U.S. v. WILLIAMS, 822 F.2d 1174 (D.C. Cir. 1987)

UNITED STATES OF AMERICA, v. RANDOLPH WILLIAMS, APPELLANT.

No. 85-6082.United States Court of Appeals, District of Columbia Circuit.Argued May 14, 1986.
Decided July 7, 1987.

Page 1175

Sean Connelly (appointed by this Court), for appellant.

Lee F. Satterfield, Asst. U.S. Atty., of the Bar of the District of Columbia, pro hac vice by special leave of Court, with whom Joseph E. diGenova, U.S. Atty., and Michael W. Farrell, Thomas J. Tourish, Jr., and Barry M. Tapp, Asst. U.S. Attys., were on the brief, for appellee.

Appeal from the United States District Court for the District of Columbia (Criminal No. 85-00250-01).

Before ROBINSON and BORK, Circuit Judges, and WRIGHT, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge ROBINSON.

SPOTTSWOOD W. ROBINSON, III, Circuit Judge:

[1] Randolph O. Williams appeals from his conviction for possession of a controlled

Page 1176

substance with intent to distribute it.[1] He first contends that the District Court erred in denying his motion to suppress the introduction of heroin found on his person — the basis for his conviction — on the ground that police officers impinged on his Fourth Amendment rights in searching for and seizing it. He also protests the court’s denial of his motion for a mistrial, by which he claimed prejudice from remarks made by a defense witness to three jurors after the case had been submitted for deliberation. We affirm.

[2] I. THE MOTION TO SUPPRESS[3] A. Background
[4] The events leading to discovery of the heroin in Williams’ possession stand uncontradicted on the record before us.[2]
Williams was in the driver’s seat of an automobile parked curbside on Douglas Street, Northeast, in Washington, D.C.,[3]
one afternoon[4] when four officers of the Park Police Narcotics Unit traveling in an unmarked van[5] drove alongside the car and stopped.[6] Also present in Williams’ automobile were two women, one seated adjacent to him in the front of the passenger compartment and the other in the back.[7] According to Sergeant Henry A. Berberich and Officer Robert J. Kass, the two officers who testified at the suppression hearing, as the van approached from behind the officers’ attention was drawn to the car because the driver and front-seat passenger were “bent over”[8] and apparently concentrating on “something in their laps.”[9] On the basis of their experience in investigation of narcotics offenses[10] and the fact that the car was parked in an area known for extensive drug usage,[11] the officers suspected “some kind of narcotics violation.”[12]

[5] As Berberich and Kass exited from the van and approached the driver’s side of the car, they saw Williams “shove”[13] a “brown object”[14] or “paper bag”[15] in his right hand “underneath his leg.”[16] Berberich, who like Kass was not in uniform, identified himself as a police officer, displayed

Page 1177

his badge, and asked to see Williams’ driver’s license and vehicle registration.[17] With Berberich and Kass both standing on the driver’s side of the car,[18] Williams began to look for the registration.[19] Berberich noticed that Williams “kept his legs really closed tight” in order to hide the bag underneath.[20]

[6] Kass testified that he then asked Williams to step out of the car[21] because he believed that the bag might contain a weapon.[22] As Williams alighted from the vehicle, he put his right hand under his leg and “attempted to flip” the bag into the back of the car.[23] The bag hit the driver’s seat, and fell back into the front of the passenger compartment.[24]

[7] Berberich testified that he then advised Kass of Williams’ attempts to dispose of the bag.[25] Kass picked it up and felt it “with both hands”[26] while Berberich monitored Williams.[27] Kass avowed that when he touched the bag he could “feel that inside were numerous small rolled-up objects”[28]
that “felt like plastic baggies.”[29] Kass further testified that on the basis of this touching of the bag and his experience and training in narcotics detection,[30] he “believed”[31]
that inside the paper bag were “numerous quarter bags of heroin.”[32] He then proceeded to open the bag and found “five large baggies with 44 small baggies” containing heroin.[33]
Williams was then placed under arrest.[34]

