           United States Court of Appeals

                       For the First Circuit

No. 99-1697

                           UNITED STATES,

                             Appellee,

                                 v.

               RONALD WOODRUM a/k/a DAVID WILSON,

                       Defendant, Appellant.

                               ______

                               Before

                      Torruella, Chief Judge

    Selya, Boudin, Stahl, Lynch and Lipez, Circuit Judges.

                               ______

                            ORDER OF COURT

                      Entered: April 6, 2000



          The panel of judges that rendered the decision in this case

having voted to deny the petition for rehearing and the suggestion for

the holding of a rehearing en banc having been carefully considered by

the judges of this Court in regular active service and a majority of

said judges not having voted to order that the appeal be heard or



                                 -1-
reheard by the Court en banc, the Court being equally divided,



    It is ordered that the petition for rehearing en banc be denied.



   Dissent attached. (Lynch, Circuit Judge, joined by Torruella,

Chief Judge and by Lipez, Circuit Judge as to Parts II and III).




                                     By the Court:



                                    Phoebe Morse, Clerk.




                              -2-
          LYNCH, Circuit Judge, with whom TORRUELLA, Chief Judge,

joins, and with whom LIPEZ, Circuit Judge, joins as to Parts II and

III, dissenting. I respectfully dissent from the denial of defendant

Woodrum's petition for rehearing en banc for two reasons: the case has

great constitutional and societal significance, and so meets the

requirements of Rule 35(a), Fed. R. App. P., and there is reason to

doubt that the opinion is correctly decided.

                                 I.

          This case is an important one, not just for the development

of Fourth Amendment law, but also for the quality of life in urban

areas and the protection of individual rights. These factors alone

argue for rehearing en banc.    The panel decision permits police,

without any particular justification, to stop and look over taxicabs

occupied with passengers. This is a seizure under the Constitution, as

the government concedes. See Townes v. City of New York, 176 F.3d 138,

144 (2d Cir. 1999). Normally, the government would need probable

cause, or at least reasonable suspicion, of a crime to make such a

stop.   If, after the stop, the police see anything that looks

suspicious, they may then get the passenger out of the cab. If the


                                 -3-
police see that the passenger has something illicit (here a gun), the

passenger may be arrested and the evidence seized. The latter two "if"

propositions are well established under Fourth Amendment law. But the

opening premise -- that the police may randomly stop a cab with a

passenger -- is a new rule and is the crux of the matter here.

           According to the panel, a voluntary, police-sponsored program

(called the Taxi Inspection Program for Safety or TIPS) justifies this

new rule. By its participation in TIPS, the cab company consents to

the police stopping the cab, the company's consent can be attributed to

the cab driver, and from there, consent can be imputed to the passenger

because of his decision to enter the cab.       See United States v.

Woodrum, 202 F.3d 1, 9-11 (1st Cir. 2000). Thus, effectively, the cab

company is permitted to waive the Fourth Amendment rights of citizens

to be free from seizure.

           There are important interests on both sides of this case.

Begun in 1991 as "Operation Taxi," and modified in 1996 to become TIPS,1

the program is a well-intentioned response to a rash of attacks and

shootings, some fatal, of cab drivers by passengers, particularly in

minority urban areas. Cab driving -- in Boston, as elsewhere -- is a


     1    The program was revised after a number of Massachusetts trial
courts granted motions to suppress items seized in searches that
resulted from "Operation Taxi" stops. See Commonwealth v. Carle, Nos.
94-11050, 94-11049, 1995 WL 737537, at *3 (Mass. Super. Ct. Oct. 31,
1995); Commonwealth v. Bland, No. 94-10127, 1994 WL 879833, at *3-*4
(Mass. Super. Ct. Aug. 23, 1994); Commonwealth v. Cosme, No. 94-10014,
1994 WL 879664, at *4 (Mass. Super. Ct. May 9, 1994).

