UNITED STATES of America v. Esco WILSON, Appellant, 413 F.3d 382

OPINION OF THE COURT AMBRO, Circuit Judge. Esco Wilson appeals the District Court’s denial of his motion to suppress evidence taken from a bag in the trunk of his car. We affirm. I. Factual Background and Procedural History On the morning of September 16, 2001, Trooper Brian Overcash of the Pennsylvania State Police stopped Wilson, who was traveling west on the Pennsylvania Turnpike, for a traffic violation. Wilson concedes that the initial traffic stop was valid. Wilson gave Overcash a valid driver’s license and a car rental agreement. Over-cash then returned to his patrol car to prepare a traffic citation.

During this process, he examined the rental car agreement and noticed that the car should have been returned a month earlier. Overcash ran a check on Wilson’s rental car and found that the car had not been reported stolen. Overcash then returned to Wilson’s car and asked Wilson to exit and stand at its rear. He gave Wilson the citation, returned his documents, and told him that he was free to leave. Wilson took a few steps back toward his car. At the suppression hearing, Overcash first testified that he then began to question Wilson about the rental car agreement.

Overcash then testified, when the Pennsylvania state judge presiding over the hearing asked for clarification of the sequence of events, that he asked Wilson if he could question him about the rental car agreement, and Wilson turned around and walked back toward him. Overcash proceeded to ask Wilson questions about the rental car and Wilson’s work and travel plans. Wilson told Over-cash that he usually rented cars for a month because he traveled a lot. He also told Overcash that he worked selling master compact discs (“CDs”) to music stores for approximately $500 per disc.

When asked where he was going, Wilson said that he was on his way to Pittsburgh to deliver the CDs he had with him, and he offered to show these CDs to Overcash. Overcash then walked toward the two female passengers in Wilson’s car and asked them where they were going. The passengers told Overcash that they were on their way to Virginia. Overcash returned to where Wilson was standing at the rear of the car and told Wilson that the women had told him they were going to Virginia, not to Pittsburgh.

Wilson appeared a bit nervous and told Overcash that he had not told his passengers where they were going but that nothing unusual was going on. Wilson again offered to show his CDs to Overcash, but Overcash declined and went to his patrol car to request support. When Overcash returned to Wilson’s car, Wilson opened the trunk and showed Overcash a CD with a $12.00 price tag on it. Overcash saw two bags in the trunk— one red and one green. Wilson told Over-cash that the red bag belonged to his passengers.

The women confirmed this, told Overcash that there was nothing illegal in the bag, and gave Overcash permission to search it. Overcash found clothing and personal items inside. Wilson told Overcash that the green bag belonged to him and that it also contained clothing. Overcash asked if he could examine the bag’s contents, and Wilson consented. Overcash unzipped the bag and found a brick of cocaine inside. When he looked at Wilson, Wilson had already-turned around and placed his hands behind his back. Overcash then arrested Wilson and his passengers and transported them to the police barracks.

At the barracks, Over-cash read Wilson his Miranda rights and Wilson stated that he did not wish to speak to the police. Later, Wilson changed his mind and, after he was read his rights again, gave both written and oral statements acknowledging that the cocaine belonged to him. Wilson was charged under Pennsylvania law with one count of possession of a controlled substance with intent to deliver and one count of exceeding the maximum speed limit. Judge Edward E. Guido, of the Cumberland County Court of Common Pleas, held a hearing on Wilson’s motion to suppress the evidence found in his car.

Judge Guido granted Wilson’s motion in June 2002, ordering the exclusion of the cocaine and Wilson’s post-arrest statements as the fruits of an illegal detention. In September 2002, Pennsylvania entered a nolle prosse. The federal Government subsequently obtained an indictment against Wilson based on the same incident. Wilson again moved to suppress the cocaine and his post-arrest statements, and the parties agreed that the matter would be submitted based on the notes of testimony from the Pennsylvania suppression hearing. No additional evidence was taken.

