                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-7-2005

USA v. Wilson
Precedential or Non-Precedential: Precedential

Docket No. 04-1918




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005

Recommended Citation
"USA v. Wilson" (2005). 2005 Decisions. Paper 775.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/775


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2005 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                         AMENDED
                                     PRECEDENTIAL

  UNITED STATES COURT OF APPEALS
       FOR THE THIRD CIRCUIT


                 No. 04-1918


      UNITED STATES OF AMERICA

                       v.

               ESCO WILSON,

                                        Appellant


On Appeal from the United States District Court
     for the Middle District of Pennsylvania
    (D.C. Criminal Action No. 03-cr-00005)
District Judge: Honorable Christopher C. Conner


          Argued February 18, 2005

        Before: SLOVITER, AMBRO
        and ALDISERT, Circuit Judges

              (Filed July 1, 2005)
Andrew F. Schneider, Esquire (Argued)
101 Mechanics Street
Doylestown, PA 18901
      Counsel for Appellant

Thomas A. Marino
  United States Attorney
Theodore B. Smith, III (Argued)
  Assistant U.S. Attorney
Office of the United States Attorney
Federal Building, Suite 220
228 Walnut Street
P.O. Box 11754
Harrisburg, PA 17108
       Counsel for Appellee


                 OPINION OF THE COURT


AMBRO, Circuit Judge

      Esco Wilson appeals the District Court’s denial of his
motion to suppress evidence taken from a bag in the trunk of his
car. We affirm.

      I. Factual Background and Procedural History

      On the morning of September 16, 2001, Trooper Brian
Overcash of the Pennsylvania State Police stopped Wilson, who

                               2
was traveling west on the Pennsylvania Turnpike, for a traffic
violation. Wilson concedes that the initial traffic stop was valid.

        Wilson gave Overcash a valid driver’s license and a car
rental agreement. Overcash then returned to his patrol car to
prepare a traffic citation. During this process, he examined the
rental car agreement and noticed that the car should have been
returned a month earlier. Overcash ran a check on Wilson’s
rental car and found that the car had not been reported stolen.

       Overcash then returned to Wilson’s car and asked Wilson
to exit and stand at its rear. He gave Wilson the citation,
returned his documents, and told him that he was free to leave.
Wilson took a few steps back toward his car. At the suppression
hearing, Overcash first testified that he then began to question
Wilson about the rental car agreement. Overcash then testified,
when the Pennsylvania state judge presiding over the hearing
asked for clarification of the sequence of events, that he asked
Wilson if he could question him about the rental car agreement,
and Wilson turned around and walked back toward him.

       Overcash proceeded to ask Wilson questions about the
rental car and Wilson’s work and travel plans. Wilson told
Overcash that he usually rented cars for a month because he
traveled a lot. He also told Overcash that he worked selling
master compact discs (“CDs”) to music stores for approximately
$500 per disc. When asked where he was going, Wilson said
that he was on his way to Pittsburgh to deliver the CDs he had

                                3
with him, and he offered to show these CDs to Overcash.

       Overcash then walked toward the two female passengers
in Wilson’s car and asked them where they were going. The
passengers told Overcash that they were on their way to
Virginia. Overcash returned to where Wilson was standing at
the rear of the car and told Wilson that the women had told him
they were going to Virginia, not to Pittsburgh. Wilson appeared
a bit nervous and told Overcash that he had not told his
passengers where they were going but that nothing unusual was
going on. Wilson again offered to show his CDs to Overcash,
but Overcash declined and went to his patrol car to request
support.

       When Overcash returned to Wilson’s car, Wilson opened
the trunk and showed Overcash a CD with a $12.00 price tag on
it. Overcash saw two bags in the trunk—one red and one green.
Wilson told Overcash that the red bag belonged to his
passengers. The women confirmed this, told Overcash that there
was nothing illegal in the bag, and gave Overcash permission to
search it. Overcash found clothing and personal items inside.

       Wilson told Overcash that the green bag belonged to him
and that it also contained clothing. Overcash asked if he could
examine the bag’s contents, and Wilson consented. Overcash
unzipped the bag and found a brick of cocaine inside. When he
looked at Wilson, Wilson had already turned around and placed
his hands behind his back.

                              4
       Overcash then arrested Wilson and his passengers and
transported them to the police barracks. At the barracks,
Overcash read Wilson his Miranda rights and Wilson stated that
he did not wish to speak to the police. Later, Wilson changed
his mind and, after he was read his rights again, gave both
written and oral statements acknowledging that the cocaine
belonged to him.

       Wilson was charged under Pennsylvania law with one
count of possession of a controlled substance with intent to
deliver and one count of exceeding the maximum speed limit.
Judge Edward E. Guido, of the Cumberland County Court of
Common Pleas, held a hearing on Wilson’s motion to suppress
the evidence found in his car. Judge Guido granted Wilson’s
motion in June 2002, ordering the exclusion of the cocaine and
Wilson’s post-arrest statements as the fruits of an illegal
detention. In September 2002, Pennsylvania entered a nolle
prosse.

       The federal Government subsequently obtained an
indictment against Wilson based on the same incident. Wilson
again moved to suppress the cocaine and his post-arrest
statements, and the parties agreed that the matter would be
submitted based on the notes of testimony from the
Pennsylvania suppression hearing. No additional evidence was
taken. In October 2003, the District Court denied Wilson’s
motion, determining, inter alia, that Wilson consented to
Overcash’s questioning after the conclusion of the traffic stop,

                               5
that no seizure had occurred, and that Wilson’s consent to the
search of his bag was voluntary. Wilson entered a conditional
guilty plea. He reserved his right to appeal the denial of his
suppression motion, and that issue is now before us.1

                         II. Discussion

       A.     Standard of Review

        As a preliminary matter, we must determine what the
appropriate standard of review is for this case given its unique
procedural posture. Ordinarily we review a district court’s
“denial of the motion to suppress for clear error as to the
underlying facts, but exercise[] plenary review as to its legality
in light of the [C]ourt’s properly found facts.” United States v.
Givan, 320 F.3d 452, 458 (3d Cir. 2003) (internal citations
omitted). Our dissenting colleague, however, believes that in
this case we should exercise plenary review over both the
District Court’s factual determinations and its conclusions of
law because the District Court relied on the transcript of the
Commonwealth suppression hearing in deciding Wilson’s
motion to suppress in the federal case instead of holding another
evidentiary hearing. This position has merit, as there is no
obvious need to defer to the District Court’s factual
determinations when it did not engage in any independent fact-


   1
    The District Court had jurisdiction pursuant to 18 U.S.C.
§ 3231. We have jurisdiction pursuant to 28 U.S.C. § 1291.

                                6
finding, and it is one that we have adopted in our habeas corpus
jurisprudence under 28 U.S.C. § 2254. See Hardcastle v. Horn,
368 F.3d 246, 254 (3d Cir. 2004) (“Because the District Court
‘d[id] not hold an evidentiary hearing and engage in independent
fact-finding, but rather limit[ed] the habeas evidence to that
found in the state court record,’ our review of its final judgment
is plenary.” (quoting Scarborough v. Johnson, 300 F.3d 302,
305 (3d Cir. 2002))).

