United States of America, Appellee, v. Fred S. Berryman, Defendant, Appellant, 717 F.2d 650 (1st Cir. 1983)

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US Court of Appeals for the First Circuit - 717 F.2d 650 (1st Cir. 1983)

Reheard Sept. 7, 1983. Decided Oct. 11, 1983


Karnig Boyajian, Boston, Mass., for defendant, appellant.

William F. Weld, U.S. Atty., Boston, Mass., for appellee.

Before CAMPBELL, Chief Judge, COFFIN, BOWNES and BREYER, Circuit Judges.

PER CURIAM.


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.

BOWNES, Circuit Judge (dissenting).

I respectfully dissent for the reasons set forth in the majority opinion of the original panel.