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UNITED STATES v. WINSTON

April 25, 1989

UNITED STATES OF AMERICA
v.
JOHN WINSTON



The opinion of the court was delivered by: OBERDORFER

 LOUIS F. OBERDORFER, UNITED STATES DISTRICT JUDGE

 I.

 Defendant John Winston, charged with unlawful possession with intent to distribute 50 grams or more of cocaine, has filed a motion "to suppress as evidence against him all physical evidence seized from him or from a totebag, allegedly in his possession" and "any post-arrest statements made to police." A hearing was held on April 7, 1989, at which Detective Vance Beard and Special Agent Angelo Sorrento were the only witnesses.

 The hearing developed the following facts: During the early morning hours of February 13, 1989, a Drug Interdiction Unit, consisting of Sergeant Brennan, Detective Beard, Agent Sorrento, and one other officer, was deployed on assignment at the Greyhound-Trailways bus station at 1005 1st Street, N.E. When bus #1693 arrived from New York City at approximately 1 a.m., a group of passengers, including defendant, disembarked and walked into the station. The four officers observed a passenger, not defendant, whom they decided to question, and they followed that suspect out of the L Street exit. Detective Beard testified that defendant "could have seen us leaving," and began to walk slower. The officers, including Beard, passed defendant as they walked out.

 When they had cleared the door to the station, Sergeant Brennan suggested to Detective Beard that defendant "would be a good guy to interview." Brennan then began to conduct an interview of the original suspect, and Beard made eye contact with defendant. Defendant was standing in front of a parked car, watching the officers question the suspect. He was approximately 100-150 yards away from them. Beard "had nothing else to do" and he approached defendant, confronted him, and engaged him in conversation. Neither Brennan nor Beard ever articulated any reason, either in court or out, for following, approaching, confronting, and beginning any conversation with defendant. Beard testified that he "would not have picked out defendant as my first choice to interview," and that he "didn't see a lot about that guy that aroused my suspicions."

 Beard identified himself to defendant as a police officer, and asked permission to talk with him; defendant said "yes." Beard asked if he had his bus ticket; defendant said that he did and he showed the ticket to Beard. The detective and defendant had a brief conversation, in which defendant said that he was in Washington to visit a girlfriend, but he could not tell the detective her address because she moved around a lot. While Beard talked with defendant, Agent Sorrento left Sergeant Brennan and the other officer in order to serve as "back-up" for Beard. He positioned himself approximately 6-8 feet behind defendant so that he could hear the conversation. Beard then explained to defendant that he was in the Narcotics Branch of the police department and that his job was to interview people coming into D.C. to try to stop the flow of drugs into the city. Beard added that New York was a source city for crack. Beard asked defendant if he was carrying any drugs; defendant said he was not. Beard then asked if he could search his bag; defendant said he didn't mind because he didn't have anything to do with drugs. He also said that it wasn't his bag, but that someone had asked him to carry it off the bus. Beard searched the bag, found a white t-shirt, and found wrapped inside it 537 zip-lock bags of crack, as well as some marijuana. Beard then asked defendant "do you have a cigarette?", which was a code phrase for Sorrento, who then "reached and grabbed defendant's left wrist and handcuffed him." Beard advised defendant of his rights, defendant signed the rights card, and repeated his statement that the bag wasn't his.

 Judicial notice can be taken of the fact that in October of 1987 the Metropolitan Police Department formed a Drug Interdiction Unit, from which it deploys squads of officers on assignment at the bus and train stations in Washington to observe, confront, question, detain, search, and arrest people whom they initially identify as suspicious. These officers have developed a routine whereby they (1) identify a suspicious individual by noting a combination of characteristics about the person, his appearance, and his actions which lead them reasonably to suspect that the individual may be involved in criminal activity; (2) encounter *fn1" the suspect, one as questioner, one or more positioning themselves as back-up; (3) commence a series of questions leading up to a request to search the suspect's belongings if the officer's suspicions continue, or to a cessation of questioning if his suspicions are allayed; and (4) arrest the suspect if the officer finds drugs, or cease contact if no drugs are uncovered. An officer's use of this prescribed routine on an individual is triggered by a police judgment, which is informed by observation, experience and expertise. At issue in this case is the judgment made to encounter the defendant and thereby trigger the routine, or, in the alternative, the entire process initiated by that judgment, culminating in the search and formal arrest of defendant.

 II.

 In Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968), where an officer observed three men who appeared to be "casing" a store for a robbery and then approached them for questioning and frisked them, the Supreme Court identified "the initiation of police action" as conduct that implicates constitutional scrutiny. The Court stated:

 
There is some suggestion in the use of such terms as "stop" and "frisk" that such police conduct is outside the purview of the Fourth Amendment because neither action rises to the level of a "search" or "seizure" within the meaning of the Constitution. We emphatically reject this notion.

 Id. at 16 (emphasis added). The Court continued:

 
The danger in the logic which proceeds upon distinctions between a "stop" and an "arrest," or "seizure" of the person . . . is twofold. It seeks to isolate from constitutional scrutiny the initial stages of the contact between the policeman and the citizen. And by suggesting a rigid all-or-nothing model of justification and regulation under the Amendment, it obscures the utility of limitations upon the scope, as well as the initiation, of police action as a means of constitutional regulation.

 Id. at 17 (emphasis added). In United States v. Sokolow, 490 U.S. 1, 57 U.S.L.W. 4401, 104 L. Ed. 2d 1, 109 S. Ct. 1581 (1989), Drug Enforcement Administration agents stopped a defendant upon his arrival at the Honolulu International Airport, knowing, inter alia, that (1) he paid $ 2,100 for two airline tickets from a roll of $ 20 bills; (2) he traveled under a name that did not match the name under which his telephone number was listed; (3) his original destination was Miami, a source city for illicit drugs; (4) he stayed in Miami for only 48 hours, even though a round-trip flight from Honolulu to Miami takes 20 hours; (5) he appeared nervous during his trip; and (6) ...


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