        With this in mind, we briefly address Wilson’s argument
that we should not defer to the District Court’s finding that he
consented to further questioning by Overcash after the
completion of the traffic stop. The District Court, in its
recitation of the facts of this case, determined that Overcash
asked Wilson for permission to ask him about the rental
agreement and that Wilson “acquiesced” to this request. As our
dissenting colleague points out, however, the bulk of Overcash’s
testimony indicates that he began asking Wilson questions about
his rental car agreement without first requesting permission to
engage in that line of inquiry. In this light, and because the
Court of Common Pleas judge who had the opportunity to
observe Overcash’s testimony explicitly found that Overcash
simply began asking Wilson about the rental car agreement, we
conclude that the District Court’s factual determination to the
contrary cannot stand under either clearly erroneous or de
novo review.

       Because Wilson would prevail on this argument under

                                7
either standard of review, we reserve for another day decision on
whether plenary review is appropriate as to all issues in cases
such as this one.2 Accordingly, we now turn to Wilson’s main
argument—that the District Court should be reversed because
his interaction with Overcash after the conclusion of the traffic
stop was not a mere encounter but rather an unlawful seizure.

       B.     The District Court’s Determination that Wilson
              was Not Seized

        “[A] person is ‘seized’ only when, by means of physical
force or a show of authority, his freedom of movement is
restrained.” United States v. Mendenhall, 446 U.S. 544, 553
(1980). Put another way, no seizure has occurred if “a
reasonable person would feel free to disregard the police and go
about his business, or ultimately whether a reasonable person
would feel free to decline the officers’ requests or otherwise
terminate the encounter. . . .” United States v. Kim, 27 F.3d 947,
951 (3d Cir. 1994) (internal citations omitted).

       Wilson does not contend that his seizure pursuant to the




  2
   We note that the District Court did not rely on its finding that
Wilson had consented to questioning about his rental car
agreement in its analysis of whether the Fourth Amendment
mandated suppression of the evidence found in Wilson’s trunk.

                                8
traffic stop was unlawful.3 As other courts have held, however,
“[a] traffic stop may become a consensual encounter, requiring
no reasonable suspicion, if the officer returns the license and
registration and asks questions without further constraining the
driver by an overbearing show of authority.” United States v.
West, 219 F.3d 1171, 1176 (10th Cir. 2000); see also United
States v. Sullivan, 138 F.3d 126, 131 (4th Cir. 1998) (“When the
[traffic] stop is over and its purpose served, however, mere
questioning by officers, without some indicated restraint, does
not amount . . . to . . . a seizure under the Fourth Amendment.”).
We must therefore determine whether the interaction between
Wilson and Overcash after the issuance of the traffic citation
and return of Wilson’s license and rental agreement was a
consensual encounter or a second seizure.

        The District Court, comparing the facts of this case to
those of United States v. Drayton, 536 U.S. 194 (2002),
concluded that Wilson was not seized after the conclusion of the
traffic stop. In Drayton, the Supreme Court held that no seizure
had occurred when bus passengers were questioned by
plainclothes officers, even though the passengers were in a
confined space and the officers displayed their badges, when
“[t]here was no application of force, no intimidating movement,
no overwhelming show of force, no brandishing of weapons, no


 3
  A routine traffic stop is considered a seizure under the Fourth
Amendment. See Berkemer v. McCarty, 468 U.S. 420, 436–37
(1984); Delaware v. Prouse, 440 U.S. 648, 653 (1979).

                                9
blocking of exits, no threat, no command, not even an
authoritative tone of voice.” Id. at 204. Wilson argues that his
case is distinguishable from Drayton because he was isolated on
the side of the highway while Overcash questioned him.
However, this fact is true of many traffic stops, and the record
here shows no circumstances so intimidating that, in
combination, they would have caused a reasonable person to
perceive that he was not free to leave. See Florida v. Bostick,
501 U.S. 429, 437 (1991) (“Where the encounter takes place is
one factor, but it is not the only one.”).4

       Overcash was the only officer on the scene. After the
issuance of the traffic citation, he returned Wilson’s documents


  4
    Our dissenting colleague argues that Drayton should not be
applied here because, unlike the bus passengers in Drayton,
Wilson had already been seized once—by virtue of the traffic
stop—before Overcash began questioning him about issues
beyond the scope of the traffic stop. This factual distinction
does not persuade us to conclude that the factors the Supreme
Court deemed relevant to its totality of the circumstances
analysis in Drayton are not also among the factors we may
consider in our totality of the circumstances analysis here. As
the dissent emphasizes, the fact that Wilson was questioned after
he had already been seized once is a consideration that is
relevant to that analysis. But the traffic stop is just one factor
that we must weigh against the other circumstances present in
this case to determine whether the continued encounter between
Wilson and Overcash was a seizure.

                               10
and told Wilson that he was free to leave. Wilson answered all
of Overcash’s subsequent questions without protest. In addition,
just as in Drayton, there is no indication that Overcash made any
intimidating movement or show of force or that he asked Wilson
questions using an authoritative tone of voice. Accordingly, we
agree with the District Court that, under the totality of the
circumstances, Wilson was not seized at any point during his
encounter with Overcash subsequent to the issuance of the
traffic citation.5 Cf. United States v. Bustillos-Munoz, 235 F.3d
505, 515 (10th Cir. 2000) (holding that detention resulting from
a traffic stop ended and a consensual encounter began when
state trooper returned suspect’s license and registration,
informed the suspect that he was free to leave, and then asked
whether there were weapons or drugs in the car when there was
no evidence “of a coercive show of authority, such as the
presence of more than one officer, the display of a weapon,



    5
     Both Wilson and our dissenting colleague suggest that
Commonwealth v. Freeman, 757 A.2d 903 (Pa. 2000), the case
relied on by the Commonwealth court in suppressing the
evidence in the state proceedings, compels the opposite
conclusion. We do not believe that Freeman is even relevant
here, as “[i]t is a general rule that federal . . . courts will decide
evidence questions in federal criminal cases on the basis of
federal, rather than state, law.” United States v. Rickus, 737
F.2d 360, 363 (3d Cir. 1984) (holding, inter alia, that federal
law applied to defendant’s motion to suppress evidence found
pursuant to search of the trunk of his car).

                                 11
physical touching by an officer, or his use of a commanding tone
of voice indicating that compliance might be compelled”)
(internal quotation omitted)). We must therefore consider
whether Wilson’s subsequent consent to the search of the bag in
his trunk was voluntary.6

       C.     The District Court’s Determination that Wilson’s
              Consent to the Search of his Bag was Voluntary

       “[A] search conducted pursuant to consent is one of the
specifically established exceptions to the warrant requirement.”
Givan, 320 F.3d at 459. The voluntariness of an individual’s
consent is a question of fact to be determined from all the
circumstances. Id. “[T]he critical factors comprising a totality
of the circumstances inquiry include the setting in which the
consent was obtained, the parties’ verbal and non-verbal actions,
and the age, intelligence, and educational background of the
consenting [party].” Id.

