United States v. Murphy ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4099
EDWARD E. MURPHY,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of West Virginia, at Parkersburg.
Charles H. Haden II, Chief District Judge.
(CR-95-122)
Submitted: August 6, 1996
Decided: August 21, 1996
Before MURNAGHAN, HAMILTON, and MOTZ, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Hunt L. Charach, Federal Public Defender, C. Cooper Fulton, Assis-
tant Federal Public Defender, Charleston, West Virginia, for Appel-
lant. Rebecca A. Betts, United States Attorney, Miller A. Bushong,
III, Assistant United States Attorney, Charleston, West Virginia, for
Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Appellant Edward E. Murphy pled guilty to possession with intent
to distribute heroin in violation of 21 U.S.C. § 841(a)(1) (1988) but
preserved the right to challenge the denial of his motion to suppress
on appeal. We affirm.
During an investigatory detention pursuant to Terry v. Ohio, 392
U.S. 1 (1968), and just prior to entering a police cruiser in order to
accompany the police to the station for questioning, a police officer
observed Murphy, who was not under arrest at the time, abandon a
package that subsequently proved to contain twenty-one individually
packaged hits of heroin. Murphy contends: (1) that he was in fact
arrested, not just detained, prior to his abandonment of the heroin, as
he was not questioned where he was found and was not told he was
"free to go"; (2) the police had no probable cause to justify his arrest,
and he did not consent to accompanying the police to the police sta-
tion for questioning; (3) the seizure of the heroin was the direct result
of Murphy's illegal arrest; (4) and no intervening event purged the
taint of the illegal arrest, making the packet of heroin inadmissible.
For the reasons that follow, we find his arguments unpersuasive.
The investigatory detention occurred after police arrested a woman
for filling a forged prescription at a Wal-Mart store. When the police
asked the woman to take them to the people that were with her, the
woman led police to a van in which two individuals (including Mur-
phy) were seated. Murphy exited the van and was subjected to a pat
down. The officer doing the pat down first noted what he described
as a package of gum in Murphy's front pants pocket, which the offi-
cer left undisturbed. The officer then felt what he believed to be pills
in Murphy's back pocket. The officer reached in and removed what
appeared to be prescription drugs. No charges relating to the pills
were brought against Murphy.
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A short time later, the police officers decided to have the three peo-
ple accompany them to the police station for additional questioning
related to the forged prescription. As Murphy and an officer
approached the police cruiser that would transport Murphy to the sta-
tion, the officer observed Murphy drop a packet onto the ground that
was about the size of the package of gum which the officer had felt
earlier in Murphy's front pocket. Not knowing what the packet con-
tained, the officer picked it up and inspected it. The package con-
tained twenty-one individually packaged hits of heroin. Murphy was
advised of his Miranda* rights, transported to the police station, and
ultimately charged with possession with intent to distribute heroin.
Murphy's first argument that he was arrested in the parking lot fails
because the officers did not exceed the scope of their Terry stop. A
police officer may stop and briefly detain a person for investigative
purposes if the officer has a reasonable, articulable suspicion that
criminal activity is afoot. Terry, 392 U.S. at 30. The presence or
absence of a reasonable suspicion is determined based on the totality
of the circumstances confronting the police officer at the time the
officer decides to stop the suspect, including consideration of all
information available to the officer and any reasonable inferences that
can be drawn. United States v. Crittendon, 883 F.2d 326, 328 (4th Cir.
1989). An appellate court reviews the district court's findings of fact
about the stop for clear error and must give "due weight to inferences
drawn from those facts by resident judges and local law enforcement
officers." Ornelas v. United States, ___ U.S. ___, 64 U.S.L.W. 4373,
4376 (U.S. May 28, 1996) (No. 95-5257) (indicating that trial judges
view "the facts of a particular case in light of the distinctive features
and events of the community; likewise a police officer views the facts
through the lens of his police experience and expertise.").
Although a person is seized for Fourth Amendment purposes when,
under the same circumstances, a reasonable person would have
believed he was not free to leave, the person's perception of their
freedom is "`insufficient to convert a Terry stop into an arrest.'"
United States v. Leshuk, 65 F.3d 1105, 1109 (4th Cir. 1995) (quoting
United States v. Moore, 817 F.2d 1105, 1108 (4th Cir.), cert. denied,
484 U.S. 965 (1987)). Terry stops typically involve "`detentions
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*Miranda v. Arizona, 384 U.S. 436 (1966).
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where the person detained is not technically free to leave while the
officer pursues the investigation.'" Id. (quoting United States v.
Manbeck, 744 F.2d 360, 376-77 (4th Cir. 1984), cert. denied, 469
U.S. 1217 (1985). Nevertheless, a custodial interrogation moves
beyond an acceptable Terry stop when the stop lasts "longer than nec-
essary to verify or dispel the officer's suspicion." Id.In Murphy's case, the police had a reasonable suspicion that crimi-
nal activity was afoot based on the call to the Wal-Mart for a woman
forging prescriptions and being led by that woman to the van in which
Murphy was found. Based on their reasonable suspicion, the police
stopped Murphy, asked him for identification, questioned him briefly,
and subjected him to a pat down. None of these actions exceeded the
scope of Terry. In addition, Murphy did not show that the detention
took an inordinate amount of time or that the officer's continued to
detain him even after they had completed their investigation. Thus,
Murphy failed to prove that his detention went beyond a reasonable
Terry stop and became an unlawful seizure.
Murphy's assertion that there was no probable cause to arrest him
is meritless because we find that he was not arrested, but rather law-
fully detained pursuant to Terry. Included in his probable cause argu-
ment, Murphy asserts that the officers illegally seized the pills from
his back pocket. This argument fails. When a police officer "lawfully
pats down a suspect's outer clothing and feels an object whose con-
tour or mass makes its identity immediately apparent, there has been
no invasion of the suspect's privacy. . . ." Minnesota v. Dickerson,
508 U.S. 366, 375 (1993).
We disagree with Murphy's argument that he did not consent to
being taken to the station for interrogation. One police officer testified
that Murphy consented to going to the police station. In addition, no
officer handcuffed, physically restrained, or threatened Murphy in any
way; no officer told him he was under arrest; no officer displayed a
weapon or used strong language or tone to indicate compliance was
compelled. Thus, because Murphy provided no evidence that the offi-
cer's compelled him to go to the station, his argument fails.
As with Murphy's probable cause argument, his argument that he
would not have dropped the packet of heroin but for the fact that he
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was being taken into custody illegally, also fails. When Murphy aban-
doned the heroin, he was not in custody and even if he had been, he
voluntarily dropped the package of heroin in plain view. The officer
failed to discover the heroin in his initial pat down, so there was no
reason for Murphy to disclose what was in his pocket. Even when the
officer examined the contents of the package, there was no violation
of Murphy's rights because he gave up his expectation of privacy by
abandoning the property in plain view. See California v. Hodari D.,
499 U.S. 621, 629 (1991) (holding cocaine abandoned while defen-
dant was running away from police was not the fruit of an illegal sei-
zure); Abel v. United States, 362 U.S. 217, 241 (1960) (holding
warrantless seizure of items left in wastebasket in vacated hotel room
was admissible because the Court found the property had been aban-
doned).
Finally, Murphy argues that there was a close causal connection
between his illegal arrest and seizure of the heroin, thereby making
the heroin inadmissible. Again, because there was no illegal arrest,
this argument fails.
Finding no violation of Murphy's Fourth Amendment rights, we
affirm the ruling of the district court denying the motion to suppress
the evidence. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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