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


5-5-2005

USA v. Lockett
Precedential or Non-Precedential: Precedential

Docket No. 04-2244




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                                       PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT


                     No. 04-2244


          UNITED STATES OF AMERICA

                          v.

               ROGERS LOCKETT, III
                      a/k/a
                 MANNY STRONG

                     Rogers Lockett,
                          Appellant




    On Appeal from the United States District Court
       for the Eastern District of Pennsylvania
                 (D.C. No. 03-cr-00421)
      District Judge: Honorable Cynthia M. Rufe


                Argued March 9, 2005

Before: NYGAARD, McKEE, and RENDELL, Circuit Judges
                     (Filed: May 5, 2005)


Robert Epstein, Esq. (Argued)
Defender Association of Philadelphia
Federal Court Division
601 Walnut Street
The Curtis Center, Suite 540 West
Philadelphia, PA 19106
      Counsel for Appellant

Thomas R. Perricone, Esq. (Argued)
Office of the United States Attorney
615 Chestnut Street
Philadelphia, PA 19106
       Counsel for Appellee

                             _____

                    OPINION OF THE COURT


NYGAARD, Circuit Judge.

       Rogers Lockett argues that the District Court erred by

denying his motion to suppress because the police exceeded the

scope of his consent to search his suitcase and unlawfully seized

him, rendering the search of his backpack involuntary.

                               2
Additionally, he submits that he is no longer bound by the

dictates of his plea agreement as a result of the Supreme Court’s

decision in United States v. Booker, 543 U.S. __, 125 S. Ct. 738

(2005). We will affirm.

                               I.

       Lockett was sitting on a bench in the Amtrak 30 th Street

Train Station in Philadelphia.      After watching Lockett for

approximately fifteen minutes, Special Agent Carl Giardinelli1

and Corporal William Burdette 2 approached him. Burdette

showed Lockett his badge, identified himself, and asked if

Lockett would answer a few questions. After Lockett answered




       1
       Special Agent Giardinelli is an agent with the Drug
Enforcement Agency.
       2
        Officer Burdette is a Corporal with the Pennsylvania
State Police assigned to the Bureau of Emergency and Special
Operations and then reassigned to the Drug Enforcement
Agency.

                               3
“yes,” Burdette sat down on the bench approximately two feet

to Lockett’s right and Giardinelli remained standing a few feet

to the right of Burdette. Burdette asked Lockett some questions

about his travel and Lockett explained that he was from

Philadelphia but was traveling to Boston, where he attends

Newbury College. Burdette examined Lockett’s identification

and train ticket and then returned them to Lockett.

       Burdette explained to Lockett that he and Agent

Giardinelli were looking for contraband including narcotics,

large sums of money, guns, and other weapons. He asked

Lockett if he had any of these items in his possession; Lockett

said that he did not. Then Burdette asked Lockett if the rolling

suitcase on the seat next to Lockett belonged to him and Lockett

admitted that it did. Burdette asked if he could look in the

suitcase and Lockett said “yes.”      Lockett then placed the

suitcase on the floor and started to open it, at which point

                               4
Burdette said, “that’s okay, I can get that.” Lockett responded,

“no, I’ll get it,” but Burdette repeated, “no, that’s okay, I can get

it.” Burdette then opened the bag.

       After opening the suitcase, Giardinelli and Burdette saw

three large plastic bags that contained numerous small clear

plastic bags, which the Officers recognized as the type of bags

commonly used to package illegal drugs. On one of the larger

bags was a picture of a marijuana leaf. Burdette pushed the

rolling suitcase over to Giardinelli, who continued searching

through it.

       While Giardinelli was searching the suitcase, Burdette

asked Lockett if the other bag, a backpack, belonged to him and

Lockett said “yes.” Burdette asked if he could look in the

backpack and Lockett said “yes” and handed the backpack to

Burdette.

       As Giardinelli was searching the rolling suitcase, his

                                 5
finger hit a metal object and he realized it was a gun.3 He yelled

“gun” in a loud voice so as to get the attention of Burdette and

the other law enforcement officers in the vicinity. Burdette and

Officer Sean Martin, an Amtrak police officer, handcuffed

Lockett and walked him from the public area of the train station

to the Amtrak police station, which was a short distance away

within the same building. Lockett was handcuffed to a bench in

the Amtrak police station while Burdette physically searched

through the bags with Giardinelli observing nearby.4 After the


       3
       The gun discovered by Giardinelli was an Intertec 9mm
semi-automatic uzi-type weapon with an obliterated serial
number.
       4
        During the search at the police station, Burdette and
Giardinelli found a Bryco Jennings 9mm semi-automatic pistol
with an obliterated serial number loaded with twelve live
rounds, as well as a magazine for the Intratec containing thirty
rounds of ammunition. They also found approximately one
pound of marijuana in the rolling suitcase. In addition, they
found three notebooks and pictures in the backpack; two of the
pictures were of Lockett and another individual holding

                                6
search, Officer James Corbett, a member of the Philadelphia

Police Department, read Lockett his Miranda rights and then

asked him who owned the guns. Lockett answered, “the guns

are mine.” Corbett then asked Lockett from whom he obtained

the firearms, at which point Lockett said that he wanted to talk

to a lawyer. At this point all questioning of Lockett stopped.

