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April 26, 1988


The opinion of the court was delivered by: LAMBERTH


 Defendant was arrested and subsequently indicted on a charge of drug distribution. He has moved to suppress evidence seized at the scene of the arrest, as well as statements he made subsequently while in custody of the police.

 A suppression hearing was held, at which the arresting officers, Detective Donald Zattau and his partner, Sergeant John Brennan testified. They stated they were on stakeout and in plain clothes at Union Station, under the Metropolitan Police Department's drug interdiction program, when they saw defendant Reyes disembark from a New York to Washington train. They watched him go to a pay phone and make two calls, one in which he spoke in a loud voice, easily overheard, the second in a much lower tone of voice they could not overhear. Reyes spoke in Spanish, which neither officer understood.

 As Reyes left the phone, Sergeant Brennan approached Reyes and identified himself, showing him his identification folder (not his badge), which contained a paper for identification purposes that included a picture of the officer. Brennan asked if he could speak with Reyes, who indicated agreement. Given that they were standing in a heavy, rush hour stream of traffic, Brennan asked if they could step aside a few feet, and Reyes readily acceded to Brennan's request.

 Brennan then asked if Reyes understood English. Reyes said he did, if Brennan spoke slowly. *fn1" Brennan asked if he had just gotten off the train from New York, and Reyes said he had. Brennan asked to see his ticket, which Reyes handed to him. After examination, Brennan handed it back and asked if Reyes had some identification. Reyes produced his driver's license, which Brennan examined and returned. While reaching for his ticket and driver's license, Reyes held his bag between his legs rather than set it down on the floor. Brennan then said he was with the city's drug interdiction program, and that there was a problem with drugs coming into the city; did Reyes have any problem with having his bag searched? Reyes said no, which both officers understood as indicating assent. Nonetheless, perhaps because Reyes was still clutching his bag, Brennan asked again, this time more clearly, whether he could search Reyes bag. Reyes answered "yes" and simultaneously handed it over.

 During this exchange, Detective Zattau had been standing a few feet behind and to the left of Reyes. Brennan never indicated Zattau's presence to Reyes; Zattau testified further that Reyes had not made eye contact with him up to that point and seemed to be unaware of his presence in the crowded station. Only when Brennan had already received permission and had begun to search the bag did Zattau attract Reyes' eye, as he moved closer to Reyes in a precautionary move, while Brennan's attention was directed to the bag now laying at Reyes' feet.

 Neither officer had displayed weapons or badges up to this point, nor had either touched Reyes. Brennan testified that his conversational tone was subdued and polite.

 Brennan discovered a pound of cocaine in Reyes' bag, as verified by a field test. Reyes was then placed under arrest, and the court must now decide whether the cocaine was lawfully confiscated.

 Discussion: The Search of Reyes' Bag

 It is clear that there was insufficient cause to arrest or detain Reyes prior to discovery of the cocaine in his possession. Therefore, its admissability in evidence hinges on whether its discovery resulted from a "seizure" of Reyes, for if so, it was in violation of the Fourth Amendment.

 "[A] person has been 'seized' within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." United States v. Mendenhall, 446 U.S. 544, 554, 64 L. Ed. 2d 497, 100 S. Ct. 1870 (1980) (footnote omitted).

 The evidence presented by the Government, and unrebutted by Reyes, conforms closely to the sorts of encounters found by the Supreme Court to fall short of a seizure. The encounter took place in a crowded public area. The officers were in plain clothes and did not display weapons. Sergeant Brennan did not summon Reyes to his presence, but rather approached him. He requested, but did not demand, to see his ticket and identification, and to search his bag. Mendenhall at 555. His tone was not intimidating, but conversational. Further, he immediately returned the ticket and license, and did not ask Reyes to accompany him to another destination prior to discovery of the cocaine. See Florida v. Royer 460 U.S. 491, 501, 75 L. Ed. 2d 229, 103 S. Ct. 1319 (1983). The request to search his bag was made twice, the officers understanding Reyes to assent both times, and the search was not begun until Reyes actually handed it over to Brennan. United States v. Brady, 269 U.S. App. D.C. 18, 842 F.2d 1313 (D.C. Cir. 1988) (defendant himself took crucial initiatives, first in suggesting that the ticket requested by Agents Ford and Rosel would have to be retrieved from his room on the train; and second, in actually beginning the room search himself by lifting down his coat, revealing the gym bag containing cocaine).

 Defense counsel observes that it is questionable whether Reyes could really assume he was free to just walk away from the encounter, and cites United States v. Mitchell, et al., 699 F. Supp. 1 (D.D.C. 1987) for the proposition that the search was therefore illegal, despite Reyes' consent. But in Mitchell, the officer displayed his badge, id. at 2, and "accosted" the defendant, while two other officers escorted his companion to a marked police car as Mitchell looked on. Id. at 2. Under the ...

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