United States v. Esco Wilson

government most D. light Sentencing favorable to the Moman’s Challenge jury’s and must sustain a verdict if ‘a noted, As Mornan sub received jury believing government’s reasonable stantial enhancements to his sentence beyond could a evidence find reasonable based on facts not indict alleged in the government that the proved doubt all the ment, proven jury beyond reason ” Rosario, elements the offenses.’ doubt, or able admitted the defendant. at (quoting F.3d States v. United mandatory system, Under a Guidelines Salmon, (3d 944 F.2d Cir. clearly this would constitute a violation 1991)). heavy places “very This burden” rights Mornan’s under the Sixth Amend appellant. on the (quoting Id. United interpreted by ment as (3d Coyle, Booker, —, Cir.1995)). Therefore, 621. having L.Ed.2d con sentencing cluded issues that arise 2. Discussion light of Booker decision are best deter appeal, challenges this Mornan by the District mined Court in the first sufficiency of the evidence to sustain instance, Davis, States v. conviction, conspiracy essentially (3d Cir.2005) (en 162, 165-66 banc), will we claiming that the evidence offered at trial vacate the sentence and for re remand merely revealed “that Mornan was an em sentencing. ployee this scheme” rather than a will ing participant conspiracy to defraud.

(Brief 40.) However, Appellant for at

viewing the evidence adduced trial in light most favorable to the Govern

ment, that evidence suggested Mor-

nan was employee. much more than

First, Mornan himself admitted to the UNITED STATES America police that he manager was an office at the Second, Corp. Sun offices 1998. police found a list of United States news- WILSON,

papers Appellant. Mornan’s Corp., desk at Sun Esco from which jury infer that he had could No. 04-1918. some responsibility placing least misleading were at advertisements United States Court of Appeals, the heart Finally, of this scheme. Third Circuit. produced Government evidence and testi- mony tending to show Argued that Mornan himself Feb. 2005. mailboxes, space, leased office rented re- July Filed mail, money ceived and cashed orders on behalf of the companies sham that were up carry A

set out the reason- scheme. jury believing

able could evidence cer- beyond find

tainly doubt that reasonable fraud,

Mornan guilty mail wire

fraud, conspiracy. We will therefore

affirm his conviction.

ment and noticed that the car should been month returned a earlier. Overcash ran a check on Wilson’s rental car and found that reported the car not been stolen.

Overcash then returned to car Wilson’s and to asked Wilson exit and at its stand citation, rear. gave He Wilson the re- documents, turned his and him he told that was free to Wilson steps leave. took a few back car. toward his At the suppression hearing, first Overcash testified that he began then question to Wilson about the rental car agreement. Overcash tes- then tified, Schneider, Pennsylvania when the Esquire Andrew F. (Argued), PA, presiding hearing over the asked clari- Doylestown, for for Appellant. Counsel sequence events, fication of the that he Marino, Thomas A. United States Attor- question asked Wilson if he could him Smith, III ney, (Argued), Theodore B. As- agreement, about car the rental Wil- and Attorney, sistant U.S. of the Office son turned and around walked to- back PA, Attorney, Harrisburg, Counsel ward him. Appellee. for ques- Overcash to proceeded ask Wilson SLOVITER, Before: AMBRO and tions about rental car and Wilson’s ALDISERT, Judges. Circuit work plans. and travel Wilson Over- told usually

cash that he rented cars for a OPINION OF THE COURT month because he traveled lot. He also told Overcash he selling that worked mas- AMBRO, Judge. Circuit (“CDs”) compact ter discs to music stores Esco Wilson the District appeals Court’s for approximately per disc. When $500 suppress denial of his motion to evidence asked was going, where he said Wilson taken from a in the trunk of bag his car. way he his was on to to Pittsburgh affirm. We him, deliver the he had with CDs and he offered to show these CDs to Overcash. Background I. Factual Overcash walked then toward two History Procedural female passengers Wilson’s car and September the morning On they asked going. them where were The Trooper Pennsylva- Brian of the Overcash passengers they told Overcash were Wilson, nia stopped State Police who was on way Virginia. their to re- Overcash traveling west on Turn- standing turned to Wilson where pike, a traffic violation. Wilson con- the rear of the car and told Wilson that the stop cedes that the initial traffic was valid. they women had him going told were to gave Virginia, Wilson a valid Pittsburgh. Overcash driver’s ap- Wilson agreement. peared license and a car rental Over- a bit nervous told Overcash patrol cash then returned his car to he had not his passengers told where prepare During they pro- citation. were going nothing but unusual cess, he examined rental car agree- going again on. Wilson offered Overcash, ordering the exclusion but Overcash June his CDs to show post-arrest state- patrol car to cocaine Wilson’s and went declined illegal as the fruits of an detention. ments support. request 2002, Pennsylvania September entered returned to Wilson’s Overcash When prosse. a nolle car, opened the trunk and showed Wilson subsequently The Government price tag a CD with $12.00 against an indictment Wilson obtained bags in the trunk— two it. Overcash saw again based on same incident. Wilson told Over- green. and one one red and his moved cocaine to his bag belonged the red cash statements, parties and the post-arrest this, women confirmed passengers. that the matter would be submitted agreed nothing there was ille- told Overcash testimony on the notes of from the based permis- bag, gave in the and Overcash gal ad Pennsylvania suppression hearing. No clothing it. found sion to search Overcash ditional evidence was taken. In October inside. personal and items 2003, the District Court denied Wilson’s bag green told Overcash Wilson alia, motion, determining, inter that Wil it also contained belonged to him and questioning consented to Overcash’s son if could ex- clothing. Overcash asked he stop, that after the conclusion of the traffic contents, bag’s and con- Wilson amine occurred, had and that no seizure Wilson’s unzipped bag and Overcash sented. bag to the of his was volun consent search he a brick of cocaine inside. When found guilty tary. Wilson entered conditional Wilson, already- Wilson had looked right appeal He reserved his plea. his hands behind placed around and turned motion, and that suppression denial of his his back. now issue is before us.1 and his then arrested Wilson II. Discussion to the transported and them passengers barracks, Over- At the police barracks. A. Review Standard of and rights his Miranda cash read Wilson matter, we must deter preliminary As speak he did not wish to stated that Wilson of re appropriate what the standard mine Later, his changed Wilson police. given unique pro its is for this case view and, rights he was read his mind Ordinarily review posture. we cedural written oral state- again, gave both motion to court’s “denial of the district acknowledging that the cocaine be- ments underly for clear error as suppress to him. longed facts, as plenary but review ing ] exercisef under charged prop legality light of the [C]ourt’s to its Givan, a con- possession one law with count States v. erly found facts.” United (3d Cir.2003) (internal intent trolled substance with to deliver omitted). exceeding dissenting the maximum col one count of Our citations Guido, however, case Judge limit. Edward E. believes that speed league, County plenary review over Court of Common we should exercise the Cumberland Pleas, the District Court’s factual determi hearing held a on Wilson’s motion both of law because its conclusions in his car. nations and suppress evidence found transcript relied on the motion the District Court Judge granted Guido Wilson’s § 1291. jurisdiction pursuant pursuant 28 U.S.C. District 1. The jurisdiction We § U.S.C. have to 18 suppression hearing contrary Commonwealth termination to the cannot stand in deciding Wilson’s motion to either clearly under erroneous or de novo the federal instead of holding another review. evidentiary hearing. position This has prevail Because Wilson would on this merit, no as there is obvious to defer need review, argument under either standard of to the District factual Court’s determina day we reserve for another decision on tions not engage any when it did inde plenary is appropriate review as pendent fact-finding, and it is one that we to all issues in such cases as this one.2 adopted juris in our corpus habeas Accordingly, we now turn Wilson’s main prudence § under 28 U.S.C. 2254. See argument the District Court should —’that (3d Horn, Hardcastle v. be reversed because interaction with Cir.2004) (“Because the District Court Overcash after the conclusion of the traffic evidentiary hearing ‘d[id] not hold an not a stop was mere encounter but rather engage fact-finding, in independent but an unlawful seizure.

