United States v. Lyndom Burl Baker

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
________________________ MAY 08, 2002
THOMAS K. KAHN
CLERK
No. 01-16585
Non-Argument Calendar
________________________
D. C. Docket No. 01-00028-CR-4-SPM

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LYNDON BURL BAKER,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Northern District of Florida
_________________________
(May 8, 2002)

Before CARNES, HULL and GODBOLD, Circuit Judges.

GODBOLD, Circuit Judge:

A federal grand jury returned a single-count indictment charging co-

defendants, Lyndon Burl Baker and Dwayne Everett Jackson, with conspiracy with
intent to distribute more than fifty grams of cocaine base (crack cocaine) and a

substance containing cocaine (powder cocaine), in violation of 21 U.S.C. §§ 841(a)

(1), 841(b)(1)(A)(iii), 841(b)(1)(C), and 846. Jackson pleaded guilty. Baker filed

a motion to suppress evidence and statements as fruits of an initial unlawful

detention, contending that the police violated his Fourth Amendment rights. The

government asserted that the initial interaction between Baker and the police was a

lawful consensual encounter. After a hearing, the district court denied Baker’s

motion to suppress. The court held that the encounter was not an unconstitutional

seizure. The case proceeded to trial and the jury returned a guilty verdict. Baker

appeals from the denial of his motion to suppress. We affirm.

The relevant facts are undisputed. On November 3, 2000, Tallahassee Police

Department officers, John Hoover and Roderick Looney, were engaged in a drug

interdiction operation at the Greyhound bus depot on Tennessee Street in

Tallahassee, Florida. They were dressed in plain clothes. A Greyhound employee

told Hoover that he had seen Baker motion to Jackson, an inbound passenger who

had a jacket and bag, to go into the terminal. Hoover found this behavior odd so he

had Looney follow the men.

Looney saw the men heading towards the parking lot. The men got into a

car. Michael Demoros Knight drove the car towards the exit of the bus terminal

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parking lot, Baker was in the passenger seat, and Jackson was in the back seat on

the passenger side. Knight stopped the car because it was blocked by traffic on

Tennessee Street but left the car engine running. Hoover walked up to the car,

displayed his badge, and asked Knight to roll down his window. Knight did so.

Hoover then asked Knight if Hoover minded if he spoke to the back seat passenger,

Jackson. Jackson, without being asked, got out of the car and proceeded to the rear

of the car, leaving the jacket and bag on the back seat. Hoover walked to the rear

of the car. Looney then approached and asked the men whether any of them

owned the jacket and bag. Jackson said they were not his. Upon further inquiry,

Baker and Knight also denied ownership. Since the items were not claimed by

anyone in the car, Looney asked if he could examine them. Knight, Baker and

Jackson agreed. Looney examined the jacket and found drugs. The officers

arrested all three men.

When reviewing a motion to suppress, the district court’s finding of fact are

reviewed for clear error, and the court’s application of the law to those facts is

reviewed de novo. See United States v. Gordon, 231 F.3d 750, 753-54 (11th

Cir.2000).

The issue of first impression in this circuit is whether the interaction

between the police and the individuals in the car that was neither parked nor

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moving was a consensual encounter under the Fourth Amendment.

Baker asserts that the district court erroneously concluded that his initial

interaction with the police, while he was in the car that was stopped due to traffic,

was constitutional. He argues that the police did not have probable cause or

reasonable suspicion to detain him. The government acknowledges that prior to

finding the drugs the officers did not have probable cause or reasonable suspicion

to detain Baker or the other men. However, the government characterizes the

initial interaction between the officers and the men as a consensual encounter that

ended when the officers discovered the drugs, which gave probable cause for the

arrests. According to Baker, any time a police officer approaches or interacts with

a car that is moving or stopped, but not parked, the officer seizes the individuals in

the car for Fourth Amendment purposes. We disagree.

