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January 2, 1990

MARK V. LEVETAN, Defendant

The opinion of the court was delivered by: FLANNERY

 THOMAS A. FLANNERY, United States District Judge

 On October 1, 1989, police boarded an Amtrak passenger train while it was stopped at Union Station in Washington, D.C. Two officers went to passenger Mark Levetan's room, spoke with him, and without a warrant searched his luggage. The police arrested Levetan after finding illegal heroin in his luggage. Arguing that the search was unlawful, Levetan now moves the court for an order barring the prosecution from using the heroin as evidence against him when he is tried for the crime of possessing heroin that he intended to distribute. *fn1" The government opposes the motion to suppress. The court held an evidentiary hearing on the motion November 30, 1989, and now will grant it as stated below.


 Three witnesses testified at the hearing: Sgt. John J. Brennan of the Washington, D.C., Metropolitan Police Department (MPD), the defendant Mark Levetan, and the defendant's mother, Mrs. Patricia Anne O'Dere Levetan. The only evidence marked or introduced was a picture of Levetan's luggage.

 Brennan and the defendant both recounted the events leading to Levetan's arrest. Brennan has 18 years on the force. He has headed MPD's Narcotics Interdiction Unit since 1987. *fn2" In that time, he has taken part in 30-40 interviews with train passengers suspected of couriering drugs. A dozen of these took place when the traveller had reserved a sleeping compartment or "roomette." Taking together his statements on direct and cross-examination, Brennan testified to the following events.

 The sergeant worked with Amtrak police agent Calvin Burns on the day the defendant was arrested. Burns told Brennan that a Mark Levetan was travelling from New York City to Atlanta on Amtrak Train No. 19 and that Levetan had paid cash for a round-trip ticket. According to Brennan, when Burns phoned the call-back number Levetan had given Amtrak, he learned that the phone number was Levetan's, but the woman who answered the phone did not know where he was.

 Based upon this, Brennan and Burns boarded Train No. 19 during a short stopover at Union Station at about 6:00 P.M. and went to the "roomette" that Levetan had taken for the trip. Both officers were in casual clothes. Brennan testified that he knocked on the door and Levetan asked who was there. Brennan answered "Amtrak." Levetan then opened the door, and Brennan said he was a police officer and showed Levetan an identification folder. Brennan testified that the room was about six feet long and three feet wide. In this cramped, confined space were toilet facilities, Levetan's luggage, and a fold-down bed. Brennan said he asked if he could talk to Levetan, who agreed to this. The sergeant asked to see Levetan's train ticket and some type of identification. Levetan gave these to Brennan. Both were in Levetan's name. The sergeant asked Levetan how long he had been in New York, and the defendant answered a couple of days. This squared with what the officers had learned earlier. Although Levetan appeared calm when he first answered the door, Brennan said the defendant then became "tremendously nervous. He kept turning around in the compartment. He turned his back on me, reaching around, and with beads of sweat on his head." Transcript of Testimony of Sergeant John J. Brennan and Defendant Mark V. Levetan ("Tr.") at 7.

 According to the sergeant, Levetan then asked, "what is this all about, and I advised him that I was with the Police Department, Narcotics Branch, and we talked to people in an attempt to stop the flow of narcotics." Id.

 Burns unzipped the pouch and said he found "something," which was heroin. The officers then arrested Levetan and searched him. They found on the defendant other packets of a white powder containing a small amount of an opiate. In the grey pouch, the officers also turned up about $ 1900 in cash. Searching a blue camera case lying in the open in the roomette, the officers discovered a small amount of "green plant material which was field-tested positive for THC." *fn3" Tr. at 12.

 According to Brennan, about five minutes passed between when the officers knocked on the door and when they arrested Levetan. The sergeant said that he spoke to Levetan in a normal tone of voice all the while before the arrest. Brennan said he did not threaten or try to scare Levetan, nor make any promises to get him to agree to the search. Brennan testified that the officers' service weapons were out of sight the whole time. The sergeant also said that Levetan never changed his mind about agreeing to the interview or the search, nor gave any signs that he wanted the police to stop. Brennan said that he never told Levetan that he did not have to keep talking with the officers or that he could turn down the request to search the roomette and luggage. Brennan testified that he did feel, however, that his statement that he could only search the bag with Levetan's permission conveyed that Levetan could refuse to permit the search. Until Levetan's arrest, Burns stood in the roomette's doorway, half in and half out of the compartment. According to Brennan, Burns did not join the conversation between Brennan and Levetan. Brennan agreed that Burns was blocking the door, adding, "If somebody would try to run out of it, they would have to knock [Burns] over."

 Levetan's testimony both added to and contradicted Brennan's story in some places. In addition to the facts in Brennan's account, Levetan testified that after he asked Brennan what the interview was all about, he next questioned the officer whether the police were searching the other passengers on the train. According to Levetan, Brennan said yes, adding that they had already searched four or five others. The defendant also said that before searching the suitcases, Brennan asked Burns several times to hold the train and not to let it pull out of the station. For his part, Brennan said he could not recall Levetan asking at that point whether the officers were searching other passengers. The sergeant did say he thought Levetan might have asked the question later. Brennan also testified that to his knowledge he and Burns did not ask to have the train held, but he admitted that Burns might have done so.

 In contradiction to Brennan's account, Levetan said that he only agreed to let Brennan talk to him. Levetan testified that he did not answer when Brennan asked if he could search the suitcases. The defendant repeated several times that Brennan first searched the brown suitcase, found nothing, then the blue camera case, again without turning up drugs, and then searched the suitcase taken down from the rack. This last had the grey pouch with heroin. *fn4"

 The most important difference between the two witnesses' testimony concerns the exchange when Brennan wanted to search the suitcase on the rack. Levetan testified that Brennan saw the bag on the rack and asked if it was Levetan's. Levetan said it was, and Brennan asked if he could search that bag. According to Levetan, he told the officer, "'Only if you have to,' and [Brennan] took the bag down and asked me if it was locked, and I replied, 'yes.' . . . and he asked me to unlock the bag so he could search the bag, and at that point I asked him if it was necessary, and he replied, 'yes,' and I unlocked the bag, and he searched. . . ." Tr. at 39.

 Upon cross-examination, Levetan conceded that he never told the officers they could not search his bags. He also confirmed that Brennan and Burns were in plain clothes and that they did not yell or shout at him, nor draw their service weapons. Levetan said that after examining his driving license, Brennan returned it to him. The defendant could not recall whether the officer gave back the train ticket after examining it.

 Mrs. Levetan testified only about the telephone call she had with someone from Amtrak on the day Brennan and Burns arrested her son. She said she received a call from a person who identified himself as being with Amtrak. The person wanted to know if a Mark Levetan lived there, and she said he did. Mrs. Levetan said the caller also asked where the defendant was. She testified that she answered that she would not say where he was. According to Mrs. Levetan, she told the Amtrak agent that if he would leave a number, she would have her son get back in touch. The caller said this was not needed, and the conversation ended. Mrs. Levetan testified that she knew where her son was but she did not want to tell the caller this without learning the purpose of the call.


 Based upon the testimony given at the hearing, as recounted above, the court will make the following findings of fact. *fn5"

 First, in so far as it is uncontroverted, the court adopts Brennan's account of the events leading to Levetan's arrest. The sergeant has many years experience as a police officer, and he testified in convincing detail about what happened. He also refreshed his memory from police records made shortly after the arrest. Further, with the exception of the specific ...

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