Opposition Brief — Ohio v. Washington

ae ORIGINAL ne

NO 91-1354

IN THE SUPREME COURT OF THE UNITED STA FES

OCTOBER TERM, 2001

STATE OF OHIO,

RANFORD WASHINGTON,

Respondent

MOTION FOR LEAVE TO PROCEED

IN FORMA PAUPERIS

JAMES R. WILLIS, ESQ.

Reg. No. 0032463

The 113 St. Clair Building

113 St. Clair Avenue, N.E., Suite 440

Cleveland, Ohio 44114-1214

(216) 523-1100

(216) 861-4161 (Fax)

ATTORNEY FOR RESPONDENT

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no. Oly 1354

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2001

STATE OF OHIO,

Petitioner,

RANFORD WASHINGTON,

Respondent.

MOTION FOR LEAVE TO PROCEED

IN FORMA PAUPERIS

Respondent, Ranford Washington, asks leave to file the attached Brief ... In

Opposition To Petition For Writ of Certiorari in forma pauperis.

Respondent's affidavit or declaration in support of this motion is attached hergto.

espectfully submiitt

J R. WELLIS,

Ohio Reg. No. 0032463 |

e 113 St. Clair Building

13 St. Clair Avenue, N.E., Suite 440

Cleveland, Ohio 44114-1214

(216) 523-1100

(216) 861-4161 (Fax)

ATTORNEY FOR RESPONDENT,

RANFORD WASHINGTON

IN THE UNITED STATES SUPREME COURT

STATE OF OHIO

VS. NO.

RANFORD WASHINGTON

AFFIDAVIT IN SUPPORT OF MOTION TO PROCEED

ON APPEAL IN FORMA PAUPERIS

I, Ranford Washington, being first duly sworn, depose and say that 1 am the Respondent

in the above-entitled case; that in support of my motion to proceed without being required to pay the

cost for printing my Brief Jn Opposition To Petition For Writ Of Certiorari, | state that because of

my poverty I am unable to pay the printing costs and that I believe I am entitled to respond to the

issues the State has presented in their Petition For Writ which has been filed with this Court. ,

1 further swear that the responses which I have made to the questions and instructions below

relating to my ability to pay these costs are true.

1. Are you presently employed? NO

a. If the answer is yes, state the amount of your salary or wages per month and give the

name and address of your employer:

b. if the answer is no, state the date of your iast employment and the amount of the

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salary and wages per month which you received. Mar ch) £997 - #RLO PY ay

r Have you received within the past twelve months any income from a business, profession or

other form of self-employment, or in the form of rent payments, interest, dividends, or other

sources? N 0

a. If the answer is yes, describe each source of income, and state the amount

received from each during the past twelve months.

3 Do you own any cash or checking or savings account? ie

a. If the answer is yes, state the total value of the items owned.

4. Do you own any real estate, stocks, bonds, notes, automobiles, or other valuable property

(excluding ordinary household furnishings and clothing)? NO

a. If the answer is yes, describe the property and state its approximate value.

3. List the persons who are dependent upon you for support and state your relationship to those

person.

i understand that a false statement or answer to any questions in this affidavit will subject me

—

RANFORD WASHINGTON, RESPONDENT

to penalties for perjury.

SUBSCRIBED AND SWORN TO before me this_ 2 7 _ dayof “feu my 2002.

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NOTARY PUBLIC/

DOROTHY ALLISON

Notary Public, State of New York

No. 24-S003866

Qualified in Kings vn | :

Commicsion Fxpires November 2. gor’

NO.

IN THE SUPREME COURT OF THE UNITED STATES

STATE OF OHIO,

Petitioner,

RANFORD WASHINGTON,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF OHIO

BRIEF FOR RESPONDENT IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

JAMES R. WILLIS, ESQ.