       The District Court’s conclusion that Wilson’s consent to


  6
    Because we have determined that no seizure occurred, i.e.,
that Wilson’s continued encounter with Overcash was
consensual, we need not reach Wilson’s argument that Overcash
did not have a reasonable articulable suspicion of criminal
activity that justified his further questioning. See Bostick, 501
U.S. at 433–34 (stating that consensual encounters do not
implicate the Fourth Amendment).

                               12
the search of his bag was voluntary is amply supported by the
record. As discussed above, Wilson was informed that he was
free to leave. He then cooperated with Overcash throughout the
encounter, as he answered all of Overcash’s questions, offered
to show Overcash his CDs and initiated opening the trunk of his
car in order to do so. As the District Court found, there is no
indication in the record that “Wilson was unable by virtue of age
or intelligence to understand the situation.” In this context, the
District Court hardly erred in finding that Wilson’s consent to
the search was voluntary. Overcash’s search of Wilson’s bag
therefore did not violate the Fourth Amendment.

                        III. Conclusion

        We share our dissenting colleague’s concern about the
procedural history of this case, particularly because the
Government could not represent at argument whether it
followed in Wilson’s case its usual policy for determining
whether cases in which suppression motions were granted in
state courts should be re-prosecuted in the federal system. It is
also disturbing that the Department of Justice Guidelines
implementing the Petite Policy7 may not have been faithfully


  7
    “The Petite Policy, deriving its name from Petite v. United
States, [361 U.S. 529 (1960)], ‘precludes the initiation or
continuation of a federal prosecution, following a prior state or
federal prosecution based on substantially the same act(s) or
transaction(s),’” absent certain extenuating circumstances. Ellen

                               13
followed in this case.8

        As the dissent acknowledges, however, Department of
Justice guidelines and policies do not create enforceable rights
for criminal defendants. See United States v. Gomez, 237 F.3d
238, 241 n.1 (3d Cir. 2000) (noting that any argument by the
defendant that the U.S. Attorneys’ Manual created rights
entitling him to relief “would be against the weight of judicial
authority”); see also, e.g., United States v. Fernandez, 231 F.3d



S. Podgor, Dep’t of Justice Guidelines: Balancing
“Discretionary Justice,” 13 Cornell J.L. & Pub. Pol’y 167, 179
(2004) (quoting U.S. Attorneys’ Manual § 9–2.031 (2003)); see
also United States v. Grimes, 641 F.2d 96, 101 & n.17 (3d Cir.
1981) (noting that after Bartkus v. Illinois, 359 U.S. 121 (1959),
“in which the Supreme Court held that the Double Jeopardy
Clause does not bar a state from prosecuting and convicting a
defendant who previously has been tried for the same acts in
federal court,” the Department of Justice “adopted a federal
policy” (later known as the Petite Policy) that “barred a federal
trial following a state prosecution for the same acts ‘unless the
reasons are compelling’” (quoting Dep’t of Justice Press Release
(Apr. 6, 1959)).
   8
    Our Court has previously noted, however, that the Petite
Policy may not even be applicable to cases in which a federal
prosecution begins after the entry of a nolle prosse in state court.
See United States v. Agee, 597 F.2d 350, 360 n.32 (3d Cir.
1979).

                                14
1240, 1246 (9th Cir. 2000) (“[I]t is clear that the USAM [U.S.
Attorneys’ Manual] does not create any substantive or
procedural rights. . . . The USAM explicitly states that ‘[t]he
Manual provides only internal Department of Justice guidance.
It is not intended to, does not, and may not be relied upon to[,]
create any rights, substantive or procedural, enforceable at law
by any party in any manner civil or criminal.’” (quoting U.S.
Attorneys’ Manual § 1–1.100)); United States v. Blackley, 167
F.3d 543, 548–49 (D.C. Cir. 1999) (same); United States v.
Myers, 123 F.3d 350, 356 (6th Cir. 1997) (same); United States
v. Piervinanzi, 23 F.3d 670, 682 (2d Cir. 1994) (same); United
States v. Craveiro, 907 F.2d 260, 264 (1st Cir. 1990) (same).
Thus, although we do not endorse the Department’s failure to
follow its own policies, particularly in cases such as this one that
raise double jeopardy concerns, we are constrained to conclude
that any such failure that may have occurred here nevertheless
does not mandate (or even allow) relief for Wilson.9

        Our Court has also previously expressed its
dissatisfaction with the Petite Policy and, moreover, with the
Supreme Court’s application of the dual sovereignty principle to
hold that prosecution of the same crime in both the federal and
state systems does not violate the Double Jeopardy Clause. See


  9
   Indeed, it appears that Wilson’s counsel recognized the same
constraints, as he made no arguments before us relating to either
the Department’s apparent failure to follow the Petite Policy or
to the Double Jeopardy Clause more generally.

                                15
generally Grimes, 641 F.2d at 100–04 (questioning continuing
vitality of that jurisprudence particularly because the seminal
cases were decided prior to Benton v. Maryland, 395 U.S. 784
(1969), which “unqualifiedly held that the Fifth Amendment
Double Jeopardy provision applies to the states”). And our
dissenting colleague may be correct that the time has come for
the Supreme Court to revisit this issue, particularly in light of
Smith v. Massachusetts, 543 U.S. __, 125 S. Ct. 1129 (2005), in
which the Court revisited the scope of the Double Jeopardy
Clause. See id. at 1135–37 (holding that the Double Jeopardy
Clause was violated when the state trial judge ordered a mid-
trial acquittal on one charge and then proceeded to reconsider
that acquittal at the end of the case and that “[i]f, after a facially
unqualified midtrial dismissal of one count, the trial has
proceeded to the defendant’s introduction of evidence, the
acquittal must be treated as final, unless the availability of
reconsideration has been plainly established by pre-existing rule
or case authority expressly applicable to midtrial rulings on the
sufficiency of the evidence”).

       Under current precedent, however, there is no double
jeopardy bar to a prosecution such as that by the United States
against Wilson. See Agee, 597 F.2d at 360 n.32 (noting that any
double jeopardy challenge raised by defendant, who was tried in
the federal system after his state suppression motion was granted




                                 16
and a nolle prosse was entered in the state system, would fail).10
As we previously wrote in Grimes, despite our concerns about
such prosecutions, “we do not believe that we are the proper
forum to overturn a legal directive from the Supreme Court.”
641 F.2d at 104. Thus, notwithstanding the policy issues raised
by this case, we conclude that Wilson’s prosecution in federal
court was proper and that, for the reasons stated in Section II of
this opinion, the search of Wilson’s bag did not violate the
Fourth Amendment. Accordingly, we affirm the District Court’s
determination.


