Constitutional Criminal Procedure - James P. Fleissner, Sarah B. Mabery, and Jeanne L. Wiggins

• Publication year: 2001

Constitutional Criminal Procedureby James P. Fleissner^* Sarah B. Mabery^** and

Jeanne L. Wiggins^***

I. Introduction

This Article surveys noteworthy 2000 decisions of the United States Court of Appeals for the Eleventh Circuit in the field commonly known as Constitutional Criminal Procedure. As in past years, the survey focuses on significant decisions concerning the Fourth Amendment's protection against unreasonable searches and seizures; the Fifth Amendment's privilege against self-incrimination, prohibition against double jeopardy, and guarantees of due process and grand jury screening; and the Sixth Amendment's procedural protections, including the right to counsel and the right of confrontation. Of course, most of these rights, with few exceptions, such as the right to have charges approved by a grand jury, have been held applicable to state criminal justice systems pursuant to the Due Process Clause of the Fourteenth Amendment. As a very busy appellate court, the Eleventh Circuit hears a large number of direct appeals and collateral proceedings that raise issues of the proper scope of the Fourth, Fifth, and Sixth Amendments. This Article endeavors to identify the most significant of those decisions from 2000, summarize the cases and the court's reasoning, and provide a measure of context and commentary as to the issues presented.

II. The Fourth Amendment

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.¹

A. Investigatory Stop and Frisk

The court of appeals decided several stop and frisk cases during the survey period. In United States v. Smith,² the Eleventh Circuit confronted the now routine practice of drug interdiction officers who lack reasonable suspicion that any passenger is carrying drugs: checking bus passengers for drugs by seeking their consent to search.³ Aggressive law enforcement agents capitalize on the realities of the crowded bus, where passengers may be unable to disembark and may feel constrained to cooperate because of the appearance that refusal would create for the officers and other passengers. In the crowded environment of a bus, where the passengers often lack the option of walking away from the officers, courts have the difficult task of assessing whether a reasonable bus passenger would feel free not to cooperate or whether the encounters constitute a Terry seizure, which is unlawful when not based on reasonable suspicion. Of course, if the encounters amounted to an illegal Fourth Amendment seizure, consent given by a passenger to search luggage is vitiated, and any evidence found must be suppressed.

In Smith the court examined the following issues: (1) whether the bus check was a seizure; and (2) whether the seizure was reasonable.⁴ The court held that while the bus check amounted to a seizure under the Fourth Amendment, the seizure was reasonable and, therefore, the evidence was properly admitted at trial.⁵ The agents in this case were conducting surveillance for drug activity on May 5, 1997. The agents noticed defendant engage in a quick whispered conversation with Bruton, another man in the terminal the agents had been watching. Bruton had appeared nervous, was constantly changing seats, and watched passengers as they walked through the terminal. The agents had also been watching two new, expensive looking suitcases left unattended in the terminal. Bruton later boarded a bus with the previously unattended luggage, after sliding one piece of the luggage to defendant to carry onto the bus. The agents then followed the suspects to the bus. After the two suspects deposited the luggage in the undercarriage of the bus, the agents examined the luggage and noted it belonged to a Mr. Pender. The agents then requested permission of the driver to conduct a bus check.⁶

The agents boarded the bus and announced to the passengers that they were conducting a "routine public transportation safety check."⁷ They were in plain clothes, had their weapons concealed, but did show their badges as they boarded the bus. The agents then requested as part of the check that the passengers show their ticket, photo identification, and identify which bags belonged to them on the bus. They would approach each passenger, stand behind the passenger so as not to block the aisle, and ask if the passenger was carrying drugs, weapons, or large amounts of money. Both defendant and Bruton denied carrying drugs or weapons and denied they had checked luggage. The officers then produced the suspicious baggage tagged as belonging to Mr. Pender and asked if it belonged to anyone on the bus. Defendant and Bruton denied ownership of the luggage. The officers opened the luggage and found eleven kilograms of cocaine. Both Bruton and defendant were arrested.⁸

