*1 is, judge accept says does America, it be entered.29 direct UNITED STATES
verdict and Plaintiff-Appellee, during polling juror says If “no” a court, not entered. then the verdict is open mistrial, motion for There be a STEPHENS, Eugene Carl discharge whether to judge may decide Defendant-Appellant. mistrial, a or order jury and declare No. 98-10374. A jury to deliberate further.30 Juror when planned say that she “no” testified Appeals, United States Court recog- because she jury polled, Ninth Circuit. juror a moment when en- nized that as Argued and Submitted Oct. 1999. degree physical safety. But
joys high to do so because as the she was scared Filed March 2000. courtroom, jurors up to enter lined my daughters Juror C “told me and to think about that
very good-looking my vote.” She understood gave
that remark to be a threat directed at her
daughters. against that the rule al- argues
Exxon juror impeach her own ver-
lowing apply alleged
dict31 because the jurors
remark was made after had deliberations. We need
concluded their legal argument whether its
not determine merit, proposition,32 any doubtful judge the district made a
because finding^ fact, above, that as discussed Juror A’s worthy was not of belief. This
account erroneous, clearly
finding was not so the must treated
alleged imagi- threat
nary.
CONCLUSION
The district court’s denial of Exxon’s 60(b)(2) irregulari-
Rule motion based on jury
ties in deliberations is AFFIRMED. al, 606(b). O’Malley Jury 29. 1 Kevin F. See et. Federal 31. Fed.R.Evid. Rule Instructions, (5th Practice 9.07 ed.2000). Meshriy, 32. See Traver v. Cir. id. *2 Spangler,
Samantha S. Assistant United (cid:127) Sacramento, Attorney, States California Malecek, (argued), Michael J. Assistant Sacramento, Attorney, Cali- (brief), plaintiff-appellee. fornia for the Sacramento, California, Clymo, Kevin D. for defendant-appellant. PREGERSON, Before: SNEED and CARTER, Judges, and District Circuit Judge.1 PREGERSON; by Judge Opinion by Judge Dissent SNEED. PREGERSON, Judge: Circuit Eugene Stephens appeals Carl con- possession with intent to dis- viction for Carter, nia, designation. sitting by 1. The David O. U.S. Dis- Honorable Judge trict for the Central District of Califor- He system speak of 21 in violation U.S.C. cocaine tribute announced: 841(a)(1). Stephens contends as a result of was discovered morning, gentlemen. cocaine ladies and Good of the Fourth Amend- agen- in violation conduct officers from various We’re court admitted evi- conducting The district a routine narcot- ment. cies. We’re in Stephens’s investigation found on this weapons dence of cocaine ics and *3 suppress. arrest, We Stephens’s motion to you over No one is under bus. However, jurisdiction pursuant 28 U.S.C. are free to leave. we would § § and we re- you. you. 1291 and 18 U.S.C. Thank like to talk to verse. began questioning The other two officers immediately. The first
the Risley approached that passenger Officer Stephens. Stephens He asked wheth- was 19, 1997, defendant Carl September On any carry-on baggage. er he had Ste- by Grey- Stephens traveling was Eugene Risley said that he did not. re- phens Angeles from Los Seattle. hound bus peated question, pointing the this time servicing Grey- at the stopped for The bus compartment. Stephens the overhead in Sacramento where hound station that he did not. After the again replied required to disembark. passengers were other passengers, officers interviewed Ris- roughly one hour. stop The lasted ley bag Stephens took the he had observed Transportation Inter- The Sacramento carrying, went to the front of the (“STING”) Group routine- diction Narcotic anyone bag. if None of asked claimed Greyhound at the sta- ly inspects busses Risley bag. claimed the drugs weapons. Two STING tion for off the bus where additional bag took the officers, Risley (“Risley”) and Officer John dog officers and a narcotics detection were (“Villones”), Officer Luci Villones observed waiting. bag. The alerted to the The waiting he was in line to Stephens while opened bag and discovered They bus. noticed that he reboard the substances, proven later to be cocaine. bag appeared heavy gym carried a Stephens. The officers then arrested The Risley pointed When Ste- bulging. approximately entire bus search lasted ten phens supervisor, supervisor out to his to fifteen minutes. Stephens stated that he had noticed in the Stephens charged possession with ap- not terminal. The STING officers did cocaine, in with intent to distribute viola- at that The offi- proach Stephens time. 841(a)(1). tion of U.S.C. He moved to Stephens to observe as he cers continued suppress bag. seized from the evidence placed boarded the bus and The district court denied the motion be- compartment overhead above his seat. Stephens voluntarily that cause found At time the bus was scheduled cocaine, bag containing abandoned the Villones, depart, Risley, and a third officer standing challenge therefore lacked bus. The officers boarded the bag. Stephens search of the was tried uniforms or wearing displaying jury, found and sentenced before carried badges. They weapons. concealed He ap- 240 months incarceration. now back, They positioned themselves at the peals the court’s denial of his mo- district middle, and front the bus. The aisle of suppress tion to evidence. narrow, very the bus was and the district very court found that it would have been II difficult, although impossible, for a The first issue is whether Ste person to exit. phens abandoned his “Whether at the front of the used been abandoned within the property
The officer
is an
Greyhound company’s public
meaning
address
of the Fourth Amendment
for clear error.