                                II.

       Lockett was charged with possession of marijuana with

the intent to distribute, possession of firearms in connection with

a drug trafficking offense, and possession of firearms with

obliterated serial numbers. Lockett filed a motion to suppress

the physical evidence and the statements he made to the law

enforcement officers. After a hearing, the District Court denied

the Motion, with the following detailed findings of fact and




handguns to each other’s heads.

                                7
conclusions of law:     (1) the encounter between Burdette,

Giardinelli, and Lockett was not coercive and did not constitute

a stop or seizure under the Fourth Amendment; (2) a reasonable

person in Lockett’s position would have felt free to refuse to

talk to Giardinelli and Burdette; (3) Lockett voluntarily gave his

consent to search his rolling suitcase and backpack; (4) Lockett

never revoked his consent to the searches of his rolling suitcase

and backpack; (5) Lockett was not in custody until his arrest

after Giardinelli discovered the gun in his rolling suitcase; and

(6) Lockett voluntarily, knowingly, and intelligently waived his

Miranda rights prior to saying “the guns are mine.”

         Pursuant to a written guilty plea agreement, Lockett

pleaded guilty to all charges, reserving his right to appeal the

denial of his motion to suppress. The plea agreement expressly

limited the defendant’s right to appeal, excepting only an appeal

based on a claim that the defendant’s sentence exceeded the

                                8
statutory maximum, that the sentencing judge erroneously

departed upwards from the guidelines range, or that the district

court erroneously decided the suppression issues.

       The District Court imposed a sentence of six months

imprisonment for possession of marijuana with intent to

distribute and possession of firearms with obliterated serial

numbers pursuant to the federal sentencing guidelines. The

District Court also imposed a sentence of sixty months

imprisonment to run consecutively for possession of firearms in

furtherance of a drug trafficking crime, which is the statutory

mandatory minimum. The total sentence was for 66 months

imprisonment, five years of supervised release, a $2,000 fine,

and a special assessment of $300. Lockett now appeals his

conviction and sentence.

                              III.

       This is an appeal from a final judgment of the District

                               9
Court. We have appellate jurisdiction pursuant to 28 U.S.C. §

1291.

        We review a District Court’s denial of a motion to

suppress for clear error as to the underlying factual findings and

exercise plenary review over the District Court’s application of

the law to those facts. United States v. Perez, 280 F.3d 318, 336

(3d Cir. 2002). A District Court’s determination of consent to

search is a finding of fact. Schneckcloth v. Bustamonte, 412

U.S. 218, 227 (1973).

                               IV.

A.      Seizure

        Lockett asserts that he was unlawfully seized when he

submitted to authority by relinquishing control of his suitcase.

We do not agree.

        It is well established that no seizure has occurred when

an officer approaches an individual in a public place, identifies

                               10
himself as a law enforcement agent, asks questions, asks to

search a person’s bags, or explains that he is conducting a

narcotics investigation. See Florida v. Royer, 460 U.S. 491, 497

(1983); United States v. Thame, 846 F.2d 200, 202–03 (3d Cir.

1988). Even when law enforcement officers have no basis for

suspecting a particular individual, they may pose questions, ask

for identification, and request consent to search luggage,

provided they do not induce cooperation by coercive means. See

Florida v. Bostick, 501 U.S. 429, 434–35 (1991).           If a

reasonable person would feel free to terminate the encounter,

then he or she has not been seized. Id.

       Under similar circumstances, we have held that

questioning of a traveler by police officers, followed by a

request to search the traveler’s bags did not amount to a

“seizure” of that traveler under the Fourth Amendment. See

Thame, 846 F.2d at 204. We reasoned that the officers had not

                              11
restrained Thame, blocked his path, or otherwise controlled his

movement by retaining his papers. Id. Nor had the police, in

any way, suggested to Thame that he was positively identified

as a suspect.     Id.   Thus, despite the fact that other law

enforcement officers may have been in Thame’s view, we

concluded that no seizure had occurred. Id.

       As in Thame, the encounter here took place in an open

public area. The officers did not control or block Lockett’s

movement.        They did not retain Lockett’s papers or

identification. And they did not tell Lockett that he was a

suspect. We hold that the officers did not induce Lockett’s

cooperation by coercion. In light of all the circumstances, a

reasonable person would have felt free to terminate the

encounter, and therefore Lockett was not “seized.”