rather the habeas evidence to limit[ed] record,’ that found in court our B. The District

review Court’s Determination judgment plenary.” of its final Johnson, (quoting that Scarbrough v. Wilson was Not Seized 300 F.3d (3d Cir.2002))). 302, 305 when, person only “[A] is ‘seized’ mind, With briefly this we address by of physical means force or a show of argument Wilson’s that we not de- should authority, his freedom re movement is fer to finding the District Court’s that he Mendenhall, v. strained.” United States consented to questioning further Over- 544, 553, 1870, 446 U.S. 100 S.Ct. 64 completion cash after the of the traffic (1980). 497 way, L.Ed.2d Put another no Court, stop. The District its recitation has if “a seizure occurred per reasonable case, of the facts of this determined that disregard son would feel free police Overcash Wilson for permission asked business, about go ultimately his or ask him about the rental agreement and whether person reasonable would feel request. that “acquiesced” Wilson to this free to decline the requests officers’ or dissenting out, As our colleague points otherwise terminate the encounter....” however, testimony bulk Overeash’s Kim, (3d 947, United States v. 27 F.3d 951 began indicates that he asking Wilson Cir.1994) (internal omitted). citations questions agreement about his rental ear does not Wilson contend that his seizure requesting permission without first to en- pursuant to stop the traffic was unlawful.3 gage inquiry. light, in that In line this held, however, As other courts have “[a] and because Court of Common Pleas stop may traffic become consensual opportunity who had the en to observe counter, testimony requiring no explicitly suspicion, Overcash’s reasonable found if simply began Overcash the officer returns asking regis Wilson the license and about car agreement, the rental we con- tration and questions asks without further clude that the District Court’s factual de- constraining an overbearing driver rely 2. We District stop note that the Court did not 3. A routine traffic considered a seizure finding on its that Wilson had consented to under Fourth See Amendment. Berkemer 420, 436-37, questioning agreement McCarty, his about rental car v. 468 U.S. 3138, analysis (1984); its of whether the Fourth Amendment 82 L.Ed.2d 317 Delaware v. Prouse, 653, 1391, suppression mandated of the evidence found 440 U.S. 59 in Wilson’s trunk. L.Ed.2d 660 West, Id. v. 122 S.Ct. 2105. Wil authority.” United States of voice.” show of (10th Cir.2000); see distinguishable argues case is son Sullivan, Drayton v. States from because he was isolated on also United Cir.1998) (“When (4th [traffic] of the while highway the side Overcash served, However, howev stop purpose and its him. fact is questioned is over true officers, er, without questioning stops, many mere and the record here restraint, not amount some indicated does intimidating no circumstances so shows the Fourth combination, ... ... a seizure under they would have Amendment.”). deter We must therefore perceive person caused reasonable mine the interaction between Wil See Florida he not free to leave. Bostick, 429, 437, issuance son and Overcash U.S. S.Ct. (1991) (“Where li return of Wilson’s traffic citation and 115 L.Ed.2d 389 factor, a consen agreement cense rental place takes is one but it encounter one.”).4 or a second seizure. only sual encounter is not the Court, only was the officer on the comparing The District After the of the traffic those of scene. issuance facts this case 2105, citation, 194, 122 he returned Wilson’s documents Drayton, free to (2002), and told Wilson that he was leave. 153 L.Ed.2d concluded all conclusion answered of Overcash’s subse not seized after the Wilson was In Drayton, quent questions protest. the Su without addi stop. of the traffic Drayton, tion, no indica just had oc as there is held that no seizure preme Court any intimidating ques were tion that Overcash made passengers bus curred when officers, though force or he even movement show by plainclothes tioned questions using in an authorita space were confined asked Wilson passengers the agree Accordingly, of voice. we displayed badges, their tive tone and the officers force, under the District the was no of with Court application when “[t]here circumstances, movement, totality of the Wilson was intimidating no overwhelm no any point during his encoun force, weap brandishing no of not seized ing show of threat, ons, exits, subsequent no issu blocking of no ter with Overcash no traffic citation.5 command, an tone ance of the not even authoritative Cf. Dray- colleague argues encounter between Wilson Ov- dissenting that continued Our because, ton applied un- not be should here a seizure. ercash was Drayton, passengers like the bus in already by virtue of been seized dissenting colleague once — 5. Both Wilson and our began ques- stop the traffic Freeman, —before v. that Commonwealth suggest scope beyond tioning about issues the him (2000), the relied 757 A.2d 903 Pa. does stop. This factual distinction traffic suppress court in the Commonwealth the factors persuade us to conclude that proceedings, ing the evidence in the state its Supreme Court relevant to deemed We do compels opposite conclusion. Dray- analysis totality in of the circumstances here, Freeman is even relevant as believe that among may ton we not also the factors are general ... that federal courts is a rule "[i]t totality circumstances in our of the consider questions in federal will decide evidence emphasizes, analysis here. As dissent federal, cases on rather criminal the basis questioned he had was fact that Wilson Rickus, state, law.” United States than already been seized once is consideration (3d Cir.1984) inter (holding, analysis. to that But that is relevant alia, applied to defendant's stop just we must is one factor traffic pursuant found to evidence motion against pres- weigh the other circumstances car). to search of the trunk of his ent in this case determine Bustillos-Munoz, age, intelligence, and educational back (10th Cir.2000) ground (holding consenting [party].” of the Id. detention resulting from a stop ended and a The District Court’s conclusion that began when consensual encounter state bag Wilson’s consent to the search of his trooper suspect’s reg returned license and voluntary amply supported by was istration, suspect informed the that he was above, record. As discussed Wilson was leave, free to and then asked whether informed he was free to leave. He there were or weapons drugs the car cooperated then Overcash throughout when there was no evidence “of a coercive encounter, as he answered all Over- authority, presence show of such as the questions, cash’s offered show Overcash officer, display more than one of a his opening CDs and initiated the trunk officer, weapon, physical touching by or car his in order to do so. theAs District his of a commanding use tone of voice found, Court there is no indication indicating compliance be might com record that “Wilson was unable virtue (internal omitted)). pelled” quotation We of age intelligence to understand the must therefore consider whether Wilson’s context, situation.” this the District subsequent consent the search of the hardly finding erred in that Wilson’s bag in his trunk voluntary.6 was voluntary. consent to the search Ov- ercash’s search of bag Wilson’s therefore