[8] Williams moved to suppress the introduction of the heroin into evidence,[35] and the District Court conducted a hearing on the motion before commencing trial.[36] Following testimony by the two officers, the court expressed doubt as to whether they had acted properly in approaching the car and questioning Williams.[37] After hearing additional argument on the lawfulness of the initial interception, however, the court denied the motion to suppress.[38] We turn now to an analysis of this disposition.[39]

Page 1178

[9] B. The Seizure of the Bag
[10] Although the better part of argument during the suppression hearing centered on the lawfulness of the officers’ action in approaching the parked car to question Williams,[40] he now concedes its legality.[41] Furthermore, Williams apparently does not challenge the propriety of the officers’ directive that he alight from the car.[42] Williams does maintain, however, that Kass’ removal of the bag from the car was an unconstitutional seizure, and his subsequent treatment of the bag an unconstitutional search of its contents.[43]

[11] The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures . . . .”[44] A seizure occurs “when there is some meaningful interference with an individual’s possessory interests” in tangible personal property.[45] Seizures conducted without benefit of a warrant are “per se unreasonable” unless one of the exceptions to the warrant requirement is applicable.[46]

[12] The Government contends that Kass’ warrantless handling of the bag did not contravene the Fourth Amendment[47] since it was within the range of activity sanctioned by the Supreme Court i Terry v. Ohio[48] and its progeny.[49] These cases hold that a limited investigative stop of a person is reasonable under the Fourth Amendment when the officer is “`able to point to specific and articulable facts which, taken with rational inferences from those facts,’ give rise to a reasonable suspicion that the individual is, was, or is about to be engaged in criminal activity.”[50] The Terry Court further held that if a police officer conducting a valid investigative stop possesses a “reasonable fear for his own or others’ safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search . . . of such persons in an attempt to discover weapons which might be used to assault him.”[51]
Although the weapons search authorized in Terry was confined to a patdown of the suspect’s “outer clothing,”[52] the Supreme Court held in Michigan v. Long[53] that an officer making an investigative stop of a suspect in a car enjoys greater latitude. Under Long, if the officer has a reasonable belief that the suspect is dangerous, he may conduct a protective search of all of those areas of the passenger

Page 1179

compartment of the vehicle in which a weapon might be concealed.[54]

[13] Williams concedes that Terry and Long would validate the seizure of the bag had it occurred in the course of a weapons search, but argues that the officers appropriated the bag “not as a protective measure, but rather as an exploration for drugs.”[55] Williams maintains that the officers’ actions belie their contention that they feared the bag might contain a weapon since they permitted him to exit the car before grabbing the bag, and did not draw their weapons.[56]

[14] As Williams correctly notes, if the real aim of the search was discovery or preservation of contraband rather than immobilization of weapons, the intrusion was not authorized b Terry or Long.[57] On the same day Terry was decided, the Supreme Court held that contraband seized in a search of the defendant had to be suppressed because the “search was not reasonably limited in scope to the accomplishment of the only goal which might conceivably have justified its inception — the protection of the officer by disarming a potentially dangerous man.”[58] Similarly, the Long Court was careful to point out that its holding did “not mean that the police may conduct automobile searches whenever they conduct an investigative stop;” rather, automobile searches are allowable “only when [the police] have the level of suspicion identified in Terry.“[59]
The issue therefore turns on whether the officer “possesses a reasonable belief based on `specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant’ the officer in believing that the suspect is dangerous and the suspect may gain immediate control of weapons.”[60]

[15] Applying these principles to the facts before us, we are satisfied that there is sufficient record evidence to sustain the District Court’s holding that Kass’ seizure of the bag was lawful. Kass testified that at the time he asked Williams to alight from the car, he feared that the bag contained a weapon.[61] Williams’ attempts to conceal the bag could easily and naturally have caused the officer even greater anxiety.[62]

Page 1180

In light of these circumstances, the District Court could reasonably conclude that Kass was motivated by a well-founded concern for his own safety and that of his fellow officers at the time he took charge of the bag.