The court first examined whether the bus check was a seizure under the Fourth Amendment.⁹ "[T]he 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.'"¹⁰ The court determined that its recent opinion in another bus sweep case, United States v. Washington¹¹ controlled as there was no material distinction between Washington and the present case.¹² In fact, the court noted that the bus check in Washington was conducted in an almost identical manner, and the very same agents were involved in both cases.¹³ Critically, the agents in Washington and Smith did not inform the passenger that they had a right to refuse to cooperate. Therefore, the court concluded that the bus check in this case did constitute a seizure.¹⁴

However, the inquiry did not end there. The court then examined the issue of whether the seizure was reasonable.¹⁵ On this issue, the court held that "the totality of the circumstances created a reasonable suspicion that defendant and Bruton were engaged in criminal activity."¹⁶ The court began this inquiry by articulating the general rule that detention, if "brief and minimally intrusive," is permissible if there is reasonable suspicion that a crime has or is about to take place.¹⁷ The court analyzed defendant's behavior at the bus terminal and the agents' experience in the field of investigating narcotics and held that reasonable suspicion existed.¹⁸ The evidence the court considered important in creating reasonable suspicion was the nervousness of defendant and Bruton, the whispered conversation, the suitcases and attendant conduct regarding the suitcases, and the origination of the suitcases in Miami.¹⁹ The court held the detention and minimal intrusion on the bus was therefore reasonable under the Fourth Amendment.²⁰ Although not discussed by the court, the suspicious and untrue responses given during the seizure gave the officers probable cause to search the suitcases.²¹

Another case in which the Eleventh Circuit examined the reasonableness of a Terry stop involved a defendant who was detained for seventy-five minutes while the agents searched the residence of defendant and her husband.²² In United States v. Gil,²³ the Eleventh Circuit held valid a seventy-five minute detention of defendant as a legitimate Terry stop lasting until probable cause for her arrest could be obtained by searching defendant's residence.²⁴ Defendant's husband, Julian Gil, arranged to buy twenty kilograms of cocaine from a confidential informant. As part of this arrangement, Julian procured five of the kilograms to take back to his home for testing before purchasing the remainder. The residence was under surveillance at this time, and defendant was seen leaving the residence fifteen minutes later with two plastic bags. The agents stopped defendant several blocks from her home. Defendant consented to a search of the car and the bags; fruit and $12,500 were found. Defendant was then placed in an agent's vehicle and returned to the residence only after the residence was secured. At that point, defendant was formally arrested.²⁵

The main issue in this case concerned the length and circumstances of the detention prior to defendant's arrest. Defendant argued that because she was held seventy-five minutes and was placed in handcuffs in an agent's car, her detainment constituted a full arrest and not a Terry stop.²⁶ The court first articulated the standard to be used in evaluating the reasonableness of a Terry stop as whether, considering the "totality of the circumstances," it "'was reasonably related in scope to the circumstances which justified the interference in the first place.'"²⁷ The court then cited several factors that are relevant in this determination, including the '"purposes served by the detention, the diligence with which the police pursue the investigation, the scope and intrusiveness of the detention, and the duration of the detention.'"²⁸ The court first noted that the agents only detained defendant to prevent jeopardizing the investigation of the residence and then only as long as was necessary to complete that investigation.²⁹ The court, therefore, determined there was sufficient evidence to support detention under the first two factors.³⁰ The court then turned to the scope and intensity of the detention and found that while the detention was intrusive in that defendant was handcuffed in the agent's car, this was reasonable under the circumstances to "maintain the safety of the officers and the ongoing investigation of the residence."³¹ The court emphasized that because there was no female officer present, the agents did not search defendant for weapons, which necessitated the intensity of the detention.³² The court did not really focus on the fact that the detention lasted seventy-five...