Ohio Reg. No. 0032463

The 113 St. Clair Buildiag

113 St. Clair Avenue, N.E., Suite 440

Cleveland, Ohio 44114-1214

(216) 523-1100

(216) 861-4161 (Fax)

ATTORNEY FOR RESPONDENT

L. CHRISTOPHER FREY

Ohio Reg. No. 0038964

The Justice Center, 8" Floor

1200 Ontario Street

Cleveland, Ohio 44113

(216) 443-7800

ATTORNEY FOR PETITIONER

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QUESTIONS PRESENTED FOR REVIEW

Whether Respondent was lawfully stopped and detained by various Drug Enforcement

Administration (D.E.A.) agents when iis exited a train in Cleveland, Ohio inbound from New

York City, inasmuch as these agents were acting without any basis for a belief that criminal

activity was afoot.

Where an individual accosted by DEA agents in a train station questions why he was being

stopped and also refuses to consent to a search of his luggage, can he be further detained

while the officers question him, not only, about his immigration status, but also regarding

the whereabouts of his “green card” and his identification?

Assuming Respondent consented to the search made (which he denies), was the asserted

“consent” nonetheless voluntary and/or was it a product of an illegal seizure, an illegal arrest

or an illegal detention.

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW ..........ccceeecccerecccceeeceeeeees i

TABLE OF AUTHORITIES .......ccccccccccccccccccccccscssssesecescssecens iv

STATEMENT OF THE GROUNDS ON WHICH THE

JURISDICTION OF THIS COURT IS INVOKED .......... eee eee cece eenes 1

STATEMENT OF THE FACTS. ........ cc ccccccccccccccccccccsccsceseccccceces 2

ARGUMENT N@O. I:

THE TEST FOR WHETHER, AND WHEN, A SEIZURE

OCCURRED TURNS ON WHETHER A REASONABLE

PERSON IN THE EXACT CIRCUMSTANCES WOULD

HAVE FELT FREE TO TERMINATE THE ENCOUNTER ..........+++++-- 6

ARGUMENT NO. II:

WHERE A TRAVELER AFTER REFUSING TO ALLOW

FEDERAL DRUG AGENTS TO SEARCH HIS LUGGAGE

IS FORTHRIGHTLY TOLD THAT HIS ENCOUNTER WITH

THEM WOULD ONLY BE BRIEF IF HE PERMITTED THE

SEARCH THE OFFICERS WANTED TO MAKE, ANY

CONSENSUAL ENCOUNTER TERMINATED AT THAT

POINT, HENCE, ANY SEARCH MADE THEREAFTER

CANNOT BE VIEWED AS VOLUNTARY. .....0seececsecveceeeccecescess 8

ARGUMENT NO. III:

ALTHOUGH THE LAW SEEMS CLEARLY TO BE THAT

A PERSON WHO IS STOPPED BY THE POLICE NEED

NOT BE TOLD THEY ARE FREE TO LEAVE, THE FACT

THAT THEY WERE NOT TOLD THIS WAS SO IS CERTAINLY

-ii-

A CONSIDERATION THAT MUST BE RECKONED WITH

AND FACTORED INTO ANY RESOLUTION OF A CONSENT

| MPPPYTYTTITITITILILITTrerreererescereereerrrrereeririrrir rrr rrr Tee 10

CRINCLUUGIUIIN ccccccccccccccccccccccccceccecccccccccccecceseossscesseeeess 11

TABLE OF AUTHORITIES

PAGE

ts we, GG, Bre Cs Or CD 0 0066.0 660nd8eeksnndndencesesnhdseegeeseseeedséas 7

PeertGa v. Bestia, SSS UB. GG CISVED cccccccccccccccccccccccccccccccccsscces 6, 11

Plestiéa v. Raver, 4690 US. Gi (GSES) oc cccccvcseccccccccscccscccsecesscccessces 5. 6

Michigan v. Chestnut, 486 U.S. 567 (1988) . 2.2.2... e eee e een enees 9

Schneckloth v. Bustamonte, 412 U.S. 218 (1973) ......... ccc ccc cece ccc ecceeccccees 9

