On November 14, 2014, the First Circuit Court of Appeals decided the United States v. Fermin [i], which serves as an excellent review of the law pertaining to reasonable suspicion to detain a person for a drug investigation. The relevant facts of Fermin, taken directly from the case, are as follows:
On January 6, 2012, members of the High Intensity Drug Trafficking Area task force (“HIDTA task force”), a unit of the Rhode Island State Police, were conducting surveillance near the Providence College campus. Fermin was observed walking down residential Liege Street empty-handed, wearing a garbage bag underneath a red sweatshirt, before disappearing out of sight between two houses, 40 and 48-50 Liege Street. He emerged three to four minutes later rolling a large black suitcase.
Looking around as if to check if anyone was walking behind him, Fermin wheeled the suitcase the same way he had just come and entered a nearby parking lot. He made his way to the far end of the lot, where he placed the suitcase between a Jeep and a cement wall. He then stepped away from the suitcase and began to talk on a cell phone. Between conversations, he slid the suitcase under the Jeep and removed the sweatshirt he was wearing. Several minutes later, Fermin retrieved the suitcase, tied his sweatshirt around the handle, and exited the parking lot with the suitcase in tow.
Police stopped Fermin on the street shortly thereafter and asked to speak with him about the suitcase. Fermin immediately dropped his cargo and said that it was not his. He told police that he had been running at the Providence College track when someone threw the suitcase over the fence. [ii] Standing next to the suitcase, one detective discerned a “strong odor” of marijuana; he unzipped the suitcase and saw that it did in fact contain a large quantity of marijuana. Fermin was arrested and transported to the police barracks.
While being interviewed at the barracks, Fermin reiterated that he happened upon the suitcase while running at the Providence College track, after someone threw it over the fence. Fermin also volunteered to the detective processing him that he and his friend saw someone “dump” the suitcase near the Providence College track; his friend had encouraged him to take the bag, believing there might be money in it. He declined to identify his friend, stating that the friend was “a college white boy and you know how they are.” The detective later presented Fermin with surveillance photographs taken earlier that day, both before and after he had retrieved the suitcase, which depicted him walking down the street alone. Fermin became visibly upset and said that he did not want to argue.
Police recovered thirty-three pounds of marijuana from the suitcase, stored in thirty-eight gallon-sized clear plastic bags thirty-one grams of cocaine; a bottle of powdered caffeine; three digital scales; and a box of plastic bags like the ones filled with marijuana. In addition, the suitcase contained a .357 revolver loaded with six rounds of ammunition inside a rolled-up pair of sweatpants.[ii]
Fermin was charged with federal drug and weapon offenses. He filed a motion to suppress and argued that the police lacked reasonable suspicion to justify his stop. The district court denied the motion and Fermin was later convicted at trial. He then filed a timely appeal to the First Circuit Court of Appeals, and argued, among other things, that the district court erred in denying his motion to suppress.
The issue we will examine pertains to the denial of the motion to suppress. The district court held that the agent’s initial encounter with Fermin was a consensual encounter and the search of the bag was lawful because Fermin disclaimed ownership, and therefore, privacy in the bag.
The First Circuit then set out to determine whether the agent’s conducted a consensual encounter or an investigative detention of Fermin at the time he disclaimed ownership of the bag.
In order for an encounter to be considered consensual, a reasonable person in the same situation, must believe that they are free to leave or decline to speak to the police. The First Circuit stated:
It is not clear that a reasonable person, surrounded by five police officers, would believe that he was free to leave. See California v. Hodari D., 499 U.S. 621, 627-28 (1991). Indeed, Fermin did not leave but rather submitted to police authority by answering questions about the suitcase. See United States v. Holloway, 499 F.3d 114, 117 (1st Cir. 2007) (citizen’s submission to show of police authority is a prerequisite for a finding of seizure). [iii]
The court then stated that they did not need to decide whether this was a consensual encounter or an investigative detention because sufficient reasonable suspicion existed to support a lawful investigative detention of Fermin. The court stated reasonable suspicion exists when:
Police had “a particularized and objective basis for suspecting [Fermin] of criminal activity.” Ornelas v. United States, 517 U.S. 690, 696 (1996) [iv]
The court then listed several relevant facts that they found established reasonable suspicion that Fermin was involved in criminal activity. First, the court noted that, prior to observing Fermin, the police received a tip from a confidential informant that the house located at 40 Liege Street was a stash house for a large amount of marijuana. Police then conducted surveillance of the location and observed numerous people coming and going in a manner consistent with drug activity. Second, Fermin’s deliberate path toward 40 Liege Street and his disappearance and quick reappearance in that area with the bag in tow was significant. Third, Fermin towed the bag to a parking lot and attempted to hide it under a Jeep before picking it back up and continuing on foot with the bag in tow. The court held that these, facts taken together, amounted to sufficient reasonable suspicion to believe that Fermin may be involved in criminal activity.
Thus, the court held the stop of Fermin was lawful under the Fourth Amendment. The court also held the search was lawful because Fermin disclaimed ownership of the bag, stating that he had found it, but it was not his. The court held that he relinquished his privacy interest in the bag and the search was lawful.
As such, the First Circuit affirmed the denial of the motion to suppress.
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
[i] No. 13-1108 (1st Cir. Decided November 14, 2014)
[ii] Id. at 2-4
[iii] Id. at 9