C. The District Court’s Determination did not violate Fourth Amendment. that Wilson’s Consent to the Search Bag Voluntary III. Conclusion pursuant “[A] search conducted share dissenting colleague’s We our specifically consent is one of the estab concern procedural history about the exceptions lished require case, warrant particularly because the Govern Givan, ment.” 320 F.3d at 459. The vol- ment represent argument could not of an untariness individual’s consent is a whether it followed Wilson’s case its question of fact to policy be determined from all usual for determining whether cases the circumstances. Id. critical suppression “[T]he fac which grant motions were comprising tors totality circum ed re-prosecuted courts should be inquiry stances include setting system. the in in the federal It is disturbing also obtained, which the consent was par Department the that the of Justice Guidelines actions, ties’ verbal and non-verbal implementing Policy7 may the the Petite not 6. act(s) Because we that substantially have determined no sei- ecution based on the same " occurred, i.e., zure that Wilson's transaction(s),’ continued or absent certain extenuat consensual, encounter with we ing Podgor, Dep't circumstances. Ellen S. argument need not reach Wilson's that Over- Balancing Justice “Discretionary Guidelines: cash did not have reasonable articulable Justice,” 167, Pol’y 13 & Cornell J.L. Pub. 179 suspicion justified activity of criminal that (2004) (quoting Attorneys’ § U.S. Manual 9- Bostick, questioning. See further 501 U.S. at (2003)); 2.031 see also United States v. 433-34, (stating 111 S.Ct. 2382 that consen- Grimes, 96, (3d 641 F.2d 101 & n. 17 Cir. implicate sual encounters not do Fourth 1981) Illinois, (noting that after Bartkus v. Amendment). 121, 676, 359 U.S. 79 S.Ct. 3 L.Ed.2d 684 (1959), Supreme "in which the Court held Policy, deriving "The Petite name its from Jeopardy that States, 529, the Double Clause not does bar Petite v. United [361 U.S. 450, (1960)], prosecuting convicting state from ‘precludes 4 L.Ed.2d 490 previously prose initiation or defendant who continuation of a federal has been tried for cution, following court,” prior pros state or federal acts Depart same in federal

389 previously expressed Our has also this case.8 Court faithfully followed been have Policy its dissatisfaction with the Petite acknowledges, how As the dissent and, moreover, with the Court’s Supreme ever, guidelines and of Justice Department application sovereignty princi of the dual rights not create enforceable do policies ple that of the same hold See criminal defendants. United for sys crime in both the federal and state (3d Gomez, 238, 241 n. 1 v. 237 F.3d States Jeopardy tems does not violate Double Cir.2000) argument by the (noting any that Grimes, at 641 F.2d generally Clause. See Attorneys’ that the Manual U.S. defendant vitality of (questioning continuing 100-04 him to rights entitling relief created jurisprudence particularly that because judicial against weight of be “would seminal were to Ben prior cases decided also, States v. authority”); e.g., see United 784, Maryland, ton v. 395 U.S. (9th Fernandez, 1240, 1246 Cir. 231 F.3d (1969), “un- 23 707 which L.Ed.2d 2000) (“[I]t is clear that the USAM [U.S. that the Fifth Amendment qualifiedly held any Attorneys’ does create Manual] provision to the Jeopardy applies Double rights.... procedural or substantive states”). dissenting colleague our And explicitly ‘[t]he Manual states USAM may be that the has come correct time only Department of Jus internal provides issue, revisit to, It intended does guidance. is not tice light of v. particularly in Smith Massachu to[,] not, upon cre may be relied setts, —, procedural, any rights, ate substantive (2005), in L.Ed.2d the Court which any by any party enforceable ” Jeopardy scope revisited the Double (quoting civil or criminal.’ U.S. manner (holding Clause. See id. 1135-37 1-1.100)); § Attorneys’ Manual United Jeopardy Clause was violated Double Blackley, 167 F.3d 548-49 v. States a mid- when trial ordered the state (D.C.Cir.1999) (same); United States pro trial and then acquittal charge on one (6th Cir.1997) Myers, at the acquittal ceeded to reconsider Piervinanzi, (same); United States v. “[i]f, after a end of case and that (2d Cir.1994) (same); 670, 682 F.3d facially midtrial dismissal unqualified (1st Craveiro, count, proceeded trial has one Cir.1990) (same). Thus, although dowe evidence, the introduction of defendant’s failure to Department’s not endorse final, unless acquittal must be treated as policies, in cases particularly its own follow has been availability of reconsideration jeopardy one raise double as this such rule or pre-existing plainly established concerns, we are conclude constrained mid- authority expressly applicable may oc any such failure that sufficiency the evi trial the rulings on does not mandate curred here nevertheless dence”). allow) (or even relief Wilson.9 begins entry prosse of a in state policy” after the nolle "adopted a federal ment of Justice Agee, F.2d (later States v. Policy) that court. See United known as "barred the Petite 350, 360 (3d 1979). prosecution Cir. following a n. 32 a federal trial state the are for the same acts 'unless reasons " Indeed, rec- appears that counsel 9. it Wilson’s Dep't compelling' (quoting of Justice Press constraints, made no ognized as he the same 6, 1959))). (Apr. Release the arguments relating to either before us noted, however, apparent the Department's to follow failure previously Court has

