UNITED STATES оf America, Plaintiff-Appellee, v. Christopher HAWTHORNE, also known as Xavier Bratton, Defendant-Appellant.
No. 91-2096.
United States Court of Appeals, Eighth Circuit.
Submitted Sept. 15, 1992. Decided Dec. 15, 1992.
982 F.2d 1186
III. CONCLUSION
I concur with the majority‘s conclusion that the district court‘s granting of the defendant‘s directed verdict motion was proper on the issues of whether the train was traveling too fast, whether it should have applied the emergency brake and whether the flashing lights were operating immediately prior to and continuing through the moment of the accident. However, the majority concludes that because Stephen Bebout testified that he looked both ways there is a question for the jury as to whether he had an attitude of attention to hear the whistle. This conclusion lacks support in the record because (1) Bebout did not see the flashing lights (the undisputed evidence establishes they were flashing), (2) he did not see the headlight on the engine, (3) even with an obstructed view of one-quarter mile across an open field he neither saw nor heard the mile and one-half long freight train approaching at 40 mph, (4) three witnesses testified that the whistle was blowing, and (5) the district judge appropriately discountеd the testimony of Dorothy Varboncoeur and Jerry Tomes because they also lacked the necessary attitude of attention. Thus, in light of Bebout‘s failure to exercise his duty of due care by not entering the railroad crossing with a train immediately approaching, it is evident Stephen Bebout failed to exhibit the appropriate “attitude of attention” for his testimony to create a triable issue of fact. Accordingly, I am forced to dissent from the judgment of the court and from the holding that a triable issue of fact exists regarding whether the train whistle was blown.
Finally, I question the futility of this litigation and the waste of the court‘s valuable resources of time and money. Clearly if a new trial is held, after a jury hears the testimony of the three other potential defense witnesses (see note 2) as well as the other defense witnesses it will be necessary for the judge again to render a directed verdict for the defense. Thus this exercise will only serve to prolong a futile proceeding and enrich the attorneys’ wealth of experience as well as their bank accounts and contribute to the overloading of an already strained civil court calendar.
ees does not require a different conclusion. See Chamberlain, 288 U.S. at 343, 53 S.Ct. at 394.
Mark A. Miller, Kansas City, MO, argued, for plaintiff-appellee.
Before JOHN R. GIBSON, BEAM, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
JOHN R. GIBSON, Circuit Judge.
Christopher Hawthorne appeals from his conviction of possession with intent to distribute crack cocaine in violation of
On June 8, 1990, Hawthorne arrived at the Kansas City Amtrak Station on a train from Los Angeles. Detectives Pat Sola and Randy Hopkins, officers in the Drug Enforcement Unit of the Kansas City, Missouri Police Department, had been working the station for at least two months before Hawthorne‘s arrival, and had stoрped eighteen to twenty passengers arriving on trains from Los Angeles. Relying on a “drug courier profile,” they looked for Los Angeles passengers who wore “Los Angeles” hats or shirts; appeared nervous and looked around frequently; had unchecked luggage; tried to leave the station quickly either by taxi or calling for one; or handed a taxi driver a piece of paper with an address written on it.
After Hawthorne alighted from the Los Angeles train, Detective Sola noticed him
Sola then asked permission to look in Hawthorne‘s bag for narcotics, and Hawthorne said, “No.” Based on the facts described abovе, Sola believed Hawthorne was carrying narcotics and decided to detain him. Sola told Hawthorne that he was temporarily detaining him and his bag and was ordering a narcotics detection dog to sniff the bag. Sola and Hawthorne walked out the front door, and Detective Hopkins, who had been watching the encounter from ten to fifteen feet away, followed. Sola took Hawthorne‘s bag and told him to sit in the front seat of the car. Sola asked Hopkins to order a drug detection dog, which he thought probably would arrive in five to thirty minutes. Hopkins went to the driver‘s side of the car and ordered the dog, but he was not told how long it would be before the dog arrived. The car door on the passenger side where Hawthorne was sitting was open, Sola stood on the sidewalk next to the door, and the bag was on the ground between Hawthorne and Sola.
Approximately one minute after the dog was ordered, Hawthorne told Sola to “go ahead and look in his luggage because [he] was going to look anyway.” Sola told Hawthorne that he did not have to give permission to look in the bag, that he had ordered a dog, and that if the dog alerted to the bag, they would try to get a search warrant for the bag. Hawthorne told Sola to “go ahead and open [the bag].” Sola looked in the bаg and, in addition to men‘s clothing, found an unsealed white plastic bag with a clear plastic bag inside. The bags contained several large round beige rocks that Sola believed were crack cocaine. Sola placed Hawthorne under arrest.