[16] C. The Opening of the Bag
[17] Kass did not cease his examination of the paper bag after removing it from the car; instead, he proceeded to open it.[63]
Williams contends that even if Kass was legally authorized to seize the bag and had probable cause to believe that narcotics were contained therein,[64] he could not search the bag without a warrant.[65]

[18] Like warrantless seizures, warrantless searches “are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.”[66]
One bearing on the present case is the so-called automobile exception, which permits a search of a motor vehicle without a warrant provided there is probable cause.[67] In United States v. Ross,[68] the Supreme Court ruled that a law-enforcement officer who has probable cause to believe that an automobile contains contraband may conduct a warrantless search “of every part of the vehicle and its contents that may conceal the object of the search.”[69] The Ross Court, however, took pains to distinguish prior cases[70] holding that a probable cause belief that a discrete container within the vehicle conceals contraband will not support a warrantless search of that container under the automobile exception.[71] We ourselves have relied upon the distinction made in Ross,[72] and other circuits have employed the same analysis.[73] Thus we

Page 1181

readily agree with Williams that, because the two police officers did not have probable cause to search the vehicle or anything within it other than the bag, the automobile exception did not authorize Kass to open it.

[19] This is not the end of our inquiry, however. To establish the admissibility of the contents of the bag, the Government need only show that the search was authorized by one of the exceptions to the warrant requirement;[74] it need not meet the demands of all of the exceptions. Thus we turn to a consideration of other doctrines that might legitimate the search.

[20] The Government’s principal contention in this regard[75] is that the warrantless opening of the bag was proper because its contents were already apparent to Kass, the officer who examined it. This claim rests on a footnote in Arkansas v. Sanders,[76] a case in which the Supreme Court held the automobile exception inapplicable to the warrantless search of a suitcase found in the trunk of a taxicab. Since probable cause extended only to the container and not to the entire vehicle, the Court reasoned, the search of the suit case violated the Fourth Amendment.[77] The Sanders Court, however, limited its holding:

Not all containers and packages found by police during the course of a search will deserve the full protection of the Fourth Amendment. Thus, some containers (for example a kit of burglar tools or a gun case) by their very nature cannot support any reasonable expectation of privacy because their contents can be inferred from their outward appearance. Similarly, in some cases the contents of a package will be open to “plain view,” thereby obviating the need for a warrant.[78]

[21] Advertently to this limiting consideration, courts have upheld the warrantless opening of containers bearing labels identifying their contents[79] and containers that

Page 1182

were transparent or partially open.[80] One commentator has described the “main thrust” of the Sanders footnote as “a distinction between containers that `proclaim their contents’ . . . and those that do not.”[81] In this sense, the footnote can best be understood as a specific application of a well-established principle of Fourth Amendment jurisprudence: apprehension of that which is already in plain view of an officer lawfully present at his vantage point does not infringe any reasonable expectation of privacy, and its exposure thus is not a search within the meaning of the Fourth Amendment.[82]

[22] The Government does not contend that the “very nature” of a paper bag is such that, like the gun case noted in Sanders, it proclaims its contents and thus dispels any reasonable expectation of privacy. Instead, the Government points to the last-quoted sentence of the Sanders footnote and argues that Kass’ lawful touching of the bag rendered its contents so apparent to him as to bring them into his “plain view.”[83] The question thus posed is whether the doctrine recognized i Sanders is applicable if a police officer’s knowledge of the contents of a container derives, not from his sense of sight, but from his sense of touch.

