Finally, the bulge allegedly visible in Malachi's pants is a vague and inadequate basis for this search. The disparity in the officers' descriptions of the size and location of the bulge, Buss' failure to detect it until Brennan pointed it out, Buss' admission that it did not resemble a weapon and that this was not a typical location for a gun, and the timing of its discovery leave the Court without confidence in the reliability of this factor.
B. The Terry Frisk
While the government seemed at the hearing to abandon argument of a valid Terry stop, the Court will examine this justification as well. A valid Terry frisk requires a finding that adequate reasons for suspecting criminal activity were established before the frisk, and that the frisk was in response to a reasonable apprehension of danger to the officers. Terry, 392 U.S. at 30. Based on the findings set forth above, these predicates were not satisfied.
The same factors which failed the probable cause analysis fail the lower level Terry inquiry. None of the facts noted by the officers prior to the stop made these suspects particularly worthy of scrutiny. See Reid v. Georgia, 448 U.S. 438, 440-441, 65 L. Ed. 2d 890, 100 S. Ct. 2752 (1980) (finding defendant described in similar terms to be consistent with "a very large category of presumably innocent travelers"). The first factor of any merit is the claim of a suspicious bulge, which the Court finds unreliable in the total context. Furthermore, many passengers with light luggage on a common carrier might have pockets full of belongings upon arrival at their destination. Without preliminary indicia of criminal activity, a nondescript bulge does not fuel suspicion of dangerousness. Compare United States v. Hill, 545 F.2d 1191, 1192-93 (9th Cir. 1976) (report of armed robbery in area, coupled with detection of a bulge in interview subject's clothing, supported Terry frisk); United States v. Gidley, 527 F.2d 1345, 1347-48 (5th Cir.) (prior report of crime, description matching suspect, and sighting of a bulge, together supported frisk), cert. denied, 429 U.S. 841, 50 L. Ed. 2d 110, 97 S. Ct. 116 (1976); United States v. Lindsey, 451 F.2d 701, 702-03 (3d Cir. 1971) (indicia of "extreme anxiety" and suspect's presenting multiple identifications to officer, in addition to bulge, supported frisk), cert. denied, 405 U.S. 995, 31 L. Ed. 2d 463, 92 S. Ct. 1270 (1972). As a result, Buss performed the frisk with scant reason for even an investigative interview, and without enough justification for the seizure which arose when he announced himself as an interdiction officer and stated that he wanted to search Malachi's belongings and person.
Even if the bulge were used as a justification, the search performed by Buss far exceeded the permissible scope of a Terry frisk. Such searches should be limited to the exterior of a suspect's clothing unless evidence of a weapon is detected. See id. 392 U.S. at 30. Buss stated unequivocally that as soon as he felt the contour of the bulge he knew it was not a weapon. His only purpose in searching further was to recover what he expected would be crack cocaine.
While this is a permissible function of a search incident to an arrest, it is unacceptable in the Terry context. United States v. Robinson, 153 U.S. App. D.C. 114, 471 F.2d 1082, 1089-90 (D.C. Cir. 1972) (en banc), reversed on other grounds, 414 U.S. 218, 38 L. Ed. 2d 427, 94 S. Ct. 467 (1973); Tinney v. Wilson, 408 F.2d 912, 915-16 (9th Cir. 1969); see also United States v. Short, 187 U.S. App. D.C. 142, 570 F.2d 1051, 1055-56 (D.C. Cir. 1978). Cf. United States v. Foster, 190 U.S. App. D.C. 16, 584 F.2d 997 (D.C. Cir.) (in context of full arrest, search of closed bag allowed only because of subjective fear that it contained a weapon), cert. denied 439 U.S. 1006, 99 S. Ct. 620, 58 L. Ed. 2d 682 (1978).
Because the Court finds that the search of defendant's pants was not legally justified, all evidence
seized as the fruit of that search and arrest must be suppressed. Wong Sun v. United States, 371 U.S. 471, 484-85, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963). The government argues, however, that even if the evidence recovered from Malachi's person is suppressed, the drugs found in the maroon tote bag carried by the juvenile are admissible still, since the juvenile "abandoned" the bag. The Court disagrees.
Standing to challenge governmental encroachment on Fourth Amendment protections vests in a person who has a "legitimate expectation of privacy in the invaded place." Rakas v. Illinois, 439 U.S. 128, 143, 58 L. Ed. 2d 387, 99 S. Ct. 421 (1978). This interest is examined not only in a subjective light, but also to assess whether the person's expectation is objectively reasonable as "an expectation that society is prepared to honor." California v. Ciraolo, 476 U.S. 207, 214, 90 L. Ed. 2d 210, 106 S. Ct. 1809 (1986). Once this expectation is recognized as valid, it will not be presumed abandoned without clear, unequivocal and decisive affirmative evidence of such an intent, the production of which falls to the party asserting abandonment. Friedman v. United States, 347 F.2d 697, 704 (8th Cir.), cert. denied, 382 U.S. 946, 15 L. Ed. 2d 354, 86 S. Ct. 407 (1965).
The Court finds that the government has failed to carry this burden.
The officers saw Malachi descend the bus steps in possession of the maroon tote bag, and then hand it to the juvenile. The bag was closed, and the defendant was never more than a few steps from it throughout the encounter. The fact that the juvenile set it down and walked away is inconclusive in light of his stated purpose of retrieving his ticket. Moreover, since the companion was a juvenile, Malachi may have had a greater subjective expectation of control over the bag's custodian, and thus the bag itself. These facts support "a reasonable inference that [Malachi] took normal precautions to maintain his privacy" vis-a-vis the maroon bag, Rawlings v. Kentucky, 448 U.S. 98, 105, 65 L. Ed. 2d 633, 100 S. Ct. 2556 (1980), quoted in Ciraolo, 476 U.S. at 211, and the privacy interest of travelers in their luggage is certainly an expectation society is prepared to honor.
The Court wishes to stress that it has considered the totality of the described circumstances in this case, with due deference to the considerable expertise of the police officers involved. Nonetheless, the Court finds that these officers, having begun a lawful investigation which ultimately might have yielded a lawful arrest, impermissibly attempted to "short-cut" the investigative process and conducted a search supported by little more than an "inchoate and unparticularized suspicion or 'hunch,'" Terry, 392 U.S. at 27. The Fourth Amendment requires more scrupulous government efforts to protect individuals from unjustified intrusions upon their privacy.
For the reasons set forth above, the Court grants defendant Edmond Malachi's Motion to Suppress Evidence and Statements. An appropriate order is attached.
ORDER - November 9, 1989, Filed
Upon consideration of defendant Edmond Malachi's Motion to Suppress Evidence and Statements; the government's opposition; evidence presented at a hearing on the motion November 6, 1989; the entire record; and for the reasons set forth in the accompanying memorandum, it is by the Court this ninth day of November 1989
ORDERED that defendant's motion is granted; and it is further
ORDERED that the use at trial of all evidence gathered as a consequence of the government's illegal search of the defendant is suppressed.