Hawthorne moved to suppress the crack cocaine that was found in his bag. Following an evidentiary hearing, the magistrate judge1 proposed the findings of fact stated above and recommended that the motion to suppress be denied because Hawthorne consented to the initial conversation, the detention was lawfully based on a reasonable and articulable suspicion of criminal
I.
Hawthorne agrees that his initial encounter and conversation with Detective Sola were permissible and that no seizure occurred until after he refused to consent to the search of his bag. Hawthorne argues that at that point, however, Detective Sola did not have a sufficient basis for detaining him and his bag. We must, therefore, determine whether the investigative, Terry-type3 stop of Hawthorne and his bag was supported by a reasonable and articulable suspicion of criminal activity. Reid v. Georgia, 448 U.S. 438, 440, 100 S.Ct. 2752, 2753, 65 L.Ed.2d 890 (1980) (per curiam); United States v. Campbell, 843 F.2d 1089, 1093 (8th Cir.1988).
As we have previously stated:
The standard of articulable justifiсation required by the fourth amendment for an investigative, Terry-type seizure is whether the police officers were aware of “particularized, objective facts which, taken together with rational inferences from those facts, reasonably warrant[ed] suspicion that a crime [was] being committed.” ... In assessing whether the requisite degree of suspicion exists, we must determine whether the facts collectively establish reasonable suspicion, not whether each particular fact establishes reasonable suspicion. “[T]he totality of the circumstances—the whole picture—must be taken into account.” ... We may consider any added meaning certain conduct might suggest to experienced officers trained in the arts of observation and crime detection and acquainted with operating modes of criminals.... It is not necessary that the behavior on which reasonable suspicion is grounded be susceptible only to an interpretation of guilt, ... however, the officers must be acting on facts directly relating to the suspect or the suspect‘s conduct and not just on a “hunch” or on circumstances which “describe a very broad category of predominantly innocent travelers.” ...
Campbell, 843 F.2d at 1093-94 (citations omitted) (quoting United States v. Martin, 706 F.2d 263, 265 (8th Cir.1983); United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 694, 66 L.Ed.2d 621 (1981); Reid, 448 U.S. at 440-41, 100 S.Ct. at 2753-54). The findings of the district court as to what the various parties said or did during the encountеr are subject to the clearly erroneous standard. United States v. McKines, 933 F.2d 1412, 1426 (8th Cir.) (en banc), cert. denied, 502 U.S. 1014, 112 S.Ct. 593, 116 L.Ed.2d 617 (1991). Whether the detention was justified, however, is a question of law to be reviewed de novo. See id.
In light of these principles, we evaluate the circumstances known to Detective Sola at the time the Terry-type stop occurred: (1) Hawthorne arrived on a train from Los Angeles, a known “source” city for drugs; (2) when Hawthorne got off the train, he walked out of the station and into a parking garage about a pace behind an elderly woman and tried to give the impression that they were together; (3) Hawthorne looked all around at the people in the station and appeared “jittery“; (4) after the elderly woman met someone else, Hawthorne came back into the station and left from a different door; (5) Hawthorne was wearing a green and white striped shirt, blue jeans, and tennis shoes; (6) Hawthorne carriеd a gym-bag sized flight bag and did not have any checked luggage; (7) Hawthorne walked to a nearby hotel to use
Even when combined with the other facts, we do not believe that failing to check luggage on a train and wearing a green and white striped shirt, blue jeans, and tennis shoes are indicative of criminal activity. We think these facts probably “describe a very broad category of predominantly innocent travelers.” Reid, 448 U.S. at 440-41, 100 S.Ct. at 2753-54. Nevertheless, the other facts outlined above, when viewed collectively, are sufficient to have aroused a rеasonable, articulable suspicion that criminal activity was afoot. Although we are concerned by Hawthorne‘s allegations that he was singled out because he was a young black male, the relevant facts discussed above are not race-based, and when taken together, they are sufficient to justify a reasonable, articulable suspicion.
Further, Hawthorne‘s comparison of the facts in this case to thоse in United States v. Millan, 912 F.2d 1014 (8th Cir.1990), is not persuasive. Although there are a few similarities,5 “each case must be decided on its own facts,” and as we stated above, the facts in this case support a reasonable, articulable suspicion that Hawthorne was engaged in criminal activity. See Reid, 448 U.S. at 441, 100 S.Ct. at 2754.
