Filed: Jan. 25, 2000
Latest Update: Feb. 21, 2020
Summary: fetter the exercise of discretion by the police.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.not a seizure of a person case.
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
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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.
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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
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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).
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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).
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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).
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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?
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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."
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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,
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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
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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.
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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
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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).
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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.
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[cc: Mr. Shapiro, Mr. Wortman, Mr. Richardson, Mr. Hamilton & Ms
Chaitowitz]
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