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


3-21-2005

USA v. Wilmington
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-3001




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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       No. 03-3001


                           UNITED STATES OF AMERICA

                                            v.

                        MARCUS ANTHONY WILMINGTON,

                                                 Appellant



                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                           (District Court No. 01-cr-00151)
                     District Judge: Honorable James M. Munley


            Submitted Under Third Circuit LAR 34.1(a): November 12, 2004

                 Before: MCKEE and CHERTOFF* , Circuit Judges, and
                        BUCKWALTER,** Senior District Judge

                                (Filed: March 21, 2005)


                                        OPINION


   *
     Judge Chertoff heard oral argument in this case but resigned prior to the time the
opinion was filed. The opinion is filed by a quorum of the panel. 28 U.S.C. § 46(d).


   **
     Honorable Ronald L. Buckwalter, Senior United States District Judge for the
Eastern District of Pennsylvania, sitting by designation.
Per Curiam

       Appellant Marcus Anthony Wilmington seeks to suppress three kilograms of

cocaine that was seized when the Greyhound bus on which he was a passenger was

approached at a toll booth by police, and was searched with the consent of its driver. The

district court denied his motion to suppress and we will affirm.

       The facts relating to the bus search are, for the most part, undisputed.1 On

December 11, 1996, Nat Prather was driving a bus for Greyhound Lines, Inc. from New

York City to Cleveland, Ohio, when he stopped to pay the toll at the Delaware Water

Gap toll plaza on Interstate 80 in Pennsylvania. Once stopped, Special Agent Ronald

Paret of the Pennsylvania Office of the Attorney General, Bureau of Narcotics

Investigation and Detective Kirk F. Schwartz of the Monroe County District Attorney’s

Office approached and asked if he had time to pull to the side of the road so that they

could board the bus and “do a routine investigation and inspection.” Mr. Prather

recognized Agent Paret as he had previously allowed him to inspect his bus pursuant to

the then-existing Pennsylvania drug interdiction program. Mr. Prather also knew that the

agents were asking “to come on and just routinely inspect and talk” to his passengers

“because of drug trafficking.” He understood that pulling over was “totally voluntary,”



   1
     This Court reviews the factual findings of the district court for clear error. United
States v. Givan, 

, 457 (3d Cir. 2003). The district court’s factual findings
are fully supported by the record.

                                              2
such that he could deny the agents’ request if his schedule was tight.

       Mr. Prather agreed to pull over, consistent with Greyhound’s policy that drivers

cooperate with law enforcement when possible, and used the public address system to

explain “what was going to take place” to the passengers. The agents, in plain clothes,

then entered the bus with their weapons concealed. Agent Paret explained the purpose of

the stop over the public address system and he and Detective Schwartz then began to

speak with the passengers, starting at the back of the bus. While doing so, passengers

were allowed to exit and re-enter the bus at will.

       When the agents reached Wilmington, they asked if they could look inside the

white plastic bag by his feet which he had identified as his only bag. Wilmington said

“Go ahead” and handed the bag to Agent Paret. Detective Schwartz looked though the

bag and found, among other things, an apparently brand new pair of size 9 Asics

sneakers and a receipt from Saks Fifth Avenue.

       After speaking with all the passengers, the agents realized that there was a bag on

the bus that no one had identified, so they walked through the bus with the bag -- a

shopping bag from Saks Fifth Avenue -- and asked the passengers if it belonged to any

of them. No one claimed the bag. Then, with the consent of Mr. Prather, the agents

opened the bag and found three kilograms of cocaine inside an apparently new shoe box

for size 9 Asics sneakers. The agents returned to Wilmington, realized that the sneakers

had been removed from the white plastic bag at his feet, confirmed that the sneakers


                                             3
matched the description on the shoe box, and placed Wilmington under arrest.

       Wilmington was indicted by a grand jury in the Middle District of Pennsylvania

on April 25, 2001 for distribution and possession with intent to distribute in excess of

500 grams of cocaine, in violation of 21 U.S.C. § 841(a)(1). After a two-day evidentiary

hearing, the Honorable James M. Munley, United States District Court, denied his

motion to suppress the cocaine in an August 28, 2002 memorandum opinion, finding that

there had been no seizure of the bus or of Wilmington for Fourth Amendment purposes.

Wilmington entered a plea of guilty on February 21, 2003, conditioned on his right to

appeal the motion to suppress decision.

       On appeal, Wilmington presents two arguments. First, he asserts that the search

and seizure of the bus was not authorized by the driver’s consent because it was not

voluntary. Second, he asserts that he was seized without probable cause during the

resulting search of the bus’s interior since he could not leave the bus because there were

no other transportation options available. We will address each argument in turn.

                                             A.

       Wilmington first challenges the voluntariness of Prather’s consent to search the

bus. Assuming arguendo, that Wilmington has standing to contest that consent,

see United States v. Price, 

, 346 (7th Cir. 1995), the record is clear that

Prather’s consent was, as he testified, “totally voluntary.” There is no evidence coercion.