[23] We are guided in this inquiry both by decisions interpreting the Sanders footnote and caselaw applying the more general “plain view” principles.[84] Taken together, these cases establish that no reasonable expectation of privacy attaches to containers whose contents are readily discernible through use of some sense other than sight.[85] Courts thus have extended “plain view” principles to encompass “plain touch,”[86] “plain smell,”[87] and “plain hearing.”[88]

[24] Our decision in United States v. Russell[89] is illustrative of the analogous application of plain view principles to situations

Page 1183

involving use of the sense of touch. When, during an investigative stop of an automobile, a suspect opened the glove compartment to obtain identification, a police officer observed two packets that appeared to contain contraband.[90] While searching the vehicle for additional contraband pursuant to the automobile exception to the warrant requirement,[91] the officer felt the outline of a gun as he “drew [a] paper bag out from under the seat,”[92] and he then proceeded to open the bag. Although we assumed that the warrantless opening of the bag was not within the scope of the automobile exception,[93]
we held that no warrant was required to “uncover what [the officer’s] sense of touch revealed.”[94] In denying Russell’s petition for rehearing,[95] we subsequently explain that plain view “encompasses `plain touch.'”[96]

[25] Three sister circuits also have recognized the “plain touch” analogue.[97] The Second Circuit first approved it in United States v. Diaz,[98] a decision assaying the propriety of a warrantless examination of a paper bag found stuffed into the tank of a toilet.[99] The court was unable to determine from the record whether stolen currency found in the bag was “perceptible by sight or touch” when seized,[100] but noted that if the contents were capable of such identification they were properly subject to a plain view seizure.[101] In a subsequent decision relying on Diaz, the Second Circuit held that where a drug-enforcement agent “was able readily to identify [the] contents [of a paper bag] simply by feeling the outside of the bag. . . . [I]t would be a pointless formality to require that the agents first obtain a warrant before examining the contents.”[102] The Fourth[103] and Ninth[104] Circuits also have considered plain touch a necessary corollary to the plain view doctrine.[105]

Page 1184

[26] In light of this authority, we endorse even more strongly our earlier conclusion in Russell,[106] that no warrant is needed for an opening of a container whose contents become known through a lawful touching of the outside.[107] We pause, however, to note three limitations on this principle.

[27] First, the “plain touch” exception only applies where an officer is legally authorized to touch the container in the first place.[108] In Russell, for example, the container was handled in the course of a lawful automobile search.[109] As in traditional plain view situations, if the officers do not lawfully occupy the vantage point from which their observations are made they cannot rely upon plain touch as justification for a search.[110]

[28] The requirement of a lawful “vantage point” suggests a corollary limitation: the doctrine would not sanction any use of the sense of touch beyond that justified by the initial contact with the container.[111] For example, an officer who satisfies himself while conducting a Terry check that no weapon is present in a container is not free to continue to manipulate it in an attempt to discern the contents.[112]

[29] Finally, we note a third limitation on the principle: the contents of a package cannot be deemed in plain view unless a lawful touching convinces the officer to a reasonable certainty that the container holds contraband or evidence of a crime. This situation is clearly distinguishable from one involving a plain view seizure.[113] Probable

Page 1185

cause — a predictive judgment that further investigation will yield particular results — suffices to exempt the seizure from Fourth Amendment warrant requirements.[114] In the present type of situation the information in `plain view’ must be good enough to eliminate all need for additional search activity.[115] This can only occur when sensory information acquired by the officer rises to a state of certitude, rather than mere prediction, in regard to the object of the investigation.[116] This level of conviction must be objectively reasonable in light of the officer’s past experience and training,[117] and capable of verification by a reviewing court.

[30] We believe this is a proper case for invocation of the plain touch exception, for we find in the record sufficient evidence to meet the criteria discussed above.[118] We have already concluded that Kass’ appropriation

Page 1186

of the bag was lawful,[119] and so we find that his initial vantage point was proper. Next, there is nothing in the record to establish that Kass continued to manipulate the container after it became apparent that no weapon was present.[120]
Finally, there is record evidence to support the conclusion that Kass’ handling of the bag left him reasonably certain that contraband was contained therein.[121] Accordingly, we find that the District Court’s denial of the motion to suppress was proper.[122]

[31] II. THE MOTION FOR MISTRIAL[32] A. Background
[33] Williams’ second claim of error stems from remarks addressed by a defense witness to three jurors at the end of the first day of deliberations. On the morning following, the District Court, with the approval of counsel on both sides, questioned the foreman of the jury outside the hearing of the other jurors to ascertain the nature of these events.[123] Through this colloquy the details were revealed.