B.     Consent

       Under the Fourth and Fourteenth Amendments, a search

                               12
conducted without a warrant issued upon probable cause is “per

se unreasonable . . . subject only to a few specifically established

and well-delineated exceptions.” Schneckloth, 412 U.S. at 219.

“It is equally well settled that one of the specifically established

exceptions to the requirements of both a warrant and probable

cause is a search that is conducted pursuant to consent.” Id.

Consent must be voluntary, may be express or implied, and need

not be knowing or intelligent. Id. at 235. It may be given

unintentionally and without knowledge of the right to refuse

consent, and the police are not required to warn an individual of

the right to refuse consent. Id.

       Lockett does not dispute the District Court’s finding of

consent, but instead claims that he gave “limited consent” only

to a “visual inspection.”     Lockett asserts that, even though

counsel below may not have used the precise term “limited

consent,” the legal issue remains the same: would the officers’

                                13
conduct have communicated to a reasonable person that Lockett

was not free to decline the officers’ request.

       The government contends Lockett waived the limited

consent issue by failing to include it in his suppression motion.5

Federal Rule of Criminal Procedure 12(b)(3) requires a defendant

to file a suppression motion prior to trial, and Rule 12(f) provides

that failure to do so constitutes a waiver. We agree that Lockett

waived the limited consent issue.

       It is well settled that arguments asserted for the first time

on appeal are deemed to be waived and consequently are not


       5
        The Government’s Brief notes that: “Lockett filed a
Motion to Suppress Physical Evidence and Statement before the
suppression hearing and filed a Supplemental Memorandum of
Law in Support of Defendant’s Motion to Suppress Physical
Evidence and Statement after the hearing. In neither of these
written submissions, nor in the oral argument immediately
following the hearing, did Lockett claim that he gave consent
only to a visual inspection of his suitcase or that the police
search of his suitcase exceeded the scope of his limited
consent.” (Appellee’s Br. at 27).

                                14
susceptible to review in this Court absent exceptional

circumstances. See Brown v. Phillip Morris, Inc., 250 F.3d 789,

799 (3d Cir. 2001); United States v. Martinez-Hidalgo, 993 F.2d

1052, 1057–58 (3d Cir. 1993) (finding claim of unreasonable

seizure waived when defendant conceded he never filed a motion

to suppress in trial court); see also F ED. R. C RIM. P. 12(e) (“[a]

party waives any Rule 12(b)(3) defense, objection, or request not

raised” prior to trial). As noted by the Advisory Committee to

the Rules, “[i]t seems apparent that the same principle should

apply whatever the claimed basis for the application of the

exclusionary rule of evidence may be.” F ED. R. C RIM . P. 12

advisory committee’s note. Therefore, in the context of a motion

to suppress, a defendant must have advanced substantially the

same theories of suppression in the district court as he or she

seeks to rely upon in this Court. See United States v. Neumann,

887 F.2d 880, 886 (8th Cir. 1989) (finding the defendant’s claim

                                15
on appeal waived because argument that the warrant was

overbroad differed from his argument below — that the warrant

was deficient in probable cause). Lockett was afforded the

opportunity to raise the issue of limited consent before the

District Court; however, there he argued that the consent to

search was not voluntary. Because “[a] litigant cannot jump from

theory to theory like a bee buzzing from flower to flower,”

United States v. Torres, 162 F.3d 6, 11 (1st Cir. 1998) (finding

issue raised on appeal — whether a parent has authority to

consent to search a child’s room — waived since different from

the issue asserted in the district court — whether consent was

voluntary), Lockett’s claim that Officer Burdette exceeded the

scope of Lockett’s limited consent is waived.

                              V.

       Lockett also maintains that his sentence is inconsistent

with the Supreme Court’s recent decision in United States v.

                              16
Booker, 543 U.S. __, 125 S. Ct. 738 (2005), and he urges us to

remand his case for resentencing in the District Court. As part of

his plea agreement, however, Lockett “voluntarily and expressly

waive[d] all rights to appeal or collaterally attack [his]

convictions, sentence, or any other matter relating to this

prosecution.” (Appellant’s App. at 205.12a).           The only

exceptions listed in the plea agreement permitted an appeal based

on a claim that defendant’s sentence exceeded the statutory

maximum, that the sentencing judge erroneously departed

upwards from the guidelines range, or that the district court

erroneously decided the suppression issues.

       Waivers of appeal, if entered knowingly and voluntarily,

are valid, unless they work a miscarriage of justice. United

States v. Khattak, 273 F.3d 557, 563 (3d Cir. 2001). The waiver

of an appeal will not be invalidated merely because unanticipated

events occur in the future. The prospective nature of waivers has

                               17
“never been thought to place [waivers] off limits or to render a

defendant’s act ‘unknowing.’” Id. at 561 (citing United States v.