In October 2003, the District Court denied Wilson’s motion, determining, inter alia, that Wilson consented to Overcash’s questioning after the conclusion of the traffic stop, that no seizure had occurred, and that Wilson’s consent to the search of his bag was voluntary. Wilson entered a conditional guilty plea. He reserved his right to appeal the denial of his suppression motion, and that issue is now before us. II. Discussion A. Standard of Review As a preliminary matter, we must determine what the appropriate standard of review is for this case given its unique procedural posture.

Ordinarily we review a district court’s “denial of the motion to suppress for clear error as to the underlying facts, but exercisef ] plenary review as to its legality in light of the [C]ourt’s properly found facts.” United States v. Givan, 320 F.3d 452, 458 (3d Cir.2003) (internal citations omitted).

Our dissenting colleague, however, believes that in this case we should exercise plenary review over both the District Court’s factual determinations and its conclusions of law because the District Court relied on the transcript of the Commonwealth suppression hearing in deciding Wilson’s motion to suppress in the federal case instead of holding another evidentiary hearing.

This position has merit, as there is no obvious need to defer to the District Court’s factual determinations when it did not engage in any independent fact-finding, and it is one that we have adopted in our habeas corpus jurisprudence under 28 U.S.C. § 2254. See Hardcastle v. Horn, 368 F.3d 246, 254 (3d Cir.2004) (“Because the District Court ‘d[id] not hold an evidentiary hearing and engage in independent fact-finding, but rather limit[ed] the habeas evidence to that found in the state court record,’ our review of its final judgment is plenary.” (quoting Scarbrough v. Johnson, 300 F.3d 302, 305 (3d Cir.2002))).

With this in mind, we briefly address Wilson’s argument that we should not defer to the District Court’s finding that he consented to further questioning by Over-cash after the completion of the traffic stop. The District Court, in its recitation of the facts of this case, determined that Overcash asked Wilson for permission to ask him about the rental agreement and that Wilson “acquiesced” to this request.

As our dissenting colleague points out, however, the bulk of Overeash’s testimony indicates that he began asking Wilson questions about his rental ear agreement without first requesting permission to engage in that line of inquiry. In this light, and because the Court of Common Pleas judge who had the opportunity to observe Overcash’s testimony explicitly found that Overcash simply began asking Wilson about the rental car agreement, we conclude that the District Court’s factual determination to the contrary cannot stand under either clearly erroneous or de novo review.

Because Wilson would prevail on this argument under either standard of review, we reserve for another day decision on whether plenary review is appropriate as to all issues in cases such as this one. Accordingly, we now turn to Wilson’s main argument — ’that the District Court should be reversed because his interaction with Overcash after the conclusion of the traffic stop was not a mere encounter but rather an unlawful seizure. B.

The District Court’s Determination that Wilson was Not Seized “[A] person is ‘seized’ only when, by means of physical force or a show of authority, his freedom of movement is restrained.” United States v. Mendenhall, 446 U.S. 544, 553, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). Put another way, no seizure has occurred if “a reasonable person would feel free to disregard the police and go about his business, or ultimately whether a reasonable person would feel free to decline the officers’ requests or otherwise terminate the encounter....” United States v.

Kim, 27 F.3d 947, 951 (3d Cir.1994) (internal citations omitted). Wilson does not contend that his seizure pursuant to the traffic stop was unlawful. As other courts have held, however, “[a] traffic stop may become a consensual encounter, requiring no reasonable suspicion, if the officer returns the license and registration and asks questions without further constraining the driver by an overbearing show of authority.” United States v. West, 219 F.3d 1171, 1176 (10th Cir.2000); see also United States v.

Sullivan, 138 F.3d 126, 131 (4th Cir.1998) (“When the [traffic] stop is over and its purpose served, however, mere questioning by officers, without some indicated restraint, does not amount ... to ... a seizure under the Fourth Amendment.”). We must therefore determine whether the interaction between Wilson and Overcash after the issuance of the traffic citation and return of Wilson’s license and rental agreement was a consensual encounter or a second seizure. The District Court, comparing the facts of this case to those of United States v.