  10
    As the District Court held, collateral estoppel also provides
no bar to the United States’s relitigation of issues relating to the
search of Wilson’s car that had previously been litigated in the
Pennsylvania court. See Agee, 597 F.3d at 360 (holding that the
doctrine of collateral estoppel did not prevent the United States
from relitigating defendant’s motion to suppress even though
that motion had already been granted by the state court because,
inter alia, “[t]he United States was not a party to the suppression
hearing held in the state court nor were the actions of its officers
under consideration in that forum”). In Agee we also
emphasized that, “‘[i]n determining whether there has been an
unreasonable search and seizure by state officers, a federal court
must make an independent inquiry, whether or not there has
been such an inquiry by a state court, and irrespective of how
any such inquiry may have turned out. The test is one of federal
law, neither enlarged by what one state court may have
countenanced, nor diminished by what another may have
colorably suppressed.” Id. at 360 n.34.

                                17
ALDISERT, Circuit Judge, Dissenting.




        Because I agree with the decision of the Pennsylvania
Common Pleas Court in suppressing the evidence in this case,
I would hold that the District Court erred in deciding that Esco
Wilson was not seized for purposes of the Fourth Amendment
at the time he consented to the search of his automobile at a
traffic stop for speeding on the Pennsylvania Turnpike.
Accordingly, I respectfully dissent.
        As the majority opinion makes clear, Wilson was arrested
by a Pennsylvania State Trooper following a search of his
stopped automobile and then prosecuted by the Commonwealth
in the Common Pleas Court of Cumberland County where he
filed a motion to suppress evidence obtained in the search. The
Common Pleas Court granted the motion because the judge
determined that Wilson’s consent was not an “independent act
of free will.” This being the only evidence, the prosecution
elected to nolle prossequi.11
       Thereafter, federal authorities arrested Wilson and


  11
     “Nolle prosequi, filed 9-13-02. M.L. Ebert, Esq. Reason:
6/18/02 Court of Common Pleas suppressed drug evidence and
all post-arrest statements thereby rendering this case non-
prosecutable. Costs in the amount of $357.50 will be paid by the
county. 8-02-02. Edward E. Guido, J.” Criminal Docket, Court
of Common Pleas of Cumberland County, Docket Number CP-
21-CR-0002085-2001, Page 6 of 7.

                              18
commenced a prosecution in the United States District Court for
the Middle District of Pennsylvania on federal charges arising
from the same incident. In response to Wilson’s motion to
suppress, the government agreed not to offer any new evidence,
but stipulated that the federal court could decide the motion
solely on the basis of the transcript of the earlier state
proceeding.
        What appears on the surface to be a blatant exercise of
judge shopping, that in theory smacks of double jeopardy, is
justified by the government on the basis of what has come to be
known as the Petite Policy, a procedure of the Department of
Justice (“DOJ” or “the Department”) that was severely criticized
by this Court in United States v. Grimes, 641 F.2d 96, 100-104
(3d Cir. 1981) (Adams and Sloviter, Circuit Judges, Knox,
District Judge).
        The Petite Policy allows the Department, in certain
circumstances, to institute a federal prosecution based on
substantially the same act(s) or transaction(s) involved in a prior
state or federal proceeding where the defendant has previously
prevailed. See Rinaldi v. United States, 434 U.S. 22, 27 (1977);
Petite v. United States, 361 U.S. 529 (1960).
                                I.
        At oral argument in this case, the court asked the
government lawyer if the Justice Department gave the local
federal prosecutor authority to commence a federal prosecution.
This colloquy followed:
        AUSA:                [The Petite] Policy provides that
                             there are various circumstances

                                19
         under which the Department will
         approve a subsequent federal
         prosecution on the same facts as a
         state prosecution and one of the
         circumstances under which the
         Department will do so is where
         there has been a suppression of
         evidence based on state law or on
         an erroneous interpretation of
         federal law by a state court.


COURT:   And that was done here? Your
         office received the approval of
         the DOJ?


AUSA:     I do not know whether that was
         done here.


COURT:   Why is this case here? Freedman
         [the Pennsylvania Supreme Court
         Case relied on by the Pennsylvania
         Court of Common Pleas] involved
         the interpretation of federal
         constitutional law. What makes this
         case extremely unusual is that I
         have never seen a procedure where
         the federal prosecution proceeds,
         but then relies exclusively on the

           20
                            transcript of the state proceeding?
                            Are you familiar with any other
                            precedent?


        AUSA:               I have done it many times myself
                            and it happens frequently. It does
                            not happen all the time but it does
                            happen and it happens where we
                            feel that there was an injustice
                            done.


        I am troubled by a policy that automatically triggers a
federal prosecution merely because “there has been a
suppression of evidence based on state law or on an erroneous
interpretation of federal law by a state court.” I believe this
policy generates serious problems. It increases the caseload in
federal courts, runs counter to modern concepts of federalism,
denigrates the quality of the state-court system, trial and
appellate, demeans the professionalism of state-court judges
who have more experience, indeed much more experience, in
deciding federal constitutional questions in criminal proceedings
than federal judges and in view of the recent teachings of Smith
v. Massachusetts, 543 U.S. ___, 125 S.Ct. 1129 (2005),
probably violates the Double Jeopardy Clause of the United
States Constitution.
         The very admission in open court that the federal
government will initiate a new prosecution in cases where state
courts suppress evidence has a pernicious effect on the rights of

                               21
state-court defendants seeking to vindicate Fourth Amendment
rights. The federal government’s message to state judges is
clear: “Do not suppress evidence. If you do, we’ll institute a new
federal prosecution on the same facts even though the
investigation and arrest were made by state authorities and the
state conducted the prosecution.” This policy allows the United
States, in effect, to use federal courts to review any state judge’s
federal constitutionally-based decision on a motion to dismiss.


        To me, this is appalling.
         I express the views that follow for the purpose of: (1)
inviting the Supreme Court to re-examine its older cases on the
Double Jeopardy Clause in light of its cases making the Bill of
Rights applicable to state prosecutions by means of the
Fourteenth Amendment; and (2) directing the attention of
Congress to this practice.
                                II.
        This practice of instituting a federal prosecution when
“there has been a suppression of evidence based on state law or
on an erroneous interpretation of federal law by a state court,”
which apparently “happens frequently” is not in accord with the
Department’s own guidelines implementing the Petite Policy.
(See Oral Argument (quoted in full above).) First, the guidelines
require, as a procedural prerequisite to initiating a federal
prosecution subsequent to a state prosecution, approval “by the
appropriate Assistant Attorney General.” U.S. Dep’t of Justice,
United States Attorneys’ Manual § 9- 2.031 (1997). There is no
indication that approval was given in this case, and it seems
unlikely that approval was given because the AUSA arguing the

                                22
appeal did not know whether it had been given or not.
         Second, and more importantly, the guidelines require
that a “substantial federal interest” be involved which was
“unvindicated” at the state level and which can be effectively
vindicated at the federal level through a “conviction by an
unbiased trier of fact.” Id. The determination about whether a
federal interest is involved is to be made on a “case-by-case”
basis with a presumption “that a prior prosecution, regardless of
result, has vindicated the relevant state interest.” Id.
        Initially, I note that the explanation of the policy by the
AUSA at oral argument seems at odds with a careful “case-by-
case” approach. More fundamentally, the following inquiries
expose what I take to be unwarranted assumptions, implicit in
the Department’s guidelines, about what it takes to vindicate a
federal interest: (1) Whether the federal interest in prosecuting
drug dealers is exclusively a federal interest, or, if the interest is
not exclusively federal, whether federal law promotes a far more
effective vindication of the interest than the state law designed
to vindicate the same interest; and (2) Whether federal judges
have a superior competence, by reason of more experience, to
preside over criminal cases which present constitutional issues.
My answers, set forth below, lead me to question not only the
conformity of the procedure followed in this case with the
Department’s own guidelines,12 but also the continuing vitality


  12
     I am quick to recognize that this Court in Grimes, and all
other United States Courts of Appeals that have considered the
question recognize our inability to invoke the Department’s
policy as a bar to federal prosecution. See, e.g., United States v.

