether Hodari D. applied to the seizure of an object, but regardless, petitioner's bag was not seized until the officers actually took possession of it. Pet. App. 5a-7a. The court stated that the test for a show of authority is whether, under the totality of the circumstances, a reasonable person would believe that he is not free to decline police requests ---------------------------------------- Page Break ---------------------------------------- 5 or otherwise terminate an encounter. The court stated that "we are by no means certain that the officers' actions * * * constituted a completed show of authority." Pet. App. 7a. It emphasized that the statement that the officers were going to detain petitioner's bag "was calmly uttered during an ongoing, casual, consensual conversation," and that the officers did not compel petitioner to surrender the bag. Ibid. Further, after the statement was made, the officers made no movement toward the bag and again sought petitioner's consent to search it. Ibid. Petitioner and the officers continued to be engaged in a manner that suggested neither petitioner nor the officers believed that Detective Hanson's statement constituted a completed show of authority. The court noted that if, under Hodari D., full-speed pursuit by police would not necessarily be a show of authority, "it is quite possible that [Detective Hanson's] unadorned statement, in the context in which it was made, did not constitute a show of authority either." Pet. App. 7a-8a. The court ruled that even if the officers' statements to petitioner did collectively constitute a show of authority, Hodari D. would also require petitioner's submission to that authority. Here, because petitioner neither acquiesced in the detention of his bag by handing it over to the officers nor stepped out of the way to permit access to his bag, petitioner had not submitted to the officers' authority. Instead, he continued to try to dissuade them from taking the bag. Pet. App. 8a-9a. Therefore, the agents did not seize petitioner's bag until after he admitted that it ---------------------------------------- Page Break ---------------------------------------- 6 contained marijuana. At that time, the agents had probable cause, to seize the bag. Id. at 9a-10a. Judge Hall dissented. In his view, the agents seized petitioner's bag when Detective Hanson announced an intention to detain the bag, and the seizure violated the Fourth Amendment because, at that time, the agents lacked reasonable suspicion or probable cause to believe that petitioner was involved in a criminal offense. Pet. App. 10a-16a. ARGUMENT Petitioner contends (Pet. 7-12) that the officers seized his bag in violation of the Fourth Amendment. He maintains that the seizure occurred at the moment when Detective Hanson stated that he was going to detain the bag, notwithstanding the fact that petitioner did not hand it over or otherwise allow it out of his custody, and, that at that time, the officers lacked reasonable suspicion or probable cause to believe that the bag contained drugs. That claim merits no further review. 1. When the police approach a person on a bus or a train and question him, the encounter does not constitute a seizure under the Fourth Amendment unless a reasonable person would not feel free to decline the officers' requests or otherwise terminate the encounter. California v. Hodari D., 499 U.S. 621, 627-628 (1991). A seizure of a person occurs when a person's liberty is restrained by the police, either by means of physical force or show of authority. Florida v. Bostick, 501 U.S. 429, 434 (1991). A seizure of property occurs "when there is some meaningful ---------------------------------------- Page Break ---------------------------------------- 7 interference with an individual's possessor interests in that property." United States v. Jacobsen, 466 U.S. 109, 113 (1984). The determination of whether a seizure occurred is based on the totality of the circumstances. Bostick, 501 U.S. at 437; Michigan v. Chesternut, 486 U.S. 567, 572-573 (1988). Here, the court of appeals correctly concluded that the agents did not seize petitioner's bag until they took physical possession of it, an action that occurred after his admission that the bag contained marijuana. Because petitioner's admission gave the police probable cause to seize the bag, the seizure satisfied the Fourth Amendment. The court correctly rejected petitioner's argument that Detective Hanson's statement that he intended to detain the bag was a show of authority sufficient to constitute an immediate seizure of the bag. Under the circumstances of this case, which involved an ongoing conversation between petitioner and the officers, Detective Hanson's statement, unaccompanied by any other assertion of authority over the bag, did not constitute a meaningful interference with petitioner's possessor interests in the bag. As the court of appeals noted, Pet. App. 7a, the officers sought to obtain petitioner's consent to seize and search the bag both before and after Detective Hanson stated that the officers would detain the bag. Even after Detective Hanson's statement, which was "calmly uttered during an ongoing casual, consensual conversation" and "was not phrased as an 'order,' e.g., 'give me your bag,' or even as a present-tense declarative sentence, e.g., ---------------------------------------- Page Break ---------------------------------------- 8 'your bag is hereby seized,' " the agents "made no movement toward the bag." Ibid. Instead, they continued to seek petitioner's consent to search the bag, and petitioner continued to behave as though neither he nor the agents believed that Detective Hanson's statement constituted a show