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UNITED STATES v. MALACHI

November 9, 1989

UNITED STATES OF AMERICA, Plaintiff
v.
EDMOND MALACHI, Defendant


June L. Green, United States District Judge.


The opinion of the court was delivered by: GREEN

JUNE L. GREEN, UNITED STATES DISTRICT JUDGE.

 I. FACTS *fn1"

 On August 25, 1989, four plain-clothes members of the Metropolitan Police Department's Narcotics Interdiction Unit were stationed at their frequent checkpoint, the Greyhound bus terminal at 1005 First Street, N.E., in the District of Columbia. At approximately 1:40 am., Sergeant John Brennan and Detective Edward Hansen observed two young black males alighting from a bus which had just arrived from New York City. *fn2" These two persons were Edmond Malachi and a juvenile companion, who is not a defendant in this action.

 The juvenile, who carried no luggage, stepped down from the bus just ahead of the defendant, who was carrying two tote bags, one blue and one maroon. Once off the bus, Malachi handed the maroon bag to the juvenile and the two proceeded to walk further into the bus terminal together. For unspecified reasons, Officers Brennan and Hansen followed at a distance of about 15 yards.

 Investigator William Buss, who was stationed further into the terminal, first observed the defendant after the suspects had walked a third of the way through the building. The investigator's attention was drawn to the suspects because of the officers following them. At this point Buss had no knowledge of the suspects except that they were being pursued by his colleagues. He, too, began to walk behind the suspects.

 In the course of traversing the terminal towards an exit, the defendant and the juvenile separated for a few moments, as the defendant stopped near a men's room and the juvenile approached a nearby Hardie's counter. The juvenile then turned and rejoined the defendant, and they proceeded to and through the First Street exit of the terminal. They did not appear to speak during their time in the terminal, which lasted no more than 30 seconds.

 About 15 yards outside the terminal, Officer Buss approached the defendant from his side, held out police identification, stated that he was a police officer and asked if the defendant would mind answering a few questions. At the same time, Detective Hansen approached the juvenile in a similar manner. Both suspects stopped at the requests without hesitation. Sergeant Brennan and Officer Curley, acting as "back-up," stood about 15 feet away from the two interview pairs, which were only one or two feet apart.

 Buss asked the defendant if he had just gotten off a bus. Malachi replied "yes." Buss asked where Malachi had come from. Malachi said "Baltimore." Buss requested the defendant's ticket. The ticket Malachi produced in response indicated a fare from New York City to Washington, D.C. Buss inquired where Malachi was going. The suspect said, "the hotel." Buss asked "which hotel." Malachi responded, "I'm going to meet some friends there." At this point, Buss claims, Malachi began to "stutter" and seemed nervous. Buss pressed on, "which hotel." Malachi replied, "I came here to see my aunt." Buss then further identified himself as being a member of the Narcotic Interdiction Unit and stated that the unit was looking for drugs entering the city. Meanwhile, Buss noticed that the juvenile had put down his tote bag and walked back into the terminal. One of the back-up officers yelled to Detective Hansen, "your man's getting away," and Hansen walked into the terminal after the younger suspect. *fn3"

 Buss then asked the defendant if he had any drugs or weapons with him. Malachi said "no." Buss next inquired if Malachi had "any problem" with the officer searching the blue tote bag. Malachi did not answer, but merely handed the bag to Buss, who set it on the ground. Buss asked again, "are you sure you have no problem?" and Malachi said simply, "go ahead." Buss knelt down on the ground, searched the blue tote bag, and found nothing. As Buss was doing so, Brennan moved closer and stood about a foot or two from Buss, who still was directly in front of Malachi.

 Following the unsuccessful search of the bag, Buss asked Malachi if he had "any problem" with the officer searching Malachi's person. Malachi replied "yes." The officer asked why this was so, and the defendant answered that he was "against drugs." Hearing this refusal of a body search, Brennan said, "Billy [i.e., Officer Buss], there's a bulge in his crotch." Both officers claim to have noticed a "bulge" the size of either a golf ball (according to Brennan) or a baseball (according to Buss) in the defendant's "crotch." *fn4" Buss stated that he had not noticed the bulge up to that point in the encounter because his attention was focused on the defendant's eyes.

 Buss proceeded to "pat-down" the area of the bulge. He assigned as his reason for the frisk a need to check for a gun. *fn5" He told the Court that as soon as he felt the "rocky" contour of the bulge he "knew" it was not a gun; he had felt this substance many times before, and it had "always" turned out to be "crack" cocaine. When Buss made this determination, Brennan and Curley surrounded the defendant and Brennan opened Malachi's pants and removed a package which contained a substance the police later determined to be cocaine base. Buss informed Malachi that he was under arrest. A subsequent search of Malachi's pants pockets revealed ...


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