                                 23
of the Petite Policy itself.
                                 A.
        It is helpful first to compare the federal and state statutes
and sentences for the charge of distributing and possessing with
intent to distribute a significant quantity of cocaine. In the
District Court, Wilson filed a conditional plea of guilty to 21
U.S.C. § 841(a)(1) for possession with intent to distribute more
than 500 grams of cocaine. After his motion to suppress was
denied, he was fined $300 and sent to jail for five years.
        Pennsylvania law similarly prohibits “the manufacture,
delivery, or possession with intent to manufacture or deliver, a
controlled substance,” such as cocaine. 35 Pa. Stat. Ann. § 780-
113(a)(30) (2003). Sentencing for violation of 35 P.S. § 780-
113(a)(30) is governed by 18 P.S. § 7508(a)(2). Where the
offense involves at least 100 grams of cocaine, it provides for a
mandatory minimum sentence of five years in prison and a fine


Snell, 592 F.2d 1083 (9th Cir. 1979); United States v. Howard,
590 F.2d 564 (4th Cir. 1979); United States v. Frederick, 583
F.2d 273 (6th Cir. 1978); United States v. Thompson, 579 F.2d
1184 (l0th Cir. 1978) (en banc); United States v. Wallace, 578
F.2d 735 (5th Cir. 1978); United States v. Nelligan, 573 F.2d
251 (5th Cir. 1978); United States v. Hutul, 416 F.2d 607 (7th
Cir. 1969). The Supreme Court, in analogous contexts, has
concluded that Department policies governing its internal
operations do not create rights which may be enforced by
defendants against the Department. See United States v.
Caceres, 440 U.S. 471 (1979); Sullivan v. United States, 348
U.S. 170 (1954).

                                 24
of $25,000 for first time offenders and seven years and a
$50,000 fine for repeat offenders. § 7508(a)(2)(iii). The
Pennsylvania law seems to punish drug dealers more effectively,
or at least more forcefully, than the federal law.
         If the federal interest is in prosecuting drug dealers,
clearly a prosecution under the state statute would vindicate the
relevant federal interest. I refuse to accept the notion that the
federal interest is to demand convictions rather than
prosecutions. I see nothing in the Constitution or any statute that
so defines our federal interest.
           There appears to be no reasonable justification for
federal prosecutors becoming modern day Girolamo
Savonarolas and insisting that because a cocaine dealer in a state
court was turned loose after a Fourth Amendment hearing, they
must prosecute again in order to combat wickedness and spread
holiness of life. If we can agree that the federal interest is to
insure that drug dealers be prosecuted, I submit that every state
in this Nation has a similar interest, and this leads to the next
question: Are state judges competent to try drug cases in state
criminal courts?
                                B.
        The brute fact is that state-court trial judges have
more experience than federal judges in deciding federal
constitutional issues that arise in criminal prosecutions. For
example, in 2002, some 15.5 million criminal cases were filed




                                25
in state trial courts,13 while in the federal district courts there
were 67,000 in 2003 and 70,642 in 2004.14
       The ratio of superiority of experience of state judges is
approximately 2250 to 1. This means that, as a group, state
judges had 2250 criminal cases to every one of their federal
counterparts.
       In a more immediate locale, Pennsylvania Common
Pleas Court judges handled 155,049 criminal cases in 2002.15
The federal district judges in the three federal judicial districts




  13
      Examining the Work of the State Courts, 2003, (National
Center for State Courts) 38; see also id. at 40 (Table for 2002,
state by state except Mississippi, Oklahoma and Wyoming).
  14
     Judicial Business of the United States Courts: 2003 Annual
Report of the Director [hereinafter “Report”], Table D, available
at http://www.uscourts.gov/judbus2003/appendices/d.pdf (as of
Mar. 10, 2005).
  15
     2002 Caseload Statistics of the Unified Judicial System of
P e n n s y l v a n i a       9 ,      a v a i l a b l e      a t
http://www.courts.state.pa.us/Index/Aopc/Research/caseloads/
2002Report.pdf (as of Mar. 10, 2005). The 2003 figure is
153,362. 2003 Caseload Statistics of the Unified Judicial System
of      Pennsylvania              9,      ava ilable          at
http://www.courts.state.pa.us/Index/Aopc/Research/caseloads/
2003report.pdf (as of Mar. 10, 2005). In Philadelphia alone,
there were 15,092 new filings in 2003. Id. at 12.

                                 26
in Pennsylvania handled only 1394.16 This means that, as a
group, Pennsylvania state judges had approximately 111
criminal cases to every one of their federal counterparts. In the
district courts of the entire Third Judicial Circuit in 2002 there
were 2939 criminal filings.17
       To be sure, at the time the Supreme Court put its
imprimatur on the Petite Policy, state judges had little or no
experience with federal constitutional issues.
         These cases were decided at a time when Fifth
Amendment Double Jeopardy did not bind the states. When the
Court decided Abbate v. Illinois, 359 U.S. 187, 194 (1959), and
held that “[t]he Fifth Amendment, like all other guaranties in the
first eight amendments, applies only to proceedings by the
federal government, . . . and the double jeopardy therein
forbidden is a second prosecution after a first trial for the same
offense under the same authority,” Benton v. Maryland, 395
U.S. 784 (1969), had not yet applied the Fifth Amendment
Double Jeopardy Clause to the states.
        A popular saying seems appropriate here: “We’ve come
a long way, baby.”
        The time has come for the Supreme Court to revisit the
issue, or for Congress to take ameliorative actions on the basis
of the empirical data set forth above; data that demonstrates the
overwhelming participation by state judges in criminal cases