8. Our Jeopardy Policy Clause Petite or to the Double Policy may applica even be that the Petite prosecution generally. more cases in which a federal ble to precedent, Pennsylvania Turnpike. Accordingly, Under current the howev er, jeopardy there is no bar double to a I respectfully dissent. by prosecution such that the as clear, majority opinion As the makes against Agee, See States Wilson. 597 F.2d by Pennsylvania Wilson was arrested any n. (noting jeopar at 360 32 that double following State Trooper a search of his defendant, dy challenge by raised who was stopped and then prosecuted automobile in tried the federal system his state by in the Commonwealth the Common granted suppression motion was and a County Pleas Court of Cumberland where prosse sys the

nolle entered he filed a motion to evidence fail).10 tem, previously would As we wrote obtained in search. The Common Grimes, despite our concerns about such granted Pleas Court the motion because prosecutions, “we do not believe that we judge that con determined Wilson’s the proper are forum to overturn a legal “independent sent was not an act of free directive from the Court.” 641 evidence, will.” being only This Thus, notwithstanding pol 104. prosecution elected nolle prosequi.11 case, icy by issues raised we conclude prosecution Wilson’s that federal court Thereafter, federal authorities arrested proper for the reasons stat and commenced opinion, in Section ed II of this the search the United District Court for bag of Wilson’s violate did not the Fourth Pennsylvania Middle District of on federal Accordingly, Amendment. we affirm the charges arising from the same incident. District Court’s determination. In response sup- to Wilson’s motion to ALDISERT, Judge, Dissenting. Circuit press, government agreed offer Because I agree the decision of evidence, any stipulated new but that Pennsylvania Pleas in sup Common Court federal court could decide the motion sole- case, pressing the evidence in this would ly on the of the transcript basis hold the District erred in Court decid proceeding. earlier state ing Esco Wilson was not seized for purposes appears of the Fourth What on the be a Amendment at the surface to time he consented to search of blatant exercise of shopping, stop automobile at a for speeding theory smacks double jeopardy, justi held, court, As estop- irrespective the District any Court collateral a state of how 10. pel provides also no bar United States’s inquiry may such have turned out. test is relitigation relating of issues to the search of law, one enlarged by of federal neither what previously litigated Wilson’s car that had been countenanced, may one state court nor Agee, in the court. See may diminished what another have color- (holding ” doctrine of collateral ably suppressed.' Id. at 360 n. 34. estoppel prevent did not the United States relitigating sup- from defendant’s motion to Ebert, prosequi, "Nolle filed 9-13-02. M.L. press though even motion already Esq. Reason: Pleas of Common 6/18/02 because, granted by been the state court inter suppressed drug post-arrest evidence and all alia, party “[t]he United States was not a thereby rendering statements this case non- suppression hearing held in the state prosecutable. court nor Costs in the were the actions of its amount officers un- forum”). Agee der consideration $ in that paid county. 357.50 will be 8-02-02. " emphasized we also determining Guido, '[i]n Docket, Edward E. J.” Criminal whether there has an been unreasonable Court of Common Pleas of Cumberland Coun- officers, by search and seizure a federal CP-21-CR-0002085-2001, ty, Docket Number independent court inquiry, must make an Page 6 of 7. inquiry or not there been such has an Common of in- Pleas] the basis vania Court government by fied the Petite to be known as has come interpretation what of federal volved Department procedure Policy, law. constitutional What makes this (“DOJ” Department”) or “the Justice extremely I case unusual is that this Court severely criticized procedure the fed- never seen where Grimes, 100- United proceeds, prosecution eral but then Cir.1981) (Adams Sloviter, (3d exclusively transcript on the relies Knox, Judge). Judges, District Circuit famil- proceeding? you the state Are Policy Depart- Petite allows The any precedent? iar with other circumstances, ment, to institute in certain many my- I have done AUSA: it times prosecution on substantial- a federal based happens frequently. and it It self act(s) transaction(s) in- ly the same or happen but it does all the time proceed- federal prior state or volved previously where the defendant has and it ing happen happens does where we States, See Rinaldi v. United prevailed. injustice that there done. feel 22, 27, 81, L.Ed.2d 207 98 S.Ct. 434 U.S. by a that automati policy I am troubled States, (1977); Petite v. merely cally triggers prosecution a federal 450, 4 L.Ed.2d 490 has suppression

because “there been a based on state law or on an erro evidence I. by a interpretation of federal law neous case, court argument in this At oral gener I policy state court.” believe this if government lawyer the Justice asked It increases the problems. ates serious gave prosecu- the local federal Department courts, counter to caseload federal runs authority prose- a federal commence tor federalism, denigrates concepts modern colloquy This followed: cution. system, trial quality of the state-court Policy provides [The Petite] AUSA: appellate, professional demeans there are various circumstances more judges of state-court who have ism ap- which the will Department under experience, much experience, indeed more subsequent prosecu- federal prove pros- deciding questions federal constitutional on the same facts as a state tion one of the circumstances ecution than federal proceedings in criminal Department which the will do under teachings and in view of recent judges suppres- where there so is has been Massachusetts, U.S. —, Smith of evidence on state law sion based (2005), 1129, 160 L.Ed.2d 914 of fed- interpretation on an erroneous Jeopardy the Double violates probably eral a state court. of the United States Constitution. Clause done here? And that was COURT: very open admission in court The approval of Your office received the initiate a new government federal will the DOJ? courts in cases where state do not know whether AUSA: effect pernicious evidence has a here. was done defendants rights of state-court on the Why here? COURT: Amendment seeking to vindicate Fourth Freedman [the message Pennsyl- government’s rights. Case relied on to is clear: judges arguing appeal state “Do not the AUSA did not do, you If we’ll a new evidence. institute given know whether it had or not. been prosecution federal on even the same facts Second, importantly, and more though investigation arrest were guidelines require that a “substantial fed- by made state authorities and the state eral interest” be which was “un- involved prosecution.” policy This conducted the vindicated” the state level and which effect, States, allows the in to use United effectively can be at the vindicated federal to any judge’s federal courts review state through by a level “conviction unbiased constitutionally-based federal on a decision Id. The determination about fact.” trier of motion to dismiss. a federal is interest involved is to me, To is appalling. this “case-by-case” be made basis with a express the views that follow presumption prosecution, “that a prior re- (1) purpose inviting Supreme of: result, gardless of has vindicated the rele- to its older re-examine cases on the Double vant state interest.” Id. in Jeopardy light Clause of its cases mak- Initially, explanation I note that the