Drayton, 536 U.S. 194, 122 S.Ct. 2105, 153 L.Ed.2d 242 (2002), concluded that Wilson was not seized after the conclusion of the traffic stop. In Drayton, the Supreme Court held that no seizure had occurred when bus passengers were questioned by plainclothes officers, even though the passengers were in a confined space and the officers displayed their badges, when “[t]here was no application of force, no intimidating movement, no overwhelming show of force, no brandishing of weapons, no blocking of exits, no threat, no command, not even an authoritative tone of voice.” Id. at 204, 122 S.Ct. 2105.

Wilson argues that his case is distinguishable from Drayton because he was isolated on the side of the highway while Overcash questioned him. However, this fact is true of many traffic stops, and the record here shows no circumstances so intimidating that, in combination, they would have caused a reasonable person to perceive that he was not free to leave. See Florida v. Bostick, 501 U.S. 429, 437, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) (“Where the encounter takes place is one factor, but it is not the only one.”). Overcash was the only officer on the scene.

After the issuance of the traffic citation, he returned Wilson’s documents and told Wilson that he was free to leave. Wilson answered all of Overcash’s subsequent questions without protest. In addition, just as in Drayton, there is no indication that Overcash made any intimidating movement or show of force or that he asked Wilson questions using an authoritative tone of voice. Accordingly, we agree with the District Court that, under the totality of the circumstances, Wilson was not seized at any point during his encounter with Overcash subsequent to the issuance of the traffic citation. Cf. United States v.

Bustillos-Munoz, 235 F.3d 505, 515 (10th Cir.2000) (holding that detention resulting from a traffic stop ended and a consensual encounter began when state trooper returned suspect’s license and registration, informed the suspect that he was free to leave, and then asked whether there were weapons or drugs in the car when there was no evidence “of a coercive show of authority, such as the presence of more than one officer, the display of a weapon, physical touching by an officer, or his use of a commanding tone of voice indicating that compliance might be compelled” (internal quotation omitted)).

We must therefore consider whether Wilson’s subsequent consent to the search of the bag in his trunk was voluntary. C. The District Court’s Determination that Wilson’s Consent to the Search of his Bag was Voluntary “[A] search conducted pursuant to consent is one of the specifically established exceptions to the warrant requirement.” Givan, 320 F.3d at 459. The vol-untariness of an individual’s consent is a question of fact to be determined from all the circumstances.

Id. “[T]he critical factors comprising a totality of the circumstances inquiry include the setting in which the consent was obtained, the parties’ verbal and non-verbal actions, and the age, intelligence, and educational background of the consenting [party].” Id. The District Court’s conclusion that Wilson’s consent to the search of his bag was voluntary is amply supported by the record. As discussed above, Wilson was informed that he was free to leave.

He then cooperated with Overcash throughout the encounter, as he answered all of Over-cash’s questions, offered to show Overcash his CDs and initiated opening the trunk of his car in order to do so. As the District Court found, there is no indication in the record that “Wilson was unable by virtue of age or intelligence to understand the situation.” In this context, the District Court hardly erred in finding that Wilson’s consent to the search was voluntary. Ov-ercash’s search of Wilson’s bag therefore did not violate the Fourth Amendment. III.

Conclusion We share our dissenting colleague’s concern about the procedural history of this case, particularly because the Government could not represent at argument whether it followed in Wilson’s case its usual policy for determining whether cases in which suppression motions were granted in state courts should be re-prosecuted in the federal system. It is also disturbing that the Department of Justice Guidelines implementing the Petite Policy may not have been faithfully followed in this case.