State v. Washington, 144 Ohio App. 3d 482 (Jume 25, 2001) .. 2... 6 ee eee eee 2,8

Terry v. Obie, 392 U.S. 1 (19GB) 2... ccc cccccccccccccccccccccccescscececesesesees 7

United States v. Beck, 140 F.3d 1129 (8 Cir. 1998) .. 0... 6c ec eee cece eee 9,11

United States v. Finke, 85 F.3d 1275 (7" Cir. 1996) .. 2.2... 6c cece eee eee ee nees 10, 12

RULES, STATUTES AND OTHER AUTHORITIES

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BRIEF FOR RESPONDENT IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

To be sure, there was a temptation to indicate to the Court that Respondent should be excused

from filing a Reply to the State's Petition For Writ Of Certiorari unless the Court felt there was a

need to hear from counsel. However, despite our belief (the State's arguments made in its Petition

are truly flawed and surely will be rejected as unfounded). the following response arguments are

nonetheless here being submitted

STATEMENT OF THE GROUNDS ON WHICH THE JURISDICTION

OF THIS COURT IS INVOKED

Petitioner seeks review on Writ of Certiorari of the judgment of the Ohio Court of Appeals,

Eighth Judicial District. pursuant to 28 U.S.C., §1257(3). Rule 10 of the Rules of the United States

Supreme Court provides in part as follows

“Rule 10. Considerations Governing Review on Certiorari

A review on writ of certiorari is not a matter of right. but of sound

judicial discretion, and will be granted only where there are special

and important reasons therefor. The following, while neither

controlling nor fully measuring the court's discretion. indicate the

character of reasons which will be considered:

x***

(b) a state court of last resort has decided an important federal

question in a way that conflicts with the decision of another state

The substance of the Petition reveals no special or important reasons why this case should

be reviewed. Indeed, the facts out of which the case developed could not possibly result in any

consequence of national significance.

In short this is not an appropriate case for the grant of Certiorari.

STATEMENT OF THE FACTS

First off, it is really hard to improve on the facts as recited in the Appellate Court’s Opinion.

the Opinion the State would challenge in this Court. There the Court determined the initial stop

made of respondent at the Cleveland Amtrak railroad station was based “on unexplained and tenuous

observations” (State v. Washington, 144 Ohio App. 3d 482 [June 25, 2001]). The Court also ruled

several aspects of the conversations indulged in by the agents of the Drug Enforcement

Administration (D.E.A.) were sufficient to demonstrate to Respondent he was not free to leave

Here too, it should be noted the Court also determined that Respondent, Ranford Washington.

“was [merely] suspected of possessing drugs because he allegedly fit a drug profile used by the

agents” (id., p. 492). As put by the Court in some very compelling prose, which counsel-opposite

seems especially bent on ignoring:

When the agents first approached Washington, they knew that he was

a passenger getting off a train at 6:30 a.m., he was coming from New

York, he was carrying new luggage, and, according to other agents,

was one of the last to leave the train. Even when considered in

totality, these characteristics are trivial... Washington's only

“conduct” was allegedly being one of the last people to get off the

train and appearing nervous when approached by the agents.

Stirling [the D.E.A. agent] testified that he did not know how many

people got off the train that morning, but that he had attended other

early-morning train arrivals, and that eight to twenty-five people

normally arrive on such trains. Washington, therefore, would stand

a good chance of being one of the last people off the train simply

because of the small number of people involved.

State v. Washington, 144 Ohio App. 3d, at 492. (Emphasis supplied.)

Given the above facts the Court of Appeals aptly determined that “Washington was

unlawfully seized and that any consent to search his bags after that seizure was invalid as a product

of that seizure” (id., p. 493).