[34] Two jurors were approached by a defense witness on the night before as they were leaving the courthouse.[124] The witness inquired as to whether they had reached a verdict; the jurors did not respond and continued walking down the corridor.[125] The witness then stated that the only reason the jurors had not reached a verdict was that they wished to return in order to collect additional fees.[126] The foreman informed the court that a third juror reported a similar experience with the same witness, and that all of the jurors had learned about these encounters.[127]

[35] Following this colloquy, defense counsel claimed that these confrontations were prejudicial to Williams and sought a mistrial.[128] The court, observing that “[a]pparently there [was] no attempt to threaten them or otherwise influence their verdict,”[129] denied this request but explained how he proposed to alleviate any risk of prejudice:

I think its the kind of thing that I am going to try to neutralize by an admonition to the jury. I want them to clearly understand that this is their business, and when I gave them the case I told them I wanted them to take it and give it the same careful consideration they would give any other important matter in their own lives, and I wanted them to remember that. I will ask whether they can continue to do that without regard to any remarks that were made to these people. . . .

I think that’s a good enough prophylactic.[130]

[36] The court accorded counsel on both sides an opportunity to comment on his proposal. The prosecutor expressed approval.[131] Williams’ counsel again requested a mistrial, but agreed that if a mistrial was not

Page 1187

granted the admonition would be appropriate.[132]

[37] The court had the jurors returned to the courtroom. First reminding them of the instructions he had given before they began deliberations, the court asked that any jurors who thought they might be influenced by the defense witness’ remarks to raise their hands.[133] None of the jurors did so.[134] The court then admonished the jurors to completely disregard the witness’ remarks.[135] The jurors resumed deliberations and returned a verdict of guilty about six hours later.[136]

[38] Williams now contends that the District Court’s response to the juror-contact incidents was not sufficient to mitigate the risk of prejudice.[137] His argument is that to ensure that no juror was biased against him as a result of the witness’ statements, the court should have questioned each juror individually.[138]

[39] B. Weighing the Impact of Juror Contact
[40] In order to safeguard an accused’s constitutional right to an impartial jury,[139] private communications between jurors and witnesses are absolutely forbidden.[140] In Remmer v. United States,[141] the Supreme Court reversed a conviction when it was shown that an unidentified person had remarked to a member of the jury during trial that the juror could profit by acquitting the defendant.[142] The Court held that, because the trial court dismissed the risk of prejudice without informing defense counsel that the communication had occurred,[143] the jury verdict could not be upheld.[144] As the Court explained,

Page 1188

[i]n a criminal case, any private communication, contact, or tampering . . . with a juror during a trial about a matter pending before the jury is . . . deemed presumptively prejudicial, if not made in pursuance of known rules of the court . . . with full knowledge of the parties. The presumption is not conclusive, but the burden rests heavily upon the Government to establish, after notice to and hearing of the defendant, that such contact with the juror was harmless to the defendant.[145]

[41] The Court has later explained that Remmer imposes a “hearing” requirement whenever an encroachment upon the impartiality of the jury is threatened.[146]

[42] The principles of Remmer have been expounded and applied by this court on numerous occasions. We have considered the presumption of prejudice operable even if the communication at issue consisted only of “banter” not clearly directed at influencing the jury’s verdict.[147] We have also utilized the same principles when examining incidents of juror contact in civil cases.[148]