  16
       Report, supra, note 2.
  17
       Id.

                                27
involving federal issues.
        A brief list of the significant recurring federal
constitutional issues facing state judges every day includes:
Faretta v. California, 422 U.S. 806 (1975) (right to proceed
without counsel); Bruton v. United States, 391 U.S. 123 (1968)
(limited use of co-defendant’s confession); United States v.
Wade, 388 U.S. 218 (1967) (right to counsel during post-
indictment lineup identification); Miranda v. Arizona, 384 U.S.
436 (1966) (right to counsel during custodial interrogation);
Brady v. Maryland, 373 U.S. 83 (1963) (right to exculpatory
information in possession of prosecutor); Gideon v. Wainwright,
372 U.S. 335 (1963) (right to court-appointed counsel); Mapp
v. Ohio, 367 U.S. 643 (1961) (search and seizure).
                               III.
         My analysis of the double jeopardy problems which
inhere in the Department’s Petite Policy begins with
endorsement of what this Court said in Grimes, and I
incorporate by reference the discussion set forth therein in Part
II. See 641 F.2d at 100-104. Succinctly, this Court is of the view
that “permitting successive state-federal prosecutions for the
same act may be viewed as inconsistent with what is a most
ancient principle in western jurisprudence that a government
may not place twice a person in jeopardy for the same offense.”
Id. at 100. We noted that the predicate of the seminal case
legitimating this policy, Bartkus v. Illinois, 359 U.S. 121 (1959),
was that the Fifth Amendment Double Jeopardy Clause did not
bind the states. Subsequently, Benton unqualifiedly held that the
provision does apply to the states. 395 U.S. at 794. After a
discussion of Supreme Court cases that followed Bartkus and

                                28
Abbate, we stated: “Whenever a constitutional provision is
equally enforceable against the state and federal governments,
it would appear inconsistent to allow the parallel actions of state
and federal officials to produce results which would be
constitutionally impermissible if accomplished by either
jurisdiction alone.” Grimes, 641 F.2d at 102. “The ban against
double jeopardy is not against twice being punished, but against
twice being put in jeopardy.” William B. Lockhart, Yale
Kamisar, Jesse H. Choper, Constitutional Law 696 n.a (1970)
(citing Downum v. United States, 372 U.S. 734 (1963)).
                                A.
        The Supreme Court has recently reconsidered the scope
of double jeopardy protection in another context in Smith v.
Massachusetts. In determining that double jeopardy attaches
mid-trial where a judge ruled in favor of the defendant on a
motion for a required finding of not guilty on one of the charged
offenses, the Court considered it important that “the facts of this
case gave the petitioner no reason to doubt the finality of the
state court’s ruling.” Smith, 125 S.Ct. at 1135. The same is true
here. I find no indication in the record that Wilson was
forewarned that even if he prevailed in his state proceedings, he
would still have to face a second federal prosecution.
        More importantly, the Court stated:
        Our cases have made a single exception to the principle
        that acquittal by judge precludes reexamination of guilt
        no less than acquittal by jury: When a jury returns a
        verdict of guilty and a trial judge (or an appellate court)
        sets aside that verdict and enters a judgment of acquittal,
        the Double Jeopardy Clause does not preclude a

                                29
       prosecution appeal to reinstate the jury verdict of guilty.
       United States v. Wilson, 420 U.S. 332, 352-353, 95
       S.Ct. 1013, 43 L.Ed.2d 232 (1975). But if the
       prosecution has not yet obtained a conviction, further
       proceedings to secure one are impermissible:
       “[S]ubjecting the defendant to postacquittal factfinding
       proceedings going to guilt or innocence violates the
       Double Jeopardy Clause.” Smalis v. Pennsylvania, 476
       U.S. 140, 145, 106 S.Ct. 1745, 90 L.Ed.2d 116 (1986).
Id. at 1134 (emphasis added).
                                B.
         Moreover, there has been action by Congress subsequent
to this Court’s 1981 decision in Grimes that has relevance here.
       In 1996, Congress amended 28 U.S.C. § 2254 to
provide:
       (d.) An application for a writ of habeas corpus
       on behalf of a person in custody pursuant to
       the judgment of a State court shall not be
       granted with respect to any claim that was
       adjudicated on the merits in State court
       proceedings unless the adjudication of the
       claim
       (1) resulted in a decision that was contrary to,
       or involved an unreasonable application of,
       clearly established Federal law, as determined
       by the Supreme Court of the United States.



                                30
        The Court has explained: “Congress specifically used
the word ‘unreasonable,’ and not a term like ‘erroneous’ or
‘incorrect.’ Under § 2254(d)(1)’s ‘unreasonable application’
clause, then, a federal habeas court may not issue the writ
simply because that court concludes in its independent
judgment that the relevant state-court decision applied clearly
established federal law erroneously or incorrectly. Rather, that
application must also be unreasonable.” Williams v. Taylor,
529 U.S. 362, 411 (2000); see also Bell v. Cone, 535 U.S.
685, 694 (2002) (“The focus of the latter inquiry is on
whether the state court’s application of clearly established
federal law is objectively unreasonable, and we stressed in
Williams that an unreasonable application is different from an
incorrect one.”) (emphasis added); see also Brown v. Payton,
544 U.S. __, 125 S.Ct. 1432 (2005) (recent decision of the
United States Supreme Court affirming this principle).
         There are important similarities between: (1) the
statutory presumption in habeas cases at § 2254(d) that the
state proceedings are presumed correct; and (2) the DOJ’s
Petite Policy that presumes that a prior prosecution, regardless
of the result, has vindicated the relevant federal interest. U.S.
Dep’t of Justice, United States Attorneys’ Manual § 9- 2.031
(1997).
         Putting aside the question of double jeopardy, it seems
to me that if we are to put a defendant to the expense and
agony of a second trial under Petite, the government should be
put to the same test that Congress now requires of a habeas
petitioner under § 2254. The government should have to show
that the state court’s application of clearly-established federal
law is objectively unreasonable, rather than merely incorrect.

                               31
Absent a re-examination by the Supreme Court, it would take
Congressional action to replace the policy described at oral
argument in this case which allows a subsequent federal
prosecution “where there has been a suppression of evidence
based on state law or on an erroneous interpretation of federal
law by a state court.”
        I now turn to the constitutional issues presented in the
case at bar.
                               IV.
        The District Court erred in determining that
Pennsylvania State Trooper Overcash obtained effective consent
from Esco Wilson for the search of his bag and therefore erred
in its denial of Wilson’s motion to suppress the evidence
obtained from that search. This conclusion follows from a
determination that Wilson was not seized for purposes of the
Fourth Amendment. I begin with a discussion of the standard of
review.
        The government urges that a number of questions of fact
and mixed questions of law and fact are contained in the
ultimate legal issue before us. It contends that these questions of
fact should be subject to a review for clear error by this Court.
        I agree that, generally, factual questions and factual
components of mixed questions are subject to a clear error
standard of review. I also agree with the government’s specific
determination of which issues are factual and the cases which
support this determination. See United States v. Givan, 320 F.3d
452, 459 (3d Cir. 2003); United States v. Perez, 280 F.3d 318,
336 (3d Cir. 2002); United States v. Coggins, 986 F.2d 651,

                                32
653-654 (3d Cir. 1993).
        There is an important factual difference between the
cases cited by the government in support of its preferred clearly
erroneous standard of review and the case at bar. In each of the
cited cases, the district court judge was present during the
proceeding that produced factual evidence. The judge smelled
the smoke of battle and was therefore in a much better position
to make factual determinations than an appellate judge who
merely reviews a paper record.
        Face to face with living witnesses the original trier of
        facts holds a position of advantage from which appellate
        judges are excluded. In doubtful cases the exercise of
        his power of observation often proves the most accurate
        method of ascertaining the truth . . . . How can we say
        the judge is wrong? We never saw the witnesses . . . . To
        the sophistication and sagacity of the trial judge the law
        confines the duty of appraisal.