Here it should be further understood, although the Court credited the trial Court's rejection

of Washington’s testimony that he did not consent to any search (because he knew from a prior

experience not to do so), the Appellate Court nonetheless reached the correct point by noting the

presence of other critical facts. Here the Court aptly premised her dispositive rationale for the

following insuperable analysis. Specifically, the Court noted that when Washington told the agent

upon being asked for permission to search his bags, he had responded by saying “he was not sure he

wanted them to do so” (id., p. 487). This failure, according to the agent’s own testimony, is what

prompted him to tell Washington: “... if he would allow us to look in his luggage it would be a brief

encounter” (ibid).

As the Court of Appeals saw it, when “Washington asked why he was being detained,' the

agents should have sensed his reluctance to engage in a consensual encounter and his feelings of

coercion” (id., p. 490). Further, because this is so, the Court was of the opinion, it was critical here,

that:

Stirling [the D.E.A. agent] testified that when first approached,

Washington asked why he was being stopped, and Stirling responded

by telling him that he was doing his job.

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[And that] Washington’s understanding of his freedom would

necessarily lessen as the encounter continued and the questioning

escalated, and by the time agent Gilchrest approached him and asked

further questions concerning his luggage and his immigration status,

Washington reasonably could have believed that he was not free to go

Clearly Washington having questioned why was he even being stopped by these

agents, when coupled with his refusal to allow them to search his bags (id., p. 487), if nothing else

raised the barrier to any conclusion that the officers further delaying Washington’s departure was

anything other than a seizure.

=

until the agents so indicated. Even when questioning begins as a

consensual encounter, there must be a point at which the individual

being questioned reasonably understands that the government is in

control and that he is not free to leave until so informed. Therefore,

although we agree that government agents need not expressly inform

individuals of their right to ignore questioning at the beginning of an

encounter, we will consider the length and character of any encounter

in assessing whether a reasonable person would understand that he

was not free to leave until satisfying the agents’ purposes. Gilchrist

asked Washington questions about his identity, nationality, and

immigration status, and Washington did not produce his green card

as requested. Under these circumstances, Washington would not

reasonably believe he could unilaterally end the encounter or

consider himself free to leave until so informed.

Finally, Gilchrist testified, “I explained if he would allow us to look

in his luggage, it would be a brief encounter.” Regardless of any

cther argument concerning the existence or timing of the seizure,

neither Washington nor any other reasonable person could understand

this statement as anything other than a detention. The import of the

statement is that Washington would be subjected to a lengthy

encounter if he did not consent to the search and anyone hearing this

statement would reasonably believe that, at least at that point, he was

no longer free to leave.

Id., p. 490. (Emphasis supplied.)

What seems to be a seriously deliberate omission from the State’s factual recitations is any

reference to the D.E.A. agent’s categorical statement directed to Washington, quoted above, that:

if he consented to a search of his bag it would only be a “brief encounter” (ibid). Surely it cannot

be that counsel would have this Court simply regard this compelling statement, by the agent, as not

only being irrelevant, but also as being a statement that was incapable of being literally interpreted

by Respondent. If, of course, it would be unreasonable to interpret the statement (here being

centralized) as also saying if you do not consent to the search the encounter “would [not] be brief,”

then surely counsel in his Reply will make that point for us. Any failure to do so should be viewed

not merely as being instructive, but as also being dispositive.

Also, counsel should explain how he was able to convince himself, since there is no way he

can ever convince us, what he regarded as unreasonable about a literal interpretation of the following

everyday word. Of course, the words being referred to are agents Gilchrist’s statement to Ranford

Washington that: “if he allowed us to look in his luggage, it would be a brief encounter” (id., at

487).

Counsel should include in his discussion why he believes there was nothing inherently

coercive in the way the agents manipulated Respondent by their numbers and the range of their

questions. These tactics were clearly enhanced by the fact that the agents expanded the range of their

questioning beyond what can even arguably be said to, have been the basis for the initial stop. Such

expansion itself cannot be justified under any in tents. See Florida v. Royer, 460 U.S. 491

(1983). In Royer, this Court reasoned “the scope of the detention must be carefully tailored to the

underlying justification” (id., at p. 500). Obviously the scope involved here, which extended to

questioning Respondent about his immigration status, was way out of bounds.