“convey message
of fact reviewed
the officers
issue
com-
Gonzales,
pliance
Police officers confines bus, 434, 111 Three offi request on a their U.S. at S.Ct. 2382. questioned and searched if cers boarded the while others waited consent to have felt free to refuse to The dissent asserts that "the coercive effect cent or spoken by of the words the officers should be officers’ while remain- answer the by per- measured son. The. effect on the their effect on an ‘innocent’ ing Obviously, pas- on the bus. an innocent majority analysis measures privacy senger may preserve desire her ‘guilty’ person.” supra search, just to refuse to consent to a opinion. 919. The dissent misreads our guilty passenger might. passenger, inno- What we conclude is that no drugs illegal. in Nonethe- pas- ficking certain questioned outside. Two less, acquire and use many persons wish the door. guarded a third while sengers, illicit market Inevitably, an public drugs. company’s The officers used by nu- staffed both drugs developed, their au- these conveying thus system, address lackeys. The defendant Risley merous lords and Officer thority lackey. him- but a by in this case is positioning out singled Stephens question- Stephens’s seat self next to seizure, which laws of search and Our of all the circum- light him first. In Constitution, protect not rest on the stances, Stephens was find that we illicit lackeys the lords decision, join reaching this we In seized.3 trade, rigorous fair and but also has found an which the Eleventh Circuit laws, these the Constitu- enforcement of occurred under seizure unconstitutional people. collective will of the tion and the facts. See United States very similar law and seizure under The search Cir.1998) F.3d 1354 Washington, 151 a fine between draws Constitution sweep a bus seizure (holding that are in law enforcement with con- clothed officers plain where two In and those which are not. constitutional it was boarded bus as weapons cealed just the inter- doing, a balance between so public used the ad- depart about to engaged Nation and of those est of the they system to tell dress *5 Not illicit traffic must be struck. the search, conducting a but were routine agree on what consti- judges always even they could tell did not a balance. This is one of those tutes such questions). The fact that to answer refuse cases. could have made the the STING by display- even more coercive encounter Florida v. The case most relevant wearing uni- badges, and guns their Bostick, 429, 2382, 111 115 501 U.S. S.Ct. forms, threatening the or (1991). 437-38, page At L.Ed.2d 389 conclusion. not alter our Supreme Court observed: case, by The facts of this as described IV Court, leave some Supreme the Florida of the district court is The judgment a seizure occurred. Two doubt whether
REVERSED. to Bostick on the up officers walked if questions, him a few and asked asked SNEED, Judge, Dissenting: Circuit bags. search his As we have they could rests its conclusion on the majority explained, no seizure occurs that the encounter on the bus proposition individual, ask to ask respectfully was an unlawful seizure. identification, examine the individual’s dissent. his or her request consent to search as the officers do not enduring luggage long nation there is an Within this —so convey message compliance with the common needs of all between tension Here, requests required. needs of their separate and the distinct ' Supreme the Florida The facts of this case reflect facts recited individuals. traf- indicate that the officers did tension. The Nation has made this empowered law en- courts are not to forbid 3. We make two additional observations. First, they officers and a narcotics de- additional because find them forcement 439, dog waiting “distasteful,” Bostick, It tection outside the bus. U.S. at 111 501 addi- clear from the record whether the supervisor had S.Ct. we note that the tional officers and the were visible to in the terminal where noticed they Stephens from his seat on the bus. If approached Ste- STING officers could Stephens, presence were visible to confined, phens therefore less less would have increased the coerciveness of the coercive, environment. Second, although encounter even further. announcement, at Bostick otherwise point guns perfect, while not was at they specifically threaten him and that least effective in reducing anxiety Bostick that he could refuse con- Nevertheless, advised the innocent sent. majority destroy seeks to the effective-
Nevertheless, we refrain from decid- ness of by pointing the announcement ing whether or not a seizure occurred the “cramped confines” of the bus this case. The trial court made no ex- presence of two officers questioning pas- fact, findings of and the Florida press sengers “guarded” while a third the door. Supreme Court rested its decision on a justify Bostick does not such a conclusion. single fact—that the encounter took “cramped confines of a bus” is aon bus—rather than on the total- one factor in determining whether a sei- ity of the circumstances. We remand so zure was unlawful. Other factors include that the Florida courts evaluate the (1) whether the police specifically advised seizure question legal under the correct the defendant that he right had a to refuse however, reject, standard. We do Bos- (2) consent; whether the used au- argument tick’s that he must have been language thoritative or tone of voice to seized because no reasonable (3) indicate compliance required; freely lug- consent to a search of whether the officers threatened the defen- gage that or she knows contains (4) otherwise; dant with a gun or drugs. argument prevail This cannot agents number of present prox- and their person” because “reasonable test imity to the defendant. See (em- presupposes person, an innocent 432, 437, 2382; U.S. at 111 S.Ct. United added). phasis Mendenhall, 544, 554, States v. 446 U.S. quotation makes clear that (1980) (au- S.Ct. L.Ed.2d 497 analysis of the coercive effect of the words voice); thoritative language or tone of by the spoken officers should be measured INS, Orhorhaghe v. *6 by their effect on an person. “innocent” Cir.1994) (number agents of and their however, The majority analysis, measures proximity). “guilty” their effect on the person.1 Stephens The encounter between
Although majority acknowledges in officers under Bostick did not consti- this case the officers advised the Stephens tute passengers they seizure. had three were not under arrest and truthfully respond choices: either to were “free to leave” the it discounts significance Risley’s question inquiring its because of its creation of a Officer whether peculiarly risk dangerous any baggage, deny to a courier he had that he had while also irksome to an passen- baggage, ignore say innocent or to ger. p. Majority Opinion. nothing.2 Had he chosen to remain silent majority attempts 1. The respectfully disagree to refute this asser- MacMillan I by claiming passenger, tion that "no portrayal. innocent with this would have felt free to refuse to remaining answer the requirement existing while 2. There exists no under Majority opinion on the However, Supreme bus.” n. 2. decisions that Miranda-like warning incorporating pas- their assertion overestimates the the advice that all people sengers, including sense of terror that innocent specifically, the defendant Thus, simple questions. have when asked stay could on the bus and refuse to answer majority’s portrayal passen- any questions. of the innocent Nor should there be such a gers portrayal requirement. might require is akin to Robert Burns’ Its existence well "Wee, sleekit, cow’rin, baggage passengers routinely mouse as a tim’rous that all of bus Burns, depar- beastie.” Robert To a On Mouse: be submitted to canine sniffs before Turning Plough, presently appears Back Her Nest with a Novem- ture. This to be unneces- Treasury sary. general public quite reasonably ber in The Golden of the Best Songs Lyrical English Poems in the Lan- looks to law enforcement officials to enforce (Francis ed., London, guage Palgrave Turner the law with inconvenience to it. minimum suggests long it after all other that so aboard likely of the it ownership bag politely had themselves denied conduct removed from the bus to employed would have in respectfully procedure been alert, Following sniff. an facilitate a this case not unconstitutional. likely would been ar- Stephens very have safety Similar concerns about of in- rested. prompted nocent have the dis- course, person innocent Of an who tinction between instances which the bag to a search consent of his wish to suspicion any wrongdo- officers had no ownership bag. deny of the would not boarding before the bus and those Rather, claim ownership he would had suspicion previously been simultaneously withhold his con- prior boarding. aroused In the it. sent to search could case, required latter the officers would be lawfully done and the STING officers so Constitution, argued, under the it is either nothing could have done further at that attempt prior to make the arrest However, likely feared the con- time. boarding forgo or to further efforts to sequences accepting ownership of the arrest at that location. The Bostick Court it. and thus abandoned This behavior could have stated but it failed to so do so. with the an not consistent behavior of no see sufficient reason anticipate person, guilty but rather that of a innocent such a result. person. I would affirm the conviction. illustrates the merely effectiveness employed technique law enforce- person An innocent ment officials. guilty person
inconvenienced but fre- away. himself
quently give will The incon-
venience of the innocent does turn the into an unlawful An
encounter seizure. under these innocent circumstances WEST, individual, Arthur S. threatened by simple would not feel Plaintiff-Appellant, question regarding ownership of a clear, As v. Bostick makes Florida “innocent” feel compelled when the THE SECRETARY OF DEPARTMENT cooperate encounter that the runs afoul of *7 TRANSPORTATION; OF Federal the Fourth Amendment. Stephens put Highway Administration; Sid Morri- position himself in a vulnerable when he son; Department Washington State of transport by bus large undertook to such a Weyerhaeuser Transportation; quantity drugs. It was the drugs Company, Real Estate Defendants- transport, undertook to the conduct Appellees. him police, deny led ownership of No. 97-36118. It that the argued can be actions of the Appeals, are inherently danger-
officers in this case Ninth Circuit. ous safety all seated Argued and Submitted March on and thus should be 1999. unconstitu- per thought tional se. The is that Filed March suspect may attempt any bolt and that response by officers possibly danger. argu- the innocent in baseless; however,
ment is not Bostick strongly suggest present The facts of this case achieve that end.