                                  -4-
notoriously dangerous occupation and the safety of drivers has been,

and continues to be, at risk. Efforts to protect the safety of cab

drivers are certainly warranted. And one of the collateral benefits of

the TIPS program may be to encourage cab drivers to provide service to

certain neighborhoods, neighborhoods they would otherwise shy away

from.    Given the realities of urban life, the panel's decision

affirming the validity of consent to seizure through the TIPS program

may mean that the TIPS program will be emulated in other cities and in

other sectors of the economy.2

           But there are also interests on the other side, particularly

Fourth Amendment interests. The very purpose of many constitutional

guarantees, particularly those contained in the Fourth Amendment, is to

fetter the exercise of discretion by the police. Indeed, it may be

unhealthy for the police themselves to have such unfettered discretion,

as such discretion could easily lead to dishonest and sloppy police

work. Further, unfettered police discretion has at times led to racial

bias in law enforcement, whether intended or not. Commentators and

cases have noted that being "stopped for being black" is a frequent



     2     New York City implemented a similar program, now called TRIP
(Taxi and Livery Robbery Inspection Program), in 1993. Recently, the
New York Court of Appeals found seizures conducted under the program
constitutionally invalid, thereby tainting evidence acquired as a
result. See In re Muhammad F., 722 N.E.2d 45, 51-52 (N.Y. 1999),
petition for cert. filed sub nom. New York v. Muhammad F., 68 U.S.L.W.
3577 (U.S. Mar. 14, 2000) (No. 99-1443); see also United States v.
Santiago, 950 F. Supp. 590, 596-98 (S.D.N.Y. 1996).

                                 -5-
occurrence. See, e.g., Randall Kennedy, Race, Crime, and the Law 138-

63 (1997). A decade ago, the Massachusetts Attorney General issued a

report assailing the Boston Police Department for the practice of

subjecting black citizens to unconstitutional searches and seizures.

See Report of the Attorney General's Civil Rights Division on Boston

Police Department Practices (Dec. 18, 1990), cited in David Cole, No

Equal Justice 25-26 & 57 n.30 (1999).       And in 1992, the Supreme

Judicial Court of Massachusetts held unconstitutional, under the Fourth

Amendment, another policy of the Boston Police, under which the police

stopped and searched known or suspected gang members and their

associates on sight.3 See Commonwealth v. Phillips, 595 N.E.2d 310,

314-16 (Mass. 1992).

          The police already have considerable discretion to stop

persons. A police officer can stop a person based simply on reasonable

suspicion, see Terry v. Ohio, 392 U.S. 1, 30 (1968), and in determining

whether they have reasonable suspicion, the police may consider the



     3    As Judge Newman has said,

     [t]he risk inherent in such a practice is that some police
     officers will use the pretext of traffic violations or other minor
     infractions to harass members of groups identified by factors that
     are totally impermissible as a basis for law enforcement activity
     -- factors such as race or ethnic origin, or simply appearances
     that some police officers do not like, such as young men with long
     hair, heavy jewelry, and flashy clothing.

United States v. Scopo, 19 F.3d 777, 785 (2d Cir. 1994) (Newman, C.J.,
concurring).

                                 -6-
fact that a person turns and runs, see Illinois v. Wardlow, 120 S. Ct.

673, 676 (2000). In addition, traffic stops, in practice, may be used

as a pretext to investigate other crimes because courts will not

usually inquire into the actual motives of the police. See Whren v.

United States, 517 U.S. 806, 813 (1996). Although police may not make

stops based on race, it is difficult to show such motivation, and even

obtaining discovery about racial practices is difficult. See United

States v. Armstrong, 517 U.S. 456, 468-70 (1996). When one sector of

the community feels the brunt of discretionary police action more than

others, that sector may be less likely to accept that the purpose of

the law is to protect them. The extension of police discretion that

results from the panel decision and its societal consequences make this

case worthy of a rehearing en banc.

                                 II.

          The case should be reheard by the en banc court because a

novel constitutional issue is involved. It is far from clear that the

panel's decision (even as amended) is correct. The case turns on the

following question: Does the participation of the cab company in a

voluntary program, which gives the company's consent to the police

stopping a company's cab, amount to a consent by the passenger of the

cab to being stopped, seized, and visually searched when there is

neither reasonable suspicion nor probable cause to believe there is any

criminal activity?


                                 -7-
          This question and the panel's answer raise a number of

concerns. To begin with, the opinion applies third-party consent

principles derived from the search context to the seizure context.

This is novel. Woodrum made no individual decision to submit to police

authority. Rather, that decision was made for him by the taxicab

owner, and imputedly, the driver.4

          The panel opinion correctly points out that "when the

prosecution seeks to justify a warrantless search by proof of voluntary

consent, it . . . may show that permission to search was obtained from

a third party who possessed common authority over or other sufficient

relationship to the premises or effects sought to be inspected."