Having decided that Detective Sola had sufficient grounds for an investigatory stop, we must further determine whether the encounter was reasonable in scope or was transformed into a full-scale arrest before Detective Sola had probable cause. We do not believe an arrest took place until after Detective Sola searched the flight bag and found the crack cocaine, and at that time probable cause existed. See Michigan v. DeFillippo, 443 U.S. 31, 35-36, 99 S.Ct. 2627, 2630-31, 61 L.Ed.2d 343 (1979); Campbell, 843 F.2d at 1095. The Terry-type encounter here was brief and limited to determining whether Hawthorne was carrying narcotics. Detective Sola took Hawthorne‘s bag, he and Hawthorne walked to the police car, and he told Hawthorne to sit in the front seat. The car‘s front door was open, Hawthorne was not handcuffed, and Sola stood on the sidewalk in front of the car door. A drug detection
II.
Having concluded that the detention was not an impermissible seizure, Hawthorne cannot contend that his consent to thе search of his bag was tainted by an unlawful detention. See United States v. Mendenhall, 446 U.S. 544, 558, 100 S.Ct. 1870, 1879, 64 L.Ed.2d 497 (1980); Campbell, 843 F.2d at 1095. Hawthorne consented to the search while he was justifiably detained on reasonable suspicion, and the products of the search are admissible. Florida v. Royer, 460 U.S. 491, 502, 103 S.Ct. 1319, 1326, 75 L.Ed.2d 229 (1983) (plurality opinion); Campbell, 843 F.2d at 1095. Nevertheless, Hawthorne argues that the circumstances surrounding his consent were so inherently coercive that the consent to search his bag was not freely and voluntarily given. See Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S.Ct. 2041, 2045, 36 L.Ed.2d 854 (1973); Campbell, 843 F.2d at 1095.
The district court concluded that Hawthorne vоluntarily consented to the search of his bag. Because the issue of consent is a factual one, we must accept the district court‘s finding of voluntariness unless it is clearly erroneous. Schneckloth, 412 U.S. at 248-49, 93 S.Ct. at 2058-59; Campbell, 843 F.2d at 1095. The court‘s finding in this case is well supported by the record. When Hawthorne first told Detective Sola to look in his bag, Sola explained that Hawthorne did not need to give permission for the search, that they could wait until the drug detection dog arrivеd, and then if the dog alerted to the bag, the detectives would try to obtain a search warrant. Hawthorne again told Sola to look in the bag. Hawthorne points to no evidence that he was in any way threatened or coerced. Nor were the circumstances so inherently coercive that they vitiated Hawthorne‘s consent—Hawthorne was not handcuffed and was sitting in a car with the door open; the bag was lying on the ground; Sola was standing next to the open door on the sidewalk; Hopkins was on the opposite side of the car; both detectives were dressed in casual attire; and the detectives did not display a weapon, read Hawthorne his Miranda warnings, or accuse Hawthorne of carrying drugs. Hawthorne‘s knowledge that a dog sniff and resulting search would inevitably prove incriminating does not mean his consent was involuntary and coerced. See Florida v. Bostick, 501 U.S. 429, 438-39, 111 S.Ct. 2382, 2388-89, 115 L.Ed.2d 389 (1991); Campbell, 843 F.2d at 1096. Bаsed on this evidence, we cannot say that the district court‘s finding that Hawthorne‘s consent was valid is clearly erroneous.
We conclude that Hawthorne‘s right to be free from unreasonable seizure was not violated, and that he voluntarily consented to the search of his bag. The district court therefore properly denied Hawthorne‘s motion to suppress and we affirm his conviction.
MORRIS SHEPPARD ARNOLD, Circuit Judge, dissenting.
I respectfully dissent from the judgment of the court because I do not see any material difference between this case and United States v. Millan, 912 F.2d 1014 (8th Cir.1990). I agree that each case must be decided on its own facts and that the ultimate question is whether the relevant police officers had a reasonable, articulable suspicion that the defendant was engaged in criminal activity. Even if one gives this collection of words the most “liberal” construction that they can reasonably bear, however, I do not think that the detention in this case can survive the test that those words propose. For me, a reasonable sus-
I know that the court and I are on common ground in believing that if the choice must be made between winning the war on drugs and keeping our bill of rights, it is our sworn duty to choose the latter course. If the war on drugs is to be won, the government must win it without resorting to unconstitutional means.
UNITED STATES of America, Appellant, v. Mary Magdalene JOHNSON; Carolyn Faye Walters, Appellees.
No. 92-1471.
United States Court of Appeals, Eighth Circuit.
Submitted Aug. 11, 1992. Decided Dec. 15, 1992.
Rehearing Denied Jan. 20, 1993.