ing Bill Rights applicable state oral policy argument the AUSA at prosecutions by means of Fourteenth “case-by- seems odds with a careful (2) Amendment; and the atten- directing approach. fundamentally, case” More Congress practice. tion of to this following inquiries what I expose take to II. implicit be unwarranted assumptions, Department’s guidelines, about what it practice This a federal instituting (1) takes vindicate a federal interest: prosecution sup- “there when has been the federal in prosecut Whether interest pression law of evidence based on state drug exclusively ing dealers is a federal on an interpretation erroneous of federal interest, or, if the interest is not exclusive court,” law a state which apparently federal, ly law promotes whether federal “happens frequently” accord far more effective vindication the inter the Department’s guidelines imple- own (See designed est than the state to vindi Petite menting Policy. Oral Ar- (2) interest; cate the same above).) First, and Whether gument in full (quoted judges federal have a superior competence, guidelines require, procedural prereq- as a of more experience, preside reason initiating uisite to over criminal subsequent present cases which constitu prosecution, approv- answers, “by My al tional issues. set forth appropriate Attorney be Assistant Justice, low, United only me to Dep’t question General.” lead the con U.S. Attorneys’ States Manual formity procedure § 9-2.031 followed this is no approv- Department’s There indication that case with the own guidel case, ines,12 al given it but continuing vitality seems also the unlikely approval the Petite given Policy because itself. erick, (6th Cir.1978); quick recognize I am that this Court in 583 F.2d 273 United Grimes, (10th Thompson, and all other United Courts v. States States Cir. Appeals 1978)(en banc); Wallace, question considered the United States v. (5th recognize inability Cir.1978); Depart our to invoke the F.2d 735 United States v. Nel (5th Cir.1978); policy as a prosecution. ligan, ment's bar to federal 573 F.2d 251 See, Snell, Hutul, e.g., (7th Cir.1969). v. United States 592 F.2d 1083 416 F.2d 607 (9th Howard, Cir.1979); Court, contexts, analogous United States v. (4th Cir.1979); F.2d 564 Department policies gov United States Fred has concluded that

393 our any statute that so defines federal A. interest. compare federal It first helpful is and sentences for the statutes state justi- appears There to be no reasonable possessing with distributing and

charge of prosecutors becoming fication for federal significant quantity of intent to distribute day modern in- Girolamo Savonarolas and Court, District cocaine. In the sisting that a cocaine dealer in a because of to 21 plea guilty filed conditional loose after a state court was turned Fourth 841(a)(1) in- possession § for U.S.C. hearing, they prosecute Amendment must than 500 of grams more tent distribute again in combat wickedness order to motion to After his cocaine. life. If we can spread agree holiness of denied, jail he was fined sent $300 to insure that the interest is federal years. for five I drug prosecuted, dealers submit that be similarly prohibits every Nation has a similar Pennsylvania law state manufacture, interest, delivery, or the next possession ques- “the and this leads to deliver, or judges competent try to manufacture tion: Are with intent state substance,” as drug such cocaine. 35 cases in criminal courts? controlled state 780-113(a)(30) (2003). § Pa. Stat. Ann. § of 35 780-

Sentencing for violation P.S. B. 113(a)(30) P.S. governed is 18 The brute fact is that state-court trial 7508(a)(2). § the offense involves Where judges experience than federal more cocaine, provides it grams at least 100 judges deciding federal constitutional mandatory minimum sentence of five for prosecutions. issues that in criminal arise $25,000 fine of for years in and a prison 2002, example, 15.5 For some million years and seven and a first offenders time in state criminal cases were filed trial $50,000 repeat fine for offenders. courts,13 district in the federal courts while 7508(a)(2)(iii). § 70,642 67,000 were in 2003 and there drug dealers more effec punish seems to 2004.14 forcefully, tively, more than the or at least experience superiority The ratio of federal law. judges approximately 2250 to 1. state prosecuting If is in interest the federal group, judges This means as a state dealers, clearly under drug every 2250 cases to one of had. criminal would vindicate the rele- state statute counterparts. their federal accept vant interest. refuse to locale, Pennsylva In a more immediate the federal is to the notion that interest judges handled rather than nia Common Pleas Court prosecu- demand convictions 155,049 criminal cases 2002.15 The fed nothing in the tions. I see Constitution Wyo except Mississippi, Oklahoma and operations do state erning not create its internal ming). rights may be enforced defendants which against Department. See United States 14. Judicial Business of the United States 741, 1465, Caceres, 59 440 U.S. S.Ct. Report the Director Courts: 2003 Annual (1979); States, L.Ed.2d 733 Sullivan United D, "Report”], Table [hereinafter 182, L.Ed. http://www.uscourts.gov/jud- available (as of Mar. bus2003/appendices/d.pdf 2005). Courts, Examining the Work State 38; Courts) (National . Ju- Center for State Statistics CAseload Unified (Table System Pennsylvania dicial available id. at 40 see also district in the includes: Faretta v. Cal judges judges every day eral three federal ifornia, judicial Pennsylvania 806, 2525, in districts handled 422 U.S. 95 S.Ct. 45 only (1975) 1394.16 This means as a group, (right L.Ed.2d 562 to proceed with Pennsylvania judges States, v. approxi counsel); state Bruton United out 391 mately every 111 123, criminal cases one of 1620, U.S. 88 20 476 S.Ct. L.Ed.2d (1968) their federal In counterparts. (limited the district use con co-defendant’s courts of the Third entire Judicial Circuit Wade, v. fession); United States U.S. 388 in 2002 filings.17 there were 2939 criminal 218, 1926, (1967) 87 S.Ct. 18 L.Ed.2d 1149 (right during post-indictment to counsel sure, To be at time Supreme Arizona, identification); Miranda v. lineup put on the Petite imprimatur Court its 436, 1602, 16 384 U.S. 86 S.Ct. 694 L.Ed.2d Policy, judges state had little or experi- no (1966) (right during to counsel custodial with federal ence constitutional issues. Brady Maryland, v. interrogation); 373 These cases were decided at a time 83, 1194, U.S. 83 S.Ct. 10 L.Ed.2d 215 Fifth Jeopardy when Double Amendment (1963) (right exculpatory in information not bind did the states. When the Court possession Gideon prosecutor); States, decided Abbate v. United 359 U.S. Wainwright, 372 U.S. 335, 792, 83 9 S.Ct. 187, 194, 666, 79 3 L.Ed.2d 729 (1963) (right L.Ed.2d 799 to court-appoint (1959), and held that “[t]he Fifth Amend- Ohio, counsel); Mapp 643, ed 367 U.S. ment, like all guaranties other in the first 1684, (1961) 81 S.Ct. 6 L.Ed.2d 1081 eight amendments, only applies pro- (search seizure). and ceedings by government, the federal ... jeopardy double therein forbidden is second after a first trial III. same offense under the same au- My analysis of the jeopardy double Maryland, Benton v.