United States v. Matlock, 415 U.S. 164, 171 (1974). Common authority

"rests . . . on mutual use of the property by persons generally having

joint access or control for most purposes, so that it is reasonable to

recognize that any of the co-inhabitants has the right to permit the

inspection in his own right and that the others have assumed the risk

that one of their number might permit the common area to be searched."

Id. at 171 n.7.

          But there is no authority cited for the application of third-

party consent rules to the seizure context. Indeed, the only authority

     4     Even if the cab company could consent to stops and seizures
of its cabs when the cab had only the driver in it, it does not follow
that the driver has any authority to consent to the seizure of the
passenger. It would be a fiction to characterize the consent given by
the driver and the passenger as "direct."

                                 -8-
cited by the panel for the proposition that "[s]eizures by consent

generally are considered reasonable" is Florida v. Jimeno, 500 U.S.

248, 250-51 (1991). See Woodrum, 202 F.3d at 11. But that case is a

search case, not a seizure case; it is a first-party consent case, not

a third-party consent case; and it is a search of an automobile case,

not a seizure of a person case. See Jimeno, 500 U.S. at 249. Indeed,

the panel opinion acknowledges that third-party consent has only been

applied to searches, not seizures.       See Woodrum, 202 F.3d at 10-11.

          Critical to the panel's decision is the analogy it draws

between the shared control over the taxicab and the shared control over

a living space. The analogy is weak. In the latter instance, one co-

habitant's consent is imputed to other co-habitants because persons

living together reasonably understand that their housemates may invite

outsiders (including the police) to enter the premises and look around

"common areas."

          Although the passenger, in entering a taxicab, certainly

relinquishes some control over the technical driving decisions of the

taxicab driver, the relationship is not like the sharing expected

between housemates. When a passenger hires a taxicab, the expectation

is that the passenger assumes control over all the important decisions,

including the vehicle's travel route (should the passenger choose to

specify) and its ultimate destiny. It is doubtful that a passenger,

through nothing more than this relationship with the taxicab driver,


                                 -9-
consents to the unfettered discretion of the police to stop the taxicab

in order to make sure that he himself is not a dangerous criminal.

          Further, the relevant seizure, here, is not of the taxicab,

and so the cab driver and passenger's overlapping authority over the

vehicle is beside the point. For the purposes of third-party consent

in this seizure, the relevant object over which the cab driver and

passenger would need to have common authority is the taxicab passenger.

But the cab driver does not, cannot, have common authority over the

passenger’s person; simply, and obviously, a person cannot give third-

party consent to the search or seizure of another person.

          The opinion also discounts the privacy interests of someone

who hails a cab. There is in fact a reasonable expectation of privacy

by the passenger in a cab.    Sometimes people take cabs precisely

because cabs give a greater degree of privacy than public mass transit

or even than walking along a sidewalk. If a cab driver were to stop

the cab against the will of the passenger, the fare would normally end;

the passenger's expectation is that the cab will not normally stop

until it reaches the destination dictated by the passenger; and the

passenger expects he will enjoy the privacy of the passenger

compartment.

          The cab passenger is not like someone who visits a prison and

so "consents" to certain special prison procedures that are driven by

security needs. Cf. United States v. Sihler, 562 F.2d 349, 350-51 (5th


                                 -10-
Cir. 1977). The better analogy may be to a hotel room, which, like a

cab, is rented for sole occupancy for a period of time. We would not

say that the owner of a hotel could consent to the search of hotel

rooms occupied by guests through the owner's voluntary participation in

a program that authorized police to enter the rooms at their discretion

to protect the cleaning staff or to prevent theft of hotel property.5

In Stoner v. California, 376 U.S. 483 (1964), the Supreme Court held

that the Fourth Amendment protected a hotel guest from use of evidence

seized under a "consent" to search his hotel room given by the desk

clerk.   See id. at 490.