Teeter, 257 F.3d 14, 21 (1st Cir. 2001)).

       Just as subsequent changes in the law do not undercut the

validity of an appellate waiver, they do not render the plea itself

invalid. The Supreme Court has explained that where subsequent

developments in the law expand a right that a defendant has

waived in a plea agreement, that change does not make the plea

involuntary or unknowing or otherwise undo its binding nature.

See United States v. Brady, 397 U.S. 742, 757 (1970); United

States v. Bradley, No. 03-6328, 2005 WL 549176, *4 (6th Cir.

March 10, 2005). As the Supreme Court indicated, “absent

misrepresentation or other impermissible conduct by state agents,

. . . a voluntary plea of guilty intelligently made in the light of the

then applicable law does not become vulnerable because later

judicial decisions indicate that the plea rested on a faulty

                                  18
premise.” Brady, 397 U.S. at 757 (holding that a defendant could

not claim his plea was involuntary by relying on a Supreme Court

decision that declared unconstitutional a provision relevant to his

criminal sentence).     In Brady, the Court explained that “a

defendant is not entitled to withdraw his plea merely because he

discovers long after the plea has been accepted that his calculus

misapprehended the quality of the State’s case or the likely

penalties attached to alternative courses of action.” Id; see also

United States v. Ruiz, 536 U.S. 622, 630 (2002). To be more

succinct, “a valid plea agreement, after all, requires knowledge

of existing rights, not clairvoyance.” Bradley, 2005 WL 549176,

at *4.

         Lockett asks us to invalidate his sentence because he did

not know at the time he pleaded guilty that the Supreme Court

would later hold that the Sentencing Guidelines are advisory.

However, this change in the law cannot effect a change in his

                                19
plea. As the Sixth Circuit has recently explained:

       “[p]lea bargains always entail risks for the parties
       — risks relating to what evidence would or would
       not have been admitted at trial, risks relating to
       how the jury would have assessed the evidence and
       risks relating to future developments in the law.
       The salient point is that a plea agreement allocates
       risk between the two parties as they see fit. If
       courts disturb the parties’ allocation of risk in an
       agreement, they threaten to damage the parties’
       ability to ascertain their legal rights when they sit
       down at the bargaining table and, more
       problematically for criminal defendants, they
       threaten to reduce the likelihood that prosecutors
       will bargain away counts with knowledge that the
       agreement will be immune from challenge on
       appeal.”


Id. at *5; see also Young v. United States, 124 F.3d 794, 798 (7th

Cir. 1997) (“If the law allowed the defendant to get off scot free

in the event the argument later is shown to be a winner, then the

defendant could not get the reduction in the first place. Every

plea would become a conditional plea, with the (unstated)

condition that the defendant obtains the benefit of favorable legal

                                20
developments, while the prosecutor is stuck with the original

bargain no matter what happens later. That approach destroys the

bargain, and the prospect of such an outcome will increase the

original sentence.”); United States v. Moscahlaidis, 868 F.2d

1357 (3d Cir. 1989). The possibility of a favorable change in the

law occurring after a plea agreement is merely one of the risks

that accompanies a guilty plea. See United States v. Sahlin, 399

F.3d 27 (1st Cir. 2005).      The record reflects that Lockett

knowingly and voluntarily bargained for his plea agreement. He

cannot now ask to re-bargain the waiver of his right to appeal

because of changes in the law. We hold that where a criminal

defendant has voluntarily and knowingly entered into a plea

agreement in which he or she waives the right to appeal, the

defendant is not entitled to resentencing in light of Booker.

       We join four other Courts of Appeals in reaching this

conclusion. See United States v. Bradley, No. 03-6328, 2005 WL

                               21
549176 (6th Cir. March 10, 2005); United States v. Parsons, 396

F.3d 1015, 1017–18 (8th Cir. 2005) (“[T]here would be no merit

to an argument that [the defendant] is entitled to resentencing

under advisory Guidelines in light of Booker. He expressly

agreed as part of his plea agreement that he would be sentenced

under the Guidelines.”); United States v. Rubbo, 396 F.3d 1330,

1334 (11th Cir. 2005) (“the right to appeal a sentence based on

Apprendi/Booker grounds can be waived in a plea agreement”);

United States v. Sahlin, 399 F.3d 27, 31 (1st Cir. 2005) (“[T]he

possibility of a favorable change in the law occurring after a plea

agreement is one of the normal risks that accompanies a guilty

plea.”).

                               VI.

       For the foregoing reasons, we will affirm the District

Court’s decision that the search of Lockett’s luggage was not

coercive and did not constitute a stop or seizure in violation of

                                22
his rights under the Fourth Amendment. We will dismiss the

remainder of his appeal as inconsistent with the appellate waiver

in his plea agreement.
