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UNITED STATES v. TAVOLACCI

August 22, 1988

UNITED STATES of AMERICA,
v.
LEO J. TAVOLACCI


Thomas F. Hogan, United States District Judge.


The opinion of the court was delivered by: HOGAN

THOMAS F. HOGAN, UNITED STATES DISTRICT JUDGE.

 Presently before the Court is defendant's motion to suppress tangible evidence seized from defendant's luggage on May 27, 1988. On July 22, 1988, the Court heard testimony at a suppression hearing. In consideration of the motion, the opposition thereto, the evidence presented at the hearing, and for the following reasons, the Court shall deny defendant's motion to suppress.

 FACTUAL BACKGROUND

 The facts involved in this incident are not disputed by the parties. On May 25, 1988, at 7:32 P.M. EST, a Tom Marks made a reservation for a one-way ticket from Deerfield Beach, Florida to Chicago, Illinois. The train's departure time from Florida on May 26, 1988 was 6:06 P.M. The train was scheduled to stop in Washington, D.C. on May 27th at 3:10 P.M. where Mr. Marks was to change trains to commence the completion of the trip to Chicago at 5:55 P.M. The $ 649.00 ticket, paid for in cash, reserved the most expensive compartment which was usually used by two individuals.

 On May 27th, Amtrak Agent Thomas Cook ran a routine computer check of the passengers travelling on the northbound train. Agent Cook is a member of the drug interdiction unit of the Amtrak Police Department which seeks to target potential drug couriers traveling via trains. Based on unusual travel patterns, members identify potential drug couriers for interviews. In the case of Tom Marks the following items alerted Agent Cook as to a potential drug courier: 1) the reservation was made less than 24 hours before departure; 2) the ticket covered one-way travel; 3) the ticket was paid for in cash; 4) the purchase was for one person traveling alone in a large compartment traditionally used by two individuals; 5) the call-back number was not in service; 6) the call-back number, or "home" number, was in Florida yet the passenger was traveling on a one-way ticket to Chicago; and 7) the trip of 40 hours could be traveled more rapidly and cheaply via plane. Based on the foregoing, Agent Cook determined that this individual should be interviewed.

 Agent Cook alerted the Metropolitan Police Department's Narcotics Interdiction Unit that a potential drug courier was arriving in Union Station. Pending the arrival of the police officers, Agent Cook observed defendant, identified by a train attendant as Tom Marks, disembark the train carrying a large grey suitcase. Defendant, after entering Union Station, checked his suitcase with the baggage room and left the station. *fn1" Agent Cook verified that the suitcase was in the room. *fn2" Agent Cook continued to stake out the baggage room awaiting the arrival of Detectives Hanson and Beard of the Metropolitan Police Department who joined Agent Cook at 5:05 P.M. The officers observed defendant return and retrieve his luggage at approximately 5:20 P.M. *fn3" They followed defendant back onto the train.

 When the officers, all in plainclothes and without displaying weapons, approached the train compartment, defendant was situating himself. Detective Beard approached the open door and after identifying himself, requested defendant's permission to ask some questions. Defendant replied "sure." In response to Det. Beard's request for his ticket, defendant displayed a ticket in the name of Tom Marks. Det. Beard inquired whether defendant had a photo identification. Defendant asked what the questioning was concerning. Det. Beard indicated that he was with the drug interdiction unit investigating drug carriers. He then requested the identification again. Defendant's facial expression changed and his mouth visibly dropped as he produced an Illinois driver's license in the name of Leo Tavolacci. Without any police inquiries concerning the discrepancy between the name on the ticket and his driver's license, defendant immediately launched into an explanation. Defendant indicated that a friend had purchased the ticket and could not spell his name so he used "Tom Marks." Det. Beard returned the ticket and asked why defendant had been in Florida. Defendant responded he was visiting for pleasure. Det. Beard returned the license to defendant and asked if defendant had any drugs in his suitcase. Defendant replied in the negative. Det. Beard then asked defendant if he would consent to a search of the suitcase. Defendant responded, "No, I'd rather not." Defendant responded in a like manner to a request for consent to a canine sniff.

 At this point, Det. Beard ordered defendant off of the train onto the platform and directed him to bring his suitcase in order that he might conduct a canine sniff. As far as Det. Beard was concerned, the interview with defendant was over and only the canine sniff remained to be conducted. *fn4" Agent Cook testified that at this point there were approximately 15 to 20 minutes until the train departed. Det. Beard went to get the narcotics dog, leaving defendant on the platform with Agent Cook and Det. Hanson. Defendant was pacing and fidgeting and requested if he could leave. Agent Cook indicated that the narcotics dog would be there soon and then defendant could return to the train. About 10 minutes before the train was scheduled to depart, the narcotics dog still had not come to the platform. Therefore, Det. Hanson left to check on the dog's whereabouts leaving Agent Cook alone with defendant on the platform. Defendant, who was still pacing nervously, asked Agent Cook if he was with the police. After Agent Cook responded that he was with the railway police, defendant asked if he could give Agent Cook some personal "stash" that he had in his suitcase and just leave. Agent Cook asked how much and received a response of "a quarter." At this point, Agent Cook directed defendant to pick up his suitcase and follow him to his office. Following defendant's admission, Agent Cook clearly had probable cause to arrest defendant. In fact, Agent Cook testified that he considered defendant to be under arrest. Agent Cook did not formally arrest defendant, however, because of the officer's concern for his safety as well as the safety of others on the platform.

 On the way back to the office, Agent Cook and defendant were met by the police dog and his handler. *fn5" When the dog initially sniffed the luggage, he did not alert that there were drugs in the suitcase. *fn6" Detective Hanson then ordered defendant to open the suitcase. Defendant opened the bag by unlocking the suitcase at either end with a key and undoing the combination lock in the center. Once the suitcase was open, the dog alerted. A subsequent search revealed that the suitcase contained 13 kilograms of a substance which subsequently was identified as cocaine valued at several hundred thousand dollars. At this point, the officers formally arrested defendant.

 DISCUSSION

 I. Initial Questioning of Defendant

 Initially, the Court must determine whether defendant was seized for purposes of the fourth amendment when the officers first approached defendant for questioning while defendant was in his compartment on the train. The fourth amendment does not protect individuals from every governmental intrusion on their expectation of privacy, only those intrusions which are unreasonable. See United States v. Chadwick, 433 U.S. 1, 7, 53 L. Ed. 2d 538, 97 S. Ct. 2476 (1977) (warrantless search of contents inside locked footlocker found to violate privacy interests and was not justified by exigent circumstances). Consensual police-citizen encounters in which police officers approach a citizen requesting voluntary responses to inquiries and eliciting answers are not seizures under the fourth amendment. Florida v. Royer, 460 U.S. 491, 497, 75 L. Ed. 2d 229, 103 S. Ct. 1319 (1983); Gomez v. Turner, 217 U.S. App. D.C. 281, 672 F.2d 134, 144 (D.C. Cir. 1982).

 In the present case, the Court finds that the officers' initial questioning of defendant was permissible. Based upon an extensive list of factors, supra at 2, the officers were acting within the parameters of their powers to stop individuals and interview them if such questioning is consensual. ...


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