As the dissent acknowledges, however, Department of Justice guidelines and policies do not create enforceable rights for criminal defendants. See United States v. Gomez, 237 F.3d 238, 241 n. 1 (3d Cir.2000) (noting that any argument by the defendant that the U.S. Attorneys’ Manual created rights entitling him to relief “would be against the weight of judicial authority”); see also, e.g., United States v. Fernandez, 231 F.3d 1240, 1246 (9th Cir.2000) (“[I]t is clear that the USAM [U.S. Attorneys’ Manual] does not create any substantive or procedural rights....

The USAM explicitly states that ‘[t]he Manual provides only internal Department of Justice guidance. It is not intended to, does not, and may not be relied upon to[,] create any rights, substantive or procedural, enforceable at law by any party in any manner civil or criminal.’ ” (quoting U.S. Attorneys’ Manual § 1-1.100)); United States v. Blackley, 167 F.3d 543, 548-49 (D.C.Cir.1999) (same); United States v. Myers, 123 F.3d 350, 356 (6th Cir.1997) (same); United States v. Piervinanzi, 23 F.3d 670, 682 (2d Cir.1994) (same); United States v. Craveiro, 907 F.2d 260, 264 (1st Cir.1990) (same).

Thus, although we do not endorse the Department’s failure to follow its own policies, particularly in cases such as this one that raise double jeopardy concerns, we are constrained to conclude that any such failure that may have occurred here nevertheless does not mandate (or even allow) relief for Wilson. Our Court has also previously expressed its dissatisfaction with the Petite Policy and, moreover, with the Supreme Court’s application of the dual sovereignty principle to hold that prosecution of the same crime in both the federal and state systems does not violate the Double Jeopardy Clause.

See generally Grimes, 641 F.2d at 100-04 (questioning continuing vitality of that jurisprudence particularly because the seminal cases were decided prior to Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), which “un-qualifiedly held that the Fifth Amendment Double Jeopardy provision applies to the states”). And our dissenting colleague may be correct that the time has come for the Supreme Court to revisit this issue, particularly in light of Smith v. Massachusetts, 543 U.S. —, 125 S.Ct. 1129, 160 L.Ed.2d 914 (2005), in which the Court revisited the scope of the Double Jeopardy Clause.

See id. at 1135-37 (holding that the Double Jeopardy Clause was violated when the state trial judge ordered a mid-trial acquittal on one charge and then proceeded to reconsider that acquittal at the end of the case and that “[i]f, after a facially unqualified midtrial dismissal of one count, the trial has proceeded to the defendant’s introduction of evidence, the acquittal must be treated as final, unless the availability of reconsideration has been plainly established by pre-existing rule or case authority expressly applicable to mid-trial rulings on the sufficiency of the evidence”).

Under current precedent, however, there is no double jeopardy bar to a prosecution such as that by the United States against Wilson. See Agee, 597 F.2d at 360 n. 32 (noting that any double jeopardy challenge raised by defendant, who was tried in the federal system after his state suppression motion was granted and a nolle prosse was entered in the state system, would fail). As we previously wrote in Grimes, despite our concerns about such prosecutions, “we do not believe that we are the proper forum to overturn a legal directive from the Supreme Court.” 641 F.2d at 104.

Thus, notwithstanding the policy issues raised by this case, we conclude that Wilson’s prosecution in federal court was proper and that, for the reasons stated in

Section II of this opinion, the search of Wilson’s bag did not violate the Fourth Amendment. Accordingly, we affirm the District Court’s determination. . The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction pursuant to 28 U.S.C. § 1291. . We note that the District Court did not rely on its finding that Wilson had consented to questioning about his rental car agreement in its analysis of whether the Fourth Amendment mandated suppression of the evidence found in Wilson’s trunk. . A routine traffic stop is considered a seizure under the Fourth Amendment. See Berkemer v.

McCarty, 468 U.S. 420, 436-37, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984); Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979). . Our dissenting colleague argues that Dray-ton should not be applied here because, unlike the bus passengers in Drayton, Wilson had already been seized once — by virtue of the traffic stop — before Overcash began questioning him about issues beyond the scope of the traffic stop.