NO. I

THE TEST FOR WHETHER, AND WHEN, A SEIZURE

OCCURRED TURNS ON WHETHER A REASONABLE

PERSON IN THE EXACT CIRCUMSTANCES WOULD HAVE

FELT FREE TO TERMINATE THE ENCOUNTER.

In his first argument counsel spends a number of pages (Petition, pp. 13-15), doubtless

convincing himself, arguably the only person who was not already convinced, that this Court “has

jurisdiction” to review the issues raised in this case (ibid). Doubtless buoyed by having convinced

himself of what is really indisputable, counsel then proceeds to ignore certain insuperable tenets.

These include the fact that under the fourth amendment for any search or seizure to be reasonable

there must be a fact-specific bases with reference to the particular person targeted. And while it is

certainly true that law enforcement officers do not violate the fourth amendment “by merely

approaching an individual on the street or in another public place, by asking him he is willing to

answer some questions, [or] by putting questions to him if he is willing to listen.” Florida v. Royer,

460 U.S. 491, at 497 (1983).

With the above tenet as a given, a fact to be reckoned with shows that anytime an officer

approaches a person on the street, or elsewhere, to ask them a question that causes them to stop for

at least the time required to hear and to answer the question (or refuse to answer the question) the

delay involved could constitute a seizure. In this regard, a point in all this that should not be

overlooked starts with the fact that it is certainly true, as this Court has declared (albeit in a dictum)

that “[s]ince Terry, we have repeatedly held that mere police questioning does not constitute a

seizure.” Florida v. Bostick, 501 U.S. 491, at 434 (1991). The point, of course, that the State and

je

most courts either refuse, or fail, to recognize is this Court, in the quote referred to above, was only

approving police asking questions of persons in those situations when no detention was involved.

In these circumstances, the point being. there would be no need for the prosecution to prove a

legitimate Terry*-stop had occurred or a valid arrest had been made. Beck v. Ohio, 379 U.S. 89

(1964). Obviously if a point is reached where detention occurs the burden of proving its justification

must be established.

Obviously in this case the facts indelibly show the officers failed to develop any reasonable,

articulable suspicion that criminal activity was afoot to justify their further detention of Ranford

Washington after he questioned why he was being stopped and refuted to consent to a search of his

luggage. It really is that simple. Given the cogency of this showing, what counsel seems clearly not

to understand in all this is that the test for whether, within the meaning of the fourth amendment, an

individual was seized, and when such a seizure occurred (if it did here before the contraband was

found) is easily stated. It turns on whether a reasonable person in the exact circumstances would

have felt free to terminate the encounter with the federal agents. Bearing on this is, of course, the

irrepressible fact that when respondent asked why was he being stopped, the agents told him that,

as drug agents, this is what they do. And, after Ranford Washington refused to allow them to look

in his luggage he was told that if he allowed them to do so it “would [only] be a brief encounter”.

(See Petition For Writ Of Certiorari, at p. 23).

The obvious inference any reasonable person would draw from these unequivocal statements,

is the one drawn by the Court, that if Ranford Washington persisted in refusing to allow them to look

N

Terry v. Ohio, 392 U.S. 1 (1968).

e, &

in the bag the “encounter” would not be “brief”. State y. Washington, 144 Ohio App. 3d, at 490.

Having said that, it is at once obvious the State’s first argument misses its mark. This is particularly

so since the Court of Appeals clearly assayed the statements quoted above correctly. This follows

all the moreso because the officer actually testified there was no way Ranford Washington was going

to be able to leave the area with his bag before it was searched. As put by this agent, if Washington

had not consented to the search “based on what we knew up to that point, we would have at least

detained the bag for at least a dog inspection” (id., at p. 487.)