thority,” 395 U.S. problems which inhere in the Depart 784, 2056, (1969), 89 S.Ct. 23 L.Ed.2d 707 Petite Policy ment’s begins with endorse yet had not applied the Fifth Amendment Grimes, ment of what Court in said Double Jeopardy Clause to the states. I incorporate by reference the discus A popular saying seems appropriate sion set forth See therein Part II. here: “We’ve long way, baby.” come a F.2d at Succinctly, 100-104. this Court is The time Supreme has come for the of the view “permitting successive issue, to revisit or for Congress state-federal prosecutions for the act same take ameliorative actions on the basis of may be viewed as inconsistent with what is empirical above; data forth set data a most principle juris ancient western overwhelming demonstrates the par- prudence government may that a place ticipation by state judges criminal cases twice a person jeopardy for the same involving federal issues. Id. offense.” 100. We noted that A significant brief list of predicate recurring of the seminal case legitimating Illinois, Bartkus v. facing constitutional issues this policy, 10, http://www.courts.state.pa.us/ Index/Aopc/Re- (as 2003report.pdf of Mar. arch/caseloads/ 2005). alone, 15,- (as Philadelphia 2002Report.pdf there were of Mar. search/caseloads/ filings new 2003. Id. 2005). at 12. 153,362. figure The 2003 Caseload Sys- Statistics Judicial Unified Report, supra, 2. note 16. tem http:// available at www.courts.state.pa.us/ Index/Aopc/Rese Id. (1959), by jury: jury acquittal than When a L.Ed.2d a trial guilty Double returns a verdict the Fifth Amendment (or court) sets aside appellate bind states. Clause did not Jeopardy unqualifiedly judgment held that verdict and enters Subsequently, Benton acquittal, provision apply Jeopardy does states. the Double Clause that the prosecution appeal 2056. After does preclude U.S. jury guilty. Court cases that discussion reinstate the verdict of Abbate, Wilson, 332, we stated: Bartkus and United States v. 420 U.S. followed 1013, provision 352-353, is constitutional L.Ed.2d 232 “Whenever (1975). against the state and if equally enforceable But has conviction, appear in governments, yet pro- it would obtained a further federal of parallel ceedings impermissi- to actions one consistent allow to secure are produce “[Sjubjecting post- re to state and federal officials ble: defendant constitutionally im acquittal factfinding proceedings going which would be sults by juris if either accomplished guilt or innocence violates the Double permissible Grimes, Jeopardy Pennsyl- alone.” diction Clause.” Smalis vania, 145, 140, 1745, against jeopardy is not “The ban double 476 U.S. against but being punished, twice 90 L.Ed.2d 116 against William B. being put jeopardy.” in twice added). (emphasis Id. Lockhart, Kamisar, H. Choper, Yale Jesse (1970) (citing n.a Law 696 Constitutional B. States, 372 U.S.

Downum v. United Moreover, by has been there action Con- (1963)). 1033, 10 L.Ed.2d 100 S.Ct. deci- gress subsequent to this Court’s 1981 in that has here. sion Grimes relevance

A. In Congress amended 28 U.S.C. recently Supreme has recon- The Court § 2254 to provide: scope jeopardy pro- of double sidered (d.) An for a of habeas application writ v. Mas- in another context Smith tection custody corpus person of a on behalf determining that double sachusetts. pursuant judgment of a State judge where a jeopardy attaches mid-trial respect granted court not be shall of on motion in favor the defendant ruled adjudicated any that was claim guilty on one required finding proceedings merits in court unless State offenses, the consid- charged Court adjudication of the claim facts important it that “the ered (1) in a decision that was con- resulted gave petitioner no reason to doubt trary to, an unreasonable or involved ruling.” court’s finality of the state of, clearly Feder- application established Smith, The 125 S.Ct. at 1135. same law, al as determined indication in the here. find no true Court the United States. was forewarned that record proceed- prevailed if he in his state even explained: “Congress has to face second ings, he would still have ‘unreasonable,’ the word specifically used prosecution. federal ‘incor and not like ‘erroneous’ or a term importantly, the Court stated: 2254(d)(l)’s More § ‘unreasonable rect.’ Under clause, then, a habeas single exception application’ federal cases have made Our simply be the writ may court not issue principle acquittal indepen in its cause that court concludes guilt no less precludes reexamination judgment dent interpretation relevant state- on erroneous of federal applied clearly court decision established law a state court.” erroneously incorrectly. I now turn constitutional issues Rather, application un must also be presented in the case at bar. v. Taylor, reasonable.” Williams 529 U.S. 362, 411, 120 S.Ct. L.Ed.2d IV. Cone, (2000); see also Bell v. The District Court erred determining 694, 122 (2002) 152 L.Ed.2d 914 State Trooper Overcash (“The focus of the latter is on inquiry obtained effective consent from Esco Wil- application state court’s son for the bag search and therefore clearly objec established federal law is erred its denial Wilson’s motion to unreasonable, tively and we stressed suppress the evidence obtained from that Williams that an application unreasonable search. This conclusion follows from a one.”) (em is different from an incorrect determination that Wilson seized added); phasis Payton, see also Brown v. purposes of the Fourth Amendment. I U.S. —, 1432, 544 161 L.Ed.2d with begin a of discussion the standard of (2005) (recent of decision the United review. affirming prin States Court ciple). government urges that a number of questions of questions fact and mixed of important There are be- similarities law and fact are contained in the ultimate (1) statutory tween: presumption in legal issue before us. It contends that 2254(d) § habeas cases at the state questions these fact subject of should be (2) proceedings correct; presumed are and a review for clear error this Court. Policy presumes the DOJ’s Petite prior regardless a prosecution, agree I generally, questions of the re- factual sult, has vindicated the relevant federal and factual components questions of mixed Justice, subject interest. U.S. of Dep’t are to a clear error standard of ‘Attorneys’ § States I agree Manual 9-2.031 review. also^ with govern specific ment’s of determination which is sues are factual and the which sup cases Putting question aside the of double port this determination. See United jeopardy, it me that if seems to are to we Givan, 452, (3d v. 320 F.3d put a expense defendant agony and Cir.2003); Perez, United States v. Petite, of a second trial under govern- (3d 318, Cir.2002); United States v. ment put should be to the same test that (3d 651, Coggins, 986 F.2d 653-654 Cir. Congress requires peti- now of a habeas 1993). § tioner government under 2254. The should show that the state court’s There is an important factual difference application clearly-established between the cited government cases objectively unreasonable, is support rather clearly preferred its errone- than merely incorrect. Absent a re-exami- ous standard of review and the case at bar. Court, nation the Supreme eases, it would In each of the cited the district take Congressional replace action judge during court present pro- policy argument described at ceeding oral in this produced factual evidence. subsequent which a judge allows federal The smelled the smoke battle and sup- “where there has been a was therefore in much position better pression of evidence based on law or make factual ap- determinations than an V. merely paper reviews judge who pellate record. This Court has heretofore dealt di- living to face witnesses Face with rectly presented the issue here: position holds trier of facts original questioning purpose When occurs after the judges appellate from advantage which has been stop completed ex- In doubtful cases the are excluded. person the officer that a is free to states observation often power of his ercise leave, under what circumstances does method of as- the most accurate proves arise requiring probable second seizure .... How can we certaining the truth justified cause distinct from that which judge wrong? We never saw say the is stop? initial sophistication .... To the the witnesses sagacity trial the law Here, plowing is furrows panel new appraisal. duty confines the I in this And am to admit quick Court. 412, 434, Witt, 469 U.S. Wainwright that this a close issue over which reason- (1985) (quoting 83 L.Ed.2d 841 may able minds differ. Lonberger, Marshall v. that the District erred conclude (1983) 74 L.Ed.2d determining State 422, 169 N.E.