In the seminal search and seizure case, the Supreme Court held that not all

personal intercourse between policemen and citizens involves ‘seizures’ for Fourth

Amendment purposes. See Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968). “Only

when the officer, by means of physical force or show of authority, has in some way

restrained the liberty of a citizen may we conclude that a ‘seizure’ has occurred.”

Id. The mere fact that a law enforcement officer approaches an individual and so

identifies himself, without more, does not result in a seizure. See Florida v. Royer,

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460 U.S. 491, 497 (1983) (plurality opinion). The societal pressure to stop and

speak with law enforcement is not a sufficient restraint of liberty to raise the

interaction to a level that requires constitutional protection.

In order for there to be a sufficient restraint on liberty to elevate an

interaction between law enforcement and an individual to constitutional

dimensions that trigger Fourth Amendment protection, the police must exert a

show of authority that communicates to the individual that his liberty is restrained,

meaning he is not free to leave. See Terry, 392 U.S. at 19 n.16. The show of

authority can be in several forms, such as “the threatening presence of several

officers, the display of a weapon by an officer, some physical touching of the

person of the citizen, or the use of language or tone of voice indicating that

compliance with the officer’s request might be compelled.” United States v.

Mendenhall, 446 U.S. 544, 554 (1980). In sum, “the crucial test is whether, taking

into account all of the circumstances surrounding the encounter, the police conduct

would ‘have communicated to a reasonable person that he was not at liberty to

ignore the police presence and go about his business.’” Florida v. Bostick, 501

U.S. 429, 437 (1991) (quoting Michigan v. Chesternut, 486 U.S. 567, 569 (1988)).

Here, the police officer did not make a sufficient show of authority to

sufficiently convey to Baker that his liberty was restrained. Hoover, dressed in

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plain clothes, walked up to the car that was stopped because it was blocked by

traffic. While Hoover displayed his badge he did so to identify himself as a police

officer not to detain the vehicle. He did not tell Knight to turn off the engine and

he asked to speak with the men inside the car. Knight consented. The officers did

not display a weapon or use any language or tone that would indicate that

compliance with the officers’ request was compelled. Baker was free to decline to

answer the officers’ questions at any time but instead engaged in conversation.

The record does not indicate that the officers behaved in a manner that was

threatening. Before the officers found the drugs they did not touch Baker. Baker

could have ended the encounter at any time prior to the drugs being found. Just

because Baker was in a car that was momentarily stopped waiting for traffic to

clear does not elevate this interaction to that of a seizure. For these reasons, the

district court did not error in holding that this was a consensual encounter not

protected by the Fourth Amendment.

Our holding that there was no seizure in this case is in line with the Sixth

and Second Circuits. In United States v. Caicedo, 85 F.3d 1184 (6th Cir.1996), the

Sixth Circuit considered a similar issue and held that a police officer did not effect

a seizure when he stopped a slowly moving car to talk to the individuals inside the

car. In Caicedo, William Ryan and co-defendant Anthony Caicedo were in a car

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leaving the parking lot exit of a bus terminal. Caicedo, 85 F.3d at 1187. Ryan was

driving and passed police Officer Mercado who was armed, on foot and in full

uniform. Id. Mercado identified himself as a narcotics officer and asked if Ryan

minded if they talked for a minute. Id. Ryan voluntarily stopped the car, leaving

the engine running, and indicated he did not mind. Id. Officer Bogenschutz

approached and also asked Ryan if he would speak with him. Id. at 1191. Ryan

responded in a polite and cooperative manner. Id. The officers did not display

their weapons or act in an intimidating manner. Id. The court held the initial

encounter between Ryan and the officers was simply not a seizure, reasoning that

Ryan was free to decline to answer the officer’s questions at any time. Id. See

also, United States v. Adegbite, 846 F.2d 834, 838 (2nd Cir.1988) (holding that a

seizure did not occur where the car had barely started in a parking lot, moved only

fifteen to twenty yards, and was waved to a halt by DEA agents on foot and in

plain clothes).

For the reasons stated above, the district court is AFFIRMED.

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