          Further, the purported "consent" here is of an odd sort --

it is not a consent to specific police action in a specific factual

setting, as is usually the situation in consent to search cases. In



     5     It is a weak argument that a passenger who hails a cab,
perhaps the only cab in sight and perhaps after dark, has voluntarily
consented to being seized because there is a small decal on the cab
indicating its participation in the TIPS program. In this case,
Woodrum apparently hailed the cab in the dark between midnight and 1
a.m. on a January night in Boston. In Massachusetts, a cab is a public
accommodation and a common carrier, and citizens have every reason to
think that their constitutional rights will be protected, not waived,
when they take a cab. See Mass. Gen. Laws ch. 272, § 92A (public
accommodation); Hathaway v. Checker Taxi Co., 73 N.E.2d 603, 606-07
(Mass. 1947) (taxicab drivers, as common carriers for hire, owe their
passengers the "highest degree of care"). As the Seventh Circuit has
said, "Courts confronted with claims of implied consent have been
reluctant to uphold a warrantless search based simply on actions taken
in the light of a posted notice." McGann v. Northeast Reg'l Commuter
R.R. Corp., 8 F.3d 1174, 1180 (7th Cir. 1993). In any event, the
standards for a voluntary waiver of a constitutional right are not met
by hailing a cab and then getting in one that bears a TIPS decal.

                                 -11-
those situations, the voluntariness of the consent is determined from

the circumstances. See Schneckloth v. Bustamonte, 412 U.S. 218, 248-49

(1973). Here, by contrast, the anticipatory consent to seize given by

the cab company is open-ended: the seizure may be at any time and under

any circumstances. Cf. United States v. Patrick, 959 F.2d 991, 996

(D.C. Cir. 1992). Further, there is no mechanism for the cab company,

the driver, or the passenger to revoke the anticipatorily given consent

in a given situation. Indeed, the passenger here has no option to

terminate the seizure and so this situation is unlike the search in

Florida v. Bostick, 501 U.S. 429, 436-37 (1991). Thus, the panel

approves a new and questionable Fourth Amendment doctrine of

irrevocable anticipatory consent to seizure (and third-party consent at

that).

          In some respects, this case is more akin to random stops of

motorists on public highways by the police that are not supported by

probable cause or reasonable suspicion. In Delaware v. Prouse, 440

U.S. 648 (1979), the Supreme Court held that such stops were

unconstitutional. See id. at 663. In Prouse, the Court distinguished

between impermissible "sporadic and random stops of individual vehicles

making their way through city traffic" and permissible "roadblocks

where all vehicles are brought to a halt or a near halt." Id. at 657.

This case is unlike sobriety checkpoints where all cars and all drivers

are stopped and inspected for signs of intoxication, a practice that


                                 -12-
was upheld in Michigan Department of State Police v. Sitz, 496 U.S.

444, 447 (1990). Indeed, the government has made no argument here that

the stop can be justified under Sitz. The government's justification

for the stop turns entirely on the issue of consent. As in Prouse, the

police here had virtually unfettered discretion and the ability to

engage in selective enforcement.

          "[T]he Fourth Amendment requires that a seizure must be based

on specific, objective facts indicating that society's legitimate

interests require the seizure of the particular individual, or that the

seizure must be carried out pursuant to a plan embodying explicit,

neutral limitations on the conduct of individual officers." Brown v.

Texas, 443 U.S. 47, 51 (1979).      The TIPS program is not a plan

"embodying explicit, neutral limitations on the conduct of individual

officers." There is a purported limit in the police manual for the

TIPS program that the "[s]tops should be conducted when and wherever

necessary, particularly during the evening and early morning hours.

Attention will be given to isolated and high crime areas." These

instructions are so broad that they most likely will not act as limits

at all.6 In fact, the legend on the decal may be the most accurate


     6    A Massachusetts Superior Court judge held that almost

identical instructions, in a predecessor program to TIPS, did not act
to limit "the arbitrary and unbridled discretion of the police
officers." Commonwealth v. Cosme, No. 9410014, 1994 WL 879664, at *4
(Mass. Super. Ct. May 9, 1994).


                                 -13-
description: "This vehicle may be stopped . . . at any time . . . ."

If an open-ended anticipatory third-party consent to the seizure of a

passenger in a cab is doubtful, and if the random stopping of cabs

absent such consent is forbidden, then the result reached here is

questionable.

                                III.

          This is a difficult case and the panel opinion is a lucid

articulation of an alternative analysis. But, for the reasons stated,

I respectfully dissent from the denial of the petition for

 rehearing en banc.




                                -14-
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[cc: Mr. Shapiro, Mr. Wortman, Mr. Richardson, Mr. Hamilton & Ms

Chaitowitz]




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