Boyd Boyd, 252 N.Y. con- Trooper obtained effective (1930)). bag. sent from for the search of his Wilson us, the district In the before denying mo- I believe it Wilson’s erred entirely there. on tran- was not He relied tion to the evidence obtained suppression the hear- script evidence from con- Supporting from that search. these of Court Common ing in the Dis- my disagreement clusions with the is from orthodox dis- departure This Pleas. was not trict Court’s decision suppression procedures rele- trict court is of the Fourth Amend- purposes seized we defer to very because the reason vant was given. ment when the consent the findings made trial-court factual present in this case. This level is not A. position as the exactly the same Collectively, three judges

District Court. Trooper testimony I start with the of written can read the tran- of this Court Overcash: hearing, the script suppression question law- parties Q. you of the and What did do with briefs Go ahead. Judge yers during argument. oral Guido that citation? County Court of Com- of the Cumberland citation, Well, upon completing A. position was in a to make mon Pleas better and agreement I this rental examined determinations, we are re- factual but actually to be re- that it was observed grant

viewing state court’s Wilson’s 17th, I did August 2001. by turned must suppress. motion to We review see NCIC CLEAN check to conduct an of the District Court. order neg- if was stolen. That was the vehicle factu- plenary I review of would exercise completing that citation Upon ative. legal as made al as well determinations unit, I did examining the rental unique cir- the District Court because return Mr. Wilson’s vehicle. reasons make the for the cumstances here Q. him citation? you issue Did clearly inoper- erroneous standard normal Yes, A. I did. ative.

* * * * ^[*] stances surrounding incident, a reason- person able would have believed that he Q. happened next, Trooper? Wbat was not free leave.” Id. at A. I citation issued to Mr. S.Ct. 1870. Mendenhall forth set “[exam- Upon Wilson outside the vehicle. issu- ples of might circumstances that indicate a citation, ing him he advised including “threatening presence seizure” free to leave. steps He took few officers, display weapon by several of a vehicle, towards his then I asked officer, physical touching some him question agree- about the rental citizen, person of the or the use of lan- being expired, responded. ment and he guage-or indicating tone voice that com- usually He related he rented them pliance might with the request officer’s be month, for a a lot of he did travel- compelled.” Id. ing. him I asked what kind of work he did. He related he sold [sic] master In determining that Wilson was not compact disks to stores for ap- music purposes seized for Fourth Amend- proximately $500.00. ment, government and the majority rely Drayton, on United States v. (Transcript hearing (emphasis at 8-10 153 L.Ed.2d 242 added).) case, plainclothes In that three Thereafter, Trooper asked police badges officers visible and con- happened “What next?” the prosecuting cealed weapons part boarded a bus as of a attorney 14 times four pages testimo- drug weapons routine interdiction. (Id. 10-14.) ny. Fourteen answers Id. at One officer Trooper related seeking to his infor- bus, stood at the rear of the a second stood mation from Wilson he had “advised at the front while third officer went from he was free to leave” at [Wilson] passenger passenger explaining pur- conclusion of the traffic stop. pose seeking permission and to search I view as instructive Common Pleas 197-198, their Id. at luggage. S.Ct. Court judge’s finding Trooper Over- 2105. The officers all made effort not simply began cash asking about the rental to block the entrance or exit of the bus. agreement. It was the court judge Id. The Court focused on coercion and not district judge who was able to force. It determined that because “[t]here Trooper observe testimony Overcash’s force, application was no no intimidating (See first Op. hand. of the Ct. of Common movement, force, overwhelming no show of 84.) Pleas at unique Because of the pos- brandishing no of weapons, blocking no ture of this case which me to apply leads a exits, threat, command, no no not even an completely review, novo de standard of I voice,” authoritative tone of there was also would credit the finding state court over no purposes seizure for Fourth the opposite finding made the district Amendment. Id. at 122 S.Ct. 2105. court judge. Drayton focused these factors not as a determining test for a seizure had

B. place, taken factually but rather as rele- Mendenhall, vant in inquiries determining U.S. whether “a (1980), L.Ed.2d 497 person reasonable would feel free to de- “a person instructs that been has ‘seized’ cline the officers’ requests otherwise within meaning the Fourth Amend- terminate the encounter.” Id. at if, ment in only view of all the circum- S.Ct. 2105. (1) decline to time would feel free to: different quite in this case are facts (2) questions; re-enter Drayton. Wilson was answer the officer’s in