of authority. Ibid. In sum, viewed under the totality of the circumstances, the agents' actions and statements did not constitute a completed show of authority that resulted in a seizure of the bag before petitioner's declaration that he was carrying contraband. Furthermore, even if the agents actions were viewed as a completed show of authority, petitioner did not submit to that authority. Rather, he continued to talk to the agents without relinquishing possession of the bag. Cf. Hodari D., 499 U.S. at 626 (a seizure is not effected by the mere fact that a police officer has ordered a fleeing suspect to stop; seizure requires physical force or submission to assertion of authority). Because Detective Hanson's statement was not a seizure of petitioner's bag and petitioner was not otherwise bound by the agents to continue conversing with them, petitioner's subsequent admission that the bag contained drugs was a voluntary act that gave the officers probable cause to search his bag at that time. 2. Although petitioner argues to the contrary, see Pet. 7-9, the decision below does not conflict with this Court's decision in United States v. Place, 462 U.S. 696 (1983). The question in Place was whether the Fourth Amendment barred the government from temporarily detaining luggage for exposure to a trained drug ---------------------------------------- Page Break ---------------------------------------- 9 detecting dog on the basis of reasonable suspicion of the presence of contraband in the luggage. Id. at 702. In Place, law enforcement agents approached a suspect at New York's LaGuardia Airport and asked him to consent to a search of his luggage. When the suspect refused, the agents stated that they were going to take the luggage to a federal judge to try to obtain a search warrant and that the suspect was free to accompany them. The suspect refused and the agents took the luggage to a different airport, where it was subjected to a drug sniff by a trained narcotics detection dog. When the dog alerted on the luggage, the agents opened it and seized contraband. Id. at 698-699. In the course of deciding the question presented in Place, the Court stated, "[t]here is no doubt that the agents made a 'seizure' of Place's luggage for purposes of the Fourth Amendment when, following his refusal to consent to a search, the agent told Place that he was going to take the luggage to a federal judge to secure issuance of a warrant." 462 U.S. at 707. That statement, however, was dictum and did not constitute a holding that a law enforcement agent's announcement that he intends to detain an item always constitutes a seizure of that item. The question before the Court in Place was not whether a seizure had occurred, but whether prolonged detention of personal property without probable cause violates the Fourth Amendment. Furthermore, because the suspect immediately surrendered his luggage to the agents after their announcement, the Court did not have occasion to consider whether ---------------------------------------- Page Break ---------------------------------------- 10 the seizure occurred upon the mere announcement or, rather, whether it occurred upon the surrender of the luggage. Interpretation of the dictum in Place as a holding that a police officer's announcement that he intends to detain an item always amounts to seizure of that item is inconsistent with this Court's holdings in Bostick, 501 U.S. at 437, and Chesternut, 486 U.S. at 572-573, that police conduct must be viewed taking into account all of the circumstances surrounding the encounter. Intervening events may reveal that the police did not in fact intend to detain the bag or that they were prevented from doing so. Here, for example, the events occurring after Detective Hanson's statement demonstrated that the parties continued to view the encounter as consensual. Accordingly, Place does not govern the outcome of this case. 1 ___________________(footnotes) l Petitioner's reliance (Pet. 9-10) on cases such as United States v. Odum, 72 F.3d 1279 (7th Cir. 1995), and United States v. 53,082.00 in U.S. Currency, 985 F.2d 245 (6th Cir. 1993), is misplaced. In both of those cases, a seizure was found to have occurred in a situation in which law enforcement agents promptly took physical possession of personal property after declaring an intention to seize it. See Odum, 72 F.3d at 1282, 1284; 53,082.00 in U.S. Currency, 985 F.2d at 247-248. Petitioner (Pet. 10) also overlooks that United States v. Cooper, 43 F.3d 140 (5th Cir. 1995), and United States v. Galberth, 846 F.2d 983 (5th Cir.), cert. denied, 488 U.S. 865 (1988), involved seizures consented to by the defendants and found by the court of appeals to have satisfied the Fourth Amendment. See Cooper, 43 F.3d at 147-148; Galberth, 846 F.2d at 990. Thus, the Fourth Circuit's decision in this case is not in conflict with the law of other circuits. Finally, the Fourth Circuit's earlier decision in United States v. McFarley, 991 F.2d 1188, 1192 (4th Cir. 1993), cert. denied, 510 U.S. 949 (1993), refers to Place in the context of an agent's announcement that he intended to detain defendant's property, promptly followed by a seizure of that property, which the court concluded was justified by reasonable suspicion. In any ---------------------------------------- Page Break ---------------------------------------- 11 CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. WALTER DELLINGER Acting Solicitor General JOHN C. KEENEY Acting Assistant Attorney General THOMAS E. BOOTH Attorney MAY 1997 ___________________(footnotes) event, any conflict within the Fourth Circuit is for that court to resolve. See Wisniewski v. United States, 353 U S 901 (1957).