Thus it seems one has to be a prosecutor, or so oriented, to say (as counsel argues) it was not

reasonable for Ranford Washington to feel he was not free to terminate an encounter even after he

had been told his dealings with them would only be brief if he allowed them to search his bag.

Simply put then, just how reasonable would it have been for Ranford Washington to have supposed

he could have rescued his bag from these officers, either before, or while, they seized it for whatever

reasons it was the officers tenenind to do with it to fulfill their investigative hopes. The answer

could not be any clearer. No one in Washington’s position could have reasonably believed he could

have terminated this encounter by simply walking away.

NO. II

WHERE A TRAVELER AFTER REFUSING TO ALLOW

FEDERAL DRUG AGENTS TO SEARCH HIS LUGGAGE IS

FORTHRIGHTLY TOLD THAT HIS ENCOUNTER WITH

THEM WOULD ONLY BE BRIEF IF HE PERMITTED THE

SEARCH THE OFFICERS WANTED TO MAKE, ANY

CONSENSUAL ENCOUNTER TERMINATED AT THAT

. 3

POINT; HENCE, ANY SEARCH MADE THEREAFTER

CANNOT BE VIEWED AS VOLUNTARY.

What seems clear here is that if the issues that flow from the assurances given by the agent

to Ranford Washington (i.e., that his and his bags detention would be brief once he retracted his

refusal to consent to their search) are viewed through the lens of certain relevant cases, rather than

through the collection of inapt case references submitted by petitioner (Petition, pp. 16-20), one

quickly realizes one of the dispositive issues here is easily resolved.

Also significant here, counsel’s argument places undue emphasis on the fact that the agent's

failure to tell Ranford Washington he was “free to leave” and terminate the encounter. Ignored in

counsel’s truly flawed position is the fact that any failure to advise one as to their right to refuse

consent although not dispositive, is still a factor to be weighed in determining the issue of

voluntariness. See Schneckloth v. Bustamonte, 412 U.S. 218, at 237 and 245 (1973). Arguably

then, as the Appellate Court obviously saw it the evidence presented by the State on the detention

and the consent issues was simply not sufficient to carry the State’s burden of proof on those issues.

Granted, as petitioner argues (Petition, pp. 16-17), it is a certainty that an objective standard

is employed to determine when, if ever, a seizure occurred. However, the dispositive question turns

on whether a reasonable person in the same circumstance would have felt free to leave. Indeed,

Michigan v. Chestunt, 486 U.S. 567, 574 (1988), a case cited by petitioner, makes this precise

point. Simply put then, the conclusion made by the Court of Appeals that a reasonable person would

not have felt free to leave under the circumstances created by these D.E.A. agents is thus rendered

all the more compelling (State v. Washington, 144 Ohio App. 3d, at 491). On this narrow point

also see United States v. Beck, 140 F.3d 1129 (8 Cir. 1998), where the Court concluded a

-9-

reasonable person would not have felt free to leave after being informed the officer intended to

subject his vehicle to a dog sniff. (Id., at pp. 1135-1136.) Also see United States v. Finke, 85 F.3d

1275, at 1281 (7" Cir. 1996).

NO. Ill

ALTHOUGH THE LAW SEEMS CLEARLY TO BE THAT A

PERSON WHOIS STOPPED BY THE POLICE NEED NOT BE

TOLD THEY ARE FREE TO LEAVE, THE FACT THAT

THEY WERE NOT TOLD THIS WAS SO IS CERTAINLY A

CONSIDERATION THAT MUST BE RECKONED WITH AND

FACTORED INTO ANY RESOLUTION OF A CONSENT

ISSUE.

In this case counsel-opposite regards as being dispositive the fact that, although the agents

did not tell Ranford Washington he was free to leave, the officers never physically touched him or

drew their weapons. Ignored in counsel’s flawed effort to divert us from the fact that despite

Ranford Washington’s objection to even being questioned and even refused to allow the agents to

search his begs when first asked, the officers never relented in their effort to search the bags. Given

the obvious purposiveness of the agents’ tactics, any conclusion the well-calculated tactics used by

them in this situation were constitutional makes about as much sense as saying they were not

successful in doing what they were designed to do - - i.e., inveigle Respondent into consenting to a

search.