The agents asked “if he would mind speaking with us, if he had the time when he was


                                             4
done paying the fare, when he was complete with his transaction.” Prather knew “the

routine” if he pulled over since the agents were acting in accordance with the operative

Pennsylvania drug interdiction program. He also knew that he was free to deny consent

if he did not have time for the officers to enter his bus. While Greyhound encouraged

cooperation with law enforcement, Prather knew that he had discretion regarding the

decision to pull over. The agents were in plain clothes with concealed weapons, and

there were no road barriers directing the bus toward the side of the road.

       The district court, therefore, appropriately determined that Wilmington did not

establish “anything about the area” or the driver’s interaction with the agents “that would

make a driver of a bus feel compelled to comply with the law enforcement officer’s

request.” Moreover, we would be hard-pressed to disregard the driver’s own testimony

that he freely consented. We will affirm the district court’s decision regarding the

voluntariness of Prather’s consent.

                                            B.

       Wilmington next asserts that he was seized in violation of the Fourth Amendment

while the agents were in the bus. The facts of the case establish that he was not.

       While a search or seizure is generally “unreasonable” for Fourth Amendment

purposes if it is made without consent and “in the absence of individualized suspicion of

wrongdoing,” City of Indianapolis v. Edmond, 

, 37 (2000), it is not a

violation of the Fourth Amendment to “approach bus passengers at random to ask


                                             5
questions and to request their consent to searches,” provided a “reasonable person would

feel free to decline the officers’ requests or otherwise terminate the encounter,” United

States v. Drayton, 

, 202 (2002) (quoting Florida v. Bostik, 

,

436 (1991)). Just as an officer is constitutionally able to “approach[] individuals on the

street or in other public places” with “no basis for suspecting a particular individual,”

and “pose questions, ask for identification, and request consent to search luggage” under

circumstances where a “reasonable person would feel free to terminate the encounter,”

the officer can initiate the same encounter on a bus without “transform[ing] standard

police questioning of citizens into an illegal seizure.” 

.

       Wilmington asserts that neither he, nor any reasonable person, would have felt

free to terminate this encounter because the search occurred at a location where there

were no other transportation options available, unlike the search in Drayton which

occurred at a bus stop. The Drayton Court, though, considered the confinement

generally encountered by bus passengers even at a bus stop, stating that a “passenger may

not want to get off a bus if there is a risk it will depart before the opportunity to reboard.

The bus rider’s movements are confined in this sense, but this is the natural result of

choosing to take the bus; it says nothing about whether the police conduct is coercive.”

. Likewise, the passengers’ wish to continue their travel on the

bus when stopped at a toll booth is not, on its own, confinement in violation of the

Fourth Amendment. Because the facts of this case, as reasonably found by the district


                                               6
court, establish that a reasonable passenger would have “fe[lt] free to decline the

officers’ requests or otherwise terminate the encounter” and that “[t]he officials applied

no force, they did not brandish weapons, block exits, threaten, command or use an

authoritative tone of voice,” (App. 17A (citing 

), we will

affirm the decision of the district court. Nevertheless, although we affirm the ruling of

the district court, it is important that we take this opportunity to express our concern

about an aspect of this prosecution.

                                             C.

       Prosecutors initially made a deliberate decision, when Wilmington was arrested, to

prosecute him in state court. However, prior to trial, Wilmington filed a motion to

suppress, arguing that the investigative stop of the bus and subsequent seizure were

illegal under Article I, Section 8 of the Pennsylvania Constitution, and the Fourth and

Fourteenth Amendments to the U.S. Constitution. The state trial court denied the

motion, and Wilmington was thereafter convicted at a bench trial and sentenced to seven

to fourteen years in prison.

       Wilmington appealed that conviction to the Pennsylvania Superior Court, and on

March 31, 1999, that court agreed that the trial court had erred in denying Wilmington’s

suppression motion under the Pennsylvania Constitution. Accordingly, the court vacated

his sentence and remanded for a new trial. Commonwealth v. Wilmington, 

(Pa.Super. 1999), appeal denied, 

(Pa. 2001). The court held


                                              7
                that the Greyhound bus was seized by the officers when the
                driver pulled over at their request and that, in the absence of
                reasonable suspicion or probable cause, the random stopping
                of a bus to allow troopers to interrogate the passengers
                violates Article I, Section 8 of the Pennsylvania
                

(emphasis in original). Wilmington was released on bond on July 29,

1999 to await retrial in state court pursuant to the order of the Pennsylvania Superior

Court. When released, he had been incarcerated for a little more than two and one-half

years (from December 11, 1996, the date of his arrest, until July 28, 1999).2

         Now discontent with the state forum that they had selected, prosecutors responded

to the Superior Court’s remand by initiating a new federal prosecution before a federal

grand jury. That grand jury returned the instant indictment based upon the cocaine

seized from Wilmington on the bus. Wilmington filed another motion to suppress. He

argued that both the stop of the bus and the ensuing search and seizure violated the

Fourth Amendment because they were not based on a valid consent.