Wainwright v. Witt, 469 U.S. 412, 434 (1985) (quoting Marshall
v. Lonberger, 459 U.S. 422, 432 (1983) and Boyd v. Boyd, 169
N.E. 632, 634 (N.Y. 1930)).
        In the case before us, the district judge was not there. He
relied entirely on transcript evidence from the suppression
hearing in the Pennsylvania Court of Common Pleas. This
departure from orthodox district court suppression procedures
is relevant because the very reason we defer to factual findings
made at the trial-court level is not present in this case. This
Court is in exactly the same position as the District Court.

                                33
Collectively, three judges of this Court can read the written
transcript of the state suppression hearing, the briefs of the
parties and question the lawyers during oral argument. Judge
Guido of the Cumberland County Court of Common Pleas was
in a better position to make factual determinations, but we are
not reviewing the state court’s grant of Wilson’s motion to
suppress. We must review the order of the District Court.
        I would exercise plenary review of factual as well as
legal determinations made by the District Court because the
unique circumstances here make the reasons for the normal
clearly erroneous standard inoperative.
                               V.
         This Court has not heretofore dealt directly with the
issue presented here: When questioning occurs after the purpose
of a traffic stop has been completed and the officer states that a
person is free to leave, under what circumstances does a second
seizure arise requiring probable cause distinct from that which
justified the initial stop?
       Here, the panel is plowing new furrows in this Court.
And I am quick to admit that this is a close issue over which
reasonable minds may differ.
        I conclude that the District Court erred in determining
that Pennsylvania State Trooper Overcash obtained effective
consent from Wilson for the search of his bag. I believe it erred
in denying Wilson’s motion to suppress the evidence obtained
from that search. Supporting these conclusions is my
disagreement with the District Court’s decision that Wilson was
not seized for purposes of the Fourth Amendment when the

                               34
consent was given.
                                A.
        I start with the testimony of Trooper Overcash:
Q. Go ahead. What did you do with that citation?


A. Well, upon completing that citation, I examined this rental
agreement and observed that it was actually to be returned by
August 17th, 2001. I did conduct an NCIC CLEAN check to see
if the vehicle was stolen. That was negative. Upon completing
that citation and examining the rental unit, I did return to Mr.
Wilson’s vehicle.


Q. Did you issue him a citation?


A. Yes, I did.
                            *****


Q. What happened next, Trooper?


A. I issued the traffic citation to Mr. Wilson outside the vehicle.
Upon issuing the citation, I advised him he was free to leave.
He took a few steps towards his vehicle, and then I asked him a
question about the rental agreement being expired, and he
responded. He related that he usually rented them for a month,

                                35
that he did a lot of traveling. I asked him what kind of work he
did. He related [sic] he sold master compact disks to music
stores for approximately $500.00.


(Transcript of hearing at 8-10 (emphasis added).)


       Thereafter, Trooper Overcash was asked “What
happened next?” by the prosecuting attorney 14 times in four
pages of testimony. (Id. at 10-14.) Fourteen answers by the
Trooper related to his seeking information from Wilson after he
had “advised [Wilson] that he was free to leave” at the
conclusion of the traffic stop.
         I view as instructive the Common Pleas Court judge’s
finding that Trooper Overcash simply began asking about the
rental agreement. It was the state court judge and not the district
judge who was able to observe Trooper Overcash’s testimony
first hand. (See Op. of the Ct. of Common Pleas at 84.) Because
of the unique posture of this case which leads me to apply a
completely de novo standard of review, I would credit the state
court finding over the opposite finding made by the district court
judge.
                                B.
        United States v. Mendenhall, 446 U.S. 544 (1980),
instructs that “a person has been ‘seized’ within the meaning of
the Fourth Amendment only if, in view of all the circumstances
surrounding the incident, a reasonable person would have
believed that he was not free to leave.” Id. at 554. Mendenhall

                                36
set forth “[e]xamples of circumstances that might indicate a
seizure” including “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.” Id.
        In determining that Wilson was not seized for purposes
of the Fourth Amendment, the government and the majority rely
on United States v. Drayton, 536 U.S. 194 (2002). In that case,
three plainclothes police officers with visible badges and
concealed weapons boarded a bus as part of a routine drug and
weapons interdiction. Id. at 197. One officer stood at the rear of
the bus, a second stood at the front while a third officer went
from passenger to passenger explaining his purpose and seeking
permission to search their luggage. Id. at 197-198. The officers
all made an effort not to block the entrance or exit of the bus. Id.
The Court focused on coercion by force. It determined that
because “[t]here was no application of force, no intimidating
movement, no overwhelming show of force, no brandishing of
weapons, no blocking of exits, no threat, no command, not even
an authoritative tone of voice,” there was also no seizure for
purposes of the Fourth Amendment. Id. at 204. Drayton focused
on these factors not as a test for determining whether a seizure
had taken place, but rather as factually relevant inquiries in
determining whether “a reasonable person would feel free to
decline the officers’ requests or otherwise terminate the
encounter.” Id. at 202.
        The facts in this case are quite different from those in
Drayton. Wilson was not one of many passengers on a bus who
were all being politely asked for permission to search their bags.

                                37
Instead, he had been pulled over, had his license, registration
and rental agreement taken from him and was then ordered out
of his car to receive a citation for speeding. None of this
interaction was voluntary in nature.
        All of the interaction was made in the context of a
legitimate seizure for the purpose of issuing a speeding citation;
a legitimate seizure that ended when Trooper Overcash told
Wilson he was free to leave. Unlike the situation in Drayton,
where the bus passengers had not been seized prior to the onset
of questioning, Wilson had been seized for the speeding
violation.
        To hold that the teachings of Drayton applies is to mix
apples and oranges.
        In the case at bar, after being told he was free to leave,
Wilson was immediately asked another question that had
nothing to do with a speeding violation, the only purpose of the
original seizure. He was asked a question about his rental lease,
at a time when the Trooper had already learned that the car was
not stolen. He was then asked where he was going, and after he
responded, the Trooper walked to the other side of the car and
asked the two passengers where they were going. Then, the
Trooper went to his car and radioed for backup.
       In this factual context, the critical question is whether a
reasonable person at this time would feel free to: (1) decline to
answer the officer’s questions; (2) re-enter his car; (3) say
“sayonara” to the cop and drive away.
        The District Court determined that, as in Drayton, there
was no coercive force present in Trooper Overcash’s encounter

