Summary
concluding on rehearing en banc that defendant was not seized and adopting reasoning of dissent from United States v. Berryman, 717 F.2d 651 (1st Cir. 1983), the earlier panel decision
Summary of this case from State v. WintersOpinion
No. 82-1194.
Reheard September 7, 1982.
Decided October 11, 1983.
Karnig Boyajian, Boston, Mass., for defendant, appellant.
William F. Weld, U.S. Atty., Boston, Mass., for appellee.
Appeal from the United States District Court for the District of Massachusetts.
Before CAMPBELL, Chief Judge, COFFIN, BOWNES and BREYER, Circuit Judges.
After reviewing the record in this case and the panel's opinions, 717 F.2d 651, we conclude that the district court's judgment should be affirmed for the reasons set forth in the panel's dissent. This conclusion rests primarily upon our having found that Berryman's decisions to answer the DEA agents' questions and to allow them to look through his bag were voluntary. Berryman, of course, could have refused to speak with the agents. As the United States Attorney acknowledged at oral argument, such a refusal would not, and could not, have provided any legal justification for even brief involuntary detention. The exercise of one's constitutional rights is not the sort of "specific and articulable fact," Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968), that will itself, or in combination with other less-than-sufficient facts, justify a Terry-type investigative stop. Berryman, however, did not choose to stand on his rights. He voluntarily answered the agents' questions. Under these circumstances we see no violation of the Constitution.
The decision of the district court is
Affirmed.
I respectfully dissent for the reasons set forth in the majority opinion of the original panel.