[43] It is well established that a trial court’s rulings on a motion for a mistrial will be overturned only for an abuse of discretion.[149] An assessment of juror bias requires consideration of a number of factors, including the nature of the communication,[150] the length of the contact,[151] the possibility of removing juror taint by a limiting instruction,[152] and the impact of the communication on both the juror involved

Page 1189

and the rest of the jury.[153] The trial court obviously is the tribunal best qualified to weigh the relevant factors and draw the conclusion appropriate.[154] While some communications to jurors are so inflammatory that they foster an almost conclusive presumption of prejudice,[155] in the vast majority of cases the decision will depend upon how the jury interprets and expectably will react to the communication made. Thus, in most instances, the trial court, which has a first-hand impression of that jury, is in the better position to determine whether the presumption of prejudice has been rebutted.

[44] In the instant case, we cannot say that the communication at issue, after the countermeasures administered by the District Court, so jeopardized Williams’ right to a fair trial that the court abused its discretion in denying his motion for a mistrial. On the contrary, we agree with the court’s observation that the witness’ remark was not an attempt to coerce the jury or otherwise influence its verdict.[156] Moreover, we are impressed by the fact that the court took careful steps to defuse the risk of prejudice to Williams, inquiring into whether the defense witness’ comment would affect the jurors’ impartiality, admonishing them to disregard the witness’ remark, and reminding them of their duty to deliberate solemnly. Given these precautions and the ambiguity of the remark, there is no basis for holding that the presumption of prejudice triggered by the witness’ comment was not dispelled.[157]

[45] Williams insists, however, that the only way the presumption of prejudice could have been rebutted would have been a polling of each juror individually on potential bias.[158] While there are times when the threat of prejudice may be significant enough to warrant separate examination of jurors, we are unwilling to adopt a per se rule that individual questioning is always required.[159] Such a rule conceivably could jeopardize the accused’s rights, for in some instances individual questioning on a juror contact could cause the jurors polled to attach undue significance to the incident.[160] Moreover, because the inquiry required on

Page 1190

an instance of juror contact depends on a number of factors varying from case to case,[161] the trial court should have considerable latitude in determining the methodology to be employed.[162]

[46] Williams contends that Remmer itself mandates individual questioning to rebut the threat of juror bias.[163] We emphatically disagree. Remmer dictates the critical stance the trial court must take in assessing the effect of a juror contact, and requires that all reasonable doubts be resolved in favor of the accused. But this does not mean that every contact is prejudicial, or calls for the same investigative technique. Wha Remmer demands is notice to the accused of any juror contact, and an opportunity for the accused to participate in any proceeding to determine its impact.[164]

[47] It is clear that the tenets of Remmer are satisfied here. Williams had ample opportunity to participate in the court’s inquiry into possible bias. Williams’ counsel did not request that each juror be questioned individually; indeed, he agreed that the steps the District Court proposed to take, and actually took, to alleviate the risk of prejudice were sufficient “if a mistrial is not going to be granted.”[165] If Williams believed that other procedural steps were necessary to remove the risk of prejudice, he should have requested them at that time.[166]

[48] As the Supreme Court noted almost a century ago, unauthorized communications between jurors and others are forbidden in order to safeguard the accused’s constitutional right to an impartial jury.[167] But courts must not allow this protection to “delegate to every reprobate the power to effect a mistrial.”[168] Some of the responsibility for dissipating the threat of prejudice must be borne by defense counsel at trial. When a contact does occur but the trial is salvageable, the court and counsel for both sides must work together to neutralize its impact. Those who are called to participate in this endeavor cannot be allowed to argue after the fact that more should have been done.

[49] III. CONCLUSION
[50] The District Court’s denial of Williams’ motion to suppress must be sustained since the evidence reasonably supports a determination that the officers’ investigation of the paper bag did not violate the Fourth Amendment. Moreover, the court’s laudable efforts to eliminate the risk of bias following the juror contacts sufficed to buttress its conclusion that the presumption of prejudice against Williams had been overcome. The judgment appealed from is accordingly

[51] Affirmed.

Page 1191