                               38
with Wilson, and by virtue of this conclusion, determined that
a reasonable person in this circumstance would have felt free to
decline to answer the officer’s questions and drive away. In
reaching this conclusion, the District Court focused exclusively
on what took place after Trooper Overcash told Wilson he was
free to leave.
        For Fourth Amendment seizure purposes, I agree with
the District Court: Trooper Overcash’s statement that Wilson
was free to leave effectively ended the seizure that was incident
to the traffic stop. Moreover, this fact constitutes the basic
jurisprudential distinction between the facts in this case and
those in Drayton.
         Yet, we are not precluded from considering the
potentially coercive effect which the force used during that
traffic stop, before Wilson was told he was free to leave, may
have had on the subsequent interaction between Trooper
Overcash and Wilson. In addition, the Trooper’s statement that
Wilson was free to go was framed by an authoritarian context.
        The government cites a series of cases from our sister
United States Courts of Appeals which are more similar
factually than is Drayton to the case at bar.18 Each makes clear

  18
     See United States v. Taverna, 348 F.3d 873, 877-879 (10th
Cir. 2003) (determining that a defendant was not seized for
purposes of the Fourth Amendment where the defendant, after
receiving a traffic citation, was walking back to his vehicle
when the police officer hollered after him and asked if he could
visit about things, proceeded to ask about drugs and guns and
finally obtained permission to search the vehicle after explaining

                               39
that a seizure pursuant to a traffic stop ends when the person
stopped is told they are free to go, or have their documents
returned to them. Although each of the cited cases held that
subsequent interaction between the defendant subjected to the
traffic stop and the police officer was consensual, every one of
these cases contemplates the possibility that a show of authority
could result in a second seizure. In each of these cases, the
follow-up question which re-initiates the conversation after the
traffic stop seizure is general and non-threatening to a law
abiding person. In contrast, Wilson was asked a very specific
question about the expiration of his rental agreement which


that the defendant could refuse); United States v. West, 219 F.3d
1171, 1176 (10th Cir. 2000) (determining that a defendant was
not seized when the police officer asked about travel plans after
having concluded the initial traffic stop by handing the
defendant’s documents back to him); United States v. Bustillos-
Munoz, 235 F.3d 505, 514-515 (10th Cir. 2000) (determining
that there was no coercive show of authority, and therefore no
seizure, when, as the defendant was walking back to his car, the
officer asked if he had any guns or drugs in his car and the
defendant responded no; the officer then asked for and obtained
permission to search the vehicle and found drugs); United States
v. Sullivan, 138 F.3d 126, 133-134 (4th Cir. 1998) (determining
that defendant was not seized for purposes of the Fourth
Amendment where, after having his license and registration
returned to him, the defendant was asked whether he had
anything illegal in his car and when the defendant did not
answer, the officer repeated the question several times yielding
an admission by the defendant that he had a gun in the car).

                               40
could be easily perceived as accusatory and threatening even by
an innocent law abiding person.
         I find the government’s reliance on Ohio v. Robinette,
519 U.S. 33 (1996), largely unhelpful. Although it is true that
Robinette is factually similar to the case before us, I do not read
it as supporting the government’s position. Rather, I read it as
rejecting any per se rule that would require police officers to
inform persons that they are free to leave after a valid detention
before attempting to engage in a consensual interrogation. Id. at
36, 39-40. Robinette reaffirmed a factually-based
reasonableness test and remanded to the Ohio Supreme Court to
decide the case using a reasonableness test instead of a per se
rule. Id. at 40. In interpreting the guidance of the United States
Supreme Court on remand, the Ohio State Supreme Court
determined that, based on the totality of the circumstances, the
transition between the exercise of authority involved in the
seizure pursuant to a traffic stop and the seeking of permission
to search the vehicle had been so seamless that the officer’s
questioning was impliedly coercive. See State v. Robinette, 685
N.E.2d 762, 770-772 (Ohio 1997).
        In Commonwealth v. Freeman, 757 A.2d 903, 905 (Pa.
2000), the case relied upon by the Common Pleas Court in this
case, Freeman was pulled over and issued a warning for
improper lane changes and windshield obstructions. After the
officer had issued the warning and returned Freeman’s
documents, he told her she was free to go and went back to his
car. Id. The officer then got out of his car and returned to
Freeman’s car, began questioning her and her passengers,
ordered her out of the car and eventually obtained permission to
search the car and found drugs. Id. The court employed the test

                                41
which has been articulated by the United States Supreme Court
and found that based on the totality of the circumstances, a
reasonable person would conclude that the officer’s previous
statement indicating she was free to leave was no longer
operative and therefore a second seizure had taken place. Id. at
907-908.
        In Givan, a factually similar case, we expressed doubt
about whether the second encounter was a seizure for purposes
of the Fourth Amendment but decided the case on a different
basis: Even assuming that the defendant was seized, there was
“reasonable and articulable suspicion of illegal activity
sufficient to extend the stop.” 320 F.3d at 458. Our doubt in
Givan sheds little light on the present case in view of some
relevant factual differences. In Givan, the officer asked the
driver of the car if he would mind answering a few questions
before he began his questioning and the officer also explained
that consent to the search had to be voluntary and was not
required. Id. at 459.
      Our survey of the case law uncovers no case from our
own Court or the Supreme Court that is specifically controlling.
        Although this is a very close case, I conclude that,
looking at the totality of the circumstances, a reasonable person
in Wilson’s position would not feel free to refuse to answer
Trooper Overcash’s questions or get in the car and drive away.
To be sure, Trooper Overcash’s instruction that Wilson was free
to leave must be considered as a fact tending to support the
government’s contention that this was a mere encounter, rather
than a seizure. I conclude, however, that the overall context in
which the interaction between the Trooper and Wilson occurred

                               42
outweighs this fact. As was the case in Freeman, Wilson had just
been subject to a series of authoritative, albeit legitimate,
commands by Trooper Overcash: being pulled over; required to
produce documents; required to exit his vehicle and proceed to
the rear of the vehicle. Then, almost immediately after being
told he could leave, he was asked a very specific question which
a reasonable person could take as an accusation of some kind of
wrongdoing (namely possessing a vehicle illegally) followed by
a demand to know his interim, mediate or ultimate destination.
This questioning was serious enough to warrant a call for
backup. Although reasonableness is the test, it is beyond cavil
that at this moment Trooper Overcash considered that he had
made a second seizure of Wilson.
       I, therefore, conclude that the District Court erred in
determining that Wilson was not seized for purposes of the
Fourth Amendment.
                                VI.
        The Majority has based its holding on their conclusion
that Wilson was not seized for purposes of the Fourth
Amendment when he consented to the search of his bag. I have
expressed my disagreement with this conclusion. I will not
comment on the government’s alternative theories which, in my
view, are also flawed.
                            *****
        The teachings of Massachusetts v. Smith cast serious
doubt on, if not completely vitiate, the continuing vitality of the
Petite Policy. Additionally, as a matter of public policy, Petite
fails to give proper respect to the ability of state law and state


                                43
judges to vindicate federal interests. I am asking the Clerk to
forward a copy of this dissenting opinion to the respective chairs
of the Judiciary Committees of the United States House of
Representatives and the United States Senate with a
recommendation that they determine whether legislative action
is needed.
      On the merits of the case at bar, I would reverse the
judgment of the District Court.
       Accordingly, with respect, I dissent.




                               44