         As we have already noted, the district court correctly concluded that the bus driver

   1
     That provision states: “The people shall be secure in their persons, houses, papers
and possessions from unreasonable searches and seizures and no warrant to search any
place or to seize any person or things shall issue without describing them as nearly as may
be, nor without probable cause, supported by oath or affirmation subscribed to by the
affiant.”
        The Superior Court noted that “the provisions of Article I, Section 8 of our State
Constitution, which predate the Fourth Amendment of the United States Constitution,
bestow substantially greater liberty and privacy rights upon the citizens of this
Commonwealth than does its federal 

n.4.
   2
       Wilmington was released on unsecured bond pending retrial.

                                               8
voluntarily allowed the investigators to speak with passengers and search the bus and that

Wilmington voluntarily spoke to the investigators and consented to a search of his carry-

on bag. Following denial of his suppression motion, Wilmington entered a conditional

guilty plea pursuant to a plea agreement in which he reserved the right to appeal the

denial of his motion to suppress.3 Following acceptance of a guilty plea to the one count

indictment, the district court sentenced Wilmington to a term of 120 months of

imprisonment. This appeal followed.

       Prosecutors’ practice of initiating a federal prosecution if they do not like the

decisions in the state forum they selected is not new. In United States v. Bonner, 

(3d. Cir. 2004), the defendant was charged with possession of a controlled

substance in state court after drugs were discovered in his possession following a search

incident to arrest by local police. The defendant filed a pro se suppression motion, and

the trial court granted the motion based upon its conclusion that the seizure violated the

Pennsylvania Constitution. The Commonwealth appealed that ruling to the Pennsylvania

Superior Court, but while the appeal was pending, Bonner was indicted in federal court

based upon the evidence that was then the subject of the Commonwealth’s Superior

Court appeal. Judge McKee expressed his concern with the procedure there stating:

              I think it fair to assume a significant level of cooperation and
              communication between state and federal prosecutors who


   3
    Under the terms of the plea agreement, he has the right to withdraw his guilty plea if
he prevails on appeal.

                                              9
             executed this hand-off in order to execute an end run around
             the adverse decision of the Court of Common Pleas.
             Although we have jurisdiction here and must exercise it, this
             procedural history does not reflect well on the criminal justice
             system and undermines the appearance of fairness so
             important to its proper functioning. . . . In the future, I would
             hope that concern for the appearance of fairness will
             constrain prosecutors from engaging in the kind of
             unexplained tactical manipulation that appears so evident
             here.

(McKee, J. dissenting). Moreover, although Judge Smith was

part of the Bonner majority, he also condemned the prosecution’s conduct stating:

             I share the concern for the appearance of fairness expressed
             by Judge McKee. It is one thing for the government to
             assume an investigation initiated by state law enforcement
             officials, or even to adopt a prosecution commenced by state
             prosecutors. It is quite another to seek a federal indictment
             where the federal interest in the case is recognized only after
             state prosecutors have given the case their best shot in the
             state courts and lost on an issue of state law. Not only does
             such a tactic offend fundamental notions of fairness, it is
             contrary to traditional notions of our federalism.

(Smith, J. concurring). The situation here is even more

egregious. Wilmington served more than two years in prison before the prosecutors

executed their “quick pitch” end run around the state courts.

      Given the discretion traditionally afforded to prosecutors when a crime can be

brought in more than one forum, see U.S. v. Melendez, 

, 50 (2d. Cir. 1995),




                                            10
this forum shopping is not easily remedied.4 Nevertheless, it important that we not forget

the Supreme Court’s caution in In re Murchison, 

, 136 (1955). There, the

Court quoted Offutt v. U.S., 

, 14 (1954), stating: “To perform its high

function in the best way[,] ‘justice must satisfy the appearance of justice.’” It is hard to

reconcile that message with what happened here. Moreover, ignoring that message

undermines respect for notions of fundamental fairness and for those of us involved in

the criminal justice system. All of us involved in that system should be concerned with

fundamental fairness.

       We are, of course, not privy to all of the considerations that impact a decision to

transfer a case from state to federal court. However, it is exceedingly difficult to

conclude that the decision here was based upon anything other than prosecutors’

dissatisfaction with a judicial decision. The increased penalties and lower constitutional

hurdle the federal court offered were the same when Wilmington was first charged in

state court as they were when he was thereafter charged for the same conduct in federal

court. The federal interest and state interest remained unchanged.

       Notwithstanding the concerns that we must once again express, we recognize that

this forum switching practice may continue until appellate courts decide to put an end to

it. In the meantime, however, we think it important to continue to register our concerns


   4
    See U.S. v. Armstrong, 

464-65 (1996) (a defendant must establish by
“clear evidence” that a particular prosecutorial decision was predicated on impermissible
grounds in order to establish a due process violation).

                                              11
with this kind of gamesmanship. It is a practice that is inconsistent with considerations

of fundamental fairness and impedes the “high function” of the judicial system that we

all should be more concerned about.

____________________________




                                            12