## Facts

- Two New York City police officers patrolling a high-crime area in Brooklyn observed three men, including Shawn Peterson, acting suspiciously and ducking behind a parked car when they noticed police.
- The officers approached and asked questions; Peterson appeared nervous, wore a bulging knapsack, and gave evasive answers about his address and ownership of the knapsack.
- Peterson handed the knapsack to the officers, who opened it and found handguns and ammunition; Peterson was arrested and later charged federally as a felon in possession of a firearm.
- Peterson was also charged in state court; the state charge was dismissed.
- Peterson testified before a state grand jury that another person had given him the knapsack moments before the police encounter.
- At his federal trial, Peterson invoked the Fifth Amendment and did not testify; he sought to introduce his state grand-jury testimony, but the district court excluded it as hearsay.

## Issues

1. Whether the officers’ encounter with Peterson and search of the knapsack violated the Fourth Amendment, requiring suppression of the firearms and ammunition.
2. Whether Peterson’s state grand-jury testimony was admissible at his federal trial as “former testimony” under Federal Rule of Evidence 804(b)(1), including whether (a) the United States was a party (or in privity with the State), (b) the prior examiner had a similar motive to develop the testimony, and (c) Peterson was “unavailable” within Rule 804.

## Decision

- The Second Circuit affirmed the denial of the motion to suppress.
- The court held the encounter was consensual at least initially; even if it became a Terry stop, the officers had reasonable suspicion based on the men’s evasive conduct, the high-crime setting, Peterson’s nervousness and evasive answers, and the bulging knapsack.
- The court upheld the finding that Peterson voluntarily consented to the knapsack search.
- The Second Circuit affirmed exclusion of Peterson’s state grand-jury testimony under Rule 804(b)(1).
- The court reasoned the United States was not a party to the state grand-jury proceeding and had no opportunity to examine Peterson there; in any event, a grand-jury prosecutor generally lacks a motive similar to a trial prosecutor’s motive to test exculpatory testimony.
- The court also concluded Peterson was not “unavailable” for Rule 804 purposes where he made himself unavailable by invoking the Fifth Amendment to avoid testifying and cross-examination at trial.
- The conviction and sentence were affirmed.

## Legal Principles

- A police approach and questioning do not constitute a seizure unless, under the totality of circumstances, a reasonable person would believe they were not free to leave; officers need not affirmatively advise a person they are free to end the encounter.
- Reasonable suspicion for a brief investigative detention may be supported by evasive behavior upon noticing police, nervous demeanor, evasive answers, and context such as a high-crime area, viewed together.
- A warrantless search is valid when supported by voluntary consent; consent findings are reviewed with deference to trial-court factfinding absent clear error.
- Under Federal Rule of Evidence 804(b)(1), former testimony is admissible only if the party against whom it is offered had an opportunity and similar motive to develop the testimony in the prior proceeding.
- Separate sovereigns (state and federal) are not treated as the same “party” for Rule 804(b)(1) merely because they prosecute similar conduct; lack of participation in the prior proceeding defeats the opportunity-to-develop requirement.
- Even if party identity were assumed, a prosecutor’s motive in a grand-jury proceeding (probable-cause screening and investigation) is not typically similar to a trial prosecutor’s motive to test and impeach exculpatory testimony.
- A defendant cannot invoke the Fifth Amendment at trial to avoid cross-examination and then claim “unavailability” to introduce prior self-serving testimony under Rule 804(b)(1).

## Conclusion

The Second Circuit held that the firearm evidence was admissible because the police encounter was consensual (or supported by reasonable suspicion) and the knapsack search was based on voluntary consent, and it held that the defendant could not introduce his state grand-jury testimony under Rule 804(b)(1) because the federal government was not a party with an opportunity to examine him, the grand-jury prosecutor lacked a similar motive to develop the testimony, and the defendant’s Fifth Amendment choice did not create Rule 804 unavailability.


United States v. Peterson, 100 F.3d 7 (2d Cir. 1996)