The ultimate point here being that while Ranford Washington denied he consented, the facts

nonetheless show any alleged consent was simply not shown to be voluntary.

-10-

The one thing even counsel-opposite will surely concede here is easily stated. Simply put

then, given that the Drug Enforcement Administration agents in this case did not have a warrant to

arrest or to search Respondent or his luggage, it follows they could not search his luggage unless he

consented thereto. So postured it follows that whether the encounter involving the agents and

Ranford Washington was consensual depends on whether “a reasonable person would [have felt] free

to disregard the police [here, the agents] and go about his business” Florida v. Bostick, 501 U.S.

429, 434 (1991). Since clearly the agents said nothing that would have even slightly suggested to

a reasonable person they could ignore the full thrust of their apparent show of authority, it follows

that here there was a submission the apparent authority of these agents who controlled the situation

as it was posed for our Respondent.

CONCLUSION

Clearly the encounter these officers had with Respondent bears few, if any, of the hallmarks

of a consensual encounters. Indeed it could not be any clearer, even though Ranford Washington

was disbelieved on the consent issue,’ that if he consented it was because he submitted to a “show

of authority” by a federal agent. For it is undeniable this agent made it evident from his statements

(made after Ranford Washington refused to allow a search of his bag) that he was not free to walk

away until he gave such consent.

This follows because clearly one who is flat-out told that their encounter with the officers

would only be brief but only if he allowed them to make the search they could with impunity freely

walk away and end the encounter. See United States v. Beck, 140 F.3d 1129 at 1135-1136 (8" Cir.

Here it is worth repeating, Washington denied he consented to the search. As put by

him, the officers searched the bags without his permission.

-11-

2 eee rer aera ence

1998) and United States v. Finke, 85 F.3d 1275 at 1281 (1996).

The point here being a seizure occurred in our case. as it did in the cited cases. when the

officer made it clear that regardless of the desires of the accused one way or the other the bag would

be searched. Still another point that must be reckoned with is that once the officers, in an effort to

achieve their obvious purpose of searching the bag, recognized that Ranford Washington had refused

to allow them to search, any argument the arguably consensual encounter ended at that point. This

follows because it is only when the officer develops (during a consensual encounter) a reasonable.

articulable suspicion that criminal activity is afoot does he have any right to any further intrusion on

the person’s liberty than that involved in the officer’s initial queries.

In all that has been argued herein by the parties, one this is clear. The precedents

undergirding this Court’s fourth amendment stop and consent cases cannot be regarded as being

subservient to the State cases counsel seemingly has argued should be given paramountcy in this

case. (Petition, at p. 14.) On the other hand, and this point likewise has been ignored by counsel as

it was by the trial Court, the State had the burden of proving the contraband seized herein was not

the fruit of an illegal stop, or an illegal seizure or an illegal detention of the Respondent or his bag.

Clearly the State did not discharge its burden in this case. This follows because the facts

show an unbroken, and indeed a natural, sequence of events that started with the agents telling ©

Ranford Washington, our Respondent (after he questioned why he was being stopped), this is what

they do. It continued on even after Respondent refused to consent to a search of his luggage. Indeed,

this sequence inexorably, and unrelentingly, continued on even until the agents convinced him, if

they did, to consent to a search of his luggage.

Surely what these agents did here cannot pass constitutional muster.

a.

Respectfully submitted,

’

} ‘ } i |

Alii ga\f i

JAMES. WELLS, ESQ.) ~Y KZ

Reg. No.\0032463

The ¥13 St. Clair Building

}13At. Clair Avenue, N.E., Suite 440

Cleveland, Ohio 44114-1214

(216) 523-100

(216) 861-4161 (Fax)

ATTORNEY FOR RESPONDENT,

RANFORD WASHINGTON

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