from those (3) car; on a bus who were many passengers say “sayonara” cop to the and one of permission asked for being politely away. all drive Instead, had been he bags. their search that, as The District Court determined license, over, registration had his pulled Drayton, force there was no coercive from him and taken agreement and rental Trooper Overcash’s encounter present receive out of his car to then ordered was Wilson, and virtue of this conclu- inter- None of this speeding. a citation sion, person that a determined reasonable voluntary nature. action was have felt free to in this circumstance would in the was made All of the interaction questions decline to answer the officer’s pur- for the legitimate seizure context of In conclu- away. reaching drive citation; legit- issuing speeding pose of sion, exclusively Court focused the District Trooper when that ended imate seizure Trooper after Overcash place on what took to leave. he was free told Wilson told Wilson he was free to leave. Drayton, where the the situation Unlike pur- Amendment seizure For Fourth prior seized had not been passengers bus with the District poses, agree Court: had Wilson questioning, to the onset Trooper Overcash’s statement violation. speeding for the been seized effectively ended the free to leave Drayton teachings that the To hold traffic that was incident seizure oranges. mix apples is to applies Moreover, this fact constitutes stop. bar, being told he In case at jurisprudential distinction between basic leave, immediately Wilson was was free to Drayton. facts in this case and those nothing to that had question another asked Yet, precluded from consid- we are violation, only pur- speeding do with coercive effect which ering potentially asked seizure. He was original pose stop, during force used lease, at a time question about his rental told he was free Wilson was before already learned Trooper when leave, subsequent on the may have had then stolen. He was car was not Trooper Overcash between interaction and after he going, he was asked where addition, state- Trooper’s Wilson. to the oth- Trooper walked responded, the go was free ment that Wilson pas- and the two of the car asked er side context. an authoritarian framed Then, the they going. were sengers where radioed for to his car and Trooper went cites a series of cases government The backup. of Courts our sister United States from factually similar are more context, Appeals which ques- the critical In factual this Each Drayton to the case at bar.18 than is person at this a reasonable tion is whether refuse); Taverna, 873, States v. could defendant v. 348 F.3d United States 18. See Cir.2000) 1171, (10th West, (10th Cir.2003) (determining that a 877-79 (determining was not seized that a defendant purposes of the for defendant was not seized defendant, travel police officer asked about when the af where the Fourth Amendment citation, having the initial traffic walking plans concluded after receiving was a traffic ter by handing the defendant's documents stop police officer vehicle when the back to his him); v. Bustillos-Mu United States visit back to noz, if he could after him and asked hollered 505, (10th Cir.2000) drugs 514-15 things, proceeded ask about to about show (determining there was no coercive finally permission to guns and obtained and seizure, when, authority, no and therefore explaining that the of the vehicle search Supreme makes clear that a to a pursuant seizure Ohio State Court determined stop stopped traffic ends on the person totality when the based of the circum- stances, they go, is told are free to or have their the transition between the exer- authority cise of Although documents returned to involved the seizure them. to a traffic pursuant stop seeking and each cited cases held subse to permission search the had quent interaction between the defendant vehicle ques- been so seamless that the subjected police officer’s stop traffic and impliedly consensual, tioning was coercive. State See every officer one of these Robinette, 234, v. 80 Ohio St.3d N.E.2d contemplates possibility cases that a 762, 770-772 authority show could result second cases, In each seizure. of these the follow Freeman, In 563 Pa. Commonwealth up question which the conver re-initiates (2000), 757 A.2d the case relied gen after the stop sation seizure upon by Common Pleas Court eral and non-threatening abiding to a case, pulled Freeman was over and issued contrast, In person. Wilson was asked a warning improper changes lane and specific question very expiration about the windshield obstructions. After the officer agreement rental which could be the warning had issued and returned Free- easily perceived as accusatory threat documents, man’s he told her she free ening even law abiding innocent go to went back to his Id. The car. person. got officer out of then his car and returned car, began to Freeman’s questioning her government’s I find the reliance Ohio passengers, and her ordered her out Robinette, U.S. eventually car and permission obtained to (1996), unhelpful. 136 L.Ed.2d 347 largely ear search the and found Id. drugs. Although it is true that is factu- Robinette employed court the test which has been us, ally I similar the case before do not by the Supreme articulated United States supporting read it as government’s found that totality Court and based on the Rather, position. rejecting read it as circumstances, person a reasonable any per require police se rule that would previous would conclude that the officer’s persons they officers inform are indicating statement she was free leave leave free to after a valid detention before longer operative was no and therefore a attempting engage in a in- consensual place. second seizure taken Id. at 36, 39-40, Id. terrogation. 907-908. 417. Robinette factually- reaffirmed a based reasonableness test remanded Givan, case, factually similar we Ohio Court to decide the expressed doubt about the second using case a reasonableness instead of test was a purposes encounter seizure for per se rule. Id. at 417. In the Fourth Amendment but decided the interpreting guidance the United different assuming on a basis: Even remand, Supreme States seized, Court on that the defendant was there was car, where, walking as defendant having to his back Fourth Amendment his drugs any guns him, the officer asked if he or had registration license returned to no; responded in his car and the defendant anything defendant was asked whether he had per the officer then asked for and obtained illegal in his car and did when the defendant mission to search the vehicle found answer, repeated question not the officer Sullivan, drugs); United States v. yielding several times admission (4th Cir.1998) (determining 133-34 car). gun that he had a defendant in purposes defendant was not seized for of the il- considered he had made a suspicion of second and articulable “reasonable seizure of stop.” to extend the Wilson. legal activity sufficient doubt in Givan F.3d at 458. Our I, therefore, conclude that the District present on the case light sheds little determining Court erred Wilson factual differences. view of some relevant of the purposes seized for Fourth Givan, asked the driver the officer Amendment. answering if mind a few the car he would began questioning he his questions before VI. that consent explained

and the officer also voluntary and was to the search had to be Majority The has based its holding on required. Id. at 459. their was not conclusion that Wilson seized purposes the Fourth Amendment law no survey Our of the case uncovers he to the search when consented of his from or the our own Court bag. my disagreement I expressed specifically controlling. that is this I will not with conclusion. comment case, I very Although this is close government’s on the alternative theories that, looking totality conclude at the of the which, view, my are also flawed. circumstances, person a reasonable in Wil- not feel free refuse position son’s would to $ ifc sH ifc questions Trooper answer Overcash’s to sure, away. get the car and drive To be teachings of Smith v. Massachu- Trooper instruction that Overcash’s Wilson on, if not complete- setts cast serious doubt as a was free leave must be considered to vitiate, ly vitality continuing of the support government’s fact tending to Policy. Additionally, Petite as matter of encounter, contention that this was mere give Petite fails to public policy, proper conclude, I rather a seizure. howev- than ability respect of state and state er, context the overall which I judges to vindicate federal interests. am Trooper interaction between the and Wil- asking copy forward a this Clerk to fact. outweighs son As was occurred dissenting respective chairs opinion Freeman, just case in been of the Judiciary Committees United authoritative, subject a series of albeit Representatives States House of by Trooper legitimate, commands Over- Senate with recommenda- over; required pro- being pulled they legisla- cash: tion determine documents; required duce exit his vehi- action tive is needed. proceed cle and to the rear the vehicle. bar, I On the merits of the case would

Then, immediately after being told almost judgment of the District reverse the leave, very specif- asked a he could he was Court. question person ic which reasonable could an accusation of kind of take as some respect, dissent. Accordingly, (namely possessing a vehicle wrongdoing

illegally) a demand to followed know

interim, or ultimate destination. mediate enough

This serious questioning was backup. Although

warrant a call for rea- test, beyond is the it is cavil

sonableness Trooper

that at moment

Case Details

Case Name: United States v. Esco Wilson

Court Name: Court of Appeals for the Third Circuit

Date Published: Jul 1, 2005

Citation: 413 F.3d 382

Docket Number: 04-1918

Court Abbreviation: 3rd Cir.