This factual distinction does not persuade us to conclude that the factors the Supreme Court deemed relevant to its totality of the circumstances analysis in Dray-ton are not also among the factors we may consider in our totality of the circumstances analysis here. As the dissent emphasizes, the fact that Wilson was questioned after he had already been seized once is a consideration that is relevant to that analysis.

But the traffic stop is just one factor that we must weigh against the other circumstances present in this case to determine whether the continued encounter between Wilson and Ov-ercash was a seizure. . Both Wilson and our dissenting colleague suggest that Commonwealth v. Freeman, 563 Pa. 82, 757 A.2d 903 (2000), the case relied on by the Commonwealth court in suppressing the evidence in the state proceedings, compels the opposite conclusion.

We do not believe that Freeman is even relevant here, as "[i]t is a general rule that federal ... courts will decide evidence questions in federal criminal cases on the basis of federal, rather than state, law.” United States v. Rickus, 737 F.2d 360, 363 (3d Cir.1984) (holding, inter alia, that federal law applied to defendant's motion to suppress evidence found pursuant to search of the trunk of his car). .

Because we have determined that no seizure occurred, i.e., that Wilson's continued encounter with Overcash was consensual, we need not reach Wilson's argument that Over-cash did not have a reasonable articulable suspicion of criminal activity that justified his further questioning. See Bostick, 501 U.S. at 433-34, 111 S.Ct. 2382 (stating that consensual encounters do not implicate the Fourth Amendment). . "The Petite Policy, deriving its name from Petite v.

United States, [361 U.S. 529, 80 S.Ct. 450, 4 L.Ed.2d 490 (1960)], ‘precludes the initiation or continuation of a federal prosecution, following a prior state or federal prosecution based on substantially the same act(

s) or transaction(s),’ " absent certain extenuating circumstances. Ellen S. Podgor, Dep't of Justice Guidelines: Balancing “Discretionary Justice,” 13 Cornell J.L. & Pub. Pol’y 167, 179 (2004) (quoting U.S. Attorneys’ Manual § 9-2.031 (2003)); see also United States v. Grimes, 641 F.2d 96, 101 & n. 17 (3d Cir.1981) (noting that after Bartkus v.

Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959), "in which the Supreme Court held that the Double Jeopardy Clause does not bar a state from prosecuting and convicting a defendant who previously has been tried for the same acts in federal court,” the Department of Justice "adopted a federal policy” (later known as the Petite Policy) that "barred a federal trial following a state prosecution for the same acts 'unless the reasons are compelling' " (quoting Dep't of Justice Press Release (Apr. 6, 1959))). .

Our Court has previously noted, however, that the Petite Policy may not even be applicable to cases in which a federal prosecution begins after the entry of a nolle prosse in state court. See United States v. Agee, 597 F.2d 350, 360 n. 32 (3d Cir.1979). . Indeed, it appears that Wilson’s counsel recognized the same constraints, as he made no arguments before us relating to either the Department's apparent failure to follow the Petite Policy or to the Double Jeopardy Clause more generally. .

As the District Court held, collateral estop-pel also provides no bar to the United States’s relitigation of issues relating to the search of Wilson’s car that had previously been litigated in the Pennsylvania court.

See Agee, 597 F.2d at 360 (holding that the doctrine of collateral estoppel did not prevent the United States from relitigating defendant’s motion to suppress even though that motion had already been granted by the state court because, inter alia, “[t]he United States was not a party to the suppression hearing held in the state court nor were the actions of its officers under consideration in that forum”).

In Agee we also emphasized that, " '[i]n determining whether there has been an unreasonable search and seizure by state officers, a federal court must make an independent inquiry, whether or not there has been such an inquiry by a state court, and irrespective of how any such inquiry may have turned out. The test is one of federal law, neither enlarged by what one state court may have countenanced, nor diminished by what another may have color-ably suppressed.' ” Id. at 360 n. 34.